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Murati and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4419 (7 November 2023)

Last Updated: 25 January 2024

Murati and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4419 (7 November 2023)

Division: GENERAL DIVISION

File Number: 2023/6021

Re: Byram Murati

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Member McLean Williams

Date of decision: 7 November 2023

Date of written reasons: 25 January 2024

Place: Brisbane

Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 15 August 2023 to not revoke the cancellation of the Applicant’s visa with a decision that this Tribunal exercised the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).

...............[SGD]...................

Member McLean Williams

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of visa – where the Applicant fails the character test- whether there is another reason to revoke the mandatory cancellation decision – application of Ministerial Direction No. 99 – Tribunal finding there is another reason to revoke the mandatory cancellation decision – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561

FYBR v Minister for Home Affairs [2019] FCAFC 185

Khalil v Minister for Home Affairs [2019] FCAFC 151

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200

PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162

QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1

Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296

Secondary Materials

Ministerial Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION


Member McLean Williams

25 January 2024

  1. On 7 November 2023, the Tribunal set aside and substituted the decision not to revoke the mandatory cancellation of the Applicant’s visa, pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
  2. In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the written reasons for that decision. In Khalil, the Full Federal Court said:

...

  1. On 3 June 2022, a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent Minister’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (‘the visa’) under section 501(3A) of the Act, on the basis that the Applicant did not pass the character test.[1]
  2. On 23 June 2022, the Applicant made representations seeking revocation of the cancellation decision (‘the revocation request’).[2]
  3. On 15 August 2023, the Minister’s Delegate decided that the power in s.501CA(4) of the Act was not enlivened, and accordingly the Applicant’s visa remained cancelled (‘the decision’).[3]
  4. The Applicant then applied for a review of the decision in the General Division of the Administrative Appeals Tribunal, on 16 August 2023, which was within the nine-day statutory review period.[4] The Tribunal has jurisdiction to review the decision pursuant to s.500(1)(ba) of the Act.
  5. The Hearing of this Application for Review took place on 23, 24, and 26 October 2023. At the Hearing, the Respondent Minister was represented by Ms Cody Allen, of Sparke Helmore Lawyers. The Applicant was self-represented. The Tribunal received oral evidence only from the Applicant.
  6. The Tribunal also had the benefit of written character references from:
    (a) Ms Dusty Lee Royal-Bowman (the Applicant’s domestic partner, and fiancée);

    (b) Ms Ashlee Ann Charters (Applicant’s friend);

    (c) Taluah Bohemia (Applicant’s friend);

    (d) Mr Brian Woodward (Applicant’s friend);

    (e) Mr Paul Dawson (Applicant’s friend);

    (f) Ms Annette Corner (Applicant’s friend);

    (g) Mr Damien Sayer (Applicant’s friend);

    (h) Mr Jason Gregory (Applicant’s friend); and

    (i) Mr Justin Whatmore (Applicant’s friend);

  7. The Tribunal also considered the documentary evidence submitted by each of the Applicant and the Respondent, as now detailed in the attached Exhibit Register, now marked as ‘Annexure A’ to these reasons.

BACKGROUND

  1. The Applicant was born in December 1974. He is a 49-year-old citizen of New Zealand, who had first arrived in Australia on 25 June 1982, when aged 12.
  2. The Applicant permanently relocated to Australia on 24 September 1994, whereupon he was granted the visa. The Applicant has not departed from Australia since 24 September 1994.

The Applicant’s criminal history

  1. On 21 September 2021 the Applicant was convicted in the Southport Magistrates Court of the offence of ‘driving of motor vehicle without a driver licence disqualified by court order repeat offender Type 2, vehicle-related offence’, and was sentenced to 12 months imprisonment, yet was also granted an immediate parole release order.[5]
  2. Subsequently, the Applicant was imprisoned on 28 April 2022, pursuant to a ‘return to prison’ warrant, because of a breach of the immediate parole release order made on 21 September 2021.
  3. On 3 June 2022 the Applicant was notified that his visa had been mandatorily cancelled pursuant to s.501(3A) of the Act, on the basis of his having a ‘substantial criminal record’, by reason that he had been sentenced to a term of imprisonment of 12 months or more, and was then serving an actual sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of either the Commonwealth, a State, or a Territory of Australia (s.501(6)(a) and 501(7)(c)).[6]
  4. On 23 June 2022 the Applicant requested revocation of the visa cancellation decision.[7]
  5. On 15 August 2023, the Delegate decided, pursuant to s.501CA (4) of the Act, not to revoke the visa cancellation decision. It is this decision that the Applicant now seeks to have reviewed before the Tribunal.
  6. It is important to record the circumstances in which the conviction on 21 September 2021, and the parole suspension on 28 April 2022 arose.
  7. The Applicant has been in a domestic relationship with his partner, Ms Royal-Bowman, since about 2018. Ms Royal-Bowman is a person who suffers from significant mental health issues, including a diagnosis of Schizophrenia giving rise to episodes of paranoid delusional psychosis; as well as from the sequelae of significant physical injuries, caused when Ms Royal-Bowman deliberately stepped into the path of a moving vehicle, during one of her delusional psychotic episodes.
  8. On the evidence before the Tribunal, it appears that Ms Royal-Bowman has been significantly psychiatrically unwell for quite some time and, prior to his incarceration and subsequent immigration detention, the Applicant had become her primary carer, in difficult circumstances. On the evidence available to the Tribunal her care needs also appear to be quite high. The Applicant also described his relationship with Ms Royal-Bowman in these terms: “there have been many ups and downs. If you’ve ever lived with someone with significant mental health issues, then you’d be aware that your relationship at times can become very turbulent and unsettled”.[8]
  9. On 5 September 2021, the police applied for a domestic violence protection order, (‘DVPO’) seeking protection for Ms Royal-Bowman from the Applicant, seemingly on the basis of things that had been told to the police by Ms Royal-Bowman whilst in the midst of a delusional episode. A DVPO was issued by the Magistrates Court of Queensland.[9]
  10. In relation to this DVPO, the following exchange took place during the Applicant’s evidence before the Tribunal:

‘MS ALLEN: I want to talk a little bit about the contraventions that you appeared in court for in April 2022. I understand this is the order you spoke about where your current partner was listed as the aggrieved. It was applied for by the police and it’s subsequently been withdrawn. At the time of those contraventions, you presumably knew that a DVO had been taken out against you?

APPLICANT: ---I was aware that there was an order in place, yes.

MS ALLEN: You knew that it was open to seek a variation of that order?

APPLICANT: ---I did seek the variation in that order, yes.

MS ALLEN: Well, you - - -?

APPLICANT: ---We sort of - and we were fighting that order the whole time. We were disputing it from the day it was put on and we sought variations.

MEMBER: Well, who took the order out? Was it the police or your partner?

APPLICANT: ---Police.

MEMBER: Tell me the circumstances of the police taking out the order originally?

APPLICANT: ---Okay. My partner had longstanding mental health issues. Like, she has previously been a victim of domestic violence. She suffers severe schizoaffective bipolar mood disorder. It can get quite bad. She has quite often bad psychiatric states that aren’t drug-induced state, you know, just as part of the - her mental health. Loses association with reality. She’s had many admissions over the years with it. She also had a car accident which had caused a further brain injury. She had - she was in the midst of one of her episodes. This had lasted about three months. She was I think six weeks into treatment at that hospital and she came home from weekend leave as part of the reintegrating back out of the hospital. She came home and she was still definitely wasn’t well, and she had a relapse. She had an episode. I knew she wasn’t well. I knew she was freaking out, because, you know, some of the comments that would come out. I was aware when she was spiralling and when she was, you know, on that edge.

MEMBER: What year approximately was this - - -?

APPLICANT: ---This was - - -

MEMBER: - - - when she’d come out of hospital for some weekend leave?

APPLICANT: ---Yes. Yes, this was I believe in 2020, I think.....

MEMBER: 2020. All right?

APPLICANT: ---I think that’s when I was. And she was at home on weekend leave. She came - she came out with two things; she was hearing some voices and what have you. Can’t say whether I calmed her down, where - you know, I said, you know, ‘Have a sleep. We’re going back to hospital tomorrow. Do you think you’ll be all right tonight?’ ‘Yes, and it’s all fine.’ We got up the next morning, we went out for a walk, went down to the service station, we got some breakfast, we came home. I went to go work on the motorbike, she yelled out, she goes, ‘Hey, how do I get into the house?’ because the lock was a bit tricky, and I said, ‘Yes, you just got to wriggle it.’ And at about 2 I want to say I went up to her house and she was not there. Being aware that she is unwell and - because the previous episodes where she has indulged in self-harming to a very severe extent, stepping in front of moving cars, overdosing on the pill, I became very panicked, very concerned for her safety and welfare. I started running around the neighbourhood looking for her. Like, I - this isn’t the first time I’d been through it, and I spent about half an hour, an hour looking for her, then I went home and then the police pulled up. She had evidently gone to a random stranger’s house down the road and said, ‘He’s trying to kill me.’ That’s how it came about. The police then attended her. She said to the police, I believe - and it’s written in the statements from her to the police - that she had taken copious amounts of methamphetamines, she hadn’t slept for a couple of days, she didn’t know what was real and what wasn’t, and she wanted to go back to hospital.

MEMBER: Had she taken meth?

APPLICANT: ---I believe she had gone to the neighbours on the first night she had come home and taken it. I wasn’t involved in the participation of that meth with her. I didn’t take any meth with her. When she is ill, she is ill, and the last thing she needed was any sort of drugs or influence of drugs.

MEMBER: Why weren’t you supervising her more closely?

APPLICANT: ---I should’ve - I should’ve been, and I regret not doing it because it caused me to be partial - in part where I am today.

MEMBER: All right?

APPLICANT:---Yes.

MEMBER: Well, in the circumstances that you explained, why did the police impose a DVO on you?

APPLICANT: ---Because of the statements that she made in fear for her safety.

MEMBER: Why didn’t you seek to contest that? Why did - - -?

APPLICANT: ---I did contest it and I have contested it and that’s why ultimately it was withdrawn in its entirety by the police and the courts.

MEMBER: But it must’ve been in place for about two years, because on 26 April - that’s the day after Anzac Day - you were - you were breached?

APPLICANT: ---The day after Anzac Day is when I faced those four contraventions of that order that had happened six - in the six months leading up to that date.

MEMBER: Yes, and on 5 February 2022?

APPLICANT: ---I think the order was taken out in 2021.

MEMBER: All right. Okay?

APPLICANT: ---And variations had been put in place in ‘21.

MEMBER: What do the police particulars say about the breach?

MS ALLEN: The four breaches I think were circumstances where Mr Murati was found to be with Ms Royal-Bowman either in the car or at - I think there was a shopping centre. 45

MEMBER: All right, so - - -MS ALLEN: So it’s accepted that none - - -?

APPLICANT: ---In my duties as a carer. - - - none involved physical violence.

MEMBER: All right. So, he’s in breach of the order by merit of the fact that he’s with her.

MS ALLEN: Yes.

MEMBER: All right?

APPLICANT:---Which I contested and contend to contest that, in my role as her carer and partner, I was left with an impossible choice of one of us being homeless or maintaining that connection while we sought that variation. I understand now that it was wrong to breach that order that had been made, and I wish I had had the proper supports probably in the community organisations to organise some sort of accommodation or to go about it in a better way. I - - -

MEMBER: You couldn’t have gone to Legal Aid for some assistance in getting your variation of the order?

APPLICANT: ---I did end up getting that variation of that order put in place which is made in the comments - throughout the police comments there.

MEMBER: When did you get the variation?

APPLICANT: ---I can’t remember the exact date. But it must’ve been after 26 April? No, no, it was well before that.

MEMBER: All right?

APPLICANT: ---It would’ve been after the last contravention came about, which I’m sure that’s not that date.

MEMBER: So, even after you got the order varied, they took you to court for a contravention of the order before it was varied?

APPLICANT: ---I had already received those charges. They had been adjourned. I got it varied. So, I received those charges, got the adjournment, I got it varied, and then I faced sentencing on those contraventions.

MEMBER: So, you were sentenced for contraventions of an order that, in the intervening period, had been varied?

APPLICANT: ---That’s right.

MEMBER: All right. Well, yes, I’ve seen some weird stuff, and that’s certainly pretty weird?

APPLICANT: ---It’s 100 per cent. It’s written in the transcripts, in the documents, and proven with the evidence that I’ve submitted as well.

MEMBER: Presumably, there’s the statement of material from your partner saying, ‘I never wanted this order’?

APPLICANT:---There is 100 per cent, and there’s even comments from the judge saying, ‘I see that variations had been put in place, which is why I’m recording no convictions against you for those four contraventions of that order.’

MEMBER: Well, I’ll have to read that closely, but - - -?

APPLICANT:---Yes, no convictions were recorded against me in that.

MEMBER: Yes. Okay. So, these are technical contraventions?

APPLICANT: ---That’s correct. It was such a difficult moral choice, faced with her illness, her lack of family support, and our lack of support in - - -

Just on page G12 in the material, it says here:

When speaking with the aggrieved, she did display fear of the respondent. The aggrieved states that she does not wish to have any contact with the respondent and will be looking for emergency housing. Aggrieved also transported by QAS to hospital due to mental health and drug-induced psychosis. Police believed the aggrieved was in need of care and protection.

MEMBER: All right. I’ll have to read all of that very closely, but I - look, I hear what you say, so I’ll be - I’ll be looking for all of that. Yes. All right.

MS ALLEN: Thank you. You’re aware that Ms Royal-Bowman has made statements to police before about her being in fear of you?

APPLICANT: ---I actually just saw those recently, and it was - no, I wasn’t really aware that anything had been said to them before. But as I contest in that, she has repeatedly said in her statements that there was never any violence towards her from myself. She was ill a number of times, and she was hospitalised a number of times.

MEMBER: It doesn’t sound to me like she’s going to be a very accurate historian. You know, if she’s suffering from psychosis, what she perceives and what actually happened might be two very different things.

MS ALLEN: Yes, Member. Perhaps that’s something that can be discussed during closing submissions.

MEMBER: Yes, I think so. I think you’ll probably need to - in light of what we’ve heard, you’ll need to read this material closely and then you can make submissions about that.

MS ALLEN: Yes, I’ve read the material, and there does seem to be some inconsistency between prior statements and the statements made now. I had intended to address that in oral submission - in closing submissions?

APPLICANT:---Can I also add, those - some of those hospital documents that I submitted late, which I’m not sure whether we’re going to end up bring in, clearly state those mental health issues, and same with the - some of the same - along the same lines of the statements that I’m making about her paranoid delusions that she would make with hospital staff, with members of the community, with her own fam. I wasn’t the only one that these sort of statements were made about while she was ill. When she’s medicated and she’s right, she’s a totally different - she’s beautiful, and she’s such an innocent, wonderful fun. I love her very much. But when she is ill and I not taking her medication, it can be very destructive and harming to the people around her.

MEMBER: Yes. I mean, that’s the nature of the condition that she has. But you say that she suffers from auditory hallucinations?

APPLICANT:---Auditory and visual, yes.

MEMBER: All right. Well - - -?

APPLICANT:---For example, once she was just walking down the street and she heard it, and it was God’s voice, said that, if she wanted to enter heaven - quite a religious upbringing - she had to prove her worth and prove her commitment and - -

MEMBER: Step in front of the car?

APPLICANT:--- - - - just step if of that next car.

MEMBER: Yes?

APPLICANT:---And she did it. Without a second thought, she stepped straight in front of that car.

MEMBER: Yes?

APPLICANT: ---Received a broken leg, broken hip, and, you know, was hospital for - but I think the doctors knew that she had - she had literally self-harmed as a result of it, and then - - -

MEMBER: All right. Well, I’ll read all of that closely and we’ll hear further submissions, but I understand the thrust of what you’re saying about these DV matters?

APPLICANT:---Thank you.’[10]

  1. On 21 September 2021 the Applicant was sentenced for several offences in the Southport Magistrates Court, including the disqualified driving offence that would ultimately go on to trigger the Applicant’s visa cancellation.
  2. In relation to this particular disqualified driving offence, the Applicant informed the Tribunal that he and Ms Royal-Bowman had been living in a remote Gold Coast hinterland locality, bereft of public transport. Although suspended from driving, that remote location - and the need to be able to travel for various medical appointments (etc) for both himself, and for Ms Royal-Bowman - meant that the Applicant ‘took the chance’, and had continued to drive. The sentence imposed on the Applicant by the Court on 21 September 2021 was for 12 months imprisonment, with immediate release on parole.[11]
  3. On 20 October 2021 the Applicant breached the requirements of the DVPO issued on 5 September 2021 by means of his being within 100 metres of Ms Royal-Bowman, contrary to the terms of the DVPO. No act of violence had been alleged by the police;[12] and nor had any complaint been made by Ms Royal-Bowman, in her capacity as the beneficiary of the DVPO.
  4. On 5 February 2022, the Applicant again breached the DVPO, once more by reason of his being within 100 metres of Ms Royal-Bowman. Again, no violence was alleged by the police, and no complaint had been made by Ms Royal-Bowman. The Applicant was placed on bail.[13]
  5. On 10 February 2022, the Applicant once more breached the DVPO, again by means of his being within 100 metres of Ms Royal-Bowman. No violence was alleged by the police who charged the breach. On the same occasion the Applicant was also charged with unauthorised dealing with shop goods (maximum $150).[14]
  6. On 1 March 2023, the DVPO was varied so that the Applicant could be within 100 metres of Ms Royal-Bowman.[15]
  7. On 8 April 2022 the Applicant was supposed to attend the Southport Magistrates Court in relation to the aforementioned DVPO contraventions. For reasons that will be elaborated further below, the Applicant failed to appear in court that day, such that a warrant for his arrest was issued.
  8. On 19 April 2022 the Applicant had a scheduled appointment with his parole officer, yet the Applicant missed the appointment. In consequence, his parole officer issued a ‘return to prison’ warrant.[16]
  9. The Applicant says that he had been far too ill to attend his parole appointment on 19 April 2022.

‘MS ALLEN: Thank you. All right. Your last conviction in April was for ‘failure to appear’. That’s not the first time you had failed to appear in accordance with the undertaking, was it?

APPLICANT: ---No, I’ve had had some ‘fail to appears before, but it would like to note very clearly that, prior to COVID, I had - I think it was prior to - just prior to COVID - I never, ever received a ‘fail to appear’ in all those years of court history. Those ‘fail to appears’ came about in one short block of time. They came about during, one, there was COVID with the continuing impact, and two, I was being overwhelmed with my carer’s responsibilities and living out in rural - semi-rural Gold Coast, and obviously issues with my licence and transportation. There were some ‘fail to appears, and I believe I got a one month suspended sentence for that conviction of ‘fail to appear’, but there are comments made in the transcript by the judge on that day where it says very clearly, ‘I see, prior to these incidents, Byram, that you had no previous offending of this nature.’

MEMBER: Yes. All right. I’ll read the sentencing remarks about that, but you say it was a combination of transport difficulties, geographical isolation, the fact that you’re trying to care for a person who is, you know, mentally unwell, all of those sorts of factors and it just, what, slipped you attention?

APPLICANT:---It compounded. There were times when I believe I was ill. On the last ‘fail to appear’, I was extraordinarily ill and needed hospitalisation and surgery. I think that’s what happened that brought that last warrant about.

MEMBER: What did you have surgery for?

APPLICANT:---I had a mass infection in my leg and it needed to be opened up. I needed to have it removed.

MEMBER: Right, so, you had an ulcer on your leg?

APPLICANT: ---I had a mass - it was staph infection covering my whole knee. I’ve got a (indistinct) scar covering my leg.

MEMBER: All right?

APPLICANT: ---I was hospitalised for four days, I think, three, four days for it.

MEMBER: So, you had septicaemia?

APPLICANT: ---Septicaemia, yes.’[17]

  1. On 20 April 2022, the Applicant’s court-ordered parole (i.e.: the order made on 21 September 2021) was indefinitely suspended.[18]
  2. Records now show that on 22 April 2022, the Applicant was admitted to the Gold Coast Hospital via the Emergency Department with an infected pre-patellar abscess.[19] On 23 April 2022 the Applicant underwent surgery, and the abscess was incised, and drained.[20]
  3. On 25 April 2022 the Applicant was discharged from the hospital, and was required to make his own way home, by means of public transport. As the Applicant was sitting at the bus stop across the road from the hospital, he happened to be observed by police, who detained and arrested him, pursuant to the ‘return to prison’ warrant that had been instigated by the Applicant’s parole officer on 19 April 2022.[21]
  4. On 26 April 2022, the Applicant was sentenced for ‘failing to appear in court’ on 8 April 2022; for the unauthorised dealing with shop goods on 10 February 2022; and for the four contraventions of the DVPO which had transpired on each of 20 October 2021, 5 February 2022, 10 February 2022, and 22 February 2022.
  5. In relation to the ‘failure to appear’, the Applicant received one month imprisonment cumulative upon the sentence of 21 September 2022, suspended for six months. In relation to the other charges, the Applicant was released on a recognisance of $300, requiring that he ‘be of good behaviour’ for a further period of six months. No convictions were recorded for the dealing with shop goods, or for any of the contraventions of the DVPO.[22]
  6. On 3 June 2022 the decision to cancel the Applicant’s visa under s.501(3A) of the Migration Act was made.[23]
  7. On 27 July 2022 the Parole Board decided to cancel the Applicant’s Court-ordered parole order of 21 September 2021 because:
  8. On 25 January 2023, the sentence of 21 September 2021 expired.[24]
  9. On 15 August 2023, the Delegate made the decision not to revoke the prior decision to cancel the Applicant’s visa.

ISSUES

  1. On the hearing of this Application for Review, the issues for determination are:
    (a) whether the Applicant meets the requirements of the ‘character test’ as defined in s.501 (s.501CA(4)(b)(i)); and

    (b) if he does not, whether there is ‘another reason’ why the cancellation decision should be revoked (s.501CA(4)(b)(ii)).

LEGISLATIVE FRAMEWORK

Does the Applicant pass the character test?

  1. The character test is defined in s.501(6) of the Act. Relevantly, a person will not pass the character test if they have a substantial criminal record: s.501(6)(a). The phrase substantial criminal record is defined in s.501(7) and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months, or more: s.501(7)(c).
  2. As indicated, on 21 September 2021 the Applicant had been sentenced before the Magistrates Court of Queensland at Southport to a term of imprisonment of 12 months for the offences of ‘Driving of motor vehicle without a driver license disqualified by court order repeat offender – type 2 vehicle related offence’. In consequence, the Tribunal can now only find that the Applicant has a ‘substantial criminal record’, such that the Applicant cannot pass the character test: s.501(7).
  3. Pursuant to s.501(3A)(a)(i) and (b) of the Act, the Minister ‘must’ cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a substantial criminal record as defined under s.501(7)(c) and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of either the Commonwealth, a State, or a Territory of Australia.
  4. Whenever a visa is mandatorily cancelled pursuant to s.501(3A), the Minister must also give the person concerned written notice of the cancellation which sets out the original decision and particulars of the relevant information and inviting that person to make representations to the Minister about revocation of the original decision: ss.501CA(3)(a) and (b).
  5. Pursuant to s.501CA(4), the Minister ‘may’ then revoke the original decision if:
  6. On 15 August 2023 the Delegate determined that there was not ‘another reason’ why the original visa cancellation decision should be revoked. This is the decision now under review before the Tribunal.
  7. In consequence of the Applicant not being able to pass the character test, on the hearing of this Application for Review the task for the Tribunal reduces solely to an exercise of the further discretion in s.501CA(4)(b)(ii): to consider whether or not there is ‘another reason’ why the original visa cancellation decision under s.501(3A) should be revoked.
  8. In considering whether to exercise the discretion, the Tribunal is bound to comply with any Directions made under the Act by virtue of s.499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.
  9. The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in s.501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:

6. Exercising discretion

Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

  1. The principles contained within 5.2 of the Ministerial Direction are as follows:
    1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
    2. 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.
    5. With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
    6. 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 8.55(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.
  2. Paragraph 8 of the Ministerial Direction sets out the five (5) ‘Primary Considerations’ that the Tribunal must take into account, being:
(1) protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);

(2) whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);

(3) the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);

(4) the best interests of minor children in Australia (‘Primary Consideration 4’); and

(5) expectations of the Australian community (‘Primary Consideration 5’).

  1. The Ministerial Direction then stipulates ‘Other Considerations’ which must also be taken into consideration:
(a) legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on victims; and

(d) impact on Australian business interests.

  1. Notably, these considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
    ...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

  1. The Ministerial Direction requires that Primary Consideration One be considered in relation to two aspects: the nature and seriousness of the Applicant’s conduct to date; and (future) risk to the Australian community:

The nature and seriousness of the Applicant’s conduct to date

  1. As well as the most recent criminal history of the Applicant - as now already examined by the Tribunal in earlier parts of these reasons - the Applicant has prior criminal history extending back as far as 28 October 1994, when he was first convicted in Australia - when aged 19 - for the offence of serious assault on a police officer with intent to resist a lawful arrest. In consequence of that ‘assault police’ offence the Applicant was convicted and fined $500. The Applicant told the Tribunal: ‘it was a very drunken night out with friends. I had very little recollection of the night and I pled guilty to that at the earliest possible hearing’.[25]
  2. All violent crimes, irrespective of whether a conviction or sentence is imposed are considered by the Australian government and the Australian community to be ‘very serious’ (paragraph 8.1.1 (1)(a) of the Ministerial Direction). Similarly, crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are also considered to be ‘serious’ (paragraph 8.1.1(1)(b)(ii) of the Ministerial Direction).
  3. In total, the Applicant’s criminal history now extends over more than seven pages. After that first appearance in the Southport Magistrates Court on 28 October 1994 in relation to ‘serious assault of a police officer with intent to resist a lawful arrest’, the Applicant appeared in either the Southport Magistrates Court, the Coolangatta Magistrates Court, or in the Southport Drug Court on 21 further occasions, prior to the most recent appearance on 21 September 2021, when he was imprisoned for breach of the probation order imposed on 24 September 2019.
  4. The 21 court appearances between 24 October 1996 and 24 September 2019 were for offences of ‘burglary’; ‘trespass’; ‘break, enter and steal’; as well as for ‘receiving stolen property’; ‘unauthorised dealing in shop goods’; ‘breach of bail and/or suspended sentence conditions’, ‘failure to appear’; and for various minor drug offences (i.e.: possession, failure to properly dispose of drug utensils, etc). The Tribunal notes that none of these Court appearances were in either of the District or Supreme Courts.
  5. In relation to this offending, the Applicant informed the Tribunal that all of it had arisen as an aspect of his lengthy battle with drug addiction:

‘MS ALLEN: Thank you. You committed a number of property offences then between 2003-2005, and I understand all of the property offences within your criminal history you’ve associated with funding the drug habit that you had. Is that correct?

APPLICANT: ---That is correct, yes.

MEMBER: What was your drug habit?

APPLICANT: ---I suffered with addiction for many years. I had an opiate - primary opiate addiction. At times I had - I self-medicated - - -

MEMBER: So you were a heroin user, or?

APPLICANT: ---Yes, heroin. I had a lot of self-medicating with methamphetamine due to ADHD diagnosed, not knowing that I had it back then and self-medicating.

MEMBER: All right?

APPLICANT: ---I found out later on.

MEMBER: So you’re stealing to fund your drug habit?

APPLICANT: ---Yes. That’s absolutely correct.

MEMBER: What sort of stealing was it? What house-breaking, or?

APPLICANT: ---Yes, were break and enters and burglaries, those sorts of probably related offences to get money to fund the drug habit.

MEMBER: So, what, you’re stealing stuff, then what, hocking it at Cash Converters or?

APPLICANT: ---Yes, or to the dealers. The standard for the property offending that came - comes hand in hand with people addicted to drugs, yes.

MEMBER: When did you stop using drugs, or have you stopped using drugs?

APPLICANT: ---I’ve had lapses over the last 10 years, but it was about 2008 or 2009 that I started turning my life around, and that sort of nature of that property offending ended there.

MEMBER: Okay. Yes, thank you, Ms Allen.

MS ALLEN: Thank you. Can you just set out what illicit drugs you’ve used within your life?

MEMBER: Well, we know about the heroin and the meth.

MS ALLEN: Yes. Were there any others?

APPLICANT: ---When I was a teenager, there was cannabis. I haven’t smoked cannabis for a number of years due to my mental health. It seems to trigger quite a psychiatric sort of state in me.

MEMBER: Yes?

APPLICANT: ---Doesn’t sit well, anyway. I used to drink up until I was in early 20s. Not long after the incident with the police I stopped drinking. I haven’t drunken since, and it became primarily, you know, heroin or the meth addiction, one or the other for the next 19,15 years and with lapses. I take full ownership of my addiction and - - -

MEMBER: Have you ever tried rehabbing?

APPLICANT: ---Yes. I put myself through - actually I put myself onto a Drug Court order back in 2004, and that was the journey that started me learning the tools and to grow out of those addictions and to start changing behaviours. It didn’t happen straightaway, but it gave me the foundation to start making those changes and what not.

MEMBER: How long have you been drug-free for now?

APPLICANT: ---I have - I had lapsed a couple of times in the last I think about two, three years. Three years ago, before I went into custody, there were a couple of lapses.

MEMBER: What drugs did you take when you lapsed?

APPLICANT: ---Meth.

MEMBER: Meth?

APPLICANT: ---Meth, and about four years ago I started using I think it was heroin again and I went for treatment straightaway; got myself on a program, got myself into treatment with, first of all, the Suboxone program, and then I found out that wasn’t working for me with the daily pickups and things so I sought out further treatment on a monthly injection with a - which is - it worked fantastic.

MEMBER: The Suboxone?

APPLICANT: ---Yes, with a Buvidal injection.

MEMBER: Just to suppress the cravings?

APPLICANT: ---Yes, yes.

MEMBER: All right?

APPLICANT: ---And to block the - block the drug use.

MEMBER: Yes?

APPLICANT: ---Because no matter how much I use, I could no longer feel it. So, you know - -

MEMBER: So what’s the point?

APPLICANT: ---What’s the point. That’s right.

MEMBER: All right. Understand. Thank you?

APPLICANT: ---I actively sought out that treatment myself, not on any orders or at the behest of anyone.’[26]

  1. Paragraph 8.1.1 of the Ministerial Direction does not limit the range of offences that may be considered as ‘serious’. Echoing the comments of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43] – [45] and Senior Member Dr Evans-Bonner in QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51], the driving offences for which the Applicant’s visa was cancelled ought to be viewed seriously. Notably, in this regard, the disqualified driving was described by the sentencing magistrate as ‘very serious’ conduct.[27]
  2. The Respondent Minister submits[28] that, when assessing the nature and seriousness of the totality of the Applicant’s offending, regard must be had to the fact that the Applicant has been sentenced to terms of imprisonment (paragraph 8.1.1(1)(c) of the Ministerial Direction), on the basis that sentences involving terms of imprisonment are always those of last resort in the sentencing hierarchy;[29] such that where a court has sentenced an offender to a term of imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
  3. The Respondent Minister further submits[30] that regard must also be had for the frequency of the Applicant’s offending (paragraph 8.1.1(1)(d) of the Ministerial Direction); and submits that the Applicant’s offending can be categorised as ‘frequent’ and as having had a deleterious impact on the Australian community (paragraph 8.1.1(1)(e) of the Ministerial Direction).

Consideration

  1. It is to be observed that the Applicant failed the character test in s.501(3A) of the Act because of his sentence of 12 months imprisonment for a driving offence, combined with his failure to attend an appointment with his parole officer on 19 April 2022.
  2. While it is true that the Applicant had breached his parole order earlier than 19 April 2022 by breaching the protection order, and by his failing to appear at court on 8 April 2022, police took no action against the Applicant for those prior breaches, and no warrant was issued until after the failure to attend the appointment with his parole officer on 19 April 2022. The Applicant has explained that he was unwell at the time, and his claim in that regard appears to be satisfactorily confirmed by the fact of his being hospitalised a few days later, on 22 April 2023, with an infected pre-patellar abscess. On the facts as known to the Tribunal, the return to prison warrant did not issue by reason of re-offending (in the sense of his committing further criminal acts against a victim), but rather because of the Applicant having missed an appointment with his parole officer.
  3. Although the Applicant has a lengthy criminal history, which includes prior terms of imprisonment, his imprisonment on 21 September 2021 may be viewed as a matter that arose in specific circumstances which - in and of themselves - are not overly serious: the failure to appear involved some confusion about whether the Applicant was required to attend court that day;[31] and the contraventions of domestic violence orders were described by the magistrate as “really very, very minor breaches”.[32] Meanwhile, the unauthorised dealing with shop goods was for a pair of sunglasses, valued at $28.[33] In all the circumstances, the Tribunal considers that the offending conduct that led to the Applicant having his parole cancelled and hence in his serving a term of imprisonment and failing the character test in s.501(3A) is now difficult to categorise as conduct that has the “potential to cause physical and/or psychological injury to members of the Australian community”.[34] This is particularly so given that, in recent years, the Applicant’s offending has been for relatively minor matters that have not involved either violence, or sexual offending. Examination of the totality of the Applicant’s criminal history shows that, with the exception of the disqualified driving offence dealt with on 21 September 2021, which must be regarded as serious, the ‘most serious’ entries on the Applicant’s criminal history involve the original assault upon a police officer, back in 1994, and the offences of burglary/break and enter, which were committed between 2003 and 2008. The Tribunal accepts that these property offences were directly linked with the Applicant’s need to finance his illicit drug addictions at the time. That financial need has however abated since the Applicant has commenced on opioid substitution treatment (OST). Since the commencement of OST, the objective seriousness of the criminal offending engaged in by the Applicant has discernibly declined, rather than increased.
  4. In all the circumstances, the Tribunal considers that the Applicant’s offending behaviour still needs to be viewed ‘seriously’ yet observes that the most serious aspects of the Applicant’s criminal behaviour (assault police, burglary, break and enter) arose a considerable time ago now.

Risk to the Australian community

  1. When assessing the risk of further harm to the Australian community that may be posed by the Applicant, a decision-maker must have regard, cumulatively, to the following relevant matters arising under paragraph 8.1.2(2) of the Ministerial direction:
(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:

(i) information and evidence on the risk of the non-citizen reoffending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

  1. The Respondent Minister submits[35] that the extent of the Applicant’s criminal history is now such that a broad range of harms might befall the Australian community in the future in the event that the Applicant were to re-offend, and now submits[36] that for the following reasons, the Tribunal should conclude that the risk of further offending by the Applicant is an ‘unacceptable’ risk, and weighs heavily[37] against revocation of the visa cancellation decision:
  2. As to the question of future risk to the Australian community, the Tribunal is not persuaded that the Applicant now presents as an ‘unacceptable risk’, as contended by the Respondent Minister.
  3. The Tribunal has received evidence from the Applicant as to the efforts that he has undertaken to deal with his drug addictions, and considers he has made acceptable progress towards becoming drug free. The Tribunal also considers that, in an overall sense, there has been a downward trend in the objective seriousness of the Applicant’s offending over time, and that the vast preponderance of the Applicant’s past offending relates to drug addiction. In that light, future risk is also a matter closely linked to drug use, and the Tribunal considers that the prospect of the Applicant using illicit drugs in the future is now considerably reduced. The Applicant appears to have developed greater insight and understanding of the nature of his own addictions; and to have taken productive and self-motivated steps in an effort to deal with his drug dependency issues, albeit with some lapses and miss-steps along the way. Initially, the Applicant was treated by means of a daily dose of Suboxone. Yet, given the remote living arrangements and transport difficulties confronting the Applicant at that time, it appears inevitable to the Tribunal that this treatment modality was impractical, and was always likely to create the risk of the Applicant lapsing into further illicit drug use. In those circumstances the decision to change the Applicant’s OST to monthly ‘slow release’ Buvidal is readily explicable, and is considered by the Tribunal as holding far greater prospects for ensuring that the Applicant is able to remain free from the grip of illicit drugs, when going forward.
  4. While the Applicant continues to undergo treatment by means of monthly Buvidal injections - and there is no evidence before the Tribunal giving rise to any concerns that this treatment modality might cease abruptly – the Tribunal considers that any future risk to the Australian community as now presented by the Applicant remains at a tolerable level.
  5. Considering the nature and seriousness of the Applicant’s past offending in conjunction with the future risk presented by the Applicant to the Australian community the Tribunal considers that some weight now attaches to Primary Consideration One in support of non-revocation of the visa cancellation decision.

PRIMARY CONSIDERATION TWO – FAMILY VIOLENCE

  1. Paragraph 8.2 of the Ministerial Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. Family violence includes violent, threatening or other behaviour by a person, that coerces or controls a member of the person’s family; or that causes the family member to be fearful.[44]
  2. The Applicant has some domestic violence history, even prior to those (more recent) matters involving the DVPO in which Ms Royal-Bowman has been named as the aggrieved. In this regard, material produced by the Queensland Police Service pursuant to summons reveals that, on 10 January 2003, the Applicant had attended the address of a former domestic partner and had attempted to speak to her through the closed door. When asked to leave the premises the Applicant had instead walked to the rear of the property, and had again attempted to talk with the complainant, this time through an open window. The complainant had again asked the Applicant to leave and had threatened to call the police in the event the Applicant did not leave, as requested.[45]
  3. On 23 December 2007, the Applicant had attended his then ex-partner’s home to collect his property. While at the premises, the aggrieved had told the Applicant that their relationship was ‘over’, and that she had wanted him to ‘leave’. The Applicant is then alleged to have grabbed at the aggrieved, yet the aggrieved broke free from the Applicant, and started screaming. The Aggrieved then went to her car with her two children, and the Applicant is alleged to have tried to block her with his own car, yet the aggrieved managed to drive away.[46]
  4. On 29 November 2010, a witness observed what appeared to be an altercation between the Applicant and the aggrieved. Police were called, and when they arrived the police observed that the Applicant’s arms were wrapped around the aggrieved, in what appeared to be an effort to restrain her. Police also observed broken glass on the floor of the unit.[47]
  5. More than a decade later, on 26 April 2022 the Applicant was sentenced to 4 contravention of domestic violence order offences. In each instance the ‘aggrieved’ named in the order was Ms Royal-Bowman, who was by this stage (and now remains) the domestic partner and fiancé of the Applicant.
  6. The domestic violence order in question was one that was taken out by the police, following an incident in which Ms Royal-Bowman had claimed that the Applicant had been verbally abusive towards her, and had attempted to choke her. Subsequently, Ms Royal-Bowman withdrew these allegations, stating that at the time she had been in the midst of a drug-induced psychotic episode, and had been ‘hearing voices’; suffering from severe paranoia; and had ‘has lost touch with reality’.[48]
  7. The Respondent Minister submits this Primary Consideration now weighs against revocation of the visa cancellation decision.
  8. The Tribunal observes that the protection order for which the Applicant was dealt with by the court on 26 April 2022 relates to a protection order that was neither applied for nor supported by Ms Royal-Bowman; and in circumstances where the Applicant has argued that the police application for the order had been based upon wholly inaccurate information provided to them by Ms Royal-Bowman at a the time when Ms Royal-Bowman was suffering from a significant psychosis, and was also substantially drug-affected, having consumed a large amount of crystal methamphetamine and in circumstances wherein Ms Royal-Bowman had also not slept for three days. That claim is supported by records from the Gold Coast Hospital from the period 26 July 2021 – 2 September 2021 and 5 September 2021 – 11 October 2021 which do indicate that Ms Royal-Bowman had been a psychiatric in-patient of the Gold Coast Hospital during those periods. The Tribunal agrees that, in light of Ms Royal-Bowman’s psychiatric condition, the claimed factual basis for the DVPO needs to be approached with a considerable measure of circumspection.
  9. The four breaches all relate to the Applicant being within 100 metres of Ms Royal-Bowman contrary to the terms of the order. These are ‘technical’ breaches. It is to be noted that at the time, the Applicant was still acting as the primary carer for Ms Royal-Bowman.
  10. Paragraph 4.1 of the Ministerial Direction defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”. The Tribunal considers that none of the four breaches dealt with by the courts on 26 April 2022 satisfactorily meet that definition. Moreover, the condition in the DVPO requiring that the Applicant not be within 100 metres of Ms Royal-Bowman was varied by the issuing Court on 1 March 2023, less than one month after he had committed the final breach of the order, and even before the Applicant could be sentenced for any of those breaches. In this context, the Tribunal does not treat the four breaches of the domestic violence order dealt with by the Court on 26 April 2022 as matters within the family violence rubric of the Ministerial Direction.
  11. However, the prior DVPO breaches arising in 2003, 2007 and 2010 - in relation to former domestic partners of the Applicant – do remain relevant, and these do meet the definition of family violence in the Ministerial Direction. The Tribunal does however note that these arose a long time ago now, and that each of them were relatively minor.
  12. In the final assessment and given the known circumstances, the Tribunal considers that only limited weight now attaches to Primary Consideration Two in support of non-revocation of the visa cancellation decision.

PRIMARY CONSIDERATION THREE – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

  1. Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction).
  2. Decision-makers must also consider the strength, duration, and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[49] Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending; and

(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia (paragraph 8.3(4) of the Ministerial Direction).

  1. The Respondent Minister concedes that this primary consideration weighs in the Applicant’s favour, yet submits[50] that it should not outweigh the combined weight of the first, second and fifth Primary Considerations, which it is submitted all weigh heavily against revocation.
  2. The Applicant submits that he and his family have been resident in Australia since 1987, and explains that his parents re-located to Australia in order to re-establish their manufacturing business. The Applicant says that his connections with Australia now include his sister, who is a disability support pensioner on account of her having an acquired brain injury from birth, and who is a person who requires some assistance and support from the Applicant, given that their parents are now both deceased.
  3. In addition, the Applicant has his de-facto partner/fiancé Ms Royal-Bowman, as well as his (Adult) children, stepchildren, and granddaughter, as well as one other brother in Australia. The Tribunal has already noted the psychiatric condition of Ms Royal-Bowman, and considers this means that her care requirements will continue to remain very high going forward. The Tribunal notes letters of support for the Applicant from various family members, and particularly Ms Royal-Bowman.
  4. The Applicant has also now lived in Australia for a long time. There have also been some periods of positive contribution to the Australian community by the Applicant in the form of both paid employment, and periods of study.
  5. In the final assessment, the Tribunal considers that Primary Consideration Three weighs reasonably strongly in favour of revocation of the visa cancellation decision.

PRIMARY CONSIDERATION FOUR – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.

  1. In accordance with paragraph 8.4(1) of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4(4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:
(a) the nature and duration of the relationship;

(b) the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;

(c) the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;

(d) the likely effect of separation and the ability to maintain contact; and

(e) whether there are other persons who already fulfil a parental role in relation to the child.

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

  1. The Applicant has declared two minor children whose interests he now claims will be impacted by the decision: the two daughters of Ms Royal-Bowman whom the Applicant describes as his stepchildren. The Applicant has three daughters of his own, albeit each of these daughters are now adults. In addition, the Applicant has one granddaughter, who is still an infant.
  2. According to IHMS records, neither of the stepchildren are currently in the care of Ms Royal-Bowman, and they are presently under the care of the Department of Child Safety because of the fact of Ms Royal-Bowman’s mental illness. Furthermore, it appears that, even prior to the Applicant’s incarceration, contact with these two stepchildren had been limited to weekends, only.
  3. The Respondent Minister submits[51] that this consideration should only be assessed as weighing ‘neutrally’, because of the following:
  4. The Tribunal is unable to be persuaded that this Primary Consideration should be assessed as only weighing neutrally. Although the available evidence is limited, ultimately, the Tribunal is of the view that the best interests of the nominated children are still served by revocation of the visa cancellation decision, such that Primary Consideration Four should be assessed as weighing ‘moderately’ in favour of revocation of the visa cancellation decision.

PRIMARY CONSIDERATION FIVE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

  1. Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter and remain in Australia (paragraph 8.5(1)).
  2. Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should therefore proceed on the basis of the government’s views, as now outlined in paragraph 8.5 of the Ministerial Direction, and it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to either the Applicant’s circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a deeming provision: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.
  3. The Respondent Minister submits[52] that this primary consideration now weighs ‘heavily’ against revocation of the Visa cancellation decision.
  4. The Applicant concedes[53] that there is a deemed expectation of the Australian community that non-citizens will obey the law and if they do not, it may be appropriate to cancel a visa. The Applicant submits that the surrounding factors that weigh in his favour include his long-standing connection to Australia, having lived here now for more than 35 years; his connections to his children, sister and partner; and the circumstances giving rise to his offending including his mental health, mental health circumstances of his partner, and substance addiction.
  5. The Tribunal considers that this Primary Consideration should now be assessed as weighing ‘moderately strongly’ against revocation of the visa cancellation decision.

OTHER CONSIDERATIONS

  1. It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs
    (a), (b), (c) and (d).

(a) Legal consequences of the decision

  1. Under paragraph 9.1 of the Ministerial Direction decision-makers are required to be mindful of Australia’s non-refoulement obligations. In the current case non-refoulement does not arise as an issue requiring consideration.
  2. Although one consequence of the Tribunal affirming the decision under review is that the Applicant would become liable to removal from Australia as soon as reasonably practicable, the Tribunal does not consider this consequence as affording a basis for ‘another reason’ why the visa cancellation should be revoked.[54] In these circumstances this consideration weighs neutrally.

(b) Extent of impediments, if removed

  1. Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in terms of their re-establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health; whether there are substantial language or cultural barriers and any social, medical and/or economic support that will be available to them in their country of origin.
  2. The Respondent Minister observes that the Applicant is a 49-year-old New Zealand citizen who has not returned to New Zealand for 29 years, and that the Applicant now claims to suffer from bipolar mood disorder/schizophrenia, and ADHD, although there is no formal diagnosis for either condition before the Tribunal. The Respondent Minister submits[55] that as a citizen of New Zealand, the Applicant will have access to all the same social, medical, mental health supports and economic supports as do all other citizens of New Zealand, and that New Zealand is culturally, linguistically and politically similar to Australia; and that in the absence of any clear evidence to the contrary, the Tribunal is entitled to proceed on the basis that the Applicant will have access to government benefits similar to those which are currently available to him in Australia.[56]
  3. The Respondent Minister further submits that the Applicant also has some employment history in Australia, including working as a carer, and there is nothing to suggest that the Applicant would be unable to find similar employment in New Zealand. All the Applicant may now face, so it is submitted, is some emotional and psychological upheaval if he were to return to New Zealand, and such would not be insurmountable.
  4. In all of the circumstances, the Respondent Minister submits[57] that this consideration does not weigh in the Applicant’s favour, and should be assessed neutrally.
  5. The Applicant submits that he would face ‘significant problems’ if removed to New Zealand, as:

‘...having no family or ties to New Zealand whatsoever, and having not set foot on New Zealand soil for 30 years and the country is nothing but a distant memory”, I would also like to draw your attention to the fact that I suffer from my own mental health issues,.... I submit that although some of my offending was caused in conjunction with my mental health issues I have my thorough and complete support network here, that all my treatment is here, that I became unwell here and to remove me would cause a severe lack of support in services and professionals and greater a substantial amount of undue pressure and stress placing me at risk. On top of this I successfully found treatment that finally works for my addiction issues, I actively sought out this treatment before becoming incarcerated and whilst on this treatment there have been no relapses in crime or drug use.... My support and support services are here and not having that treatment available could potential [sic] put me at risk of relapse in both mental health and addiction, I would consider this to be a significant impediment to my welfare, success and safety’.[58]

  1. The Tribunal considers that the extent of impediments that the Applicant might face if forcibly relocated to New Zealand will be greater than as predicted by the Respondent Minister; yet not as severe as now envisaged by the Applicant.
  2. The Tribunal considers that this Other Consideration now weighs ‘moderately’ in favour of the Applicant and revocation of the visa cancellation decision.

(c) Impact on victims

  1. Under paragraph 9.3 of the Ministerial Direction, decision-makers are required to be mindful of the impact on victims of the Applicant’s offending if he is or is not allowed to return back to the Australian community.
  2. In the current case there is nothing in the material to indicate the impact this Tribunal’s decision might have on the victims of the Applicant’s offending. Therefore, this Other Consideration is assessed as weighing neutrally.

(d) impact on Australian business interests

  1. In consideration of this Other Consideration, paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
  2. The parties agree that this Other Consideration is not relevant in this case. Accordingly, the Tribunal finds that this is Other Consideration weighs neutrally.

CONCLUSION

  1. In summary, the Tribunal concludes as follows regarding each of the Primary and Other Considerations:
(1) protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’) – some weight in favour of non-revocation;

(2) whether the conduct engaged in constituted family violence (‘Primary Consideration 2’) – limited weight in support of non-revocation of the visa cancellation decision;

(3) the strength, nature and duration of ties to Australia (‘Primary Consideration 3’) – reasonably strong weight in support of revocation of the visa cancellation decision;

(4) the best interests of minor children in Australia (‘Primary Consideration 4’) – moderate weight in support of revocation of the visa cancellation decision; and

(5) expectations of the Australian community (‘Primary Consideration 5’) – moderately strong weight in favour of non-revocation of the visa cancellation decision.

(6) legal consequences of the decision – neutral weight;

(7) extent of impediments if removed – moderate weight in favour of revocation of the visa cancellation decision;

(8) impact on victims – neutral weight; and

(9) impact on Australian business interests – neutral weight.

DECISION

  1. Pursuant to s.43 of the Administrative Appeals Tribunal Act
    1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 15 August 2023 to not revoke the cancellation of the Applicant’s visa with a decision that this Tribunal exercised the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).


I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

................[SGD]..............
Associate

Dated: 25 January 2024

Dates of hearing:
23 and 24 October 2023
Applicant:
Self-represented litigant
Solicitor for the Respondent:
Ms Cody Allen (Associate)

Sparke Helmore Lawyers

ANNEXURE A

Exhibit Number
Description of Exhibit
Party
Date of Document
Filing Date
1
S501 G Documents
R
-
29 August 2023
2
Tender Bundle
R
-
13 October 2023
3
Respondent’s Statement of Facts, Issues and Contentions
R
13 October 2023
13 October 2023
4
Applicant’s Compiled Submissions
A
-
18 October 2023
5
Advice of Incarceration
A
30 May 2022
18 October 2023

[1] G154.

[2] G18.

[3] G3.

[4] G2.

[5] G4.

[6] G17.

[7] G3.

[8] Transcript p. 65, lines 17 – 18.

[9]G12, p. 88.

[10] Transcript, p 30, lines 46-47; pp 31-34; p 35, lines 1-29.

[11] G4, p. 46, and G10, commencing at p.77.

[12] G151, p. 1188.

[13] G151, p. 1184.

[14] G151, p. 1180.

[15] G13, p. 94.

[16] G128, p. 1063.

[17] Transcript, p 35, lines 30-47; p 36, lines 1-15.

[18] G17, p.118.

[19] G48, p. 406.

[20] G48, p. 406.

[21] G123, p.1052.

[22] G125, from p. 1059.

[23] G3, p.24.

[24] G17, p.118.

[25] Transcript, p. 11, lines 24-25.

[26] Transcript, p 12, lines 20-47, p 13; p 14, lines 1-5.

[27] G9, p. 74.

[28] Respondent’s SFIC, paragraph [26].

[29] PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

[30] Respondent’s SFIC paragraph, [27].

[31] G125, p.1060.

[32] G125, p.1060, the sentencing magistrate also continued “and I do take into account the fact that you were the aggrieved’s carer, and also the fact that eight weeks ago you had that order varied so you were allowed to have contact”.

[33] G151, p.1181.

[34] G3, p.34 [83].

[35] Respondent’s SFIC, paragraph [29] – [34].

[36] Respondent’s SFIC paragraph [36].

[37] Respondent’s SFIC, paragraph [37].

[38] Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [36].

[39] G54, p. 437, p. 442.

[40] G5, G6.

[41] G55, p. 451.

[42] G72.

[43] G33, p. 224.

[44] Paragraph 4(1) of the Ministerial Direction.

[45] TB1, p. 172.

[46] TB1, p 174.

[47] TB1 p. 177-178.

[48] G41, p. 251.

[49] Paragraph 8.3(2) of the Direction.

[50] Respondent’s SFIC paragraph [55].

[51] Respondent’s SFIC paragraphs [58] – [59].

[52] Respondent’s SFIC paragraph [64].

[53] Applicant’s SFIC, page 13.

[54] Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 at [209].

[55] Respondent’s SFIC paragraph [70].

[56] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.

[57] Respondent’s SFIC paragraph [73].

[58] Applicant’s SFIC pages 12 – 13.

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