Winika and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2487
•22 July 2022
Winika and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2487 (22 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3779
Re:Marcus Winika
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:22 July 2022
Date of written reasons: 8 August 2022
Place:Sydney
The reviewable decision is set aside and substituted
.......................................[Sgd].................................
Mr S Evans, Member
Catchwords
MIGRATION – Non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test by virtue of his “substantial criminal history” – whether there is “another reason” to revoke the mandatory cancellation – consideration of Ministerial Direction 90 – multiple domestic violence offences brought on by drug use – interests of minor children who are teenagers – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Cooley and Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 4561
FYBR v Minister for Home Affairs [2019] FCAFC 185Suleiman v Minister for Immigration & Border Protection [2018] FCA 594
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
8 August 2022
Marcus Winika (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the decision of the delegate will be set aside.
INTRODUCTION
The Applicant, who is 38 years old and a citizen of New Zealand, migrated to Australia with his mother, three brothers and two sisters in April 1997 when he was age 12.[1] His mother, father and siblings continue to reside in Australia.
[1] G2/66
On 12 August 2021 the Applicant was convicted in the Pine Rivers Magistrates Court of offences for which he was sentenced to 18 months imprisonment. On 9 September 2021 the Applicant’s visa was cancelled under s501(3A) as a delegate was satisfied he did not pass the character test owing to him having a substantial criminal record (the cancellation decision).
The Applicant requested revocation of the cancellation decision on 1 October 2021. On 3 May 2022 a delegate of the Respondent decided not to revoke the Applicant’s visa cancellation (the non-revocation decision). The Applicant was informed of the delegate’s decision by letter dated 2 May 2022. On 11 May 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
Section 501(6)(a) provides that a person does not pass the character test defined in s501 if they have a substantial criminal record. Section 501(7)(c) provides that a person who has been sentenced to a term of imprisonment of 12 months or more has a substantial criminal record. As the Applicant was sentenced to 18 months imprisonment on 12 August 2021 I am satisfied he does not pass the character test for the purpose of section 501CA(4)(b)(i) of the Act.
As he does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other considerations[2]. However, this does not mean that other considerations should be treated as ‘secondary’ or of inherently less importance than primary considerations. As noted by Colvin J in Suleiman v Minister for Immigration & Border Protection[3] in the context of Direction 65, a predecessor to Direction 90:
[23] 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…In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as a primary consideration or the consideration to be afforded the greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[2] Preamble of Direction 90, paragraph 8(3), (4)
[3] [2018] FCA 594
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
EVIDENCE
The Applicant’s evidence
The following account is based on accepted evidence of the Applicant..
In statements made as part of his personal circumstances form dated 24 September 2021[4] the Applicant writes that as the eldest child he was required to take care of his younger brothers and sisters. This responsibility harmed his education and required him to be independent when he was just 12 years old.
[4] G2/63
The Applicant became involved with a crowd of teens who were focused on partying. The Applicant claims to have lost his way until he met his first girlfriend ‘who later hurt, cheated and rejected’ him.[5] In approximately 2003 the Applicant met CS, who later became his wife.
[5] G2/73
Prior to separating in 2015, CS and the Applicant had three children together - a 19 year old son TE, a 17 year old daughter NA and a 14 year old son AI.
The Applicant and CS were determined to save and buy a home for their family. The Applicant began working long hours in order to meet their financial goals. In 2013, after the oil refinery where he was employed shut down, the Applicant commenced fly-in fly-out (FIFO) work at a remote gas plant. He was promoted to leading hand and then supervisor. His value to his employer was such that he was offered a role in the Middle East, which the Applicant declined.
He began working seven week shifts at the gas plant, during which he rarely saw his family but was able to speak to them regularly by phone. Largely on account of his work, particularly the amount of time he was required to spend away from home, his and CS’s relationship began to suffer and she indicated she wanted to separate from the Applicant.
One weekend in 2015 the Applicant flew home from the gas project for his regular break. He arrived at the airport where his family would normally be waiting to pick him up and take him home. They did not arrive. After waiting at the airport, the Applicant called his brother to pick him up and take him home. When he eventually arrived, he found the house empty as CS had left with their three children.
CS would not allow the Applicant access to his children for over a week, which he said caused him to behave ‘in a desperate way’[6] and to become angry and threatening towards her.
[6] G2/74
In a futile attempt to salvage his marriage, the Applicant quit his FIFO job to focus on mending his relationship with CS. When they eventually separated, the Applicant and CS were granted equal custody of the children. There is no evidence of this arrangement before the Tribunal, but it appears consistent with statements from the Applicant’s children.
In approximately 2019 the Applicant began a new relationship with AN, who he met through a friend. He has not seen AN since he was imprisoned but they have maintained communication with each other.
AN and the Applicant regularly used methamphetamine together. The Applicant described AN as an artist and a ‘hippie’ who was using drugs when they met and their drug use was what they had in common. Though the Applicant has ceased using drugs, he is uncertain if AN was still using but indicated she had expressed a desire and intention to cease doing so.
The Applicant is uncertain as to the status of his and AN’s relationship. He believes that AN’s ‘fairy tale’ expectation is that they resume their relationship should he be released back into the community. The Applicant, who was candid about their minimal contact since his imprisonment and the risk of returning to drug use should they resume their relationship, was more sanguine about the prospects of the relationship being maintained.
Witness statements
The Applicant did not call any witnesses to provide evidence in support of his application. When asked if he had sought statements from CS or AN, the Applicant conceded that he has asked both, but chose not to press either to provide statements in support. He told the Tribunal he was embarrassed to do so and did not ask anyone, including his family, to provide evidence at the hearing because he is ashamed. He claims that CS does not want him to be deported because it will have a negative effect on their children. He has provided statements of support from family members, friends, employers and colleagues which are detailed below.
Simon Winika, the Applicant’s father
Mr Winika is the Applicant’s father. In a letter of support dated 7 October 2021[7] he states he does not wish to see the Applicant deported to New Zealand. Though he does not condone the Applicant’s offending and does not seek to justify his offences, he is aware that the Applicant’s drug use was central to his offending, stating ‘the drug he was using has no boundaries has no limitations it does things to people that even they don’t realise what they are doing until it’s too late’.[8] He writes that he has seen it happen with others but having had it happen to a member of his family has given him an understanding of the drug’s impact.
[7] G2/76
[8] G2/76
Mr Winika considers that being incarcerated was the ‘best thing that could’ve happened’ to the Applicant and believes the Applicant also understands that. [9]
[9] G2/77
The Applicant was a hard worker who secured employment a week after leaving school in year 10. He began working in a scaffold yard as a labourer and then onto building sites. He obtained his licence for high risk works and ‘advanced tickets’ in scaffolding and rigging. He ‘started to gain the respect of his colleagues and management’ and was recognised for his ability to manage and organise work crews and jobs.[10]
[10] G2/77
Mr Winika has had ‘long conversations’ with the Applicant which have been emotional but positive.[11] He observes that the Applicant is determined not to make the same mistakes again.
[11] G2/78
Donna Anderson, the Applicant’s mother
Ms Anderson writes that she loves her son with all her heart. When she and the Applicant’s father separated 15 years ago the Applicant ‘took it hardest’ but had always ‘been there’ to support his parents and siblings. [12]
[12] G2/79
When the Applicant’s marriage ended ‘everything went downhill’ and ‘he went down the wrong path’. She writes that the Applicant will ‘always put his kids first regardless of what he was going through emotionally’. Ms Anderson depends on the Applicant to manage his siblings and is ‘the only one’ she can rely on when she cannot cope with her twin sons. She believes the Applicant ‘is a good loving and caring son’ and it would break her heart to have him deported to New Zealand.
Lilly-Ann H Winika, the Applicant’s sister
Ms Winika writers that she, her siblings, the Applicant’s children and his 8 nieces and nephews have a very ‘tight’ relationship with the Applicant.[13] She confirms that the Applicant took care of her and her siblings when they were growing up, including making their school lunches and getting them to school on time. Now that they are older, he continues to take an active interest in their wellbeing.
[13] G2/81
Ms Winika’s four children – three girls and a boy - ‘absolutely love’ the Applicant ‘who is more of a father figure to [her] own children than their own father’. She writes that the Applicant was present for their first day of school and ‘every award they ever received’.
The Applicant’s absence has been tough for her and her children and it is the first year he has missed important family occasions including her daughter’s sport and son’s graduation. People in the community also miss the Applicant could be relied upon to provide help when needed. She wishes to have the Applicant home as soon as possible.
Sharlene Roberts, for the Whanau family
Ms Roberts writes that the Applicant is a trustworthy and loving person who bore many responsibilities when a child. She observes that ‘somewhere along the way’ the Applicant lost his way.[14] She does not condone his offending but supports him staying in Australia.
[14] G2/82
Rhonda and Pihama Green
Ms Green writes that she has known the Applicant and his family for 25 years and that he has been ‘an amazing role model’ who ‘stepped up’ to help his mother following her separation from the Applicant’s father.[15] Mr Green and the Applicant worked together, and she considers him a very hard worker who ‘always turned up for work and [showed] great respect to everyone on the job site’. Whilst the Applicant has made ‘stupid decisions’ which sent his life on a ‘downward spiral for a while’, she has no doubt that with the support of his family he will be able to ‘turn his life back around’ and onto a more responsible path. She also states his children love and need him and he is a good man that just made some mistakes.
[15] G2/83
Yvonne Knowles
Ms Knowles is a certified counsellor who was introduced to the Applicant by one of her sons. She writes that he is a dedicated sports coach with a ‘natural instinct to roll up his sleeves’ and assist when disaster strikes, as he did during the Morayfield floods.[16] She recalls the Applicant’s compassion as demonstrated by his efforts to assist colleagues who were suffering with social isolation for which he would on occasion seek advice from Ms Knowles.
[16] G2/85
Te Waaka Martin, former employee
Mr Martin has known the Applicant for approximately 10 years and for the past six years he has been the Applicant’s ‘intermittent’ employer. He observes the Applicant is highly regarded amongst his peers and a skilled worker with a positive attitude. Mr Martin believes it is in the best interests of the Applicant’s parents, siblings and children that he remains in Australia.[17]
[17] G2/87
Tony Stott, colleague
Mr Stott has known the Applicant for approximately 15 years and describes him as a respected and helpful colleague with a jovial personality. He would be prepared to assist the Applicant in securing employment should he have his visa reinstated.[18]
[18] Character Reference Letter of Tony Stott, dated 6 June 2022
DISCUSSION
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 paragraph 8.1(2) requires decision-makers to 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.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s criminal history is recorded in an Australian Criminal Intelligence Commission report dated 10 September 2021 and includes the following offences:[19]
[19] G2/96-99
·On 12 August 2021 the Applicant was convicted in the Magistrates Court of Queensland of two counts of Common assault – domestic violence offence, wilful damage, contravention of domestic violence order, possession of dangerous drugs, obstruction of a police officer, and nine counts of Contravention of domestic violence order (DVO) (aggravated offence). The Applicant was sentenced to a head sentence of 18 months’ imprisonment.
·On 4 August 2020 the Applicant was found guilty in the Caboolture Magistrates Court of breaching the court order imposed on 4 May 2016, two counts of failing to appear and contravening a domestic violence order for which he was fined $1,550.
·On 25 July 2017, the Applicant was convicted in the Caboolture Magistrates Court of failure to appear in accordance with undertaking dated 24 March 2017 for which he was fined $750.00.
·On 8 December 2016 the Applicant was convicted in the Caboolture Magistrates Court of failure to appear in accordance with undertaking dated 9 October 2016 for which he was fined $300.00.
·On 4 May 2016 the Applicant was convicted in the Caboolture Magistrates Court of three counts of contravening a domestic violence order, contravening a direction or requirement of police and stealing and sentenced to 3 months imprisonment suspended for 18 months.
·On 12 October 2015 and 28 September 2015 the Applicant was found guilty in the Brisbane Magistrates Court of contravening a direction or requirement of the police and a DVO respectively. No conviction was recorded, and the Applicant was fined a total of $550.00.
·On 26 August 2004 the Applicant was found guilty in the Brisbane Magistrates Court of causing a public nuisance. No conviction was recorded and the Applicant was fined $300.00.
·On 20 March 2003 the Applicant was found guilty in the Brisbane Magistrates Court of unlawful detention and confinement and common assault. No conviction was recorded and the Applicant was sentenced to probation for 18 months.
·On 16 September 2002 the Applicant was convicted in the Petrie Magistrates Court of breaching a bail undertaking and was fined $200.00.
·On 22 July 2002 the Applicant was convicted in the Petrie Magistrates Court of possessing dangerous drugs and breaching a bail undertaking for which he was fined $350.
The Applicant has also committed traffic offences for which he appeared in Court including multiple charges of driving without drivers license and a charge of driving with a medium level blood alcohol concentration on 24 May 2015.[20]
[20] Respondent’s bundle of summonsed materials, 94-95
The sentencing remarks of Acting Magistrate Walker on 4 May 2016 acknowledge the seriousness of the Applicant’s contravention of the domestic violence order. In sentencing the Applicant to 3 months imprisonment suspended for 18 months, the court took into account the circumstances of the offending which included harassing the aggrieved via text messages and the nature of the language used by the Applicant.[21]
[21] G2/105
In sentencing the Applicant in August 2021 Magistrate Hennessy observed that the Applicant had a history of breaching domestic violence orders which she took into account in her sentencing. She stated that breaching domestic violence orders and committing assaults against a partner were ‘very serious matters’ and noted the Applicant had breached previous domestic violence orders in 2015, 2016 and 2020.[22] She also detailed some of the offences, stating in part:
There are three offences of breaching the domestic violence order which related to you going to the house. The least serious of those – 19th of November, you attended the residence without permission. On the 19th of January this year, the aggrieved saw you sitting in her front yard. And more serious, on the 9th of March this year, in conjunction with the wilful damage, that you were banging on the garage door to get in and ended up breaking a sliding glass door whilst you were at the property.
The other offences, whether they are breach of domestic violence matters or the common assaults, relate to you attending at the property and assaulting the aggrieved in some way. Some of the – a couple of the offences – the two common assaults are quite serious in relation to the violence that was perpetrated on the aggrieved. On the 3rd of January this year, whilst the aggrieved was on the bed, you punched her in the face six or seven times and she had to flee the house. On the 20th of December last year, she was asleep and you entered the house and jumped on her, stamping on her legs and her torso and punching her in the face. You have also, in the stealing charge, attended at the house and stolen some keys.
And there have been other breaches associated with that series of offences on the 20th of December for you being at the residence and then sending Facebook messages afterwards. In relation to the November 2020 matter, you were at the address and damaged property. That was charged as a breach of domestic violence. And in October, you had attended at the address without permission, had a shower and then when the aggrieved rang triple 0, pushed past her as you were leaving the house because she was on the phone to the police – and knocked the phone from her hand, which then fell on to some concrete and was damaged.[23]
[22] G2/101
[23] G2/101-102
The Applicant was asked about these offences at the hearing. Whilst accepting responsibility for the offences he told the Tribunal that the DVO breaches were in part caused by some uncertainty as to the exact terms of the order. Pressed for more detail he conceded he was aware that the DVO was in place but was of the understanding he was able to attend AN’s house should he be invited by her to do so.
In mitigation, Magistrate Hennessey also noted the Applicant’s guilty plea and that there had been a gap in the Applicant’s criminal history between 2005 and 2015:
I do take into account, however, that in general there is a gap in your criminal history between 2005 and 2015. It seems since that time and shortly before the commencement of this relationship, you started using methylamphetamine and cannabis. And that that has played some role in your behaviour as the relationship was breaking down or had broken down. I do take into account in relation to your personal circumstances that you are a New Zealand citizen and therefore, any terms of imprisonment could impact on you heavily; that you do have a close family and they are here today to support you; that you have had references tendered on your behalf, including for – from your employer for your work situation; and also, your acknowledgement through your solicitor’s submissions that you need to deal with your drug issue and other issues. And that you are accepting that you will be on parole for a period of time to be supervised to work on that rehabilitation.[24]
[24] G2/101
The Tribunal does not have the benefit of sentencing remarks or the police account of the events which led to the 2003 conviction of unlawful detention and assault. Asked to provide details of the offending, the Applicant gave evidence that the victim was his then girlfriend, who he had found at a male friend’s house, causing him to be upset and ‘broken hearted’. He and the victim began arguing in the car whilst he was driving. The victim told him to stop the car but he refused, prompting her to move the automatic gear shifter from drive into park. He claims to have then stopped the victim from leaving the vehicle. Later both he and the victim alighted the vehicle and continued arguing, which included both of them pushing and shouting.
The Applicant has also provided false and misleading information to the Department by not disclosing prior criminal offending on multiple occasions when he arrived in Australia in January 2003, June 2011 and October 2014.
Conclusion as to the nature and seriousness of the offending to date
The Applicant’s offending history is extensive and dates back to 2000 and he has appeared in court on 15 occasions. The frequency of the Applicant’s offending is of concern, as is the nature of his offending which includes violent crimes and domestic violence, both of which the Direction states are to be viewed very seriously.
The Applicant has been sentenced to a term of imprisonment on two occasions. He was first sentenced to a term of imprisonment in May 2016 when he received a three-month suspended sentence for three counts of contravention of a domestic violence order. On 12 August 2021 he was sentenced to 18 months imprisonment, of which he was required to serve 156 days. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.
The August 2021 convictions include an offence of obstruct police officer and the Applicant has been convicted of failing to appear in accordance with bail acknowledgements on two occasions. I consider that these offences, combined with his lengthy criminal record, are indicative of a disregard for authority and the law. Further, his driving record indicates a willingness to disregard the safety of the Australian community for his own benefit.
I note that the Applicant has been convicted of crimes which are viewed extremely seriously by the Australian government and the Australian community. The Applicant’s offending has also increased in seriousness over time, and he has frequently offended since 2015.
Having regard to the Direction, I find that the nature and seriousness of the Applicant’s conduct must be regarded as serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 available information and evidence on the risk of the non-citizen reoffending, and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The Respondent contends there is a real risk that the Applicant will engage in further criminal or other serious conduct. Should the Applicant engage in further criminal or other serious conduct, I accept the Respondent’s proposition that individuals in the Australian community may suffer physical and psychological harm. Should the Applicant commit further traffic offences, there is a risk to other road users. Further offences involving damage to property would mean economic loss for members of the community.
Regarding the likelihood of the Applicant engaging in further criminal or other serious conduct, the Applicant has expressed considerable remorse for his offending. Detention centre records confirm the Applicant attended two anger management sessions and five drug and alcohol sessions, in addition to regularly attending mental health counselling.
The Applicant expresses confidence that he will not reoffend should he be released back into the community. He claims that being imprisoned has been a positive for him, teaching him a valuable lesson and affording him the opportunity to reflect on his behaviour with a clear mind unaffected by drugs. Going to jail was his ‘rock bottom’ but he was able to focus on his health and regain a sense of self-worth.
The Applicant gave evidence that his offending has in large part been due to his failure to manage his emotions and feelings of rejection when intimate relationships have broken down. To address these issues he has worked on being more open whilst in prison. He is aware that he needs be more accepting and prepared to walk away when relationships do not work out.
The courses he has undertaken have helped the Applicant appreciate the importance of talking to other people about his problems. Previously he kept his emotions bottled up and he now understands, though experience, that talking helps. He said the counselling he has completed whilst in immigration detention has shown him the benefits of one-on-one counselling. He claims to have contacted Anglicare to arrange continued support should he be released back into the community, though there is no verifiable evidence of him having done so.
Regarding his drug use, the Applicant gave evidence that he last used drugs shortly before he was arrested on 9 March 2021. As mentioned, he has since undertaken courses and counselling in order to deal with his issues. He has also reflected on the role of drugs in his offending and come to understand that drug use effects both him and those he cares for.
The Applicant considers that since 2015 his drug use, particularly methamphetamine, has contributed significantly to his offending. Prior to 2015, the Applicant used drugs socially but in moderation. The nature of his work and the requirement to undertake regular drug testing when he was working as a FIFO worker placed a hard limit around his capacity to use drugs.
He claims to have entered a ‘downward spiral’ after separating from CS in 2015. Notably, this prompted him to resign from his FIFO job, freeing him of the requirement to undertake regular drug tests at work and allowing his drug use to snowball. He told the Tribunal that he ‘unravelled’ and lost perspective. His drug use caused him to isolate further and prevented him from reconnecting with his family.
Conclusion as to the protection of the Australian community
There is no doubt that the Applicant’s offending over a period of 20 years is concerning. Whilst acknowledging the link between his drug use and the increased frequency and seriousness of offending in recent years, the Applicant has engaged in limited rehabilitation. The possibility of re-entering a relationship with AN - with who he had a history of drug use and was the victim of some of his offending - is of particular concern as it may place her at risk should he reoffend and compromise his stated ambition of remaining drug free.
I accept the Applicant’s remorse for his offending as genuine. However, it should be acknowledged that when giving evidence in relation to his offending, the Applicant focused on the emotional toll relationship breakdowns had on him. His frequent reference to his own anguish or heartache at developments between he and the victims of his domestic violence related offences is taken to indicate he lacks some insight into his offending and in particular the impact on the victims.
Nonetheless, I take into account that the Applicant has shown a desire to improve upon himself. I accept he is genuinely enthusiastic about the counselling he has received and the prospect of continuing to do so should he be released back into the community.
In the decade between 2005 and 2015 the Applicant did not offend, and this lends considerable weight to his contention that he has the capacity to abide by the law. I also take into consideration that should he be released back into the community he will do so after serving his first term of imprisonment. Therefore, I accept that having been imprisoned and his visa cancelled would be a salutary experience for him.
Overall, I consider there is a low to moderate chance that the Applicant will reoffend. Given the nature of the Applicant’s previous offending, which notably includes crimes of violence directed towards women, this primary consideration weighs heavily in favour of not revoking the mandatory cancellation decision.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 sub-paragraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
Family violence is defined in Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The sentencing remarks from both 2016 and 2020 and the police facts reports confirm that the Applicant has committed acts of domestic violence against three partners. The acts of domestic violence include assaults, physically destroying property and making threats and taunts.
Of particular note, on 20 December 2020 whilst AN was asleep he was found to have stamped on her legs and torso and punched her in the face causing her to run and lock herself in the bathroom.
Domestic violence is required to be viewed cumulatively and in the Applicant’s case it is particularly serious as it extends over time and involves different types of domestic violence and reoffending.
I take into account that the Applicant has accepted responsibility for the offending and does not dispute the harm and fear he caused the victims. I acknowledge his acceptance of responsibility for his past behaviour and has made efforts to address the factors which contributed to his offending including through anger management and domestic violence courses combined with counselling. However, I am mindful he only commenced this treatment after entering immigration detention.
I accept the Applicant’s evidence that the family violence offences occurred after the separation from his wife and in the period during which he was using drugs heavily, but this does not excuse his behaviour.
The persistent and repeated contravention of domestic violence orders also reflects poorly on the Applicant. Whilst he has stated he was uncertain about the requirements of the orders, and specifically he was of the understanding he was able to attend AN’s home whilst in her presence provided she invited him to do so, this does not mitigate the seriousness of the extensive and persistent breaches. He has been subject to numerous orders over the years and the conditions were clearly set out in relation to the order made to protect AN.
For these reasons, this primary consideration weighs heavily against revocation of the delegate’s decision.
PRIMARY CONSIDERATION 3 – BEST INTERESTS OF THE MINOR CHILDREN IN AUSTRALIA
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant has three children, two of whom are minors, his daughter NA who is 17 years old and second son AI, who is 14. At 19 years of age TE is no longer a minor, but his letter in support of the Applicant details the Applicant’s role in the lives of his minor children.
TE writes on 17 June 2022 that the Applicant always prioritised the needs of he and his siblings and taught them ways to work around problems. He recalls that the Applicant worked hard to provide for his children. After the Applicant and CS separated, TE continued to live with the Applicant. TE writes that like his father, he is the eldest sibling and shares many traits with the Applicant.
In a separate reference dated 20 June 2022 the Applicant’s daughter NA writes on behalf of her and her two siblings that their father has always been involved in their lives and has been particularly supportive of their sporting pursuits. Without him they feel there is ‘a huge piece missing in all [their] lives’ and they need his presence and support. She writes that the Applicant is a great father who loves his children and the rest of his family.
The Applicant gave evidence that between 2016 and 2021 he had care of all three children every second week. As the children became teenagers, they gained more autonomy and would stay with him regularly though not as often as he would have liked. After separating from CS, the Applicant made sure to continue living in proximity to his children and their school and maintained a bedroom for each of them at his house. Prior to being incarcerated, the Applicant was living with his mother and his children would visit and stay. TE continues to reside with the Applicant’s mother.
Whilst in detention the Applicant’s children have visited him weekly and he speaks to each of them daily.
The Applicant also has seven nieces and nephews who he saw often until he was incarcerated. When he was a FIFO worker, he saw his nieces and nephews each time he returned to Brisbane at a weekly catch-up his extended family has each Sunday. The Applicant claims that his nieces and nephews have visited him regularly whilst he has been held in immigration detention. One niece, who is pregnant, is particularly close to the Applicant. Whilst he accepts that he does not have a parental role in the lives of his nieces and nephews, he is a very involved uncle.
The Applicant gave evidence that the father of his sister’s four minor children is a poor role model for the children so he steps in to provide guidance and support for them. Up until 2020 he provided occasional financial support for his sister and her children. The Applicant’s sister has provided a statement in which she confirms that all her children ‘absolutely love’ the Applicant who ‘is more of a father figure to [the children] than their own father’. She writes that he was heavily involved in her children’s school events and encouraged her son to play touch football and supported him in his training.[25]
[25] G2/81
AN is mother to a 10 year old boy with autism. The Applicant gave evidence that AN’s son asked after him after he was imprisoned but concedes he does not have a close or parental role in his life.
The Respondent concedes that the interests of the minor children weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa. However, it is submitted that limited weight should be afforded to this consideration as he has been either incarcerated or held in immigration detention since March 2021. Further, the Applicant himself concedes that his children have become more independent now that they are teenagers. Although sub-paragraph 8.3(4)(b) requires me to consider the length of time until the child turns 18, that is just one of the considerations I have to consider when making a decision on this consideration.[26]
[26] Cooley and Minister for Immigration,Citizenship, Migrant Services & Multicultural Affairs [2020] AATA 4561, [105]-[111]
The Respondent also submits that whilst the Applicant was working FIFO he was away from home for long periods at a time, which may have limited his involvement in the lives of his children.
I accept the evidence of the Applicant that he loves his children and his nieces and nephews. I am satisfied that he is genuinely involved in their lives and seeks to play a positive role in their development. I am also satisfied that his nieces and nephews depend on the Applicant to provide emotional support and play a parental role which, according to his sister, their biological father does not provide. Furthermore, it is clear that despite being already teenagers, his two minor children retain a very close relationship with their father and rely on him for guidance and support. The close and supportive relationship the Applicant has with his children, nephews and nieces means that it would be expected to have a significant negative impact on them should he be returned to New Zealand.
I am also satisfied that until very recently the Applicant contributed to financially supporting his four minor nieces, and the Applicant worked hard to provide for his family, including the FIFO work he engaged in prior to the breakdown of his marriage. I consider that the Applicant is likely to play a positive role not only to his children, but also his nieces and nephews in the future should he refrain from taking drugs.
The Applicant gave evidence that even when he was regularly using drugs, he chose not to do so in the presence of children. His observation that children can sense when adults are affected by substances demonstrates some insight into the need to protect children from exposure to such behaviour. There is no evidence that the Applicant had harmed his children, nephews or nieces in any way. However, I note that his offending has included family violence against the mother of his children, and a police facts sheet records that on 8 April 2016 the Applicant verbally abused CS in the background whilst she was speaking to their son on the phone.[27]
[27] Respondent’s bundle of summonsed materials, 61
Having taken into account all the evidence referred to, I am satisfied that that it is in the best interests of the Applicant’s minor children and the interests of the Applicant’s nieces and nephews that the cancellation of the Applicant’s visa is revoked.
PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[28] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[28] [2019] FCAFC 185
The Direction in sub-paragraph 8.4(2) lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. The Applicant’s multiple offences against his partners and his obstruction of police officers fall within this category, as the Direction under sub-paragraph 8.4(2)(c) and (d) respectively recognized women as particularly vulnerable members of the community and offences against government officials and representatives in the course of performing their duties as conduct that by their nature should both weigh significantly in favour of the cancellation his visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
OTHER CONSIDERATIONS
I now turn to considering the other relevant considerations set out in paragraph 9 of the Direction.
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
The Applicant gave evidence that he was confident he could secure paid employment in New Zealand and that he has extended family who may be able to provide him with temporary accommodation.
I take into account that the Applicant has not lived in New Zealand since age 12 and could be expected to face some difficulty re-establishing a social and support network in that country. However, he would not face any language difficulties and would have access to the same healthcare and social security as other citizens of New Zealand.
Overall, this consideration weighs in favour of revocation, but is afforded limited weight for the reasons set out above.
Ties to the community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia since he was a child and given the period of time he has spent in Australia he is entitled to some weight under sub-paragraph 9.4.1(2) of the Direction.
The Applicant has lived in Australia for over 26 years and has a large number of close family connections including his parents, siblings and adult son, an aunt, 8 nieces and nephews and two cousins in Australia. His family, friends and former colleagues have all written in support of his application and in doing so confirmed the negative impact his removal would have on them.
The written references provided by his family and friends speak to the high regard in which he is held and indicate that many of his family members rely on the Applicant for practical and emotional support.
The Applicant has been gainfully employed for most of his adult life. Although after 2015, the evidence suggests that his employment was less consistent, I am satisfied that certainly through until 2015, the Applicant was making a significant positive contribution to the Australian community through his employment.
I am required by the Direction to take into account that the Applicant arrived in Australia in 1998 and began offending shortly after in 2000. This weighs against the Applicant, but less so on account of his age at the time. I also note that between 2005 and 2015 there is no evidence the Applicant committed any offences, which indicate a proven capacity and ability to abide by the law.
Overall, I find that the Applicant has strong ties to Australia, notably his extended family members, and this consideration weighs heavily in favour of revocation.
CONCLUSION
The Applicant has a long offending history which includes driving offences, multiple breaches of DVOs and common assault. He has appeared in court on 15 occasions over an extended period of time and was ultimately required to serve a term of imprisonment, for which his visa was cancelled.
The Applicant’s offending history is mitigated by his demonstrated ability not to offend between 2005 and 2015. I am also satisfied that being imprisoned and then having his visa cancelled has been a salutary experience for him and he has taken the opportunity to break the cycle of drug use and reflect on his offending. I accept his claims to have reformed are genuine, but his resolve to do better has yet to be tested in the community and must be viewed against a record of repeat offending and as such the risk of reoffending remains. For these reasons, the protection of the Australian community weighs against the Applicant.
The Applicant’s offending, which includes domestic violence against his former partners has been frequent and increasingly serious, and the primary consideration relating to family violence weighs against revocation.
The Applicant’s claim to be a loving father to his two minor children and a supportive and engaged uncle to his nieces and nephews is accepted. The primary consideration of the interests of minor children in Australia weighs heavily in favour of revoking the delegate’s decision.
Through consistent offending over an extended period of time, the Applicant has betrayed the trust of the community, whose expectations weigh against revocation.
It is apparent that the Applicant had given consideration to how he might re-establish himself in New Zealand and was optimistic that he would be able to utilise his work experience to obtain employment. Nonetheless, he would not have access to the support network he has in Australia. This consideration weighs in favour of revocation, but is afforded less weight on account of his familiarity with New Zealand and the Applicant’s skills.
The evidence supports the Applicant playing a meaningful role in the lives of his family and friends. Given the number of individuals with whom the Applicant maintains a relationship with, and the strength and duration of those connections, this consideration is afforded significant weight in favour of revoking the mandatory cancellation of his visa.
I consider the determinative issues in favour of the Applicant are the best interests of his minor children and the strength of his ties to the Australian community. In light of the seriousness nature of his offending, this is a finely balanced decision in which the evidence and considerations outlined in the Direction weigh marginally in favour of the cancellation of the Applicant’s visa being revoked.
For these reasons, I am satisfied that the totality of the evidence and considerations in Direction 90 support a finding there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons stated above, the reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
....................................[Sgd]....................................
Associate
Dated:
Date(s) of hearing: 12 July 2022 Applicant: In person Solicitors for the Respondent: Lauren Hargrave
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