ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1633
•29 April 2021
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1633 (29 April 2021)
Division:GENERAL DIVISION
File Number: 2021/0835
Re:ZFZM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Member Rebecca Bellamy
Date of Decision: 29 April 2021
Date of Written Reasons: 8 June 2021
Place: Brisbane
The decision under review is set aside and the Tribunal exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa
..........................[SGD]..............................................
Member Rebecca BellamyCATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Regional Sponsored Migration Scheme (Class RN Subclass 187) visa - where Applicant did not pass the character test and subsequently the sentence of imprisonment triggering mandatory cancellation was set aside – which limbs of character test apply – consideration of Ministerial Direction No. 90 minor offending – whether there is another reason to revoke the mandatory cancellation decision – low risk of re-offending – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Justices Act 1886 (Qld)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629; (2019) 266 CLR 250
FYBR v Minister for Home Affairs [2019] FCA 500; [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
LLSY v Minister for Immigration and Citizenship [2019] FCA 2033 (25 November 2019)
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 (“CPJ16”) [2019] FCA 2033 (25 November 2019).
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Rebecca Bellamy
8 June 2021
THE ISSUES BEFORE THE TRIBUNAL
The Applicant is a 23-year-old citizen of Fiji. In December 2012, when he was 14 years old, he moved to Australia. The most recent visa granted to him was a Regional Sponsored Migration Scheme (Class RN Subclass 187) visa (“visa”).[1]
[1] Exhibit G1, Section 501 G documents, G10, page 202.
Subsection 501(3A) of the Migration Act 1958 (“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.
Section 501(6)(a) of the Act relevantly provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)
Subsection 501(7) of the Act relevantly defines a substantial criminal record as:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more
There are several different limbs of the character test in s 501(6) of the Act, each providing separate and distinct criteria that can result in a person not passing the character test.
On 26 August 2020 the Applicant was sentenced to imprisonment for 12 months and he commenced serving that sentence. The combination of those two circumstances triggered the mandatory cancellation of his visa under s 501(3A) of the Act.
On 2 September 2020, a delegate of the Minister (“the Respondent”) duly cancelled the Applicant’s visa (“the mandatory cancellation”) as the Act required.[2]
[2] Exhibit G1, Section 501 G documents, G9, pages 196 to 201.
On 25 September 2020 the Applicant was released on parole and he was placed in immigration detention.
On 29 September 2020, the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation.[3]
[3] Ibid, G6, page 34
Subsection 501CA(4) of the Act provides for the revocation of a mandatory cancellation. It relevantly provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; an
(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.
On 7 February 2021, the Respondent decided not to revoke the mandatory cancellation[4] (“non-revocation decision”) on the basis that:
[4] Exhibit G1, Section 501 G documents, G3, page 12.
·the Applicant did not pass the character test because he had been sentenced to a term of imprisonment for 12 or more months; and
·there was not “another reason” to revoke the cancellation.
It was common ground between the parties that the delegate who made the non-revocation decision decided that the Applicant did not pass the character test because of the operation of s 501 “paragraph (6)(a)(substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)”. For ease of reference, I will refer to this criterion as “limb (a)” of the character test.
On 11 February 2021, the Applicant applied to the Tribunal for review of the non-revocation decision.[5] Under s 500(1)(ba) of the Act the Tribunal is invested with jurisdiction to review a decision not to revoke a mandatory cancellation made under s 501CA(4) of the Act.
[5] Ibid, G2, pages 3 to 8.
At that time the issues before the Tribunal were.
·whether the Applicant passed the character test; and
·whether there was another reason why the decision to cancel the Applicant’s visa should be revoked.
At this point, it is apt to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
[6] [2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, if an Applicant succeeds on either ground, the Tribunal must revoke the cancellation of the Applicant’s visa.[8]
[8] Ibid.
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[9]
[9] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
This proceeding was subject to a statutory timeframe, requiring a decision by the Tribunal by Friday 30 April 2021 (given the public holiday in Queensland on Monday 3 May 2021). A two day hearing was listed to take place on 21 and 22 April 2021. That left six business days for the Tribunal to make the decision after the hearing concluded.
On 23 February 2021, the District Court set aside the Applicant’s sentence of imprisonment and instead sentenced the Applicant to probation.[10] Thus, the Applicant no longer failed to pass limb (a) of the character test. This was conceded by the Respondent.
I pause to note that I do not consider that this undermined the validity of the mandatory cancellation or the non-revocation decision. The Applicant’s grounds for the appeal against his sentence were that it was manifestly excessive and he was represented by a duty lawyer.[11] Section 222 of the Justices Act 1886 (Qld) relevantly provides for a person convicted of a summary offence, by way of guilty plea, to appeal to the District Court on the basis that the sentence was excessive. Section 225 of that Act relevantly provides a wide discretion to confirm, set aside or vary the order or make any other order in the manner the judge considers just. While I do not have the learned Judge’s reasons before me, it was not alleged that the learned Magistrate lacked jurisdiction to impose the sentence, and it was not necessary for the learned appeal Judge to make such a finding in order to set it aside. Accordingly, I am satisfied that the original sentence was lawful from the time it was made until it was set aside.
In written submissions filed on 13 April 2021, the Respondent submitted, among other things, that in light of that new development the Tribunal could and should review the non-revocation decision and take into account other limbs of the character test in s 501(6) of the Act, specifically limbs (c) or (d).
The hearing proceeded on 21 and 22 April 2021. At the outset, I asked the parties to make submissions about the effect, if any, on my jurisdiction given the outcome of the criminal appeal. I expected the Applicant to oppose the Respondent’s position and for some robust legal argument to occur. However, the Applicant’s counsel indicated broad agreement with the Respondent. Both parties politely urged me to “get on with it”, with the Applicant’s counsel particularly concerned with the length of time the Applicant had already spent in prison and immigration detention, being some eight months.
[10] Applicant’s Statement of Facts, Issues and Contentions, A2, SGF-3.
[11] Exhibit G1, Section 501 G documents, G6, pages 63 to 65.
I put certain matters to the parties, mostly the Respondent, relating to my jurisdiction and procedural fairness including, but not limited to:
· A question whether the mandator cancellation was rendered a nullity[12];
· That I was being asked to review a decision not to revoke a decision that no longer has grounds[13], that the very thing that enlivened the mandatory cancellation does not exist anymore[14];
· “…what’s to stop the Minister from simply making a decision using the Minister’s discretion based on the character test that you are asking the tribunal to apply today? What’s to stop the Minister from just conceding that, look, the grounds that existed don’t exist anymore, it’s not appropriate to use this power, it’s appropriate to use the other power in the Act?”[15]
(To which Counsel for the Respondent replied that this matter is a vehicle that could be used to challenge the decision in CPJ16[16] and that his instructions were to defend the reviewable decision where the nature of the applicant’s offending was such as to concede pursuant to section 42C of the Administrative Appeals Tribunal Act 1975 – relating to consent orders)
· “…the case that the applicant has had to answer thus far is different to the case that I am being asked to decide. And it may be that there are only small or subtle differences and maybe the facts aren’t even all that different but as you know as counsel it’s the way you put a case and the emphasis that you put on things and maybe it even impacts the witness statements that the applicant may have wished to obtain, so that concerns me as well…It’s a very different case now ”[17];
· Should I make my decision taking limbs (c) and (d) into account, there can be no merits review of that decision[18]; and
· Whether I should find that the Applicant passes the character test because limb (a) no longer applies and remit the matter to the Minister to consider other limbs[19].
[12] Transcript, page 3, lines 14 to 19.
[13] Transcript, page 7, lines 10 to 14.
[14] Transcript, page 8, lines 10 to 16.
[15] Transcript, page 8, lines 29 to 34.
[16] Referred to later in these reasons.
[17] Transcript, page 9, lines 1 to 9.
[18] Transcript, page 10, lines 7 to 10.
[19] Transcript, page 16, lines 14 to 21.
After hearing submissions from both parties augmenting their written submissions that were filed prior to the hearing, I was persuaded that I could review the non-revocation decision taking into account any relevant limbs of the character test, and I was not confined to considering limb (a). I heard evidence from the Applicant, his mother, his father and his partner (“Ms M”) by videoconference. I also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. I was unable to consider a psychologist report submitted by the Applicant on 19 April 2021 because it had not been provided to the Respondent at least two business days before the hearing.[20] At the conclusion of the hearing I asked the Respondent for written submissions reiterating the oral submissions that had been made regarding my jurisdiction to consider other limbs of the character test to assist me to set out the issue in the written reasons for my decision, and the Respondent provided those submissions a few days later.[21]
[20] Section 500(6J) of the Act.
[21] Exhibit R3, Respondent’s Submissions on Jurisdiction dated 23 April 2021.
Having considered all of the evidence and submissions from both parties, and having regard to the Direction, I formed the view that there was another reason to revoke the mandatory cancellation. There is no authority that I am aware of, or anything implicit in the wording or structure of the legislation, that requires a decision maker to decide whether an Applicant passes the character test before considering whether there is another reason to revoke the mandatory cancellation and I do not consider myself constrained in that way. My finding that the Applicant passed the character test therefore determined the matter. On 29 April 2021, I set aside the reviewable decision and instead revoked the mandatory cancellation.
It has taken some time to provide written reasons largely because I had some misgivings about whether I had been mistaken about my acceptance that I could consider criteria of the character test other than limb (a). Upon reflection and further research, I came to the view that I had been mistaken and that I did not have jurisdiction to consider any criteria other than limb (a). It is an objective fact, rather than an issue that requires assessment, that limb (a) does not apply. Nothing turns on this jurisdictional point because, once I had found that there was another reason to revoke the mandatory cancellation, the character test became irrelevant.
However, in the event that the Minister does not accept my decision, he may wish to seek judicial review or exercise a power in the Act to cancel the Applicant’s visa. If he opts for the former, and if the Federal Court decides that my decision that there is another reason to revoke the cancellation is infected with jurisdictional error such that it cannot stand, it would then raise the question of whether the Applicant passes the character test because of the operation of limb (a) or whether that assessment must take into account other criteria in the character test put forward by the Respondent. Accordingly, I shall set out my reasoning on this issue. I am also cognisant that this is a novel issue that deserves consideration and that the objects of administrative review include promoting good decision making. Before addressing this issue, I will set out my reasons for finding that there is another reason to revoke the mandatory cancellation.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
In 2012 when he was 14 years old the Applicant moved to Australia with his parents and his two brothers. The family settled in Gladstone where the Applicant attended high school completing Grade 12.
The Applicant commenced offending in 2017 when he was 18 years old, some four years after he arrived in Australia. His offending history spans a period of three years from January 2017 to February 2020 and includes 13 separate offences. He has appeared before the Magistrates Court in five separate sentencing episodes. He has only one recorded traffic offence in August 2020 (for speeding less than 13km/hr over the speed limit) and had his license briefly suspended on two occasions for failure to pay outstanding fines and penalties.
The first criminal offences were committed in January 2017. On 28 January 2017 the Applicant attended a party and stole a mobile phone belonging to another guest. That person subsequently posted on Facebook that she would give $200 to whoever located a phone. The Applicant pretended that he had found her phone, intending to receive the $200 reward money. A friend who knew what he had done told the owner of the phone who then confronted the Applicant. The Applicant admitted to having stolen her phone and lying to her to get the $200. He gave the phone back. He was interviewed by the police and made full admissions.
The Applicant was convicted of two counts of receive tainted property and one count of attempted fraud and sentenced on 21 March 2017 to 12 months’ probation.
In the hearing the Applicant said that he completed probation without any problems. He said as part of the requirements, he met with a probation officer every week, normally the same person. They talked about how his life was going, and he found that helpful.[22]
[22] Transcript, page 54, lines 41 to 47; page 55, lines 1 to 18.
On 5 March 2018,[23] the Applicant committed another stealing offence. The police court brief records that the Applicant and his friends were at a Hungry Jacks when the victim, having left his scooter outside, walked in and had a conversation with them. The Applicant and his friends then left and as the Applicant was walking past, he turned back around, picked up the scooter and ran off with it. He put it in his friend’s car and they all left together. Around two weeks later when police spoke with the Applicant, he denied knowledge of the offence. However, after being shown CCTV footage he made admissions, stating that his friend’s brother was owed money.[24]
[23] Which appears to be just inside the probation period, although no action was taken for breaching probation.
[24] Exhibit G1, Section 501 G documents, G6, page 87.
On 20 October 2018 the Applicant committed four offences arising out of an incident that involved the police.
At about 11pm the Applicant was seen standing on the footpath with two other people holding a can of beer. When the police advised him to tip the can out, the Applicant instead poured the contents into his mouth. The police asked him to produce identification and he produced a Fijian passport.
While the police were speaking to the Applicant, one of his friends began obstructing police and was arrested. While the police were attempting to restrain his friend, the Applicant attempted to interfere and pull the police away. The police had to push the Applicant away on a number of occasions until his friend was restrained.
Once his friend was restrained the police engaged in a “short wrestle” with the Applicant to prevent him from interfering further. The Applicant was arrested, and he continued to act aggressively and failed to comply with directions. The police drew their Tasers and, after some verbal warnings, the Applicant lay on the ground and was handcuffed, but he continued to struggle and resist.
While waiting for another vehicle to transport the Applicant to the Gladstone police watch house, the Applicant was held against the police vehicle. He then head-butted the windscreen with “significant force” causing the glass to crack in a way which destroyed it. He was moved and placed face down on the ground.
When the Applicant was asked about this incident, he said he was very drunk and could not recall it. However, he did not deny it.[25]
[25] Transcript, page 46, lines 37 to 40.
The Applicant was transported to the Gladstone watch house. He was charged with four offences including consuming liquor on a road, wilful damage of police property and two counts of obstructing police on licensed premises. He was convicted on 5 November 2018 and sentenced to fines.
On 21 October 2018, because of the incident with the police the previous day, the Applicant was issued with an Initial Police Banning Notice. This Notice was to be in place for 10 days and excluded the Applicant from entering or remaining in the Gladstone Safe Night Precinct. While the Notice was in effect the Applicant attempted to enter two different venues within the precinct. He was refused entry and left. He was charged with contravening a police banning notice and was convicted and fined on 26 November 2018. When asked about this, the Applicant indicated that he did not know about the banning notice until he was at the location and told about the notice.[26] I took his evidence to mean that he was not aware of the notice until the police apprehended him.
[26] Transcript, page 51, lines 15 to 25.
On 14 May 2019, the Applicant was sentenced to 60 hours of community service for the stealing after previous conviction offence committed in March 2018.
I have before me a document entitled “Court Reporter Community Based Order”, dated 2 March 2020.[27] It indicates that:
[27] Exhibit G1, Section 501 G documents, G6, pages 83 to 84.
·on 14 May 2019, the Applicant was inducted into his community service order and the requirements of the order and consequences of non-compliance were clearly explained;
·the Applicant was issued with a work instruction to attend the Alcohol Fuelled Violence and Initiative Project at the Gladstone Horse Performance Club every Monday until he had completed 60 hours;
·he failed to attend on four occasions being 20 May, 27 May, 20 June and 24 June 2019;
·that work instruction was cancelled due to operational reasons and he was placed on a waitlist until a suitable project became available;
·he was contacted on 26 August 2019 at which time he indicated he had relocated to Biloela, and he was directed to report to the Biloela reporting centre on 11 September 2019. He failed to report as directed;
·over the following months Community Corrections had great difficulty getting in touch with him, with calls and text messages going unanswered. During this time he moved back to Gladstone and failed to report to a work project in Gladstone;
·in November 2019, Community Corrections gave the Applicant one final opportunity to engage with his order and he failed to report;
·Community Corrections’ efforts to re-engage the Applicant had been futile and he had shown a “blatant disregard to the requirements of the order”; and
·the Applicant had completed only 24 hours of community service under the order.
In the hearing, the Applicant admitted that, at the time, he did not take the penalties that had been imposed on him seriously.[28] He admitted he did not have a sufficient degree of insight into his behaviour.[29]
[28] Transcript, page 53, lines 17 to 24.
[29] Transcript, page 53, lines 33 to 36.
When the Applicant was asked what the difference was between the probation order that he completed successfully and the community service order which he did not, he said:
“To be honest, it was just the fact that I had to go and, like - because I remember the first community service, I had to come to a church. I’m pretty sure I had to go to a church and help with certain things, and at that time, I just - obviously I was lazy and I just didn’t - didn’t want to go do that.”[30]
[30] Transcript, page 55, lines 25 to 30.
The Applicant did not commit any further offences until December 2019.
In a letter included in his revocation request[31] the Applicant said, by way of explanation for this offending, that he had lost his job due to “not working up to standards”, then he started associating with the “wrong crowd”. He stated that in 2018, he was becoming an alcoholic, he heard that his grandmother had passed away, and that he was heavily intoxicated when he and a friend were involved in a dispute with the police. He removed himself from that group “because of how much trouble I was causing” and started sorting his life out by finishing a Certificate III in Surface Extraction and obtaining his White Card, hoping to eventually find some employment. He said he stuck by his parents and decided at all times to avoid any unlawful behaviour which “really helped”. He got work in Gladstone which he described as a good job with decent pay. His mother then started going through menopause and he had to take time off work to look after her. He lost that job but he was able to obtain short-term employment with various employers. Wanting permanent work with the railway, he completed a Certificate III in Rail Infrastructure.
[31] Exhibit G1, Section 501 G documents, G6, pages 137 to 145.
It seems that in around September 2019, the Applicant started a relationship with “Ms M”.
Included in the Applicant’s revocation request is a letter from Ms M[32] dated 21 September (presumably 2020). She said she met the Applicant through mutual friends and at that time he had a good circle of friends. After a few months she only worked weekend shifts and the Applicant had not gained employment, so she was under the pressure of providing for them both on a very small wage. She thought the Applicant had been “dishonest about previous interests” and she started lashing out and did things she was not proud of as her mental health was deteriorating. When she found out she was pregnant, that began to “really put pressure on us both” and they argued more over little things. She said the Applicant ended up getting work and was supportive of her pregnancy. She conceded that she has not always been the easiest person to deal with, but the Applicant stuck by her.
[32] Exhibit G1, Section 501 G documents, G6, pages 146 to 147.
The Applicant’s account is that:
“Things started getting rocky and difficult for us. She was cheated on and abused in her previous relationships which took a heavy toll on her. And for my first serious relationship, I always stayed by her side even when she was physical with me or her trying to kick me out. I still tried to work things out and tried to communicate with her to maintain our relationship…[33]
[33] Ibid, G6, page 46
On 20 December 2019, there was a domestic violence incident with Ms M in which, according to the police records and Ms M’s evidence, she was the main perpetrator. Consistent with that, the contemporaneous police report of this incident[34] referred to Ms M as the “respondent”, and the Applicant as the “aggrieved”.
[34] Exhibit R2, Respondent’s Tender Bundle, page 14.
The report indicated that Ms M and the Applicant had been in an intimate personal relationship for between one and three months, living together for that time in Gladstone. At around 7am on 20 December 2019 the police were called by the Applicant who said he was smashing up property. Police determined that Ms M had been using the Applicant’s phone to listen to music, and she had accessed his personal messages. She read a chain of messages from a female associate who she suspected was having an affair with the Applicant. She attempted to wake the Applicant to ask him about the messages. He said he did not talk about it. Ms M continued to poke and prod to get him to talk. She then became angered and struck him across the face and chest with her open palm. The Applicant became enraged by this, got up and struck Ms M across the face several times with an open hand causing bruising to the corner of her eye and cheekbone. The Applicant also smashed the TV in the bedroom (belonging to their real estate agent) and smashed a can of hairspray repetitively into his head in an effort to self-harm.
The Applicant told the police that confrontations of this matter had happened previously during their short relationship, however he did not get into specifics. Ms M told police that they had only ever had verbal confrontations in the past.
Ms M was eight weeks pregnant at the time, but Ms M had told the Applicant he might not be the father. The police thought that would undoubtedly have contributed to the anxiety within the relationship. In the hearing the Applicant confirmed that it did contribute to the anxiety in the relationship.[35]
[35] Transcript, page 40, lines 20 to 23.
The police observed injuries to Ms M consisting of bruising to her left eye, bruising to the knuckles on her right hand, and they observed injuries to the Applicant consisting of scratching down his right forearm and swelling to his right knuckles. Police also observed blood droplets on the same arm but no open wound on either party.
The police were particularly concerned with the level of violence at such an early stage of the couple’s relationship and noted that the pair intended to continue their relationship and were unwilling to seek orders to protect themselves.
I pause to note that bruising on Ms M’s knuckles is not consistent with the account given to the police that she only hit the Applicant with an open palm. There were also unexplained scratches on the Applicant’s arm. I find that Ms M punched and scratched the Applicant. The bruising on the Applicant’s knuckles could be consistent with him smashing the TV. It appears that the Applicant downplayed the extent of Ms M’s attack on him to the police.
In his evidence, the Applicant said that when he told the police there had previously been “confrontations of that kind” he meant arguments without anything physical.[36]
[36] Transcript, page 39, lines 35 to 38.
In the hearing, Ms M said, in relation to this incident, that the Applicant lost his temper and wanted her to call the police on his behalf because he felt it was necessary.[37] She said before that incident there had not been any violence in their relationship.[38] Indeed, when she was asked how she felt when the Applicant hit her in the face she said “broken”, because she had thought she and the Applicant were in such a good place.[39] She said she was surprised when it happened and did not think it was intentional.[40] She described their living situation in December 2019 as very stressful and mentioned that they had no power.[41]
[37] Transcript, page 78, lines 14 to 18.
[38] Transcript, page 78, lines 19 to 21.
[39] Transcript, page 81, line 42 to page 82, line 2.
[40] Transcript, page 82, lines 9 to 10.
[41] Transcript, page 83, lines 15 to 20.
In the hearing, the Applicant agreed and that he hit Ms M with enough force to prevent her from continuing to hit him, but he did not agree, when it was put to him, that he intended to hurt her.[42]
[42] Transcript, page 41, lines 39 to 43.
It appears that the police issued a Police Protection Notice (“PPN”), however it is not completely clear what the terms were. I do not have a copy of it before me.
The following day there was another domestic violence incident. The report of this incident states that the police took out a PPN the day before that named the Applicant as the respondent and Ms M as the aggrieved. This is not consistent with the police records of the previous day. The report went on to say that the PPN required the “respondent” to be of good behaviour towards the “aggrieved” and not commit domestic violence towards her.
In his revocation request the Applicant said that the police put an order on both of them,[43]and in his evidence he said he understands that there is an order against Ms M that the police put on and there are conditions on that that she must comply with.[44] It seems, then, that the PPN prohibited the Applicant and Ms M from committing domestic violence against each other.
[43] Exhibit G1, Section 501 G documents, G6, page 56
[44] Transcript, page 32, lines 8 to 14.
The report went on to say that around 6am on 21 December 2019, Ms M attended the Gladstone police station to report a breach of “DV”. The police took a statement from her.
To summarise what Ms M told the police, the previous day, after the police had left the Applicant was agitated and tried to engage her in conversation about relationship issues but she refused and told him to leave. He began hitting walls and he punched the main bedroom door. Ms M went into the spare bedroom to sleep. That afternoon when Ms M woke, the Applicant attempted to engage her into conversation again about relationship issues but he became enraged when she said she just wanted him to pack his things and leave. At around 6pm, Ms M said she was leaving if the Applicant was not going to as they needed some time apart. As she walked out the front door, the Applicant threw something at the door. She returned home at approximately 5am. The Applicant was aggravated that she had stayed out for the night. He followed her around the house asking where she had been. She told him to leave and he refused. She dialled 000, and the Applicant grabbed her, took her mobile phone and terminated the call.
Ms M panicked and hit him in the back in a bid to retrieve the phone, at which point he punched her in the left eye with a closed fist. She then ran to the police station, but she did not make a complaint of assault.
Shortly afterwards, the police located the Applicant at home, and he provided a corroborating version. When asked about taking Ms M’s phone from her he said he did not believe the police needed to attend and that is why he terminated the call. The injuries police observed to Ms M were the same as the ones they observed previous day.
The Police Court Brief[45] also incorrectly identifies the aggrieved from the previous incident as being Ms M rather than the Applicant. It says the object the Applicant threw against the door was a Dettol hand soap bottle. It states that, when questioned, the Applicant said he was aware of the condition on the PPN and understood what it meant. However, it does not state what condition was put to him when he made those admissions.
[45] Exhibit G1, Section 501 G documents, G6, page 73.
The Applicant was charged with breaching the PPN and given bail. At the time of committing this offence, the Applicant was still subject to a Community Service Order, a condition of which was that he not commit another offence during the period of the order.[46]
[46] Ibid, pages 83 and 85.
On 9 January 2020, a temporary protection order (“TPO”) was put into place by the police naming the Applicant as the respondent and Ms M as the aggrieved. The order included conditions that the Applicant was prohibited from approaching within 100m of premises where Ms M lived, worked or frequented, and that he was prohibited from approaching within 50m of her at any location.[47]
[47] Ibid, page 66.
On 14 January 2020 the Applicant failed to appear in accordance with the bail undertaking made on the 21 December 2019. He was charged for that breach.
On 11 February 2020 the Applicant contravened the TPO. The police court brief[48] indicates that when they were attending the Applicant’s home in relation to an outstanding warrant (due to his breach of bail) he said that he had attended work instead of court and he thought Ms M would contact the Magistrate’s Court advising of that. Seeing Ms M there, the police checked their records and found that there was a TPO. The Applicant said he believed he could have contact with Ms M after speaking with his solicitor. He was arrested and subsequently released on bail.
[48] Ibid, pages 67 to 68.
The Applicant’s son, Baby L, was born in June 2020. An ultrasound confirmed the date of conception which resolved any doubt that the Applicant is the baby’s father.[49]
[49] Transcript, page 83, line 37 to page 84, line 8.
Ms M described the weeks before the birth of Baby L as a very stressful time for both her and the Applicant as she was diagnosed with Type I diabetes and was told that her baby had abnormal limb growth and abdomen growth. For that reason, she was induced in the 37th week. She said the Applicant responded to the situation by being more supportive and encouraged her to be positive. According to her, the Applicant coped well and was not violent.[50] The Applicant had some contact with Baby L in the period between his birth and being imprisoned.
[50] Transcript, page 79, lines 15 to 37.
On 26 August 2020, the Applicant was convicted of contravening a PPN and sentenced to a term of imprisonment of 12 months, with a non-parole period of one month. He was also convicted but not further punished for contravening a domestic violence order, failing to appear and breaching the community service order.
There appears to have been some difficulty with the recording of the sentencing remarks which contain many grammatical errors and “[indistinct]” in many places. However, the gist of the learned Magistrates observations about the nature and seriousness of the Applicant’s offending is apparent from the extracted passages below.
“…Unless breaches of orders are and were known to be [indistinct] appropriate severity they will quickly lose their value in the minds of both those who obtain them and those who are subject to them.
…
As I said, he is a young man - 22 years of age. Usually courts deal with youth as a significant mitigating factor, but that can outweighed by the seriousness of the offending, particularly where there is previous convictions involved - particularly where there is a - such as present - there was a domestic violence breach of an order, and where violence was used. As I have already referred to that and the circumstances. When you look at - he is not suitable for any further community-based orders.
…
Sooner or later - as I have commented earlier – the - it is obvious that penalties involved by this court by previous Magistrates are just not working. The message is not getting out there. And I have [indistinct] as I said, is concerned by the number of breaches of domestic violence involving women - hitting women and causing, as I said, breaching their orders accordingly. I’ve only been here, as I said, for the past five months. The continuative state of my concerns as to the prevalence of domestic violence breaches in this region by male perpetrators in particular and where violence is involved, it quickly becomes obvious to me that sentences imposed, as I have just said, previously in this court on offenders were just not working. And trying to get the message out that such gutless, cowardly violence on an aggrieved in breach of domestic violence order will not be tolerated. Male perpetrators - as I have said, lay your hand on a woman in a domestic setting, you have no right to call themselves a man - and particularly in this case, when she is pregnant.
This offender, as with others, always have the option to walk away without resorting to violence. If not, they can expect an appropriate response from this court in their sentence. And that is what is happening today. A failure to impose a sentence today which involves a [indistinct] imprisonment in cases such as the present, would be sending the wrong message to the community, to the defendant, and particularly others who are respondents in a domestic violence order -whether protection orders, temporary protection orders or police notices.”[51]
(Underlining added)
[51] Exhibit G1, Section 501 G documents, G6, G5, pages 31 to 32.
The Applicant appealed against the sentence on the ground that it was manifestly excessive, noting that he was represented by the duty lawyer in the sentencing proceedings.[52] The District Court set aside the sentence and re-sentenced the Applicant to probation for two years.[53]
[52] Ibid, G8, page 63; G7, pages 155 to 165.
[53] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, SGF-3.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 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).
The Applicant was convicted of breaching a PPN and the conduct that breached it was violent conduct. Before the PPN was in place, he engaged in (unprosecuted) violent conduct against Ms M. Ms M was, at that time, his domestic partner. This conduct and offending is viewed very seriously. I accept the Applicant’s evidence about that first incident, being that he hit Ms M to stop her hitting him, which mitigates his conduct to an extent. The fact that he sought intervention on that first occasion, telling her to call the police, is another mitigating factor. Ms M was between two and three months pregnant at the time. I am not satisfied that she was vulnerable because of that but it is an additional reason why the Applicant, knowing she was pregnant, should not have engaged in that conduct. The District Court considered whether the original sentence of imprisonment imposed on the Applicant for breaching the PPN was appropriate and came to the conclusion that it was manifestly excessive. He was instead sentenced to probation.
The incident with the police is serious conduct and I note that the Applicant physically interfered with the police in the performance of their duties, struggled with them, damaged a police car and only calmed down when threatened with a Taser.
The Applicant’s offending could not be described as frequent. In January 2017 he stole a phone, in March 2018 he stole a scooter, and in October 2018 he had a prolonged altercation with the police and subsequently contravened a banning notice. In 2019 and 2020, he breached the PPN (which also breached a Community Service Order), failed to appear in court in relation to the PPN and breached a protection order.
The Applicant’s more recent offending is more serious than his offending in 2017 and 2018.
The cumulative effect of the initial period of offending is that the Applicant was making a nuisance of himself and demonstrating disrespect for people’s property, the police and the orders of the court. The cumulative impact of the short period of offending in December 2019 is that Ms M suffered physical injuries and emotional distress, and she was frightened enough to run to a police station on the second occasion.
I do not consider factors (b)(i),(iii) or (iv), (f) or (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh significantly against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further domestic violence the harm to the victim includes physical, emotional and psychological harm. Children in a home where there is domestic violence, and other family members are also affected.
The harm from further petty theft and nuisance behaviour is financial loss and potential physical injury to police or members of the public.
Likelihood of engaging in further criminal or other serious conduct
There is not any independent expert evidence before me about the risk of re-offending. I must therefore base my assessment on the evidence that I do have before me, in accordance with the Direction.
There are three distinct periods of offending. The first spanned January 2017 to October 2018 and consisted of what could be described as immature, foolish behaviour. I say that because the offences were relatively minor and pointless, and the act of head-butting a solid object (a police car) is absurd. The offending also involved some dishonesty and disrespect for authority, and those features should not be ignored. The Applicant then made a conscious decision to stop offending and, as part of that, he stopped associating with the “wrong crowd” and spent more time with his parents. He has not committed any like offences since October 2018. He did not offend at all between November 2018 and December 2019, although during that time he deliberately avoided completing his community service, admitting that he did not take the community service order seriously. Again, this is immature, disrespectful behaviour.
The second set of offences, which were of a very different nature to the first, were committed in a 36-hour period in late 2019 under difficult circumstances when the Applicant and Ms M were under financial pressure and experiencing some emotional turmoil. Ms M said that the catalyst for the first incident was that she had been cheated on in a previous relationship, she found out that a female friend of the Applicant had been romantically involved with him previously, but the Applicant described her as a friend which Ms M found dishonest and caused her to feel insecure. When she found that they were still in touch she got angry and kicked him out of the bed.[54] She said they had both been drinking (a carton of beer between them) the night before.[55]
[54] Transcript, page 77, lines 30 to 46.
[55] Transcript, page 78, lines 1 to 03.
In that first violent incident, Ms M violently attacked the Applicant, and after he responded with violence, he asked her to call the police. He then self-reported to the police. It is apparent from his actions that he did not want violence to occur and even when he was so distraught that he was banging a can of hairspray on his own head, he had enough insight to seek intervention. He does not seem to have held back any details of his own conduct, although it appears he downplayed what Ms M did to him. On the second occasion, the Applicant tried to prevent Ms M from contacting the police. That conduct would have been worse had Ms M been injured or had the Applicant been threatening her with violence at that time. Ms M then physically attacked him and he responded by assaulting her with a closed fist. After the assault, he did not try to stop Ms M from leaving, and he made full admissions to the police and pleaded guilty. It is apparent that on both occasions he recognised that he had done the wrong thing and did not try to shirk responsibility.
The third period of offending is the breach of bail and breach of the TPO In January and February 2020. This is consistent with the Applicant not having much respect for court orders. However, I note that while it appears that the Applicant and Ms M were spending time together in breach of the TPO, there is no suggestion that he was violent to her in that time.
There was some evidence that may have suggested that the Applicant’s offending was alcohol related, namely Ms M’s evidence that they had drunk a carton of beer the night before the first domestic violence incident (but that was not normal behaviour)[56] and the Applicant’s statement that he was becoming an alcoholic which he seemed to link to his altercation with the police. The Respondent probed him about his alcohol consumption. The Applicant said that, at the party when he stole the mobile phone, he had been drinking but he was not drunk.[57] When it was put to the Applicant that he had been a regular consumer of alcohol, and that he drank a lot and often, he said that he did not. He said he started drinking when he was 18, that he drank occasionally, meaning on the weekends or once or twice a week, but he denied binge drinking or drinking for the purpose of getting drunk.[58] In relation to the incident with the police, he said it was just that particular time and place where he had too much to drink.[59] The Applicant’s mother, when asked about the Applicant’s alcohol consumption, said he was not a heavy drinker, and that he only drinks occasionally.[60] In relation to the period when the domestic violence incidents occurred, the Applicant denied that he had been drinking at any point in that timeframe.[61]
[56] Transcript page 78, lines 9 to 14.
[57] Transcript, page 50, lines 1 to 2.
[58] Transcript, page 50, lines 15 to 41.
[59] Transcript, page 50, line 43 to page 51, line 2.
[60] Transcript, page 75, lines 6 to 9.
[61] Transcript, page 54, lines 10 to 17.
In contrast, he readily admitted that he was drunk when he had the altercation with the police and that he had been drinking at the party where he stole the phone. I am inclined to think that he was honest about his alcohol consumption. There is not sufficient evidence that the Applicant had an alcohol problem or that alcohol contributed to his offending except for the offending against the police. I am not satisfied that alcohol is a risk factor for the Applicant.
In the Applicant’s revocation request and his evidence in the hearing, he acknowledged multiple times that his domestic violence behaviour was wrong, and he expressed remorse. For example, in a letter included in his revocation request, dated 6 January 2021,[62] the Applicant said he had learned his lesson and the being in gaol had made him realise that it was no place for a young man like him. He said he was sincerely remorseful that the [domestic violence] incident ever happened, and he has apologised to Ms M. He said he should have known better, he should have walked away, it would never happen again, and that having decided that he needed to take steps to better himself as a person he had attended classes on anger management, including “Bend Don’t Break-Building Strengths that Build Resilience (how to control and maintain yourself with good composure)”, and “Do-It - Lives Lived Well (drugs and alcohol)”. He said he was also intending to do classes on stress management. The Applicant said he does not see himself reoffending in the future now that his only priority is his care for his son and to help and support Ms M financially. He said together they will try to remove the protection order because neither of them want it, especially when they have a baby to look after.[63]
[62] Exhibit G1 Section 501 G documents, G7, pages 192 to 193.
[63] Exhibit G1 Section 501 G documents, G6, page 54.
I did not take that statement to indicate disrespect for the protection order. In his revocation request, the Applicant said that he had been complying with the domestic violence order in the past five months.[64] He indicated that he understands that the protection order means that he cannot be anywhere near Ms M and if he breaches it, he will breach his probation. He understands that he must be of good behaviour towards Ms M and his son, and he is willing to comply with those conditions. He said there is an exception that allows him to have contact with his son.[65] He said one of the reasons he plans to live with his parents is to comply with the order.[66] Further, he indicated that he realises that if he reoffends during his probation order he will go back to gaol and that his visa will be cancelled again.[67]
[64] Ibid, page 39.
[65] Transcript, page 31, lines 29 to 44.
[66] Transcript, page 32, lines 1 to 2.
[67] Transcript, page 30, lines 40 to 45.
Indeed, it seems that the period the Applicant spent in gaol remedied his lack of respect for court orders. While the sentence of imprisonment was ultimately assessed to have been manifestly excessive, it had the salutary impact that the Applicant needed.
In his revocation request,[68] the Applicant said he loves Ms M, that he needs to be with his son, and that his son needs him. He said being in gaol and detention had affected his mental health and physical well-being. He had lost weight and was on antidepressants and antianxiety medication. His parents and siblings have been affected as well as they constantly worry about him and they pray that he will be released soon and they can be reunited.
[68] Exhibit G1, Section 501 G documents, G7, pages 192 to 193.
The Applicant has seen a therapist for his stress and anxiety while in detention.[69] He reported feeling anxiety and depression due to the predicament that he is in. He said suicidal thoughts occasionally crossed his mind.[70]
[69] Transcript, page 26, lines 30 to 33.
[70] Exhibit G1, Section 501 G documents, G6, page 143,
I asked the Applicant if the anger management course had helped. He said the course had given him techniques to “help your anger cool down”.[71] He indicated that he had successfully used those techniques in the detention centre in a few situations where his anger had been triggered, and that he has not had any incidents or got into trouble while he has been in detention.[72] This last assertion was not challenged by the Respondent and I accept that the Applicant had been of good behaviour while in detention. Nor is there any evidence that he was not of good behaviour in gaol and I accept that he was of good behaviour. The Applicant said that the situations where he used his anger management techniques in detention involved other detainees trying to use him “for certain things”, talking to him disrespectfully and being spoken about in a “really bad way”.[73]
[71] Transcript, page 25, lines 35 to 45.
[72] Transcript, page 26, lines 1 to 10.
[73] Transcript, page 42, lines 22 to 30.
In cross-examination it was put to the Applicant that when he hit Ms M, he had reached a tipping point, that he did not have any means to control himself, that this was a deep-seated problem, and that it had spanned several years. The Applicant agreed with all of that,[74] but I do not think he fully appreciated what he was agreeing to. First, a drunken altercation with police in October 2018 and two violent incidents in December 2019 does not amount to a deep-seated anger problem spanning several years. Second, the Applicant struck me as a humble young man who communicates in simple language. That is not a comment on his intellect. Rather, it is an observation that he had difficulty when sophisticated or legalistic language was used. Further, sometimes he seemed to agree with a proposition out of deference to the person putting the proposition. I have taken cautious approach to his evidence when he was merely agreeing with something put to him. I do not accept that the incident with the police was motivated by anger, and I do not accept that the Applicant has a deep-seated problem with anger.
[74] Transcript, page 41, lines 21 to 30.
The Applicant said his family were very supportive and caring. They worried about his mental health and they were always wanting him to “open up”. They support his mental health by communicating with him, calling him every day, morning and night and checking that he is okay or if he needs to talk to them about anything concerning his case. He is now accepting support from his family “100 per cent”.[75]
[75] Transcript, page 24.
When asked what would be different this time around, the Applicant said he has a plan this time which is to move back with his parents, knowing that he will be getting the support he needs, he will be spending time with his son, and getting straight back into employment. The support he referred to was emotional support from his parents and being able to talk to them. He said previously he did not think his parents would understand so he did not access their support.[76]
[76] Transcript, page 29, line 45 to page 30, line 25.
Both of the Applicant’s parents confirmed their commitment to supporting the Applicant to avoid re-offending, and to support him in other ways, if he gets his visa back. In a letter dated 5 April 2021,[77] the Applicant’s father said that ever since the Applicant had been in detention, they as a family had been very concerned for his mental health, they encourage him a lot to exercise, say daily prayers are not to lose hope. He said they will always be there for him, his son and his partner. He will always have a place to call home. The Applicant’s father said that the family are all involved in the Uniting Church and they do community work through that. He is a church counsellor.[78] He said the Applicant is following his advice in detention, for example to exercise when he feels stressed and say his prayers.[79]
[77] Exhibit A2, Statement of the Applicant.
[78] Transcript, page 86, lines 9 to 24.
[79] Transcript, page 86, lines 27 to 37.
The Applicant’s mother was asked if she was aware of the Applicant’s previous offending. She said she and her husband were, and that they tried to talk to him about it and to “reign him in” however she felt that it was not effective because they were not talking much to him, he was not opening up, he was keeping to himself, and whenever they talked to him most of his answers would be one word like “yes” or “no”. She said it would be different going forward because he had learned his lesson the hard way and he has a son to look after now. She and the Applicant’s father had talked with him at length about him needing to open up and talk more, not just answer “yes” or “no”. They will always be there for the Applicant and he knows that.[80] I think the Applicant’s parents’ efforts were more effective than his mother indicated. In his revocation request, when he spoke about deciding that his initial offending was unacceptable, the Applicant said, “I stuck by my parents’ side at all times to avoid any unlawful behaviour which really helped”.[81]
[80] Transcript, page 72, line 15 to page 73, line 10
[81] Exhibit G1, Section 501 G documents, G6, page 138.
In terms of bad influences, the Applicant said he no longer has contact with those people. He has good friends who he is still in touch with.[82] He described them as friends he played sport with, who helped each other in school, and who were always there for him while he was always there for them.[83]
[82] Transcript, page 27, line 28.
[83] Transcript, page 27, lines 39 to 46.
There are some letters of support before me that all speak positively about the Applicant.
In a letter from Ms M, she said:[84]
· the Applicant is someone who will help anyone even if it meant giving the shirt off his back;
· he had put in an exceptional amount of effort to completing courses to pursue his career in railway maintenance;
· they continue to work on their relationship;
· he has grown as a person and is not someone who would fall back knowing what is at stake; and
· she does not want their past actions to affect their son, knowing how hard they have worked to get where they are today.
[84] Exhibit G1, Section 501 G documents, pages 146 to 147.
A letter from a Mr H[85] states that he is a close friend of the Applicant. They have known each other since the Applicant came to Australia. They attended secondary school together, played rugby together and the Applicant is the only friend from school with whom he is still in touch. He has had a lot to do with the Applicant’s little family. While Mr H’s partner was pregnant with their second child, the Applicant took them to most appointments when there was no-one else who could and if it was not for him, they would probably have had to walk. He described the Applicant as having a good heart.
[85] Exhibit G1, Section 501 G documents, G6, 148
The Applicant’s mother, in a statutory declaration,[86] said the Applicant is the eldest of three boys, a good son who was very helpful and hard-working. At school he got on well with his teachers, made a lot of friends and loved playing sport. Around July 2019 she was extremely ill and was hospitalised for a few days. The Applicant helped her while his father had to work. The Applicant brought whatever she needed to the hospital and stayed with her. When she was discharged, she had a difficult recovery and the Applicant was “always there, encouraging me and just being there for his mum”.
[86] Ibid, G6, 150
There are letters from members of the Gladstone community regarding the Applicant’s community involvement, and evidence from his mother about his contribution to the family chores, which I will mention when I address the Other Considerations.
While it is expected that letters of support of family and friends will be positive, and none of the letters directly address the risk of re-offending, I give some weigh to this evidence in the sense that it indicates that the Applicant is certainly capable of being responsible and considerate and earning the good esteem of others in the community.
While the Applicant ultimately wants to live with Ms M and their son,[87] his immediate plan, if he gets his visa back, is to live with his parents. They have recently purchased a four-bedroom house where they and their youngest son live. There is a spare bedroom for the Applicant and another spare bedroom for their other son who lives in Brisbane when he visits.[88]
[87] Transcript, page 44, lines 1 to 12.
[88] Transcript, page 66, lines 34 to 39.
The Applicant said that he will seek to get a job in railway maintenance. He did have employment lined up with Aurizon but he was incarcerated before he had a chance to start.[89] He said he had been promised permanent work if he gets out on the condition that he passes a drug test which he said will not be a problem. He thinks that once he gets himself working “everything should be fine; I will not reoffend no matter what.”[90]
[89] Transcript, page 36, lines 17 to 27.
[90] Exhibit G1, Section 501 G documents, G6, page 139.
While the Applicant and Ms M live apart (she will continue to live with her father who is a FIFO worker[91]), Ms M is happy for the Applicant to have contact with Baby L once per week. The Applicant’s parents are willing to pick up Baby L and return him to Ms M. He said Ms M gets along with his parents very well.[92] Ms M confirmed this, describing her relationship with the Applicant’s parents as good and supportive.[93]
[91] Transcript, page 79, lines 38 to 45.
[92] Transcript, page 56, lines 1 to 12.
[93] Transcript, page 80, lines 15 to 24.
On both occasions when the Applicant was violent to Ms M, he was retaliating after she struck him multiple times. Ms M acknowledged her contribution to those domestic violence incidents. The Applicant gave evidence that she was happy to get on board with counselling with his therapist. He considers it important that she does therapy sessions with him.[94] When Ms M was asked what she had done to avoid problems in the future, she said she and the Applicant were looking at couples counselling and she has also spoken to her midwife, being the child health nurse who comes out and visits her. She talks to her a fair bit if there are any issues and she gives her advice.[95] That person will be available to help Ms M no matter how old Baby L gets. Ms M and the Applicant are in frequent contact. She said her communication with the Applicant has improved since his incarceration.[96]
[94] Transcript, page 55, lines 34 to 46.
[95] Transcript, page 80, lines 29 to 34.
[96] Transcript, page 70, wines 17 to 23.
One thing that gave me initial cause for concern was the Applicant’s written evidence that, if he had to return to Fiji, he would. In his revocation request he said that if he was returned to Fiji he would most likely become involved in serious gang and criminal activities.[97] He said he had not been back to Fiji since Christmas 2014, all of his grandparents have passed away, the only blood relative he knows is a stepbrother who he grew up with, and that person has been involved in serious criminal activity. Accordingly, the only life he saw for himself was being involved with things that are involved with gangs including drug trafficking, kidnapping, and murder. He said he does not want that life but that is the only life he saw for himself in Fiji.[98] He also said he would possibly have to turn to crime and selling drugs for his stepbrother to earn some money but he does not want that life.[99]
[97] Exhibit G1, Section 501 G documents, G6, page 39.
[98] Ibid, G6, page 52.
[99] Ibid, G6, page 61.
This evidence seemed to be completely at odds with the Applicant’s resolve to avoid re-offending, and that was put to him by counsel for the Respondent and by me. It took several questions to ‘unpack’ and explain his evidence.
Most of the Applicant’s extended family live in Sydney or on a small island that is a two-hour boat ride from Fiji.[100] The Applicant considers that, if he is deported, he will have no choice but to live with his step-brother as he does not see himself going to the small island. Before he migrated to Australia, his stepbrother tried to get him to do “certain things” for him which he was not prepared to do – and he resisted. When asked why he would not resist now, he said he would resist because that is not the life he wants to be involved in, but he would be susceptible because he would be separated from his family and his son.[101] He said he would not re-offend in the Australian community because he would avoid people who would try to influence him to do the wrong things.[102]
[100] Transcript, page 36, lines 35 to 39.
[101] Transcript, page 45, lines 40 to page 45, line 24; page 49, lines 1 to 6.
[102] Transcript, page 47, lines 39 to 44.
I take it from the Applicant’s evidence that he considers that he needs to resist bad influences, avoiding them altogether if possible, and he needs the support of his family. It is obviously much easier to resist a person who is a bad influence if you do not live with them. The Applicant will have employment, access to income support, and support from his parents in Australia. While I think the Applicant’s prediction that he will become involved in crime in Fiji reflects some immaturity, I do not think it undermines his evidence that he is committed to be law-abiding in the Australian community, and I am satisfied that he has the support he needs in Australia and genuine willingness to access that support. I consider the Applicant’s parents to be a significant protective factor, especially while he has some maturing to do, as they are not only supportive but willing to intervene when they think he needs it.
The risk of any further domestic violence re-offending applies to Ms M or any other intimate partner the Applicant has. Ms M is willing to engage in counselling to address her contribution to the violent episodes. They both now have a baby to prioritise.
I consider there to be a very low risk that the Applicant will commit further domestic violence offences, or any other offences.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs to only to a limited extent against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The incidents on 20 and 21 December 2019 involved family violence. Inherent in family violence is a violation of trust. Ms M was attacked in her home by a person who, by virtue of their relationship, should have been the first to protect her from harm. Family violence warps and destroys the healthy bonds that should exist between partners and within families. The Direction stipulates that the Australian Government, on behalf of the Australian community, has a very low tolerance for this kind of abuse.
In this case it is noteworthy that the Applicant was also a victim of family violence on both occasions, in fact he was assaulted first both times. He was attacked in his home by a person who should have had his best interests at heart. As I have already stated, it is to his credit that on the first occasion to he got intervention after he lost control and reacted violently. This somewhat mitigates the family violence he engaged in on the first occasion.
The family violence the Applicant engaged in is towards the lower end of the scale of seriousness for that type of offending. There were two incidents, very close together, without any apparent escalation in seriousness. I have already addressed the cumulative effect, the rehabilitation achieved since then, the Applicant’s efforts to address factors that contributed to the conduct, the extent to which the Applicant accepts responsibility for his conduct, and the Applicant’s recognition of the impact it had on Ms M. The Applicant engaged in the second episode of family violence after the police issued a PPN following the first episode, although he was considered to be the aggrieved in the first episode.
Conclusion: Primary Consideration 2
In CPJ16, Rares J went on to say:
“I am of opinion that the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker’s exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi 235 CLR at 329-330 [146]-[149].”[141]
[141] Ibid, [66].
In the present case, s 501(6)(a) of the Act triggered the mandatory cancellation and there was no need for the delegate, when applying s 501CA(4) of the Act, to consider any other criteria in the character test given the prison sentence remained undisturbed.
The Applicant had sought review of the delegate’s decision not to revoke the mandatory cancellation that was partly based on him not passing limb (a) of the character test. He had no reason to address limbs (c) or (d) until very late in the process. These matters are required to be dealt with quickly. If the Tribunal does not make a decision by the statutory deadline, it is deemed to have affirmed the decision under review.[142]
[142] s 500(6)(L) of the Migration Act 1958.
The Applicant and his legal representatives had very limited time to prepare a case answering limbs (c) and (d). In the hearing, I raised a concern about procedural fairness and the Applicant’s counsel indicated that she did not wish to raise the issue of procedural fairness given the Applicant’s desire to have the matter dealt with quickly. However, she mentioned that there was material that I was not able to consider because it was not provided to the Respondent in time. Additionally, the letters of support that I have mentioned, while speaking positively about the Applicant, were not as focused on risk of re-offending (limb (d)) or character (limb (c)) as they might have been.
It is true that the Direction requires the Tribunal, in considering whether there is another reason to revoke the cancellation, to consider matters such as risk of re-offending and other matters relevant to character, however these are weighed and balanced with a number of other considerations in that decision-making process. Risk of re-offending and character, respectively, take on greater significance when those matters alone determine whether someone passes or fails the character test. Moving the goalposts so late in the process, at the stage of review by the Tribunal, has the clear potential to deny a visa Applicant procedural fairness.
Frugtniet v Australian Securities and Investments Commission (“Frugtniet”)
The decision in Frugtniet that Rares J referred to in CPJ16 concerned a banning order that was made on the basis that the Australian Securities and Investments Commission ("ASIC") had reason to believe that the appellant was not a fit and proper person to engage in credit activities. ASIC was not permitted to take spent convictions into account in making such a decision, but there was general statutory prohibition on the Tribunal having regard to spent convictions. The question before the court was whether, when reviewing that decision, the Tribunal could take spent convictions into account.
The High Court unanimously held that it could not. I note the following passages come from the joint judgment of Kiefel CJ, Keane J and Nettle J:
“Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.”[143]
“Subject, therefore, to any clearly expressed contrary legislative intent, the question which the AAT was required to decide on review of ASIC's decision was whether, having regard to the same specified range of considerations, and thus excluding spent convictions, the appellant was not a fit and proper person to engage in credit activities.”[144]“Against that background, it is improbable that Parliament would choose a technique of obscure implication in order fundamentally to alter the nature of administrative merits review of a decision made by ASIC under s 80 of the NCCP Act…A fortiori where, as in the case of s 80(2), there is not a word to suggest in any of the extrinsic materials, including the Explanatory Memorandum and Second Reading Speech, a parliamentary intent to the effect that the AAT was to exercise a function other than the function exercised by ASIC. In light of such a tenuous implication, it is more probable that Parliament did not have an intention of changing the nature of administrative merits review of ASIC's decisions in the way contended for by the respondent.”[145]
(Footnotes omitted, underlining added)
[143] Frugtniet v Australian Securities and Investments Commission[2019] HCA 16; (2019) 93 ALJR 629 at 633 [15] per Kiefel CJ, Keane and Nettle JJ.
[144] Ibid at 634 [17] per Kiefel CJ, Keane and Nettle JJ.
[145] Ibid at 635 [21] per Kiefel CJ, Keane and Nettle JJ.
In Frugtniet the original decision maker was not permitted to take a fact into account whereas in the present case the original decision maker was not required to consider certain criteria. However to my mind, the rational (or part of the rationale) for the decision, indicated with underlining, is applicable to this case.
The Respondent did not point to any extrinsic indicating a legislative intention to change the nature of administrative review such that the Tribunal could widen its scope to take into account limbs of the character test that were not considered by the original decision maker.
Statutory implication in the wording of s 501CA(4) of the Act
However, the Respondent did contend that such an implication was evident in the text of
s 501CA(4) of the Act which refers to the character test without specifying any particular limbs. This, it was contended, indicated that the subsection contemplated that there may be a change in circumstances between a mandatory visa cancellation and a subsequent revocation decision (including on review), and that where the factual platform upon which the delegate’s decision rested has shifted in the intervening period, Parliament has envisaged that it remains appropriate and indeed necessary for the decision-maker to reassess the character test in those circumstances, thus it remains open for the Tribunal to consider whether any other relevant limb of the character test applies.However, it seems inconsistent that, for the purposes of a mandatory cancellation, a person will fail to pass the character test on only very limited grounds, and the Minister’s personal power to, in the national interest, cancel a visa that has been mandatorily cancelled and subsequently restored under s 501(CA(4) of the Act can only be exercised on those very limited grounds, yet a delegate or the Tribunal could refuse to revoke a mandatory cancellation by reason of the character test on unlimited grounds.
Further, the Minister’s personal power in s 501BA to set-aside a decision by a delegate or the Tribunal in the national interest is obviously intended to have effect. Hypothetically, had I considered (c) and (d) of the character test as the Respondent said I should, and had I decided that the Applicant passed the character test (and there was another reason to revoke the mandatory cancellation) the Minister may have wished to exercise the power in s 501BA. The criteria in limbs (c) and (d) of the character test are subjective: reasonable minds may differ. However, the Minister could not exercise the power in s 501BA to set aside my decision and instead cancel the visa on the basis that he is not satisfied that the Applicant passes the character test by operation of limb (c) or (d) because the power in
s 501BA is dependent on the Minister being satisfied that the non-citizen does not pass the character test by operation of limbs (a) or (e).Further, the Minister or a delegate may consider making a fresh decision using the discretionary cancellation provisions pursuant to s 501(2) in the Act on the basis of limbs (c) or (d) of the character test, but that would effectively re-visit the Tribunal’s decision as the same facts and criteria would be applied and that would, in my view, fall foul of Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (“Makasa”).
Makasa concerned whether the discretion in s 501(2) of the Act could be re-exercised to cancel a visa after the Tribunal had set-aside a prior decision of a delegate of the Minister to cancel the visa and substituted it with a decision that the visa should not be cancelled. The High Court unanimously held that it could not do so where there had been no change to the factual basis on which the non-citizen failed the character test (even if there were new facts that affected the exercise of the discretion).
The court noted that the object of s 43(6) of the AAT Act, in deeming a decision made by the Tribunal under s 43(1)(b) or (c)(i) in variation of or substitution for the decision under review to be a decision of the primary decision-maker, is to bring finality to the administrative decision-making process and said:
“The merits review function of the AAT is ‘to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review’[146]. The function of the AAT, in other words, is ‘to do over again’ that which was done by the primary decision-maker[147]. The function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review.”[148]
[146] Citing Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51].
[147] Citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [100], quoting Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 502.
[148] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50]
I respectfully reject the contention that s501CA(4) of the Act contemplates taking other limbs of the character test into account given the obviously unintended consequences that would have on Minister’s ability to appropriately exercise other legislative powers relating to visa cancellations on character grounds. I am not satisfied that s 501CA(4) of the Act may or should be used to rescue a mandatory cancellation where the limb of the character test that triggered the mandatory cancellation does not apply.
For completeness I will summarise the other arguments the Respondent put forward in support of its position.
(a)In asking whether the Applicant passes the character test, on the facts now known, the Tribunal would be “address[ing] the same question the primary decision-maker was required to address” (Frugtniet).
(b)It would be a surprising result if in pursuing the objects of the Act and the principles in Direction 90, the Tribunal was somehow precluded from weighing the Applicant’s criminal and other general conduct when reaching the correct or preferable decision with respect to the question whether the Applicant passes the character test.
(c)A previous Tribunal decision had applied the approach put forward. In LLSY v Minister for Immigration and Citizenship[149] (“LLSY”), the Deputy President Jarvis said at [23]:
“In the present matter, although the delegate’s decision was invalid because he applied the character test in s 501(6)(c) when he was precluded from doing so by para 7.3.2(2) of Direction 41, he nevertheless had power to apply the character test under the other paragraphs of s 501(6) of the Act, and the invalidity of his decision does not deprive this tribunal of jurisdiction to determine the character test by reference to other paragraphs of s 501(6), including in particular s 501(6)(d). The question then arises as to whether para 7.3.2(2) applies to this aspect of the character test…”
(d)There was no want of procedural fairness as the Applicant was provided with a detailed Statement of Facts, Issues and Contentions (“SFIC”).
(e)The Minister’s position is that CPJ16 was incorrectly decided on the issue whether the Tribunal can widen the scope of its review to consider other limbs of the character test, however the Tribunal is bound to follow it. That case does not stand for a freestanding principle that the Tribunal on review may never broaden its scope. The decision was “peculiarly informed by the facts”. In particular, His Honour reasoned that the other criteria in the character test were not open to be considered because:
“It is apparent from the terms of s 501(6) the delegate had eliminated from the scope of his consideration any other potentially adverse criteria, because, it should be inferred, he had considered that they could not, or did not, arise”.[150]
That is, on His Honour’s reasoning there was no factual foundation upon which any other integer of the character test could arise for consideration.
[149] (2011) 121 ALD 630.
[150] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, [58].
I am not persuaded by these submissions. It is true that Rares J found that the delegate considered that no criteria other than s 501(6)(d) did or could arise, whereas here there was simply no reason to consider criteria other than limb (a). However, that does not distinguish CPJ16. The thrust of the quoted passage above, in the context of the passages following it (which are reproduced above in my discussion of CPJ16), was that the delegate had led the visa applicant to believe that he had eliminated from the scope of his consideration any other potentially adverse criteria. In the present case, up to the point when the Applicant received the Respondent’s SFIC, he was (quite properly) led to believe that the only limb of the character test he needed to address was in s 501(6)(a) of the Act.
I mention for completeness that nor do I think CPJ16 is distinguishable because it concerned a discretionary cancellation under s 501(2) of the Act whereas this matter concerns a decision under s 501CA(4) not to revoke a mandatory cancellation under s501(3A) of the Act. For present purposes, the difference is not material.
LLSY was decided ten years ago without the benefit of some recent High Court and Federal Court decisions that are relevant to this issue.
There was another submission made by the Respondent about the effect of CPJ16. The Respondent contended that Rares J explicitly recognised that it was possible for the Tribunal to broaden the review beyond that which was considered by the delegate when new fact emerges. Here, a new material fact, being the reduction in the Applicant’s sentence, gave rise to the question whether the Tribunal may broaden its lens and consider other limbs of the character test.
The Respondent was referring to a passage at paragraph 70 of the decision which reads:
“Accordingly, once the Minister or his delegate has decided that a statutory ground in s 501(6) exists, in respect of which an Applicant has not satisfied him that he or she passed the character test, then the discretion under s 501(1) is enlivened. It would not fulfil the statutory purpose or be consistent with Shi [2008] HCA 31; 235 CLR 286 or Graham 263 CLR at 30 [57] that the grounds for the decision under review could be expanded in the review without any further new facts emerging.”
I was initially persuaded by this submission. However, on a closer reading of the decision in its entirety, I do not take that passage to mean that any new fact warrants the expansion of the grounds of review. It cannot be the case that, after such careful reasoning as to why it was not permissible for the Tribunal to consider character test criteria that were not considered in the reviewable decision, His Honour meant to indicate that any new fact would warrant departure from that. The Respondent did not explain why the reduction in the Applicant’s sentence warranted a widening of the scope of the review. The reduction in the Applicant’s sentence is not a new fact about the Applicant’s character or conduct, or that relates to his risk of re-offending. It has no relevance to any of the criteria in the character test except limb (a). It is difficult to see why a new development that has no relevance to any other limb of the character test could warrant a widening of the scope of the review to consider other limbs.
The correct approach
Applying the ratios in Frugtniet and CPJ16, I am not persuaded that the Tribunal has jurisdiction to consider limb (c) or (d) of the character test.
Should such a situation arise in future, it is open to the Respondent to consent to the reviewable decision being set aside on the basis that the Applicant passes the applicable criterion of the character test, then consider exercising the discretion in s 501(2) of the Act.
In this case, Counsel for the Applicant pointed out that the Applicant had been in detention for a period of eight months, and that the Respondent had made its view about whether he passed the character test on the basis of limbs (c) or (d) clear in these proceedings. Therefore, a fresh assessment by the Department, taking into account limb (c) and/or (d) would have put the Applicant back in the same position and he would have to spend even more time in detention while the matter was resolved. That is true, although in its exercise of the power in s 501(2) of the Act, the Respondent would have been required to give the Applicant an opportunity to address limb (c) and/or (d), which may have resulted in the Respondent deciding not to cancel his visa.
I certify that the preceding 227 (two hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
...........................[SGD].............................................
Associate
Dated: 8 June 2021
Date of hearing: 21 and 22 April 2021 Counsel for the Applicant:
Solicitor for the Applicant:
Ms Julie Marsden
Ramos Lawyers
Counsel for the Respondent:
Solicitor for the Respondent:
Mr Paul d’Assumpcao
Sparke Helmore
EXHIBIT LIST
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G182 pages 1 to page 238)
R
-
24 Feb 2021
A1
Applicant’s Statement of Facts, Issues and Contentions including annexures SGF-1 to SGF-4.
A
-
24 March 2021
A2
Statement of the Applicant
A
24 March 2021
12 April 2021
A3
Applicant’s Reply and Applicant’s Tender Bundle
A
16 April 2021
16 April 2021
R1
Respondent’s Statement of Facts, Issues and Contentions
R
13 April 2021
13 April 2021
R2
Respondent’s Tender Bundle (R1 to R4, pages 1 to page 63)
R
-
13 April 2021
R3
Respondent’s Submissions on Jurisdiction
R
23 April 2021
27 April 2021
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
-
Natural Justice
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Appeal
-
Jurisdiction
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