XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 441
•2 March 2020
XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 441 (2 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8428
Re:XNBW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:2 March 2020
Date of written reasons: 5 March 2020
Place:Sydney
The decision under review is affirmed.
.............................[Sgnd]............................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali and Minister for Home Affairs [2018] AATA 2512
FYBR v Minister for Home Affairs [2019] FCAFC 185
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
R v J.T. [2007] NSWDC 377
Slynt & Slynt [2017] FamCA 812
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
WRITTEN REASONS FOR DECISION
Senior Member B J Illingworth
5 March 2020
INTRODUCTION
This matter relates to an application for review filed by XNBW (“the applicant”) on 18 December 2019. The decision the applicant seeks to review is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the respondent”) dated 9 December 2019, not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa (“visa”).
At the hearing before the Tribunal, the applicant appeared in person and was unrepresented. The respondent was represented by Ms Dale Watson of Australian Government Solicitor.
BACKGROUND
The applicant is a 42 year old citizen of the United Kingdom. He was born in August 1977 in Glasgow, Scotland.
The applicant arrived in Australian in 1980 at three years of age. He was granted a Class BF Transitional (Permanent) visa.
On 5 April 1993, at the age of 15 years, the applicant appeared before the Children’s Court for his first offence, stealing. In the same year, he was also convicted of possessing a prohibited drug, resisting police and possession of an implement capable of entering conveyance. He had a number of other appearances before the Children’s Court.
Thereafter, as an adult the applicant appeared repeatedly before various courts and was dealt with for a variety of criminal offences. His latest conviction, on 25 February 2019, was for destroying or damaging property (DV). The applicant received a five month sentence of imprisonment.
On 10 May 2019, the applicant’s visa was mandatorily cancelled by a Ministerial delegate under s 501(3A) if the Migration Act 1958 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and he was serving a term of imprisonment of a full-time basis.[1]
[1] Exhibit A, G17, pages 96 – 102.
The applicant made representations seeking revocation of the mandatory visa cancellation decision including Revocation Request,[2] Personal Details Form,[3] Personal Information Form[4] and Personal Statements.[5]
[2] Ibid, G7, pages 51 to 54.
[3] Ibid, G8, pages 55 – 75.
[4] Ibid, G9, pages 76 – 78.
[5] Ibid, G10, pages 79 – 80; G11, page 81.
On 6 December 2019, the Minister’s delegate decided not to revoke the original decision. The applicant was notified of this decision on 9 December 2019.[6]
[6] Ibid, G2, pages 8 – 10.
On 18 December 2019, the applicant lodged an application for review of the delegate’s decision to the Tribunal.[7]
[7] Ibid, G1, pages 1 – 7.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the applicant made representations in accordance with the respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the applicant passes the “character test”; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is “another reason” why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The applicant concedes that he does not pass the character test. At the hearing before the Tribunal, the respondent relied on the sentence of imprisonment of 12 months dated 30 August 2016, for the offence of contravene Apprehended Violence Order (“AVO”) and that he was servicing a five month sentence of imprisonment dated 25 February 2019 for destroy or damage property (DV). I am satisfied that the applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
MINISTERIAL DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
The Tribunal will now summarise the oral evidence from the applicant, his uncle, JH, his aunt, JC, and former partner, CH. The Tribunal will then address each of these considerations.
THE EVIDENCE
The Applicant’s Evidence
The applicant was born in Scotland in August 1977. He came to Australia aged three years and has lived in Australia for almost 40 years.
The applicant’s parents have remained in Australia and are alive. They divorced and his father has re-married and now lives in Coffs Harbour. The applicant described his relationship with his father as ‘off and on’ and said they were both sorry for things they have done to each other in the past. He now sees his father occasionally. They speak on the phone and his father came to see him in detention. His father suffers from mental health issues and has attempted suicide a number of times, the last occasion being just before Christmas 2019.
The applicant has little to do with his mother. He speaks to her on the telephone approximately once a year. The applicant telephones her, she does not initiate contact. The applicant said he rang her the day before the hearing. His mother said she could not get to the hearing; there was nothing she could do, “good luck” and “see you later”. She lives interstate. The applicant has not seen her in over 18 years, since the birth of his first son. The applicant said that she had moved on. His children have had no relationship with his mother. She has never sent birthday presents or cards to the children.
The applicant said that his mother and father were both alcoholics. After his parents separated he lived with his father. He said that his father would drink a bottle of whiskey at least every second night and sometimes every night. The applicant and his father became estranged when the applicant was about 16 or 17 years of age. He said that on that occasion his father tried to assault him. The applicant said he got the upper hand; he then went to the police station and stayed with friends. He has renewed contact with his father over the last 15 years.
Offender History
The applicant gave evidence about his offender history which started when aged approximately 14 or 15 years in the Children’s Court and continued through to 2019.
In 1993, the applicant first appeared before the Children’s Court for offences of stealing, possessing a prohibited drug, resisting arrest and possession of implements capable of entering a conveyance. He said that the drug was marijuana which he had started using when aged about 13 years. By the time he was aged 16 to 17 years he was using amphetamine. He said that he was hanging out with the ‘wrong sort of people’.
In February 1994, he was again dealt with in the Children’s Court for illegal use of conveyance, possessing implements capable of entering conveyance and being an unaccompanied learner. He described himself as being ‘anti-authority and very rebellious’ during this stage of his life. He said that he thought his behaviour was hurting his father and that he was probably using drugs the time.
In September 1994, the applicant appeared in the District Court jointly charge with two others for robbery with wounding (two counts) and robbery with striking. He was still a juvenile at the time of the offence. His co-offenders were a juvenile, GGF, and an adult, MTG, the latter being about 10 years his senior. The applicant was sentenced to a total of four years imprisonment, the initial term of one year to be served in juvenile detention and at the expiration of that term the applicant was to be eligible for parole.
The Tribunal had before it of the sentencing remarks of His Honour Judge Moore dated 8 September 1994. [8] His Honour outlined the factual circumstances of the offending which in summary was as follows:[9]
At 3am on 22 February [M] opened the door to a knock from [GGF]. [GGF] then pushed him back into the premises and violence ensued and the other two men followed [GGF] in. There was a long period of violence which occurred from then until round about five or five-thirty, that being the time when the three men left.
Apart from some resistance briefly from [M] who was then subjected to the violence of the three men without resistance, and apart from a punch which was thrown by [R]? with some effect when he was assaulted, the violence was completely unreciprocated for that period the three prisoners subjected the three victims in the form of punching and kicking. [GGF] had a jemmy bar wrapped in a towel with which he assaulted [M] and there were assaults committed by the others by kicking and punching. [The applicant] was armed with a small kitchen knife and [MTG] with a large kitchen knife and with those knives they threatened their victims and at least one of them thought that he was in grave danger, that· the threats would be carried out although in fact there was no stabbing.
Early in the course of the violence each of the victims was tied and assaulted whilst tied up. The prisoners accused two of them of being homosexual and said that they would rape them and impale them on a broom handle, glass bottles, and threatened to kill them. The house was ransacked and the prisoners demanded drugs and money, none of which was forthcoming, and [GGF] took the keycards of each of the victims to a bank in Bathurst but was unable to obtain any money and he returned to the premises where the other two were keeping guard on the three victims and finally they took the items which I have just mentioned which are named in the charges.
The three victims were subjected to a persistent, horrifying, violent course of conduct over a period of two or two and a half hours. The prisoners particularly selected [M] and [G] who were the two men whom they accused of homosexual behaviour and there was some lesser violence perpetrated on [R].
[8] Exhibit B, pages 154 – 171.
[9] Ibid, pages 154 – 155.
After outlining the injuries suffered by each victim, His Honour then said ‘[t]hat in brief summary sets out a period of disgusting violence committed on the three victims’.[10] His Honour noted that the time of the offending applicant was aged 16 years and had turned 17 years of age by the time he was sentenced.
[10] Ibid, page 156.
In relation to that offending, the applicant said it was drug fuelled and one of the offenders, namely MTG, was approximately 10 years older than the applicant and intimidating. At the time the applicant thought he was “cool”. They had been taking amphetamine which fuelled what happened that evening. The applicant said he did not get much help whilst in juvenile detention but that he played a lot of sports. He received no drug and alcohol counselling or support.
On 17 October 1994, the applicant was again before the Children’s Court charged with two counts of possession of a prohibited drug (cannabis) and possession of a prohibited substance, namely amphetamine.
In 1995, the applicant appeared in the District Court for the offences of malicious damage and assault. He said those offences were alcohol fuelled. He described himself at that time was an angry young man.
In 1996, the applicant was before the District Court for assaulting police and a driving offence.
On 14 February 1997, the applicant again appeared in the District Court for robbery in company. He received a sentence of imprisonment of 15 months with a non-parole period of 12 months to be released on supervision. On the same date, he also received sentences of 12 months imprisonment for larceny of a motor vehicle and nine months imprisonment for break, enter and steal; both of which were to be served concurrently with the sentence for robbery in company. The applicant said that he committed the offences with the same co-offender MTG. He said that person had ‘a lot to do with leading me down the dirt road’.
The Tribunal had the sentencing remarks of His Honour Judge Bell dated 14 February 1997 before it.[11] The offence of break, enter and steal occurred on 14 September 1995 and the robbery occurred on 19 March 1996. The first offence occurred when the applicant was in company with another, MTG. They were both very drunk. They smashed a window and caused considerable damage to stock. They stole one pair of ladies boxer shorts. The applicant was described as violent and uncooperative when arrested. As for the offence of robbery, the applicant and MTG went to the home of the 61 year old pensioner who was known to MTG. They accepted his hospitality. They later returned and entered the property through a fly-wire screen. The occupant was in bed asleep. MTG bound the occupant with belts and shoe laces. The applicant and MTG ransacked the premises, loaded the stolen property into the victim’s car, which they also stole. The car was abandoned and they sold the stolen property for $800. The applicant played a lesser role. He did not take part in the binding up of the victim but was involved in ransacking the house. He was 18 years old at the time of the offence. His Honour, having noted the applicant’s similar offending as a juvenile, said that the applicant ‘was on parole at the time of the subject offences as well as being on bail in respect of the earlier break-enter’.
[11] Exhibit A, G4, pages 39 – 42.
From December 1998 to August 2002, the applicant was again before the District Court charged with the following offences:
(a)Assault officer in execution of duty – T2;
(b)Assault occasioning actual bodily harm – T2;
(c)Drive on road while licence suspended;
(d)Drive with mid-range prescribed concentration of blood alcohol (“PCA”);
(e)Class A motor vehicle exceed speed limit by 30 kilometres per hour;
(f)Use uninsured and unregistered motor vehicle; and
(g)Drive while disqualified from holding a licence.
He received fines and periods of licence disqualification. In respect of the driving whilst disqualified, which was the last sentence in time, he was placed on an 18 month bond with a two year licence disqualification commencing 15 January 2003.
On 5 December 2002, the applicant was again dealt with in the District Court for offences of assault occasioning actual bodily harm and common assault. He was sentenced to imprisonment for 13 months and nine months respectively. The sentences were suspended upon him entering into bonds to be of good behaviour. The applicant said this offending related to a dispute with others about a video recorder.
At this time of the offending in 2002, the applicant said that life was not good. He had nowhere to live, and accordingly he lived with MTG and his mother. They smoked cannabis and were probably doing amphetamine. He said he gave up amphetamine when his first child was born in 2001.
Between February 2003 and August 2003, the applicant was again before the courts to be dealt with for two counts of driving without the consent of an owner, possessing a prohibited drug and two counts of assaulting a police officer in the execution of duty. He received various sentences of imprisonment, the maximum being 12 months imprisonment for assaulting a police officer.
On 30 October 2003, because of the breach of earlier bonds, the applicant was called up to be sentenced for those offences referred to in paragraph [41] above. The sentences were called into effect and the sentences of 13 months and nine months were ordered to be served concurrently. His release date was 12 February 2004.
On 17 August 2004, the applicant was dealt with for the first time for contravening an apprehended domestic violence order (“ADVO”) and was fined. Approximately 12 months later, on 19 September 2005, he was again before the court for offences of violence, namely resist or hinder a police officer in the execution of duty, resist a police officer in the execution of duty and assault police officer in the execution of duty. The applicant received a bond and fines. When discussing this period of offending, the applicant said that he had alcohol problems most of his life. Alcohol caused personality changes and that ‘it just turns me into like a Jekyll and Hyde’.
On 16 April 2007, in the Local Court the applicant was sentenced for a number of offences including:
(h)Knowingly contravene prohibition/restriction in order – three months imprisonment;
(i)Drive on road while license suspended – six months imprisonment and licence disqualification for three years;
(j)Drive with mid-range PCA – six months imprisonment;
(k)Resist officer in execution of duty – six months imprisonment;
(l)Drive with high range PCA – 12 months imprisonment and licence disqualification for five years; and
(m)Contravene ADVO – 12 months imprisonment with a non-parole period of six months.
The applicant commenced his prison sentence on 16 April 2007 and was eligible for release on parole on 15 October 2008.
On 24 July 2007, on appeal before the District Court, the convictions and sentences were confirmed, save that in relation to the offence of contravening an ADVO order, his non-parole period was reduced to two months with a release date of 15 June 2008.
On 24 April 2008, the applicant appeared before the Local Court for possessing a prohibited drug and was sentenced to two months imprisonment to commence from 15 June 2008 and concluding 14 August 2008.
From 2008 to 2012, the applicant did not appear before the courts. He said in evidence that he changed his friends and moved residence to live with CH and her mother (the applicant’s “mother-in-law”) at her mother’s home. He was not drinking alcohol during this period.
The applicant said that in 2012 he had started drinking again.
On 13 December 2012, the applicant appeared before the Local Court for driving with mid-range PCA for which he was placed on a bond and received a further period of licence disqualification.
On 26 May 2014, the applicant appeared before the Local Court for contravening an AVO (domestic), common assault and refusal or failure to submit to a breath test. For the AVO contravention, he was placed on a bond with 18 months supervision with the New South Wales probationary service. For common assault, he received a bond in like terms. For his refusal or failure to submit to breath analysis, he received a similar bond and licence disqualification.
On 30 August 2016, the applicant was sentenced in the Local Court for a number of offences including:
(a)Contravene prohibition/restriction in AVO (Domestic) – 12 months imprisonment;
(b)Two charges of destroy or damage property – six months imprisonment for each charge;
(c)Refuse or fail to submit to breath test – conviction with no further penalty and disqualification of drivers licence for 12 months; and
(d)Refuse or fail to submit to breath analysis (second offence) –16 month bond to report within two days of release to community corrections or supervision by New South Wales probationary service.
The applicant commenced his prison sentence on 11 March 2016 with a non-parole period of six months.
In relation to the applicant’s 2016 offending, he said in evidence that he was not happy at the time. His relationship with his mother-in-law and CH was strained. He split up from CH in approximately 2016.
On 29 March 2017, the applicant appeared before the Local Court for contravening a prohibition/restriction in AVO (Domestic) and was sentenced to imprisonment for three months commencing 7 December 2016 and concluding 6 March 2017.
The applicant explained that this time he was not happy in his relationship. He said that he was accused by his mother-in-law and CH of always being in the wrong, even when he was right. He said that his mother-in-law was always overstepping the line. Whether he upset his mother-in-law, CH or their children, he was always the “bad guy”. His family undermined him when he was disciplining the children. His relationship with his mother-in-law and CH was strained. He and CH had separated. He said he had no choice about the separation because the police put him on a two-year AVO which prevented him from speaking to CH. That AVO was in place from about 2016 to 2018. He said CH was the victim of all of the breach of AVO offences to that date of sentencing. He said that with respect to his children, ‘I used to not beat them up but I used to smack them on the backside and they didn’t like that’. He then stopped that and instead started taking things from them, but they would whinge to their mother and his mother-in-law. His children would say ‘oh dad’s a bastard, he took my this’.
The applicant said that he did not want to separate from CH, but he had to leave. Following that separation, he met and formed a friendship with RB. He provided RB with support. She suffered from mental health issues and lived in a Housing Commission flat. He would stay there on occasions, but predominantly he lived in a granny flat at the back of her parents’ home. He described her as a very sick woman who suffered from bi-polar disorder, post-traumatic stress disorder and sleep apnoea. He said he thought that he was down and out at the time and that they could help each other. However, he was never her carer.
On 25 February 2019, the applicant appeared before the Local Court and sentenced for destroy or damage property (DV). He was sentenced to imprisonment for five months, commencing 14 January 2019. This offence occurred at RB’s home. The transcript of the Local Court proceedings was before the Tribunal.[12] RB’s neighbours contacted the police. The Learned Magistrate said that the charge of destroy or damage property related to a drawer at the victim’s home. The police also observed the bedroom door to have been totally destroyed. The Learned Magistrate assessed the offence as falling at the mid-point of the range of seriousness for offences of that type.
[12] Ibid, G6, pages 47 – 50.
The Court received a sentencing assessment report. The author said that the applicant displayed no insight into the impact of his offending, that he disputed his offending behaviour to be violent or aggressive and claimed it was a means to manage himself in terms of the regulation of his emotions. The Learned Magistrate said in reference to that report that:[13]
It does contain a number of concerning matters including firstly that you disputed your offending was of a violent or aggressive nature. You claim to have been emotional following an argument with your children and that indicates to me that you may not have appropriate insight into the effect of this type of behaviour on the victims, noting that there were children – it is not clear if children were in the home at the relevant time but it seems to me that you may not have appropriate insight into the fact that this is criminal behaviour as opposed to a means to regulate your emotions.
[13] Ibid, page 49.
The Learned Magistrate again referred to the absence of insight into the impact of the offending, including any impact on the victim. The applicant was assessed as being a medium to high risk of re-offending. His prospects of rehabilitation were somewhat guarded.
The applicant was asked to explain to the Tribunal the circumstances the offending. He said that his children did not like RB. His daughter telephoned him and was rude, nasty and made derogatory statements about RB. That conversation resulted in him kicking the door of the bedroom. He said it had nothing to do with RB. RB had been taking a lot of medication at that time, including Valium, and she woke up to the door being kicked off its hinges. He said when the police spoke to RB, she did not have her wits about her. She would agree to anything the police said. He never intended to scare or hurt RB. He said his children made him emotional.
The Tribunal pressed the applicant to explain why he reacted that way. He said:
Because I got emotional when I’d had a few beers too, which probably didn’t help. I love my children and like I don’t really like the fact that they could dictate who I can and can’t go out with or can’t be friends with… I’ve tried to explain to them like, “You’ve gone out - like your boyfriend. I’m not going to disown you because I don’t like your boyfriend”. Like. So that’s what they were doing to me, they were disowning me because they didn’t like her. And they didn’t even know her.
When again pressed by the Tribunal to explain why he reacted in this way, the applicant explained that he was depressed and anxious about his separation from his children’s mother, CH. He said that he had ‘lost my whole life’ and that the separation was not their fault, but because the police had put a two-year AVO in place. He said that CH had tried to change the AVO, but the police would not allow it.
The applicant was then asked by the Tribunal why he now says he would not be a risk of re-offending, particularly given his antecedent history. He said that without alcohol he would not react that way. He said he had been seeing a psychologist and his local general practitioner, but stopped receiving that support at the time he met RB. He now has the support of his family, namely his cousin and his aunt and uncle. He said he had never had the courage to tell them before about his issues. He has told them that he needs help. He has never reached out for help before.
Support Services
The applicant said that he was not currently receiving any support services. At the moment all he has is the support of his aunt and uncle. His uncle is a recovered alcoholic and has worked with people with alcohol problems. His aunt works with the Salvation Army and has dealt with people with drug and other issues. He also has the support of their daughter, his cousin, DS. DS was present during the hearing and provided a letter in support of the applicant.[14]
[14] Exhibit I.
The applicant was asked what support services he had received, and what, if any, programs he completed when he was released on supervision or was on parole. He said that he had started programs but he was more worried about putting “bread-and-butter” on the table and fixing his family rather than fixing himself. He said that his family came first, and rather than go to the courses that he was booked into, he would ring and say he was working, and would not attend. He said they were quite willing to accept that because he was working he did not have to attend the courses. Therefore, he did not finish a lot of them. He did receive alcohol counselling from a gentleman at the Salvation Army until that gentleman got posted elsewhere.
Prior Warning
On 28 April 2008, a Notice was sent to the applicant advising him of the Department of Immigration and Citizenship’s decision not to cancel his visa under s 501 of the Act.[15]Reference was made to the fact that the applicant had been notified, by way of Notice dated 2 October 2007, that his visa may be liable for cancellation on character grounds. After taking into account all relevant considerations, a delegate of the Minister decided not to cancel the applicant’s visa at that time. However, the delegate did issue the applicant with a formal warning:[16]
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[15] Exhibit A, G13, pages 90 -91.
[16] Ibid, page 90.
Further, the delegate made the following comments to be noted by the applicant:
[The applicant] must understand that unless he addresses his behaviour and reasons for it he will risk having his visa cancelled and being returned to the UK.
On 11 June 2008, the applicant signed an acknowledgement of receipt of the Notice and confirmed he understood that he may again be considered for visa refusal or cancellation.[17]
[17] Ibid, G14, page 92.
Employment History
The applicant was asked about his employment history. He said he had previously worked in a factory. Prior to being imprisoned on the last occasion, he obtained employment through an employment agency in a factory that made breadcrumbs. He was employed in that position from 2012 to 2016. He described this as a large-scale operation. He would be involved in the making, grinding up of and packaging breadcrumbs into large wool bags.
The applicant said he was then employed for about six months making sausage skins for burn victims. He has also been employed rolling out turf, farming and “brickies” labouring. He has been a farm labourer. He said he was prepared to do any form of work. He has generally been employed or looking for employment when in the community.
Children
The applicant has three children by his relationship with CH. The eldest is BH who is aged 18 years. He has a good relationship with BH. The applicant has not seen BH since he has been detained. He said his son is looking for work or is engaged in work. He said he is doing very well, he is proud of BH and that ‘[h]e’s a better man than I’ll ever be’. The Tribunal had before it an undated letter of support from BH, also written on behalf his younger sister and brother.[18]
[18] Exhibit L.
The applicant’s daughter, AH, is now aged about 16 years. He said he did not think his relationship with her was ‘too bad’. He said ‘I know they love me and I love them and yes, we fight, we do... you can’t have it your own way all of the time’. AH has just started at TAFE and is completing her Year 10 Certificate. When asked about what activities he would do with his daughter, he said he bought her a horse and would take her to the pony club. He did this until the novelty wore off. He said he would take her to sport. She used to play netball.
The applicant had not seen his daughter for a while. She had been spending time in Queensland with her grandmother who was dying of cancer. He last saw her about two months ago, following her return from Queensland. He has, nonetheless, remained in regular telephone contact with all of his children.
The applicant’s youngest son, BRH, is the one who he said that concerns him. He is aged 14 years, but does not go to school anymore. He was born in 2006, and in approximately 2008 was in a car accident along with his mother and older siblings. He was seriously injured. He suffers from Oppositional Defiant Disorder (“ODD”) and Attention Deficit Hyperactivity Disorder (“ADHD”). When asked about what activities he would do with BRH, he said he would take him motorbike riding and fishing.
The Tribunal asked the applicant what he thought he can do to help BRH. The applicant said he would like to give him some stability and give him good advice that is not tainted by alcohol. He wants to love, care and nurture him.
The applicant said when the AVO was in place he was prevented from communicating with CH. Nonetheless, he maintained regular contact with his children. He would see them and speak to them by telephone. He described this as being difficult because he was not able to communicate with CH. Currently, CH has been coming to visit the applicant in Villawood, albeit not for a while because it is eight hour round trip on public transport. He said when he first went into Villawood she visited all the time. He said that they have had their differences but he is hoping to reconcile with her. The restraining order is no longer in place.
The applicant said that in terms of financial support for his children, he has had sporadic work. He then said that he has worked a lot because his main objective was to put “bread-and-butter” on the table. He accepted he had not done much from a financial perspective, but he has tried to spend as much time with them as he could. He agreed that there had been periods of tension between himself and his children, but that has not meant he has stopped seeing them. The applicant was asked what he intended to do if released back into the community. He said he would hope to reconcile with his ex-partner, CH. If he is not going to live with CH upon release, he will live with his uncle. He said his uncle is willing to do anything to assist him and ensure he does not stray.
Cross-examination
In cross-examination, Counsel took the applicant to the New South Wales Department of Corrective services case note reports.[19] The case notes contain a report of an incident dated 14 August 2014. A phone call was received from CH. The report reads:[20]
[T]he last two days the degree of verbal violence has increased to the level that she claims to be frightened. Has called the police and intends to make a statement to them in relation to the previous 48 hours events.
[CH] was in tears for much of the conversation, stating that the children are scared adn (sic) are asking her todo (sic) something about [the applicant]…she has never seen [the applicant] in the way that he is as he is also not under the influence of alcohol… she stated that she is not in a relationship with him and that she believes that he is no longer interested in her as he has been calling her names and saying that the thought of her makes him physically sick.
[19] Exhibit B, pages 53 – 101; pages 102 - 153.
[20] Ibid, page 90.
The applicant could not explain what that entry was about. He said he was speechless. This occasion was when he was living at his mother-in-law’s house. The relationship had its ups and downs but he did not know why she has said that.
The applicant was then referred to a case note, being an interview with the parole officer on 21 August 2014.[21] The record there indicates, ‘he needs to reconnect with community mental health…he stated that he thinks that he is fooling himself in regards to having a relationship with [CH]’. When asked to explain that record he said he was not in a community health program. He went to a hospital. It was very in-depth. It was too in-depth for him. He could not explain the reference to reconnecting with community health.
[21] Ibid, page 92.
The Tribunal referred the applicant to an earlier case note entry dated 24 June 2014.[22] The report refers to a call from a doctor who was not clear on what the offender required as far as a mental health referral was concerned. There was discussion that the applicant had communication issues and that he could benefit from psychological support and intervention. He needed to address self-esteem, post-traumatic stress disorder, as well as problem-solving and anger issues, all which lead to his criminal behaviour. When asked if he could explain this entry, he said he never did anything about following up on the proposed services. He said that as long as he went in there and told them he was working they did not make him do anything. This was what he referred to earlier, when the applicant said he preferred to put “bread-and-butter” on the table for his family than attend support services. He put his own issues aside to go to work instead of fixing himself.
[22] Ibid, page 88.
A case note entry dated 17 September 2014,[23] indicates that he had moved from his mother-in-law’s home, and reads ‘ongoing contact with [CH] still occurs. [C]ontact with the children is also ongoing and the relationship appears tobe (sic) improving’. The report then reads that the applicant had been offered accommodation at the Barracks but refused. The applicant said there was an issue with the Barracks because it was a place for homeless men. The children did not want to go there. He said that he had more serious conditions imposed on his AVO which made the situation volatile and that the ‘kids were just playing everyone’.
[23] Ibid, page 93.
A case note dated 8 December 2014,[24] indicates that the applicant was continuing to look for accommodation. He had been staying with CH on weekends; however, they continued not to agree on parenting issues. In relation to parenting issues, the applicant said the children should have consequences for their actions. There was an occasion when his daughter splattered two bits of watermelon on his face and was still allowed to go out to stay at a friend’s place. He said that his daughter could not go out, but CH and the mother-in-law decided to undermine the applicant and took her out anyway. He said that his mother-in-law, CH and he had ‘different sets of rules’. He said it was like a “circus”. He said he was being totally undermined. He was frustrated and would start drinking and that it did not finish well.
[24] Ibid, page 96.
The case note reports indicate another conversation about moving to the Barracks on 19 February 2015.[25] The applicant’s children did not want him to go there and the applicant said there was concern expressed by the parole officer should he moved to that accommodation.
[25] Ibid, page 98.
A case note record dated 23 April 2015,[26] refers to the applicant working in the bread factory for the last six weeks, he was doing well and had returned to reside with CH and the children. It is reported that he was not drinking alcohol. The applicant said that this was a good period for him.
[26] Ibid, page 99.
On 16 March 2016, there is a case note which records that two of the applicant’s children were present during a domestic violence and contravention an AVO incident.[27] In cross-examination, the applicant said that he could not recall an occasion when the children were present during such an incident, but he could be wrong.
[27] Ibid, page 102.
The next case note entry is dated 18 March 2016[28] and refers to the applicant being back in custody. Again, the applicant could not explain what happened. He said that it had been a “rocky road”, and that he had tried to give up alcohol many times. Insofar as the report referred him storming out of an interview room on that same day, he said he could not recall the incident.
[28] Ibid.
A further case note dated 25 August 2016,[29] also refers to the applicant being back in custody. There is reference made to an incident of damage and destroy property when CH was not at home. The applicant could not recall that incident. He said he had memory issues particularly when stressed.
[29] Ibid, page 104.
The applicant was taken to the New South Wales Police fact sheet for that incident which occurred on 10 March 2016.[30] It reads that on 10 March 2016, at about 10.00pm, the applicant returned to the home carrying a six-pack of beer which he opened and started to consume. The applicant was alleged to have argued with CH. CH and their two sons left the home. At about 1.00am the applicant was sending threatening texts to CH. CH slept in her car with one of her sons. The other son stayed at a friend’s house. When CH returned home at 6.00am that morning, she saw that the windows of the house were broken. The kitchen window was shattered and blood was on the wall and window frame. The dining room table was upside down and smashed, the kitchen was trashed and items thrown all over the house and overturned. CH called police. Police arrived at the house and reported that it appeared to have been ransacked. The applicant walked up the hallway with a towel wrapped around his waist with no shirt on. He was allowed to dress and he was then taken in a cage car to the police station.
[30] Ibid, pages 278 – 280.
When asked by Counsel if he could explain this incident, he said he had probably been undermined and consumed alcohol. He said he was never good enough. He said he was probably feeling like an inferior father and had stress and worries.
The applicant was referred to another incident reported in the New South Wales Police fact sheet dated 24 January 2016.[31] The report stated that he returned to the family home at about 6.00pm. He appeared to be moderately affected by alcohol and became very argumentative. CH collected the children and left. When she returned at about 10.20pm there was extensive damage to the property and the walls. Blood was scattered on the floor. The applicant had minor cuts to the knuckles of his right hand. His hands were covered in blood. At about 12:20am the following morning police attended the home. CH and her children were waiting up the street in the car. The applicant appeared to be asleep on the lounge. There were holes in the gyprock wall. The applicant’s right fist was covered in blood and there was a bottle of alcohol on the floor next to him. Cabinets had been turned over lying face down with contents smashed on the floor.
[31] Ibid, pages 274 – 277.
When asked in cross-examination, what, if anything, he had done to address his alcohol dependency issues, he said ‘I don’t think I did a lot’. He referred to seeing the Salvation Army. He then said it was about this time that he started seeing a psychologist and the doctor. He said that he realised there had been a problem for a long time and that he had not taken proper measures to address it. When asked what was different now, the applicant said that he had the support of his family. He said he never had the courage to ask for help before.
He said that he did not reach out to his family before because he did not think they would want to know him. He said he was the “black sheep” of the family. He did not want to burden them. They had their own lives, but now the applicant said he realises that they do not think he is a burden.
The applicant was referred to another Corrective Services case note dated 4 November 2016,[32] in which CH said to a parole officer that the applicant was controlling and the children did not want to come home. The applicant had no recollection of that. He thought it may be an exaggeration. He denied being controlling.
[32] Ibid, page 108.
In a case note dated 10 November 2016,[33] CH advised that the applicant was continuing to threaten her and the children. The applicant denied the incident. He said he did not threaten the children. He said he might yell at CH sometimes but definitely did not threaten the children.
[33] Ibid, page 109.
In a case note dated 14 November 2016,[34] it refers to a telephone call from CH in which she advises she has told the applicant that he must move out of the house. She reported that ‘he became angry and said he will not comply and that I “can shove parole”’. The applicant said he could remember that occasion. The probation and parole officer said it would be a good idea for him to move out of the house as he was in a volatile situation. He said that he did not want to move because of the children. The report continues:
[CH] later called me to say [the applicant] had phoned her and agreed to report to me, however he started abusing her and spat on her after travelling about 2 kms.
[34] Ibid, page 110.
The applicant denied spitting on CH and said that the statement was false. They were on their way to see the probation and parole officer about the applicant moving out. He said he asked CH to stop the car but she refused and an argument occurred. She then stopped so he could get out. He said he did not want to move out.
In a case note dated 5 May 2017,[35] the applicant advised that he had not consumed alcohol since March 2016, after a DV incident and that he has not used illicit drugs for 20 years.
[35] Ibid, page 120.
A case note dated 21 December 2016,[36] refers to a conversation between the applicant and his parole officer in which there is reference to the applicant’s need for psychological services. The applicant reported a history of depression and that his family and friends had suggested he be assessed for bi-polar disorder due to his explosive and aggressive behaviour, which was exacerbated by alcohol. The applicant said that it was about this time that he started to see a doctor and a psychologist, as well as the gentleman from the Salvation Army. He said the psychologist did not do much, but just listened to what he had to say. She did not give him advice. He felt funny talking to her about relationships and said he may have been better suited to a male psychologist. When asked by the Tribunal why he would be better suited to see a male psychologist, he said a male would have had more of an insight into a male side of the relationship.
[36] Ibid, page 115.
The case note dated 21 December 2016 then referred to frustrations expressed by the applicant in relation to CH and to his children’s behaviour which would result in him becoming aggressive when he could not get his point across. In relation to this, the applicant said that everything he tried to do ‘fell on deaf ears’. The report continues that the parole officer strongly recommended he attend relationship counselling with CH to see if issues can be resolved. The applicant acknowledges that it was strongly recommended he attend relationship counselling with CH, but that never occurred. There was also reference in a subsequent case note that his children did not want to have anything to do with him. He agreed that that was the case. He said his children were upset with him because he had smashed up their grandmother’s property. Again, he said he was being undermined and it progressively got to the point where he drank, he was frustrated, and the alcohol made it worse. His children would say to him that ‘you can’t tell us what to do dad, this isn’t your house’. He put up with it until he started drinking again because it was a stress relief. He said he tried talking, he tried yelling but nothing happened. He said it was ‘their way or the highway, so which I’d take the highway’.
The applicant was referred to a number of other case notes with a similar theme and that the applicant was having no more contact with his children or with CH. He was asked to explain what his relationship was like now. The applicant said CH was going to put it all behind them and try and reconcile. He said CH does not want him to go back to the United Kingdom. He said she was happy to be in a relationship with him.
It was put to the applicant that he had been an ongoing problem for a number of years, and he was asked why he thought that going back into a relationship with CH was not going to result in the same behaviour. The applicant said if he did not drink that he would not behave that way.
In response to similar questions from the Tribunal, he said he would probably not return to the same home. His plan was not to live with CH at the moment. He said ‘I want to fix myself’ with the help of his aunt and uncle. His uncle will go to Alcoholics Anonymous (“AA”) meetings with him and sponsor him. He wanted to go and live with his uncle, and try and sort himself out before thinking about any further relationship. Otherwise, the applicant said he would just go down the same “dirt road”.
The applicant was taken to further case notes, including in September 2017, where he was reported to be drinking again. He agreed, and said as far as drinking goes it has been a rollercoaster. He said something such as stress, anxiety or depression triggers him to drink.
The applicant was referred to a case note dated 13 November 2017,[37] when he was stopped by police for being intoxicated in a public place. The applicant said he was walking home that night because he did not have money for a taxi and it was only two or three blocks away from where he was staying. He did not deny that he was fairly heavily intoxicated that he said he was not out cause trouble.
[37] Ibid, page 135.
In a case note dated 8 December 2017,[38] the applicant reported that he was living with a person called K and that he and CH had gone their separate ways. In that case note, he acknowledged the need for help and had made his first psychological appointment at a Busby Medical Centre for 22 January 2018. The applicant said that this was the time he first saw somebody.
[38] Ibid, page 138.
The applicant was then taken to the custody management records of New South Wales Police Force in relation to his latest offence in January 2019.[39] There it is reported that he was taken down to the cells and fingerprinted and it then says:
Person immediately became aggressive and exploded waving arms and threatening police. Police attempted to calm the custody down however he would not. Police attempted to get the custody back into the dock but immediately began to fight 3x police to restrain the custody and put in handcuffs moved to cell and refused to allow police to remove handcuffs stating that he wanted to fight police when they came to take them off. Custody began to headbutt the door of the cell.
[39] Ibid, page 292.
The applicant remembered this event. He said he was fine when they were taking fingerprints and then he took his thongs off and waved them in the air and said ‘come and walk a mile in my shoes’. He explained that is all he said and then the police assaulted him. He said he did not do anything wrong. The next thing he knew he had three or four police officers trying to rip his shoulder out of the sockets. The applicant said the police obviously thought he was being aggressive. He agreed he head-butted the cell door once or twice.
In response to a question from the Tribunal, the applicant said that he had been drinking alcohol. He acknowledged he no longer had the pressures that previously drove him to him to drink. He repeated his earlier evidence that he became emotional as a result of the conversation with his children about RB.
The applicant was referred to a sentencing assessment report dated 1 February 2019,[40]in which, he denied that alcohol was a contributing factor to his offending, despite the fact that prior to the offence he had consumed three “long necks” of beer. Given the incident occurred in the cells four hours later, the applicant could not give a satisfactory explanation as to why he had been aggressive and violent.
[40] Ibid, pages 294 – 298.
The applicant agreed that there was a degree of volatility in his relationship with CH and that despite this, they kept coming back together. He agreed that nothing had seemed to improve over time. When pressed about his intention of returning to a relationship should his visa be reinstated, he said he was not sure about reconciliation. He said that if he did not drink then the same sort of behaviour would not happen again.
The applicant was referred to the warning in April 2008 from the Department of Immigration and Citizenship.[41] The applicant said a lot has changed since then but not enough. He said that he has tried, albeit not succeeded, but you cannot do it overnight. He said that he was determined to make it happen for his sake, his children’s sake and for Australia’s sake.
[41] Exhibit A, G13, pages 90 – 91.
The applicant was then referred to a pre-sentence report dated 29 August 2016.[42] In that report, he is recorded as saying that his family issues remained the same and that he grew frustrated with his inability to parent his children, was undermined by CH and his mother-in-law and became disinhibited when intoxicated. The author reported that the applicant appeared to be remorseful and that his offending resulted from his own stupidity whilst intoxicated. The author went on to report that he was continuing to be afforded the support of CH, but unless there is a sincere attempt to address substance abuse issues, it appears likely that further offending will occur. The applicant agreed that nothing happened after that report to address his issues. He, again, restated that now he has the support of his aunt and uncle.
[42] Exhibit B, pages 281 – 285.
The applicant agreed with Counsel’s proposition that there had been volatility in his relationship with CH for a long time, including as much as 17 years ago, and that nothing has improved over time. He then said he was unsure if he was going to resume the relationship with CH.
Return to the United Kingdom
The Tribunal asked the applicant if he had any concerns should he be returned to the United Kingdom, and in particular his answer was contained in the personal circumstances form, where he said:
It would be like being sent to an alien planet. I would be totally lost with no support whatsoever, with no known family or friends, I would be left homeless and a high likelihood of reoffending, just to be able to survive.
The Tribunal asked him why he suggested there was a high likelihood of re-offending. The applicant said it was a wrong choice of words because he is going to do his best not to re-offend wherever he is. What he was trying to say is that is going to be put behind the “eight-ball” before he even started.
Applicant’s Health
No evidence has been led which enlivens Other Considerations (a) and (c). To the extent that there is evidence from CH and the applicant’s children, who were victims of domestic violence, they have not sought to be heard in relation to the impact the offences have had upon them, beyond that evidence to which I have referred. In particular, CH has not been candid with the Tribunal about the fear she and her children experienced as a result of the applicant’s offending. In the absence of such evidence Other Consideration (d) is not enlivened. The Tribunal will therefore address Other Considerations (b) and (e), in turn.
Other Consideration (b): Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
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 community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The applicant has resided in Australia from three years of age. He has always considered himself to be an Australian citizen. He was an only child to alcoholic and abusive parents and suffered a difficult childhood. Nonetheless, he remained very close to his aunt and uncle and cousin, to whom I have referred earlier in this decision. The applicant is not aware of any relatives in the United Kingdom. He regards his entire family as being residents in Australia. The Tribunal accepts that evidence
The applicant’s relationship with his aunt, uncle and cousin diminished particularly after his parents separated and after he began engaging in criminal offending in his mid-to-late teenage years and thereafter. However, the applicant has remained in touch with those family members and they have now re-engaged in a more meaningful way, such that they offer their continuing support for the applicant and will assist him in such rehabilitative programs should he be returned to the Australian community.
The applicant also has continued ties with each of his children. He is particularly close to his youngest son. The applicant has known CH from when they were both aged in their mid-teens and she is the mother of his three children.
As for the victim in relation to the applicant’s last offence, RB, the applicant has maintained that his association with her was more in the nature of a close friendship. He was providing support to her and has assisted her with respect her mental health issues. There is no evidence before the Tribunal about the current status of that friendship. The Tribunal accepts the applicant’s evidence about that relationship. The applicant has provided letters of support from his family members to whom I have referred and also from the Office of the Mayor of the Bathurst Regional Council, the proprietor of Elite Tiling Bathurst, who has been a friend of the applicant for almost two decades, and from a friend of 30 years, ZO, all of whom speak very highly of the applicant.
In the letter dated, 3 February 2020[59] from the Office of the Mayor the author, BB, writes that he has known the applicant for nearly three years. He met the applicant through the Bathurst Community Shop and through the Lions Club. He described the applicant as hard-working. BB says that the applicant is changing his life in a positive way by attending and committing to the Salvation Army Alcohol Counselling. There is no material before the Tribunal that satisfactorily explains the nature and extent of those attendances.
[59] Exhibit C.
The letter dated 1 February 2020, from DM at Elite Tiling Bathurst, [60] describes the applicant’s strong love for his children and that he is a strong role model and father figure. He is said to be kind in nature with a grounded personality, making him a very responsible and trusted member of the community. The Tribunal accepts that the applicant is kind natured but otherwise rejects that description of the applicant when viewed against his extraordinary antecedent history. Nonetheless, the author confirms the strength of the relationship between the applicant and his children, that his children are dependent upon him and that it is in their best interest that he remains in Australia, which I have already confirmed.
[60] Exhibit D.
The email communication from ZO dated 21 January 2020,[61] says that he and the applicant had been friends for 30 years. He says that the applicant has no close family connections overseas, which I accept. The author also describes the applicant to be of good character, honest and truthful. Though that might correctly reflect the author’s relationship with the applicant, for the reasons expressed in this decision I reject the description of his good character.
[61] Exhibit K.
I will not detail the contents of the letters received from the applicant’s family. Much of their contents have been referred to earlier in this decision, including by way of their evidence. They have a loving relationship with him.
Conclusion: Other Consideration (b)
The applicant has spent most of his life in Australia having lived here for nearly 40 years. He has never returned to the United Kingdom since he arrived in Australia in 1980. His entire known family all reside in Australia and he has close friendships in the community. He has grown up and worked solely in Australia.
The applicant’s relationship with his mother is negligible. She speaks to the applicant approximately once a year when he telephones her and his most recent conversation with her immediately prior to the hearing was plainly disappointing to him and continued to demonstrate the general disinterest she has shown in his life. She has had nothing to do with the applicant’s children, her grandchildren. This disinterest was confirmed by the applicant’s aunt and uncle. I accept that evidence.
The applicant’s relationship with his father was particularly strained from his mid-teenage years until about 15 years ago. They have since rebuilt their relationship, albeit he sees his father infrequently. His father is an alcoholic and has mental health issues. He has attempted suicide on three occasions. Nonetheless, the Tribunal accepts that there is an ongoing relationship and relevant to this Other Consideration.
The continued nature and extent of the applicant’s relationship with CH is uncertain. The Tribunal accepts that they will remain friends, but he has expressed the wish to reconcile and continue his relationship with CH. That is by no means certain having regard to the evidence before the Tribunal and including from CH.
The Tribunal accepts that the applicant has a strong love for his children and, having considered the letter from BH, despite occasions of violence in the home demonstrated by the applicant, the Tribunal accepts that his children have a strong love for him.
Having regard to all of the evidence, significant weight is to be given to this Other Consideration (b) in favour of the applicant and the revocation of his visa cancellation.
Other Consideration (e): Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
(1)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 has no memory of life in the United Kingdom having spent almost his entire life living in Australia. He has engaged in various forms of employment, to which I have referred above, which was in the nature of labouring work.
The applicant has had some treatment in Australia for depression, as referred to in a letter from Dr Anne Sharmi David dated 18 December 2019.[62] He has also undertaken, but not completed, various rehabilitative programs.
[62] Exhibit F.
Conclusion: Other Consideration (e)
There is no evidence before the Tribunal that the applicant’s general labouring skills are not transferable to the United Kingdom. Nor is there any evidence before the Tribunal about the current state of the labour market within the United Kingdom. The Tribunal accepts that the applicant will be able to pursue work in the labour market should he relocate to the United Kingdom.
The applicant will need to engage with support services such as AA if he is going to address his addiction issues and return to being a contributing member of society. Whether or not the applicant is prepared to do so is very much dependent upon his determination and commitment to engage in such services. That will remain the same whether he resides in Australia or the United Kingdom. The Tribunal accepts that such services are available in the United Kingdom to the same extent that they are available in Australia and do not enliven any impediment should he be returned to the United Kingdom.
The Tribunal accepts that the applicant does suffer a depressive condition as corroborated by the brief letter from his treating medical practitioner dated 18 December 2019.[63] However, the nature and extent of that medical condition and the nature and extent of his consultation and assessment by Ms Alder, his psychologist, is not before the Tribunal. Nonetheless, in the absence of any evidence to the contrary, there will be no impediment to the applicant seeking such medical and psychological support should he return to the United Kingdom.
[63] Ibid.
The Tribunal accepts that should the applicant be returned to the United Kingdom, it will be distressing to him and to his extended family in Australia, and will potentially impact upon his depressive condition. This may have an immediate impact upon him and the nature and extent of that impact be dependent upon the applicant’s motivation to engage with appropriate and available treatment services. It will take him some time to integrate into the community of the United Kingdom and to settle into that new environment.
Having regarded the whole of the evidence, Other Consideration (e) weighs slightly in favour of the applicant and the revocation of his visa cancellation.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the applicant’s visa: either (1) the applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(f)Primary Consideration A weighs heavily in favour of the respondent;
(g)Primary Consideration B weighs significantly in favour of the applicant
(h)Primary Consideration C weighs heavily in favour of the respondent;
(i)Other Consideration (b) and (e) respectively weigh significantly and slightly in favour of the applicant.
(j)The combined weight of Primary Consideration B and the Other Considerations (b) and (e) is such that none of them, alone or combined, outweigh the significant weight that the Tribunal has attributed to Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they weigh in favour of the non-revocation of the mandatory cancellation of the applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding two hundred and eighty (280) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
.......................[Sgnd]...........................
Associate
Dated: 5 March 2020
Date of hearing: 18 & 19 February 2020 Applicant: Self-represented Advocate for the Respondent: Ms Dale Watson, Australian Government Solicitor
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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Jurisdiction
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