YYZQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4647
•15 December 2021
YYZQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4647 (15 December 2021)
Division:GENERAL DIVISION
File Number: 2021/6931
Re:YYZQ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:15 December 2021
Place:Melbourne
The Tribunal affirms the decision under review.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – national of India – Bridging C (Subclass 030) visa – failure to pass character test – family violence offending – whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 90 applied – decision affirmed
Legislation
Crime (Administration of Sentences) Act 1999 (NSW)
Crime (Sentencing Procedure) Act 1999 (NSW)Migration Act 1958 (Cth)
Cases
Ali v Minister for Home Affairs [2019] FCAFC 93
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
R v Balla [2021] NSWDC 487
R v Pogson [2012] NSWCCA 225
R v Zaiter [2021] NSWDC 277
Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
Wany v DPP [2020] NSWCA 318Whelan v R [2012] NSWCCA 147
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, Country Information Report: India, 10 December 2020
Judicial Commission of NSW, ‘Intensive correction orders (ICOs)’, Sentencing: Bench Book (September 2021) < Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction 90, 8 March 2021)
Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)Second Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
15 December 2021
BACKGROUND
The Applicant applied on 26 September 2021 for review by the Tribunal of a decision on 21 September 2021 by a delegate of the Respondent not to revoke the mandatory cancellation of his Bridging C (Subclass 030) visa. The Tribunal issued an order under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant. He will be known by the pseudonym ‘YYZQ’. The identity of other persons that might tend to identify him will be anonymised.
YYZQ’s visa had been previously cancelled on 9 December 2020 under s 501(3A) of the Migration Act 1958 (Cth) (the Act). Paragraph (a) of this section requires the Respondent Minister to cancel a person’s visa if satisfied that person does not pass the ‘character test’. This provision was considered to be engaged on the basis that he had a ‘substantial criminal record’. This is defined, in ss 501(6)(a) and (7)(c), as including being sentenced to a term of imprisonment of 12 months or more.
Paragraph (b) of s 501(3A) of the Act also requires that, at the time of the visa cancellation, the person be serving a sentence of imprisonment on a full-time basis in a custodial institution. Therefore, there are two provisions that trigger the mandatory cancellation decision: having been sentenced to a term of imprisonment of a particular length, and being in prison when the visa is cancelled. In YYZQ’s case these two triggering events relate to separate instances of offending.
The Minister may revoke the mandatory cancellation of a visa under s 501CA(4) of the Act where representations are made by the person affected, and the Minister is satisfied that there is another reason why the decision should be revoked. YYZQ made submissions on two occasions. The second set of representations arose in response to a fresh request made after the issuing of a new set of guidelines (known as ‘Direction 90’ which I will address further below) which took place after the cancellation decision, and after the initial representations were submitted.
The material came to light at the commencement of the hearing and was provided to the Tribunal and the Respondent’s legal representative by YYZQ’s sister, who assisted him at the hearing. The material deals with matters arising in the revocation decision and does not make explicit substantive submissions addressing Direction 90.
After an adjournment, the hearing proceeded on the basis that: the Respondent had in fact received the material by emails in May, June and July 2021;[1] that the Respondent considered, accordingly, that the ‘two day rule’ was not triggered;[2] and that material did not raise substantially new information that had not previously been considered by the original decision maker, with the majority of attachments comprising material already submitted.
[1] This would suggest formal non-compliance with the Respondent’s obligations under s 500(6F)(c) of the Act.
[2] Under s 500(6J) of the Act, the Tribunal may not have regard to any document submitted in support of a person’s case unless provided to the Minister at least 2 business days before the hearing.
YYZQ also sought to rely upon further material produced along with the further representations, being an affidavit of his solicitor, and material prepared in the family law jurisdiction. I did not admit this material due to it not being provided within the statutory time period.
YYZQ first arrived in Australia in 2008 at the age of approximately 22. His mother and younger brother live in India and his father is presently in Australia, along with a younger sister, who was involved in the hearing. YYZQ also has some extended family in Australia. He attained secondary education in India and has a number of vocational qualifications and certificates, as well as work experience primarily in transport, including as a driver.
YYZQ has been twice married in Australia. He met his second wife, who is a citizen of Australia and of Nepalese ancestry, in mid-2018. They underwent a temple wedding in early 2019 and a legal marriage in mid-2019. She gave birth to a daughter in January 2020. YYZQ and his wife are separated and currently engaged in family law proceedings; she is also a victim of his offending.
The offending that led to YYZQ being considered to have a substantial criminal record was a ‘high range’ driving offence for which he was convicted in November 2018. YYZQ was sentenced to a term of imprisonment of 12 months, to be served by way of an Intensive Corrections Order (ICO), involving a community service obligation and various programs. While formally described as a first offence in the relevant record, YYZQ had previously been convicted of a high range driving offence in 2010.
At the time of the mandatory cancellation decision, YYZQ was serving a term of imprisonment after being convicted of domestic violence offences in November 2020. This conviction relates to domestic violence related property damage, an assault upon his wife on a later occasion, several breaches of an Apprehended Domestic Violence Order (ADVO), and a stalking charge. An appeal in the District Court has not been successful. At the time of the hearing, YYZQ was facing charges for additional breach offences.
YYZQ was not legally represented but, as noted, was assisted at the hearing by his sister, Ms JK, who also gave evidence. YYZQ provided the additional material referred to above, being: an email with submission and attachments dated 29 May 2021 (Exhibit A1); an email with submission and attachments dated 1 June 2021 (Exhibit A2); an email with attachments dated 2 July 2021 (Exhibit A3); and a letter from Commonwealth Bank dated 28 April 2021 (Exhibit A4).
The Respondent submitted a Statement of Facts, Issues and Contentions (SFIC), G documents, and a Tender Bundle (TB). Further submissions on the character test were submitted on 1 December 2021 (see below).
An interpreter in the Punjabi language not being available, the Tribunal had the benefit of the attendance of an interpreter in the Hindi language, who contributed on one occasion only. YYZQ participated in English.
LEGISLATION
I have already identified above a number of the key legislative provisions arising under s 501 of the Act which deals with the refusal or cancellation of a visa on ‘character grounds’. Under s 501(3A), the Minister must cancel a person’s visa if satisfied the person does not pass the character test. I will address the test in more detail shortly given the particular nature of YYZQ’s offending and sentencing history.
The Tribunal upon application for review may revoke the mandatory cancellation under s 501CA of the Act, if satisfied there is ‘another reason’ that this should be done (s 501CA(4)(b)(ii)). The Tribunal must follow the direction under s 499 of the Act issued by the Minister which sets out considerations arising in relation to a decision on revocation.
Direction No 90 ‘Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction) was issued on 8 March 2021. This replaces the previous Direction No. 79, under which representations in this matter had originally been made.
I will address the particular factors set out under the primary and other considerations in the Direction under the associated subheadings below. Paragraph 5.2 of the Direction also identifies principles which are described as providing the framework for decision-making under the document. In summary, the principles provide, relevantly:
(a)Australia has a sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia. Being able to remain in Australia is a privilege conferred in the expectation that non-citizens: are, and have been, law-abiding; will respect the law enforcement framework; and will not cause or threaten harm to individuals of the community;
(b)Non-citizens who have engaged in criminal conduct should expect to forfeit this privilege;
(c)The Australian community expects the Government to cancel a non-citizen’s visa if they engage in conduct that raises serious character concerns. This expectation ‘applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’;
(d)Australia has a low tolerance of criminal or serious conduct by non-citizens who have participated in and contributed to Australia for a short time. However, Australia may afford a higher level of tolerance of such conduct if the non-citizen has lived in the community most of their life, or from a very young age;
(e)Decision-makers must take into account the primary and other considerations relevant to individual cases. In some circumstances, the nature of conduct, or the harm that would be cause if it were repeated, may be so serious that even strong countervailing considerations may be insufficient to justify revocation.
ISSUES
I must be satisfied that YYZQ does not pass the character test. As noted, his visa was cancelled on the basis that he has a substantial criminal record, in the form of a 12-month ICO.
It is submitted on the Respondent’s behalf that this matter is not in question, however following the hearing I sought further submissions on this matter as the Respondent’s SFIC did not elaborate on the subject. These submissions highlight: the sentencing remarks; the effect of the Crimes (Sentencing Procedure) Act 1999 (NSW), and Crimes (Administration of Sentences) Act 1999 (NSW); and, the consideration of s 501(7) by the Full Court of the Federal Court of Australia in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 (Brown), and Ali v Minister for Home Affairs [2019] FCAFC 93 (Ali).
The relevant court order (TB2, 108), which is largely constructed with check boxes, does not on its face refer to a term of imprisonment, but rather to the ICO. The ICO documentation (TB2, 113) refers to a term of imprisonment for 12 months ‘to be served by way of’ ICO. The remarks of the sentencing Magistrate also make clear that this was a term of imprisonment to be served in the community (G7, 50). The relevant legislation cited in the court order (s 7 of the Crime (Sentencing Procedure) Act 1999) falls under Part 2, Division 2 of that NSW Act which addresses custodial sentences.[3]
[3] This analysis reflects that in the Sentencing Bench Book, published by the Judicial Commission of New South Wales, (at [3-630]): ‘Intensive correction orders (ICOs)’, Sentencing: Bench Book (September 2021) <>
The substantial criminal record test is satisfied under s 501(7)(c) of the Act where (among other reasons) a person has been ‘sentenced to a term of imprisonment of 12 months or more’. Key words are defined as follows in s 501(12): ‘sentence’ ‘includes any form of determination of the punishment for an offence’; and, ‘imprisonment’ ‘includes any form of punitive detention in a facility or institution’.
I consider it reasonable to take as a starting point the ordinary meaning of the word imprisonment which is not confined by the above terms; in this instance, YYZQ was not placed in a position of serving, or apparently being likely to serve under specified or statutory conditions, time in physical detention.
It would appear that ICOs may take different forms. I note for example the recent decision in the NSW District Court in R v Balla [2021] NSWDC 487 in which community service was ordered, paired with a recommendation for a Home Detention Assessment Report. Hanley DCJ indicated in that case that if the defendant was found not suitable for home detention then a term of imprisonment would be served.
There also appears to be some ambiguity attending ICOs in NSW caselaw. Allsop P (as he then was) considers sentencing procedure in Whelan v R [2012] NSWCCA 147 (at [4]) and would appear to describe an ICO as a non-custodial sentence. More recently, this observation was recast by Hatzistergos DCJ in R v Zaiter [2021] NSWDC 277 (at [45]) as perhaps best understood as meaning that an ICO is a ‘non-fulltime custodial sentence’.
Another formulation was arrived at in R v Pogson [2012] NSWCCA 225 (at [97]–[98], [108]) in which an ICO is described as a sentence of imprisonment, but one that does not involve immediate incarceration. More recently, the NSW Court of Appeal stated in Wany v DPP [2020] NSWCA 318 (at [4]) that ‘an ICO is to be regarded as an alternative way of serving a sentence of imprisonment …’, albeit (as noted in Pogson at [108]), it reflects a significant degree of leniency.
The question in relation to the relevant legislative test in this matter is whether a form of punishment that is custodial in form but not in substance amounts to a sentence of imprisonment under the federal Migration Act 1958.
This is not a new question as it has animated discussion in a number of key authorities albeit with one distinction. The federal caselaw deals exclusively with circumstances in which suspended sentences have been the basis for a finding that an individual fails the character test (with decisions dealing with, as I understand it, substantially the same provision regarding a sentence of imprisonment). The particular nature of ICOs does not appear to have been directly addressed.
The question here is effectively that raised by Smithers J in his dissenting opinion in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 596:
[a]lso, one would not expect that a man who under the sentence of a court and by its terms is subjected to no imprisonment, should be subject to deportation under a statutory provision rendering him liable to deportation if sentenced to imprisonment for one year.
When the issue was dealt with again in Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111, the Full Court of the Federal Court considered the nature of the words used by Parliament, and the quality of the offending attracting a sentence of imprisonment (at [31]).
A similar approach was taken by the Full Court in Brown where it was held that the matter of consequence is the sentence imposed, not the time served (Nicholas J, at [74]). Furthermore, Rares J (at [7]–[9]) highlights the importance of the length of imprisonment, not the manner in which it is served. His Honour also notes that both ‘sentence’ and ‘imprisonment’ are defined inclusively in s 501(12) of the Act. Moreover, Rares J also points to the two-step sentencing process in which the severity of a court outcome is determined prior to the manner of its performance.
Brown was considered and applied in Ali. In the latter decision, Brown is described explicitly as good law, acknowledging (at [32]) that a suspended sentence entails no detention (albeit also describing a suspended sentence as a ‘contingent liability’ (at [28])).
I consider that I am bound by the authorities discussed in this section, informed as it is by a longstanding inquiry into the effect of s 501(7) and its predecessor provisions. Accordingly, I must find that notwithstanding YYZQ’s sentence to a term of imprisonment for 12 months did not involve actual imprisonment, by reason of the form that his sentence took he therefore fails the character test.
I must now consider whether there is another reason that the mandatory cancellation of his visa should be revoked. I set out my considerations below adopting the headings used in Direction 90.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
The nature and seriousness of the conduct
The Direction provides as follows:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Family violence is defined in the Direction (paragraph 4(1)) as follows:
… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
…
c) stalking; or
…
e) intentionally damaging or destroying property;…
I will address first YYZQ’s offending against his wife, and provide a brief summary to give context.
YYZQ was involved in two physical altercations with his wife, the first on 3 September 2019 (TB2), the second on 23 July 2020 (TB3). Both are described as involving him grabbing her by the wrist, but the second incident appears to have left red marks, and is also said to have involved YYZQ physically grappling with her, also leaving marks. The second incident led to a charge of common assault.
The ADVO was issued the day following the first incident and on 12 September 2019, YYZQ was convicted for Destroy or damage property (DV) in respect of minor property damage that occurred on 3 September. No conviction was recorded and a Conditional Release Order was imposed for 12 months.
The second incident occasioned a breach of the ADVO, which was extended on 31 August 2020. Further conditions were imposed at this time, including that YYZQ not make direct contact with his wife, and communication regarding their daughter be through a lawyer.
YYZQ further breached the ADVO on 12 September 2020 and 2 November 2020. He was bailed following the September incident. On the latter occasion, YYZQ was conducting a video call for the purposes of communicating with his daughter and his conduct led to a charge described as ‘Stalk/intimidate intend fear physical harm etc (domestic)’.
When dealt with by a Magistrate on 12 November 2020 (G6), YYZQ’s conduct was described as mid-range offending, and aggravated by his prior conditional release and bail. The Magistrate noted when dealing with the charge of stalk/intimidate that a threat was made during a video call intended to provide contact with YYZQ’s daughter, and in the course of this YYZQ threatened to come to the house and break a window. The Magistrate noted that this offence carries a maximum jail term of 5 years. The Magistrate also noted that YYZQ made numerous attempts to contact his wife via email in contravention of the ADVO and these charges carry a maximum penalty of 2 years imprisonment. The Magistrate stated that YYZQ had tried to attribute blame to the victim, accepted that YYZQ’s actions had caused her significant fear, and observed that YYZQ had trouble controlling himself.
YYZQ was sentenced to eight months’ imprisonment with a non-parole period of four months. When considering a non-custodial option, the Magistrate stated that there was a real question as to whether YYZQ was willing and capable to participate in any program required of him. The Magistrate acknowledged that YYZQ had difficulties with alcohol abuse, and mental health, and was in need of intensive therapy, probably in residential rehabilitation.
In his evidence, YYZQ appeared to acknowledge at least one instance of wrist holding but did not agree to the circumstances outlined in respect of the second incident. He stated that he held his wife’s wrist to prevent her throwing things and accepted there had been an argument, and that he had been drinking. In written material YYZQ states that the property damaged in the first incident was his own (described in the materials as crockery and a screen door).
YYZQ also stated in evidence that at the time of his offending he did not know it was an offence, apparently in reference to the first altercation. He stated that he accepted that the second altercation occurred, as he had plead guilty.
With respect to the ADVO, YYZQ stated in evidence that he was not aware of the ‘paperwork’. However, upon further questioning he acknowledged that he had been served with the ADVO, and understood the conditions. YYZQ appeared to accept the circumstances of the breach offending, and stated that it was a ‘big thing’ in Australia.
YYZQ acknowledged at the hearing that he was facing further charges for additional instances of breaching the ADVO while in immigration detention, but disputed the circumstances. The material before me indicates that YYZQ was charged in July 2021 with breaching the ADVO by contacting his wife by phone and SMS on a large number of occasions on 1 July 2021, including conducting a conversation with her (TB3, 131).
The Direction makes clear that an act of family violence is to be considered a very serious form of offending. I am satisfied that the assault on his wife to which YYZQ plead guilty is to be considered very seriously. I say this particularly in light of the fact that his wife was pregnant at the time of the first incident, and the couple had a young child at the time of the second incident. There is no evidence that YYZQ’s daughter is a victim of his offending, and the ADVO is only in respect of his wife.
I also consider the breach offences in respect of the ADVO to be forms of family violence offending, and therefore also very serious. The property damage charge and conviction arose in a family violence context. I note the Direction addresses both ‘crimes’ and ‘conduct’ and this may permit me to take into account the most recent breach conduct alleged against him. I will address this further below.
As noted, YYZQ has two convictions for driving with high range PCA. He was first convicted on 3 May 2010 having returned a blood alcohol concentration reading of four times the legal limit on 6 February 2010 (TB2, 82). YYZQ was fined $1500 and disqualified from driving for two years.
On the second occasion, YYZQ was convicted on 8 November 2018 after returning a blood alcohol concentration reading of nearly seven times the legal limit on 10 August 2018 (G7; TB2, 105). YYZQ plead guilty and, as noted above, received the 12-month ICO, with the requirement to complete 300 hours community service, complete relevant programs, and use an interlock device for two years.
YYZQ was questioned at the hearing about the circumstances of this offending, however –perhaps given his state at the time– appeared unable to engage helpfully with the details. I accept that there is evidence before me that both incidents involved collisions with other vehicles, and the Magistrate identified this as a feature of the second incident.
I consider that YYZQ’s high range drink driving is serious offending. In both cases he was well in excess of the legal limit and posed a risk to other road users, indicated if only by the collisions. The fact that the second instance led to what was in law, albeit not in fact, a custodial sentence which qualified it as a substantial criminal record speaks to its seriousness. It was also a repeat offence, and a more serious instance.
I note that YYZQ failed to declare his 2010 conviction when re-entering Australia after a short trip to India in 2016 (G48, 312). In written and oral evidence YYZQ stated that his visit did not go as planned, that he was emotional when boarding the flight, and also that he did not know that offending was covered by the declaration. Nonetheless I consider it appropriate to give this failure to declare some weight, consistent with the requirement to have consideration to such conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction provides as follows (relevantly):
1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
I consider that YYZQ’s past offending provides an appropriate guide to the nature of the harm to which individuals or the community might be exposed should he engage in further criminal or serious conduct. That is, the nature of the harm is likely to include physical danger to members of the community should he commit further driving offences.
A report from Ms Kim Dilati, forensic psychologist (G22), dated 10 December 2020, was submitted with YYZQ’s initial revocation request. Apart from providing a thorough personal history, this report describes the result of a clinical risk assessment and I note that the stated offending addressed by Ms Dilati was the second category, not including driving offences.
YYZQ is assessed in this report as having a moderate risk of future violence with a number of factors cited as increasing his risk including: a history of substance abuse; history of major mental illness; recent lack of insight; recent problems with treatment response; and ‘stress and coping’. Ms Dilati states: ‘… to reduce his risk of reoffending, it will be imperative for YYZQ to regularly attend treatment to reduce his risk factors and have his risk re-evaluated every 6 to 12 months’. She makes detailed recommendations for such treatment.
Ms Dilati also makes clinical diagnoses of Generalised Anxiety Disorder, Major Depressive Disorder, and Alcohol Use Disorder. She specifically notes that YYZQ is not ‘mentally ill’ in the sense meant in NSW legislation (for the purposes of involuntary admission), nor is he developmentally disabled, but was suffering a mental condition at the time of his offending. Ms Dilati notes that he had no history of long-term behavioural disturbances or antisocial behaviour in the absence of alcohol use and states further: ‘… it is apparent that YYZQ’s offending conduct is largely related to his alcohol use disorder to which he has not sought long-term, intensive nor consistent treatment, nor has he achieved rehabilitation’.
There is other material before me confirming YYZQ’s problems with mental health. This was supplemented at the hearing by the evidence of Ms JK who confirmed that she had been personally involved in helping YYZQ navigate health services during crisis periods in which he had been engaged in destructive levels of drinking, and had periods of hospital admission.
There is also correspondence from a clinical health service (G25) that confirms YYZQ sought help for his alcohol addiction issues and participated in a series of appointments through the middle of 2020, interrupted it appears by his arrest in November 2020.
In a written submission dating from December 2020 (G11), YYZQ lists his medication as including three forms of anti-depression or anti-anxiety medication and Valium. In evidence he stated that he is prescribed medication to help him sleep and continues other medication in relation to his mental health.
There are several personal references included in the material (G26–31) which present a largely similar picture. They acknowledge YYZQ’s difficult personal circumstances including his health issues, and provide, otherwise, a positive image of his character.
Various documents relating to courses are also included in the material (G43) comprising: certificate of completion for ‘ENGAGE intervention’; registration for ‘SMART Recover’ Australia zoom meetings; letter of attendance at mental health telehealth appointments; and participation in a pre-group interview for Parenting After Separation Course.
YYZQ acknowledged openly in evidence his difficulties with alcohol and that this was the cause of his offending, particularly when he engages with people while intoxicated. He stated that he has not drunk alcohol for one and a half years and does not buy alcohol in the detention centre as he does not feel like drinking. YYZQ stated that he ‘may’ drink in the future, upon release.
YYZQ stated in evidence that his wife no longer exists for him and that, while he previously wished to reconcile following the end of the ADVO, he no longer wished to do so. He stated that he does not know her number or address, and there is written material from YYZQ stating that his wife had at some point moved to Queensland. YYZQ also stated in a written submission that courses undertaken have been in order not to reoffend, and he will not make problems for his wife.
There was also evidence given at the hearing, principally by Ms JK, that family law proceedings are underway between YYZQ and his wife, in which Ms JK is also involved. I understand this largely to be with a view to providing a framework for YYZQ to have contact in future with his daughter. Ms JK stated that were YYZQ to be deported, it was hoped that she could act as a formal conduit with the daughter.
I consider there to be robust and helpful evidence concerning the likelihood of YYZQ reoffending. I accept that YYZQ’s engagement with the family law process may provide structure to any future contact with his wife and daughter. This may to some extent be a protective factor in respect of any future risk. However, the risk is tied to effective engagement with treatment, on the back of a relatively patchy record.
YYZQ appears to continue to pursue what was described by the Respondent’s representative as a form of victim narrative. This does not do him great credit, and indicates a lack of awareness of the fundamentals of his criminal wrongdoing.
Taking into account the wider evidence I have summarised here, I consider that the report of the forensic psychologist represents an accurate assessment of the risk of future violence, which is moderate, and I make that finding.
I consider the risk of any other future driving offending is likely to be a factor of success or otherwise YYZQ has with treatment. Accordingly, I also find that there is more than a reasonable chance of future reoffending of this kind.
Summary finding
It was submitted on the Respondent’s behalf that YYZQ’s offending should be considered very serious, and that he remains a real and unacceptable risk of further, potentially significant, harm to members of the community. It was also submitted that there has been a trend of increasing significance and repeat offending. Accordingly, it was submitted that this first primary consideration weighs heavily against revocation.
Authorities were cited for the proposition that the Tribunal may take into account various forms of conduct falling short of convictions, primarily in relation to reliance upon summonsed material, including Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 (at [64]). This case is relevant particularly in the light of the pending breach charges noted above. I consider that, given YYZQ’s denials in evidence, the best course is not to place weight on this additional material.
Submissions on YYZQ’s behalf sought both to acknowledge his behaviour, and to apportion some blame to his wife. His pleas of guilty were highlighted, and it was also acknowledged that his wife was pregnant at the time of the first altercation. In his written material YYZQ states that he is not a criminal and that life circumstances, including physical illness and his state of mental health, were factors in his offending. He also stated that his breach offending had only been via electronic means, and that he has completed a number of rehabilitation programs.
YYZQ’s driving offending has been infrequent but is serious and has, within itself as a type of offending, demonstrated increasing seriousness, reflected in the level of alcohol use engaged in, and the sentencing outcome. This offending is clearly intertwined with YYZQ’s issues with mental health and alcohol use for which he has sought only limited constructive treatment.
YYZQ’s family violence has been relatively infrequent also, comprising two instances of direct engagement with his wife. However, it has been accompanied by numerous breach offences and is clearly categorised as serious offending.
I consider the repeat offending within these categories to be an important consideration as to the nature and seriousness of his offending overall. I also consider that the ADVO breaches, and his failure to respect the conditional release instituted after the property damage incident, to be an important factor in that YYZQ has demonstrated a disregard for the legal process.
Overall, I consider that this primary consideration weighs strongly against revocation.
Family violence committed by the non-citizen
Under the Direction this consideration is relevant in YYZQ’s case because of his family violence offending (paragraph 8.2(2)). The Direction states that the Government has serious concerns about conferring the privilege of remaining in Australia on any non-citizen who engages in family violence (paragraph 8.2(1)). This concern is proportionate to its seriousness which is dealt with in paragraph 8.2(3):
(a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
I have dealt with YYZQ’s offending above. The definition of family violence in the Direction is quite detailed, but it is also inclusive and does not appear to be completely definitive. The charges of assault and property damage are explicitly included in the definition, as is stalking. I consider that as the breach offences in which electronic contact was made with YYZQ’s wife were breaches of an ADVO, that these also qualify as family violence offences.
I have no evidence about the cumulative effect this has had, but I note the observation of the Magistrate that YYZQ had caused his wife fear. I note that, while disputed, further breach offences remain on foot, but I will not give weight to these.
It was submitted on the Respondent’s behalf that the risk of reoffending was not ameliorated by any of the evidence provided at the hearing. It was contended that YYZQ’s alcohol remission was only present during his time in custody and therefore a risk remains of this contributing factor. It was further submitted in the SFIC that YYZQ lacked insight and remorse, the risk of reoffending remained unacceptable, and this consideration should weigh heavily against revocation.
It was submitted on YYZQ’s behalf that he had taken the blame for the altercations that occurred in the past, but that he is not proud of his offending history. It was further submitted that he understands the law when sober and the risk would be mitigated should he be able to address his problems. It was also contended that he had now reached a turning point in his life.
The evidence set out under the previous consideration demonstrates to my satisfaction that YYZQ has and continues to fail to come to grips with the impact of his behaviour. This arises from his general denial of culpability and victim blaming narrative, one that was noted by the sentencing Magistrate.
I noted above the limited efforts to date by YYZQ to address his wider mental health and alcohol issues. This, despite the potential protective function of any family law proceeding, means that overall he has exerted little effort to address the contributing factors. His breach offending indicates a failure to heed formal warnings.
Overall, I am satisfied that in the circumstances, this consideration weighs strongly against revocation.
Bests interests of minor children in Australia affected by the decision
The Direction requires a decision-maker to determine whether non-revocation is, or is not, in the best interests of a child affected by the decision (paragraph 8.3(1)). This consideration only applies to children under 18 at the time of the decision and each child must receive separate consideration to the extent that their interests may differ (paragraphs 8.3(2) and (3)). The following factors must be considered (paragraph 8.3(4)):
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
There are three minor children that are captured by this consideration: YYZQ’s daughter, ‘T’ born January 2020; and, Ms JK’s two children, a nephew ‘G’, aged six, and a baby child ‘N’, aged approximately 7 months.
Written material from YYZQ attests to his active role in T’s life when very young. It was not contested by YYZQ at the hearing that he has not seen his daughter since the middle of 2020, and he stated that his last contact of any kind was in November 2020, following his arrest. He stated that he had contact perhaps three or four times during late 2020. YYZQ does not know where his daughter is at the moment.
YYZQ accepted that his wife fulfils a parental role for his daughter, but there is written evidence from YYZQ expressing his concern about his wife’s capability to manage financially. He stated that Ms JK would be legally responsible for contact with his daughter if he were to be deported. As noted above, there appear to be family law proceedings underway with respect to formalising any future engagement with T.
When asked in evidence about his sister’s children, YYZQ stated that he was unable to recall G’s birthday, but gave his age, and was not aware of N’s birth name, but knew them by a familiar name. In his written evidence YYZQ states that he has been of direct assistance with G in the past due to G’s autism, and this was reiterated by Ms JK in her evidence at the hearing, and in her written statement.
YYZQ’s capacity for, or plans to maintain, contact with these minor children were he to be deported was not explored in detail in evidence. I did put to him that he should be in a position to engage remotely using technology, which he did not dispute.
In her evidence, Ms JK accepted that her son G was an NDIS participant. However, she expressed some concern about the capacity of the scheme to offer adequate support. In the written material Ms JK states that her brother had done school pick-ups and drop-offs with G, and had been ‘really involved’. She is confident that she can leave G with YYZQ.
YYZQ submitted in writing his concern that T would ‘never see her father’ if he was deported and that they would become estranged.
On the Respondent’s behalf it was submitted that there may well be questions as to the suitability of YYZQ having contact with his daughter in the future on account of the history of family violence involving her mother, and that this may operate to lessen the weight afforded the interests of T. It was noted that he had been effectively absent from her life for a long period and would likely be able to maintain contact electronically, or through Ms JK. On this basis, limited weight should be given this consideration in favour of revocation.
With respect to the other minor children, it was submitted at the hearing that YYZQ might be understood to be ‘an Uncle with an interest’. It was contended there is limited corroboration for his active role in respect of G, and that in general less weight should be given to the interests of G and N due to the nature and duration of the relationships overall.
With respect to YYZQ’s daughter, T, I accept that in general terms there is a benefit to her in knowing her father, and having contact with him of some kind. However, this needs to be tempered by the practical reality of her very young age, and the limited participation he has had in her life, due to YYZQ’s incarceration.
There are uncertainties arising from the family law process that I accept is underway. It appears to be a reasonable assumption that ongoing access of some kind is a likely outcome, regardless of YYZQ’s physical location, but its nature and extent remain a matter of speculation.
Overall, however, I consider it appropriate to give some limited weight in respect of T in favour of revocation.
Accordingly, I find that this primary consideration weighs slightly in favour of revocation.
I accept that YYZQ and his sister are part of a relatively small family and appear to form a small family circle in Australia. There is likely to be some benefit for the children G and N in knowing and having a relationship with their Uncle. However, this needs to be strongly tempered in the case of N due to that child’s recent arrival. It also can be somewhat tempered in the case of G by the fact that YYZQ has played a supporting role to date but not one comparable to a parental relationship.
I consider that it is appropriate to also give some limited weight to the interests of these other minor children in favour of revocation.
Expectations of the Australian community
The Direction states categorically that it is an expectation that non-citizens obey the law in Australia and where they have breached this expectation that the Australian community expects, as a norm, that they will not be permitted to remain here (paragraph 8.4(1)).
It is further stated that non-revocation may be appropriate simply because of the nature of the offences, and that acts of family violence inherently carry serious character concerns (paragraph 8.4(2)(a)). A crime of violence against a woman is also categorised as a ‘serious crime’ in this context (paragraph 8.4(2)(c)). The expectation applies regardless of whether there is a measurable risk of causing physical harm to the Australian community.
It is submitted on the Respondent’s behalf that the community would expect that YYZQ not continue to hold a visa given his serious criminal offending, including his driving offences, that put the community at risk of significant harm. It is also contended, in light of the Principles contained in the Direction, that any tolerance for his offending is extinguished given that he commenced offending soon after arrival in Australia. It is submitted this consideration should weigh heavily against revocation.
The explicit terms of this consideration and the nature of YYZQ’s offending, explored in detail above, mean that this expectation has been enlivened, and it accordingly weighs against revocation.
A discretion remains with a decision maker to attribute weight to this consideration. YYZQ’s family violence offending is considered to raise serious character concerns. YYZQ also committed a serious driving offence within two years of his arrival in Australia. I have also found that a measurable risk of future violent offending exists, and a risk of future driving offending.
Accordingly, I find that this consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Direction explains that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they fear a specific type of harm, citing the Refugees Convention (the 1951 Convention as amended by the 1967 Protocol), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil, and Political Rights and its Second Optional Protocol (paragraph 9.1(1)). It states further:
The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulment obligations where relevant, decision-makers should follow the test enunciated in the Act.
I summarise here the further parts of this consideration, taking into account the fact that YYZQ has made a protection visa application, and this has been rejected (G44–45) but remains subject to a pending application for review, and that he has made clearly articulated claims that he is owed a non-refoulment obligation. Relevantly, the consideration states: decision-makers are to weigh any obligation that is found to exist against the seriousness of the non-citizen’s offending, mindful of the provisions in the Act requiring their detention until removal as soon as reasonably practicable (paragraph 9.1(2)); and such an obligation does not preclude non-revocation due to the existence of Ministerial discretions under the Act with respect to the granting of visas (paragraph 9.1(3)). I note that due to recent legislative changes, it may be, subject to circumstances, that the duty to remove may not be enlivened.
In his revocation submission (G10) YYZQ provides details of his concerns for his safety, referencing also his protection visa application. He identifies: a significant risk of harm arising in part from a group known as khap panchayat; that he has adapted to Australian culture; he has only made one brief, and interrupted visit back to India since arriving in Australia; and that he is estranged from his family, and has no one to support him.
In his further submission (Exhibit A1) YYZQ again refers to his protection visa application stating that he was ‘inclined towards Christian religion’ during his first marriage, and that there is friction with his family over a broken promise to marry.
The decision record with respect to YYZQ’s application for a protection visa (G45) contains further details of his claims of harm, which I summarise as follows:
(a)he did practice a religion prior to his first marriage but his wife encouraged him in learning about Christianity, although he was not baptised;
(b)the threat he feared was from ‘family, culture and tradition’ in that he was raised by paternal grandparents, and travelled to Australia without his parents knowing to avoid an arranged marriage;
(c)because of this he and his parents had been threatened by the village group khap panchayat and his life was at risk; and
(d)this group is a male-dominated informal social system that deals with marriage issues active in his home state of Haryana, and country information indicates that it can become involved in honour-related violence.
At the hearing YYZQ stated that he was not baptised and that he no longer adhered to any religion. He denied that he informed the forensic psychiatrist that by way of identity he was a practising Sikh, and maintained that he was of no religion. He did confirm that he was Sikh originally. YYZQ stated that he is not baptised as a Christian, and noted that his second wife was Hindu.
YYZQ accepted that he had made one short trip back to India, but was not clear in his response as to how this reflected his concerns about safety. At this point in the hearing YYZQ added that by 2018 he had saved a lot of money and wished to return to India. He did not intend to stay there, but rather to take the opportunity to spend his money applying for a visa for another country such as Canada.
It was submitted on the Respondent’s behalf that there are questions as to whether YYZQ’s fear of return was genuine, demonstrated in part by his demeanour when answering questions in evidence. It was contended that YYZQ’s embrace of Christianity is a historic matter, and that his behaviour in returning in 2016 and planning a return in 2018 spoke against his claimed fears.
It was noted in the Respondent’s SFIC that YYZQ’s protection visa application has been refused and an appeal is pending before the Migration and Refugee Division of the Tribunal. However, it was noted that the application had been refused based on careful consideration. Accordingly, it was contended that this consideration weighs neutrally.
I note that the Determination in this consideration refers to the concept of protection obligations as set out in the Act and that decision makers should follow these tests. Stated briefly, these obligations are defined in s 36 of the Act as arising from a person’s status as a refugee, or from the ‘complementary protection’ obligations founded in international conventions. The stated levels of harm are:
(a)in respect of refugee status, ‘serious harm’ (s 5J(5)), which includes threat to life and significant ill treatment, based on a well-founded fear of persecution; and
(b)in respect of complementary protection, ‘significant harm’, which includes deprivation of life and torture, and for which there must be substantial grounds of a real risk.
The DFAT Country Information Report for India broadly confirms the description of the khap panchayat described in the protection visa decision record (see Chapter 3 Protection Claims). The risk is said to be higher in Haryana, YYZQ’s home state, and also appears to be largely confined to mixed marriages, as well as honour killings of women.
There is limited substantive, and no corroborated, evidence of the threats said to be the basis of YYZQ’s fear of harm. However, in principle, I accept that the risks as he describes them might potentially rise to the level of the tests summarised above.
More importantly, however, YYZQ’s conduct in returning to India, albeit briefly, and planning to return, again possibly briefly, undermines the subjective significance of such risk. Furthermore, the claim does not match particularly well with the documented nature of the risk, including for the fact that YYZQ claims to practise no religion, which substantially reduces the capacity to make a finding that his fears are based on religious grounds.
Fundamentally, I am unable to accept, on the basis of the evidence before me, that YYZQ’s specific claims rise to the level of risk articulated in the Act.
Accordingly, I find that this consideration weighs neutrally.
Extent of impediments if removed
The Direction requires (paragraph 9.2(1)) decision makers to consider the extent of impediments that a non-citizen may face if returned 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)’ and taking into account: their age and health; whether there are any substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
YYZQ is presently in his mid-30s. In addition to his ongoing issues with mental health, he has experienced in the past issues with his physical health. He has injured his left arm in a workplace accident, and he has had surgery for anal fistulas. Other than his current medication, noted above, I have records of health consultations during detention (TB7) that reveal few matters that I consider to be of significance. His current physical capabilities were not explored in cross-examination.
YYZQ confirmed in evidence that he completed education to secondary level in India and commenced some vocational development prior to coming to Australia. His work record is set out in his personal circumstances form (G11) and includes several years in meat packing, several years of driving experience, as well as further experience in the transport sector. YYZQ holds a heavy vehicle license and a forklift ticket. He has also completed diploma studies in hospitality management.
YYZQ stated that if returned he would not be able to survive unless his sister sends him money. He has also stated in written material that he is at risk of self-harm. He stated that his father is in Australia, but his mother is in India as is his brother, who is married. YYZQ stated that he does not maintain good relations with his parents and would not live with family if returned.
Ms JK stated in evidence that she considered that YYZQ would struggle to find employment, stating that she herself, despite her extensive management experience and qualifications, would take some time to find work.
It was submitted on the Respondent’s behalf that YYZQ had spent the majority of his life in India. The Respondent accepts that mental health support in India is not comparable to that in Australia, but it was contended no evidence had been advanced that it was impossible to obtain. It was further submitted YYZQ would have available the same supports available to any other citizen of India (without elaborating what these are), and that limited weight should be afforded this consideration in favour of revocation.
The DFAT Country Information Report states that access to mental health services in India is difficult, and that treatment is often unavailable or inaccessible (see Chapter 2 Background information).
I consider that YYZQ faces no linguistic or cultural barriers should he be returned to India. While I accept that he practices no religion and has become acclimatised to the Australian way of life, this does not counterbalance the more than twenty years spent growing up in India.
I also consider that his education and diverse work experiences furnish him with more than a basic set of skills which will serve him if returned, notwithstanding he may face some difficulties finding gainful employment. I do not consider that given his age, and past life experience including in India, that his lack of desire to engage with the family he has there puts him at a particular disadvantage. Given the relatively low threshold for livelihood established by the Direction, I am satisfied that YYZQ will be able to meet this standard.
However, the evidence and findings set out above with respect to YYZQ’s mental health treatment needs, and ongoing medication, are of some real concern, given the country information. I consider that it is quite possible that he would face some difficulty in managing his health and overall equilibrium if returned to India.
For this reason, on balance, I find that this consideration weighs slightly in favour of revocation.
Impact on victims
Under this consideration decision-makers must consider the impact of a decision on members of the Australian community, including victims of the non-citizen’s offending, and their family members where available (paragraph 9.3(1) of the Direction).
No such evidence or information is before me and accordingly I find this consideration weighs neutrally.
Links to the Australian community
Strength, nature and duration of ties to Australia
The Direction states that decision makers must consider any impact of the decision on a non-citizen’s immediate family members in Australia, where they are citizens, permanent residents, or have a right to reside indefinitely (paragraph 9.4.1(1)).
Consideration must also be given to ties to the Australian community having regard to the length of time the non-citizen has resided in Australia noting that: less weight be given when the non-citizen began offending soon after arriving; and more weight to time spent contributing positively to the Australian community (paragraph 9.4.1(2)(a)). Consideration should also be given to family or social links with Australian citizens, permanent residents, and/ or people with an indefinite right to reside here.
Material before me indicates that YYZQ is a property owner and taxpayer. He also submitted evidence of contributions to the Red Cross. I set out his work record above. As noted, he has cast doubts upon his wife’s capacity to cope financially and written material indicates that he has supported her.
Ms JK stated in her written material that it would be a great loss to her family if YYZQ were returned to India. I noted above the personal references submitted by YYZQ and he stated in evidence that some of these were from individuals that are citizens, albeit they lacked detail as to how his departure would impact upon them.
I asked YYZQ in the hearing if he could elaborate upon his social and personal ties in Australia and he responded that he had spent a considerable amount of time working. He also stated in written material that his wife had sought to cut him off from his friends.
It was submitted on the Respondent’s behalf that Ms JK and her family are likely to suffer some emotional impact if YYZQ is to be deported. It is contended that there is no independent evidence to substantiate any financial support to his wife. However, the submission appears to support a finding that some weight be given to YYZQ’s ties.
YYZQ has spent a good deal of time in Australia and has made a relatively typical contribution as worker and taxpayer, and has a social network. Since the failure of his marriage his most significant personal tie is to his sister. I noted previously that he comes from a small family and this serves to emphasise the importance of this relationship. While his father is in Australia, I have no evidence before me as to whether he qualifies for consideration given the stipulations in the Direction about nationality and residence status.
As noted above, YYZQ committed a serious offence two years after arriving in Australia, and went on to repeat this behaviour. This does not serve to erase his otherwise generally positive contribution, but it does lessen the weight that can be afforded it.
Taking the evidence overall, I find that some limited weight should be afforded this consideration in favour of revocation.
Impact on Australian business interests
This consideration requires a decision maker to consider the impact on Australian business interests of non-revocation and that weight would generally only be given where the decision would impact a major project or delivery of an important service (paragraph 9.4.2 of the Direction).
I note that YYZQ’s employment history does not reveal any contribution that rises to the level contemplated, and no submission to this effect was made.
Accordingly, I find this consideration weighs neutrally.
CONCLUSION
Of the primary considerations I have found that three weigh strongly against revocation: Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community. I have found that Best interests of minor children affected by the decision weighs slightly in favour of revocation.
Of the other considerations I have found that two weigh in favour of revocation but only to a limited extent: Extent of impediments if removed, and The strength, nature and duration of ties to Australia. I have found that the consideration International non-refoulement obligations weighs neutrally.
The Direction states that primary considerations should generally be given greater weight than other considerations, and that one or more primary considerations may outweigh other primary considerations.
There is insufficient reason arising under any of the considerations that weigh in favour of revocation to overcome the general proposition that primary considerations should be given greater weight. Equally, because of the limited favourable weight given to the consideration Best interests of minor children affected by the decision, and the nature of the findings made in respect of those relationships, I find that the primary considerations that weigh strongly against revocation must prevail.
Accordingly, I find that there is not another reason why the mandatory cancellation of YYZQ’s visa should be revoked. His application is therefore unsuccessful.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 154 (one hundred and fifty -four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
....[sgd]...................................................................
Associate
Dated: 15 December 2021
Dates of hearing: 25–26 November 2021 Date final submissions received: 3 December 2021 Applicant: By videoconference Advocate for the Respondent: Mr Matthew Hawker Solicitors for the Respondent: Sparke Helmore Lawyers
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