Administrative Appeals Tribunal of Australia|2021-08-27|Before: Emeritus Professor P

LEAU and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3090 (27 August 2021)

LEAU and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3090 (27 August 2021)

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The decision under review is set aside and substituted, and as a result the Applicant's visa is not cancelled.

...........................[sgd].............................................

MIGRATION - mandatory cancellation of visa - Migration Act 1958, subsection 501CA(4) - Direction No. 90 - primary considerations - protection of the Australian community - expectations of the Australian community - family violence - domestic violence offences - relationship violence - breach of AVO - links to the Australian community - other subjective factors - decision set aside

FYBR v Minister for Home Affairs [2019] FCAFC 185

Direction No. 90 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

1. The Applicant is a 23-year-old New Zealand citizen.[1] He comes from Samoa and is the third oldest son of retirees Veilagi and Tafata Lio. His older brothers (Leatulagi and Fetalai (Junior)) live in Sydney. His younger sister (Meleste) lives with her husband in Hawai'i. She is a university student. His two younger siblings (Sina and Calum) are completing their schooling in Samoa and live with their parents.[2]

2. The Applicant was educated in Samoa, up to the first year of university. He successfully completed part of the first year of an Arts degree. In 2017, at the age of 19, he went to New Zealand. He was adopted by his father's sister (his aunt), thus acquiring New Zealand citizenship.[3] This relationship rapidly soured, and in 2018 he decided to join his brother Leatulagi in Australia.[4] He had just turned twenty.

3. When he arrived at Sydney airport, he was issued with a TY Subclass 444 Special Category (Temporary) visa, granted as a matter of course to New Zealand citizens on arrival.

4. In 2019, he met a girl of similar age, Ms V, with whom he had a relationship that lasted just over a year, coming to an end somewhat disastrously in the first week of June 2020. As the relationship came towards an end, the Applicant became emotionally unstable. In the early hours of 3 June 2020, while at home with his brother, he drank half a bottle of cleaning chemicals, benzalkonium chloride.[5] His brother heard him vomiting and when he realised what had happened, called an ambulance.

5. At about 1.30 am he arrived at hospital in the ambulance. The ambulance medical notes state:

Pt asked if this act tonight was an attempt to kill himself. Pt stated "I changed my mind and told my brother". Complete Mental Health Assessment unable to be completed due to pt condition. TREAT: IV access gained. 4mg IV ondansetron to good effect. Cardiac monitoring enroute. Pt stable enroute however in discomfort. Pt tx to Nepean ED for further Rx. Pt triaged and taken to Resus. Discussion with Resus Dr concluded Dr would schedule pt, crew offering to complete Section 20 however Dr stated he would Schedule 1 under Mental Health Act.[6]

6. There was some internal chemical burning. The Medical Record states:

Corrosive airway burns following ingestion of approx. 1L Benzalkonium Chloride 1.0%.[7]

7. Despite the apparent intention to detain the Applicant for compulsory assessment and treatment, he was not scheduled. He was given morphine. The discharge note indicates that he was seen by two specialists, and although there was mild erythema of larynx and of the stomach, he was cleared for discharge. He was seen by a mental health team but declined any voluntary stay in hospital for mental health services. He was discharged at 2.30 pm on 3 June, having spent just over 12 hours at the hospital.[8] His brothers, who had waited overnight, took him home.

8. The following day, Ms V agreed to see him at her mother's house to say a final goodbye and to exchange some personal possessions. There is nothing to suggest that she was aware of his mental state or his suicide attempt. They met on 5 June 2020. Both her mother and his brother Leatulagi were present. They said their goodbyes, but he would not leave. She got into her mother's car but he sat down behind it. She got out of the car to speak to him, and he eventually moved. Ms V and her mother left but returned a short while later after they learned that the Applicant has refusing the leave without giving Ms V 'one last cuddle'. When Ms V exited the car and met the Applicant, he grabbed her, held the back of her neck and raised a knife over his head. She struggled and fell to the ground. Thankfully, Leatulagi restrained him. She struggled free and got into her mother's car. He rushed after her and banged on the car door and window. Mother and daughter drove from the scene, and Leatulagi took him home.

9. The Applicant was arrested the following day on four discrete charges, the most serious being armed with intent to commit an indictable offence.[9] On 6 June 2021, he was released on bail, subject to the terms of an apprehended violence order (AVO) prohibiting any communication with Ms V.[10]

10. Over the next few days, he breached the AVO by trying to contact her. She blocked him but he used new accounts to overcome her blocking. On 18 June 2020 he was arrested for breaching the terms of the AVO, taken into custody, and his bail was revoked.[11] He has been in custody since.

11. On 22 September 2020, he pleaded guilty before the Local Court of New South Wales at Parramatta to five counts: being armed with intent to commit an indictable offence, common assault (DV) and two counts of stalk/intimidate intend fear physical etc harm (domestic) (one relating to Ms V, that other to her mother), and one count of contravening an AVO.[12]

12. The magistrate sentenced him to an aggregate term of imprisonment of 15 months, with a non-parole period of 6 months. She accepted that his remorse was real and gave a full 25% discount for his early plea of guilty.[13]

13. On 28 September 2020, he was assessed for the purposes of an SAR report.[14] He had no health problems and was not taking any medication. He disclosed no issues with alcohol or drugs. The Notes state:

[He] was emotional but forthcoming with all information provided, expressed he regrets his actions and was able to acknowledge it was all his fault. Reported completing DV course whilst in custody and would like to move on with his life. Is happy to undertake interventions to assist with this upon his release.

14. It is apparent that he was still harbouring thoughts of self-harm. The SAR notes record that he had thoughts of self-harm 'as a result of his recent split with partner and has felt stressed and upset over the events'.[15]

15. On 5 November 2020, his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Migration Act), on the ground that he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more.[16]

16. A few days later he responded to an invitation to make representations in accordance with the invitation to the Minister to revoke the mandatory cancellation.[17] He stated that he and his family would suffer if he were removed to Samoa where opportunities were limited, or to New Zealand where he had no family:[18]

When I arrived to this country, I started working for Coles Warehousing to support my family back in Samoa to make sure they survive and being in custody right now caused them a lot of problems financially, and if I return to Samoa I will suffer the same way my family is suffering and I won't be able to help them, even going back to NZ will not help, I will end up with no home, no family including Aunties and Uncles and without the support my family in Australia has being[sic] supporting me from day 1. I know I've let down my community, religion and country so I am begging to give me a second chance to give back the hospitality this country gave me when I arrived.

17. On 17 December 2020 his non-parole period expired,[19] and he was transferred from Corrections to the Villawood Immigration Detention Centre (VIDC).[20] In February 2021, he was transferred to an immigration facility in Western Australia and is presently on Christmas Island.[21] In June 2021, a delegate of the Minister decided not to revoke the mandatory cancellation (the decision under review).[22]

18. The Applicant therefore appealed to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegate's decision.[23] Under subsection 501CA(4) of the Migration Act, a mandatory cancellation may be revoked if, even though a person fails the character test, there is 'another reason why the original decision should be revoked'.[24] In undertaking this merits review, the Tribunal is required to consider the matter de novo, standing in the shoes of the original decision-maker.

19. The application was heard by videoconference on 4, 5 and 6 August 2021.

20. It is common ground that the Applicant fails the character test, having been sentenced to a term of imprisonment exceeding 12 months.

21. For the reasons outlined below, I find that there is another reason why the mandatory cancellation should be revoked, and therefore set aside the decision under review, and substitute a decision revoking the cancellation of his visa.

THE DISCRETION UNDER SUBSECTION 501CA(4)

22. In exercising the discretion under subsection 501CA(4), the Tribunal is required by subsection 499(2A) to comply with Direction No. 90 (the Direction). The Direction is intended to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.

23. Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task.

(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 measureable risk of causing physical harm to the Australian community.

(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.

(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. [emphasis added]

25. Part 2 of the Direction is entitled Exercising the Direction.

26. There are four primary considerations (paragraph 8), and five 'other' considerations (paragraph 9) that must be taken into account 'where relevant to the decision'.

27. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community.

28. Relevantly, 'other considerations' include (but are not limited to) the extent of impediments if removed, and links to the Australian community.

29. Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.

30. Paragraph 8.1(2) provides that decision-makers should also 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 non-citizen's conduct to date: paragraph 8.1.1

31. Paragraph 8.1.1 of the Direction outlines the various factors to which a decision-maker must have regard in considering the nature and seriousness of the Applicant's criminal offending.

32. The Direction states that certain crimes are considered very seriously by the Australian Government and the Australian community: paragraph 8.1.1(1)(a). For example, violent crimes are viewed very seriously, and crimes of a violent nature against woman are viewed very seriously, regardless of the sentences imposed. Acts of family violence are also viewed very seriously, regardless of whether there is a conviction or sentence imposed. The Direction requires the Applicant's behaviour towards Ms V on 5 June 2021 to be viewed very seriously.

33. The learned magistrate did not regard the case as a fitting one for an intensive corrective order (ICO), despite the fact that the Applicant did not have a criminal record. Her Honour said:

It is a pretty tragic situation and it could have been even more tragic, but for ... the intervention of both the mother and the accused's brother. It was quite fortuitous that the complainant had called the brother and indicated that the accused was not really complying with her requests and that maybe he would be able to exercise some measure of - 'control' is not the right word but try to get him get through to him, because he clearly was acting irrational and you can certainly read between the lines that this is a young man, he's obviously in a relationship, he obviously had deep feelings for the complainant and lost all sense of rationality. But that is at the heart, that really is at the heart, of many offences of domestic violence...

Young women should be able to end a relationship without fearing being killed. It is as simple as that. Anybody, not just she, anybody should be able to exercise control over their dominion if I put it that way, over who they see, when they see or when they do not see, and nobody else has the right to force their will, and the problem with that is that even whilst he is on bail and there is an AVO there to protect her, which is another level of message to him to say "This has gone too far. You cannot talk to her now. She does not want to talk to you", he ignores her. He ignores her.

So, at the same time as professing this great love for her, he is disrespecting the one wish she had which is "Leave me alone". That is not love. That is not healthy. That is dangerous. That is domestic violence. That is what leads women and other people in a family context to meet with pretty horrific situations ...

I know he says in his letter and to Community Corrections that he was going to use the knife on himself. The mere fact that he has produced it to show her that is another layer of intimidation. Even if he was going to use it on himself, he is making her feel responsible for choices that he is making, to make her feel bad, to make her feel guilty, to somehow that it is her fault that he has to do this. No, it does not work like that, and I expect now he has done some of the counselling and the programs whilst in custody, he will have an understanding of this.

In terms of the sentencing of this matter the defence even concede that this is one of the more serious matters and that what is often called the s 5 threshold which is that the only appropriate sentence is a jail sentence has been met, and that is notwithstanding the fact that he has no previous criminal history, notwithstanding the plea of guilty, notwithstanding the other character references, the offence itself is so serious that a gaol sentence must be imposed to reflect that.

I have been asked to deal with this by way of what is called an intensive corrections order which is to enable him to serve that in the community and whilst s 66 deals with situations where that can be done to consider the interests of the accused, ultimately I also turn my mind to s 4A and 4B of the sentencing legislation which deals specifically with domestic violence matters because they are unfortunately a unique beast if I can put it that way, and that the Court cannot consider some sort of conditional liberty, whether it is an ICO or otherwise, unless the interests and the protection of the complainant can be adequately met. Given that he breached his bail and the AVO, that is a tall order.

Whilst Community Corrections of the view that he is at low risk of offending I am somewhat more guarded about that, but ultimately he cannot be locked up forever, he is a young man and he is entitled to significant leniency, early pleas of guilty, there is remorse and contrition but ultimately if one looks at what section 3A talks about and the purposes of sentencing, rehabilitation is but one side of that. There are many other aspects of sentencing, one which is a pretty simple nation of punishment. That is, you have done the wrong thing, there is a punishment, there is a consequence for that.

There is also issues of deterrence. Specific deterrence, that is, sending a message particularly to this accused, that this is not only inappropriate behaviour, it is criminal conduct, but a message to the community, and this is the really important one, that offences of domestic violence are no longer going to just be dealt with in a certain way but that they are given a particular section in the sentencing legislation that the courts must take into account the interests of the complainant and the protection of the victims. So that is an important consideration, and also general deterrence just because of the prevalence of these sorts of offences....

[I] am dealing with the young girl who is trying to leave. She got threatened with a knife all because at the age of 20 she decided this is not a relationship she wanted to be in. That is not okay. It is just not. Ultimately in my view, bearing in mind the gravity of the offences an ICO is also not appropriate. That would be sending quite frankly the wrong message to the community.(Emphasis added)

34. In terms of the frequency of offending and the cumulative effect of offending, this is the only recorded instance of criminal behaviour in his record.

The Risk to the Australian Community: Paragraph 8.1.2

35. I turn to consider paragraph 8.1.2 which relates to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

36. I note the Government's view articulated in paragraph 8.1.2(1) concerning the inverse relationship between the community's tolerance for any risk of future harm and the seriousness of the potential harm.

37. The Tribunal is required to assess the risk that may be posed by the Applicant should he engage in further similar acts, and the likelihood of him doing so. In assessing the risk, the Tribunal is directed to consider explicitly both the nature of the harm, and the risk to the community should the Applicant commit further offences.

Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.

38. The harm in question arose in the context of a relationship breakdown. The nature of the harm to relationship partners, in particular, and to the Australian community in general is the possibility of further acts of domestic violence.

Paragraph 8.1.2(2)(b): The likelihood of engaging in further criminal or serious conduct.

39. In assessing the likelihood of the Applicant engaging in further criminal acts or other serious conduct, I am required to take into account information and evidence on the risk of re-offending, including evidence of rehabilitation achieved by the time of the decision.

40. I note that the Applicant participated in a five-day Domestic Violence program offered by Corrective Services NSW from 7-11 August 2020 while he was on remand.[25]

41. I note the psychologist report by a clinical psychologist, Mr Tsolis, conducted by videoconference on 18 December 2020, the day after the Applicant was transferred to the VIDC.[26] The Applicant had only three sessions with Mr Tsolis at Villawood, and was transferred to Western Australia in February 2021.[27] It was expected that face to face therapy would resume if the Applicant returned to live in Sydney.

42. Mr Tsolis reported that the Applicant's response patterns indicated an acknowledgement of important problems and a perception for a need of assistance in addressing problem areas. His motivation for treatment appeared to be high.[28]

43. The evidence given by Mr Tsolis to the Tribunal was along similar lines. He reaffirmed his view that the risk of reoffending was low. This was based on his assessment that the Applicant did not exhibit any entrenched criminal proclivity, had no history of violence, and no criminal record. There was no evidence of alcohol or drug use. There were protective factors in place, including the strength of his family connections, and the deterrent effect of his imprisonment and immigration detention.

44. In terms of factors contributing to the offending, Mr Tsolis said that the Applicant suffered a major depressive episode following the relationship breakdown, which contributed to his offending behaviour. In terms of the lack of follow up mental health support following the suicide attempt, Mr Tsolis stated he was not surprised that the Applicant left the hospital as soon as he could and that he did not seek any further mental health support. He said that young men as a cohort were particularly resistant of mental health support. He said that the Applicant should have been scheduled. He said that it was "appalling" that he was not offered any meaningful support after his attempt at self-harm.[2] He said:

The fact that he was just discharged with no follow up is appalling and the fact that he wasn't able to cope afterwards isn't particularly surprising. If someone's at the stage where they're drinking laundry detergent, I'm not surprised that they wouldn't be able to cope with other life stressors.[29]

45. Mr Tsolis expressed the opinion that the incident on 5 June was a second suicide attempt - prevented just in time by his brother's intervention.

46. The theory that the Applicant intended to use the knife on himself had been raised before the Magistrate. She described this as 'another layer of intimidation'[30].

Even if he was going to use it on himself, he is making her feel responsible for choices that he is making, to make her feel bad, to make her feel guilty, to somehow that it is her fault that he has to do this. No, it does not work like that, and I expect now he has done some of the counselling and the programs whilst in custody, he will have an understanding of this.

47. The Applicant continued to participate in counselling sessions when they were offered at Christmas Island, and was commended for his participation. He was examined at some length about his participation in, and willingness to participate in, counselling sessions. I am satisfied that he was motivated to do so, and that there is a reasonable prospect that he will continue to do so if released into the community.

48. The Applicant's offending was accompanied by the use of a knife. This is extremely serious. The critical question is whether such behaviour is likely to reoccur. The magistrate was 'somewhat guarded' about the proposition that the offender was low risk.

49. There are, however, significant protective factors, including the deterrent effect of losing his liberty for 14 months to date, and the support of his family. He has no criminal antecedents and no proclivity to violence or antisocial behaviour. His behaviour in prison and immigration detention has been exemplary. The incident on 5 June appears as a solitary, albeit serious, example of violence. The Applicant was 22 at the time of offending, emotionally immature and unstable. There is no doubt that he is remorseful for his actions. I consider that there is now a very low risk of recidivism.

50. I am satisfied that there is a very low risk of future offending towards a third party. I am not however confident that the risk of self-harm is sufficiently low to be discounted.

51. The perpetration of violence on a person who decides to end a relationship is a despicable act and cannot be justified by any measure. I agree with the learned Magistrate that the knife display was simply unacceptable, even if the Applicant intended only to use it on himself.

52. It is hard to imagine circumstances in which such violence arising out of a relationship breakdown would not weigh heavily against revocation. This is especially so where the circumstances involve the use of a knife, whether for display, for intimidation, or to wound. I note that violent crimes against woman are considered by the Australian government and the Australian community to be very serious, regardless of the sentence imposed.

53. I find that PC1 weighs heavily against revocation.

54. The Delegate found that the Applicant had engaged in family violence as defined by the Direction. The Respondent also contended that the conduct of the Applicant amounted to family violence.

55. The concept of family violence under the Direction is binary in nature - it involves particular kinds of behaviour committed within a particular kind of relationship. The Direction defines it as:

[F]amily violence means 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.

56. The Applicant's behaviour, which including assault and stalking, unquestionably satisfies the first element of family violence. I am however required to consider whether Ms V was a member of the Applicant's family for the purposes of the Direction. If not, then what she experienced was violence but not family violence.

57. Neither the Migration Act nor the Direction provides a comprehensive definition of the expression 'member of a person's family'. Subsection 5G(2) of the Migration Act includes certain individuals (e.g. a de facto partner) as family members, without limiting who might be a member of a person's family or relative of a person. The Family Law Act 1975 (Cth), contains a statutory definition of family violence, and an extended definition of 'member of a family', but there is nothing to suggest that this definition applies to the Migration Act.[31] Nor does it apply to close or intimate personal relationships.

58. The Respondent referred to legislation in Victoria and New South Wales as a potential source of guidance as to the scope of family violence under the Direction.[32] Each of the states and territories has legislation on the topic, but the Respondent referred specifically to the NSW and Victorian legislation. The state legislation predates the Direction.

59. Under both the New South Wales and Victorian legislation, a person who has an 'intimate personal relationship', whether it is sexual or not, is within scope. In NSW,[33] such a person is in a domestic relationship and in Victoria[34] they are a 'family member'.[35]

60. Given the limited extended definition of 'family member' under the Migration Act, the Respondent invited the Tribunal to draw upon the extended definitions in the state legislation, and to consider whether an intimate personal relationship (with or without a sexual dimension) existed between the Applicant and Ms V.

61. The Respondent also drew my attention to the National Plan to reduce violence against woman and their children (the National Plan), which was included in the G documents. However, I note that under the nomenclature used in the National Plan, not all gendered violence is domestic violence, and not all domestic violence is family violence. The National Plan states:

Definitions

Violence against women can be described in many different ways, and laws in each state and territory have their own definitions.

'The term violence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life...

Domestic violence refers to acts of violence that occur between people who have, or have had, an intimate relationship...

Family violence is a broader term that refers to violence between family members, as well as violence between intimate partners. It involves the same sorts of behaviours as described for domestic violence. As with domestic violence, the National Plan recognises that although only some aspects of family violence are criminal offences, any behaviour that causes the victim to live in fear is unacceptable. The term, 'family violence' is the most widely used term to identify the experiences of Indigenous people, because it includes the broad range of marital and kinship relationships in which violence may occur.[36]

62. Neither the Direction, nor subsection 5G(2), explicitly apply to dating relationships, that is, casual romantic relationships with or without a sexual dimension. As defined by a Report on family, domestic and sexual violence prepared by the Australian Institute of Health and Welfare (AIHW report):[37]

Dating violence is a subset of intimate partner violence, and the perpetrator and victim relationships may have different levels of commitment that do not involve living together. Dating violence includes relationships between people who are in a serious sexual or emotional relationship; are dating regularly with no sexual involvement; or have had 1 date only. The couples do not live together, and have not lived together in the past. Dating violence excludes violence perpetrated by a current or previous cohabiting partner living in a married or de-facto relationship (ABS 2017c). As with partner violence, experiences of dating violence are more common among women than men. One in 20 (5.1%, or 935,000) people have experienced violence from a current or previous boyfriend, girlfriend or date since the age of 15: 7.4% (694,000) women and 1.9% (174,000) men (Figure 2.2) (ABS 2017c).

For this report, domestic violence is considered a subset of family violence and typically refers to violent behaviour between current or previous intimate partners. In some data collections, domestic violence is used more broadly and can include violence between any family members...

Dating violence refers to violence from a current or previous boyfriend, girlfriend or date. It has been included in this report as it is particularly relevant to younger people who are less likely to be in more formal living arrangements with their intimate partners.[38]

64. There is no doubt that the terms 'family violence' and 'domestic violence' are used almost interchangeably in ordinary discourse. But as explained in these Reports, the concepts are neither synonymous nor coterminous - they overlap and are used for different purposes. The National Report states that the term 'family violence' is 'broader' than 'domestic violence'; and the AIHW report notes that domestic violence is a subset of family violence. Dating violence appears as a particular form of domestic violence.

65. As noted above, the Respondent invited the Tribunal to find that the parties were in a particular kind of relationship (an intimate personal relationship) and that parties in such a relationship are members of each other's families for the purposes of the Direction. It appears that in New South Wales parties in a dating relationship that is also an intimate personal relationship would be regarded as being in a domestic relationship for the purposes of the CDPVA, and in Victoria they would be regarded as family members for the purposes of the FVPA.

66. The Migration Act refers to de facto relationships but does not refer to intimate personal relationships as a basis for engaging this primary consideration. I am reluctant to take the step of uplifting the Victorian and New South Wales definitions into the Direction. The reference to 'family violence' in the Direction is intended to sweep up violence that occurs within the family.

67. The critical question is whether, for the purposes of the Direction, Ms V is properly regarded as a member of the Applicant's family. I proceed on the footing that this is a question of fact to be determined by the Tribunal. It may be possible to infer in a particular case that the parties are in an intimate personal relationship that is family-like, for in specifying that certain relationships are included in the concept of family, subsection 5G(2) does not limit who might be regarded as a family member. Whether a dating relationship is an intimate personal relationship is a matter of degree.

68. The nature of the relationship between the Applicant and Ms V was not well developed in the material before the Tribunal. It appears that they were together for about a year. They met at Church and he said she visited sometimes at his place of residence in St Mary's, where he lived with his brother. There is no evidence of sexual intimacy, although I note that this subject was not canvassed at the hearing. Nor was there any suggestion that they lived together at any point during their relationship. The evidence as to the degree of intimacy involved in their relationship is unclear.[39] Indeed, there is no evidence as to the extent to which Ms V returned the Applicant's affections, or whether it was one-sided. The Applicant said that it was good for a while but then they started to argue a lot, often about religion. The Applicant seems not to have had much prior relationship experience. He appears as somewhat naïve and emotionally immature.

69. It is clear that, as far as the Applicant was concerned, it was a romantic relationship, for want of a better description. In his mind they were for a time 'boyfriend' and 'girlfriend'. The evidence of any reciprocation of feelings by Ms V is however unclear. The evidence of the depth and intimacy of the relationship is unclear.

70. I am not satisfied, on the evidence presented to the Tribunal, that Ms V is properly regarded as a member of the Applicant's family. The severity of the Applicant's offending, in that it is violent offending perpetrated against a woman, has already been appropriately weighed in the first primary consideration.

71. PC2 is not engaged by the facts before the Tribunal.

Best interests of minor children in Australia affected by the decision: PC3

72. I note paragraph 8.3 of the Direction, which states:

8.3 Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the child, the following factors must be considered where relevant:

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

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

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

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

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

73. The Applicant has three minor nephews: NL aged 10 years, CL aged eight years and TL aged seven years, who are his older brother's children.

74. The Applicant's brother gave evidence that the Applicant had spent about three weeks with his family in New Zealand before they moved to Australia and he spent another three weeks with the children when he first arrived.

75. The children are very young. The children's father said that they missed the Applicant. It is potentially an important relationship for the children.

76. The children are well cared for in a secure environment.

77. I find that PC3 weighs slightly in favour of revocation of the mandatory cancellation decision.

The expectations of the Australian community: PC4

8.4 Expectations of the Australian Community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

...

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case. [emphasis added]

79. A literal reading of paragraph 8.4 of the Direction suggests that if the offending falls into one of the categories and is therefore taken to raise 's_erious character concerns through conduct_', then the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.

80. The Respondent contends, consistently with the Direction, that any offences committed against women should be regarded as very serious. Paragraph 8.4.2(c) of the Direction requires these incidents in the Applicant's criminal record to be treated as serious.

81. The classification of a particular category of offence as serious or very serious does not absolve the Tribunal from the responsibility of determining for itself the weight to be assigned in the specific circumstances of the case.

82. Any interaction between a man and a woman during the course of a relationship breakdown that involves the use of violence is very serious; the presence of a knife makes the offending egregious.

83. In the present case there are two potential narratives. One is that the Applicant intended to harm the victim by using the knife. The other is that he intended to harm himself, and to shock her by self-harming in front of her.

84. The state of his mind at the relevant time is practically indecipherable. He says he intended to self-harm. However, he refrained from doing so. But neither did he use the knife on her. It is possible that it was all for display - but regardless, the risks of such conduct are so great that the offending must be considered very serious.

85. The Applicant's solicitor submits that the Tribunal should take into account the fact that the Applicant was hospitalised two days prior to this incident in a clear attempt at self-harm, having consumed half a bottle of laundry chemicals. When asked about this suicide attempt, the Applicant said:

I drank a half-bottle of chemical. And my brother found me, and then they - he called ambulance, and they took me to the hospital. Because I couldn't handle my depression. Then. I couldn't - I couldn't handle that the relationship has ended, and - yes, everything just fall apart. And - yes, I couldn't - I just couldn't handle my depression, that - that's pretty much - it was - I had depression before, in New Zealand, with my aunty, and stress - you know, stress and everything. But I was - I never actually - you know, had the sort of depression before, it was - because I never seen psychologist or anything, I never knew anything about depression, that much. [40]

86. There is, therefore, some evidence of an untreated depressive condition that pre-dates his attempt at self-harm. It may be that the Applicant suffered from an underlying mental condition, and that he was emotionally unstable at the time of the offending, but in terms of this primary consideration, the expectations of the Australian community, I do not think that much allowance can be made for it.

87. In relation to PC4 (the expectations of the Australian community) it is well established that this consideration cannot weigh in favour of any Applicant; the degree to which it weighs against an Applicant in any particular case varies according to the seriousness of their offending.[41]

88. In the particular circumstances of this case, PC4 weighs heavily against the Applicant.

89. Other considerations identified in the Direction relate to:

(ii) Impact on Australian business interests: OC4.2

90. This consideration has no application to this matter.

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country.

92. The Applicant said that were he to be removed from Australia, he would wish to be returned to New Zealand, rather than Samoa. This is perhaps unsurprising, given the shame involved in returning to his parents under such circumstances. However, he has no family in New Zealand, other than his aunt, and his relationship with her apparently did not survive them living together.

93. The Respondent said that it was the Tribunal to determine the country of removal.

94. I note that he has spent less time in New Zealand than he has in Australia and has no great familiarity with that country.

95. The Applicant has a history of suicidal ideation, with at least one attempt at self-harm. He will require ongoing counselling and support, although one can assume that the health services in New Zealand are not less adequate than those in Australia, and may be superior in some instances. The loss of family relationships in Australia may well result in further episodes of major depression. On the positive side, he is young, fit and in good physical health.

97. In terms of cultural barriers, the Applicant has spent only about a year in New Zealand, and does not feel comfortable there. It cannot be assumed that the cultural diversity of New Zealand means that a person of Samoan heritage without family support will just fit in. New Zealand is an exemplary multicultural nation, although the history of Samoan resettlement in New Zealand has some regrettable chapters, for which the government has recently most honourably made a full apology.[42] The Tribunal makes this observation with deep respect for the depth of multiculturalism in New Zealand.

98. The Applicant has only one family member in New Zealand, his aunt, who was apparently prepared to help him when he first went to New Zealand, but the evidence is that he had a serious falling out with her and the Applicant indicated that he could not go back there. He would return as a person who has been deported from Australia. In light of his evidence, I do not think he would find much support there.

99. His older brothers indicated that they could provide only moral support and a very modest amount of financial assistance during the transition period of establishing himself and maintaining basic living standards. They also indicated quite clearly that they were not willing to return to New Zealand. Fetalai (Junior) had recently come to Australia from New Zealand with his three children and did not wish to return.

100. I recognise that for a person of modest emotional resilience, such as the Applicant, relocation to a country which he barely knows will represent a significant challenge, both financially and mentally. While he has spent a small period of time in New Zealand, being removed to a country where he does not have strong familial support and is unfamiliar with the health system constitutes a notable health risk. The closeness of his relationship with his two brothers in this country is a very strong protective factor. I recognise that he has lived without the immediacy of their support, but I do not discount the loneliness and depression he may experience living without any family contact in New Zealand, especially during his first months of freedom.

101. I find that this consideration weighs heavily in favour of revocation of the mandatory cancellation.

102. There is no evidence relating to this consideration before the Tribunal. Specifically, there is no evidence of any physical or psychological injury suffered by Ms V. This consideration has no application to this matter.

(i) Strength, nature and duration of ties to Australia: OC4.1**

9.4.1. The 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.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

104. The Applicant arrived in Australia on 19 May 2018. He was detained on 15 June 2020. He has been immigration detention since 17 December 2020 (8 months) and has not requested voluntary removal to New Zealand. He spent just over two years (25 months) in the community prior to his arrest and has been deprived of his liberty for the last 14 months. During the period up until his arrest, he was gainfully employed working for a food supplier packing boxes.

105. The evidence presented to the Tribunal shows that he has extensive family ties in Australia, and an employment opportunity.

106. The two brothers live in Australia, and he has a close relationship with them. His mother and father live in Samoa but they do not want him to return there, for they do not see a future for him.

107. He has a genuine relationship with his brother's three children.

108. He has two uncles, two aunties and many cousins in Australia.[43]

109. The Applicant has a job lined up with a gardening firm if he is released. The Tribunal heard from his potential employer, who owns a lawn mowing franchise, and previously worked with the Applicant. I am satisfied that this is a genuine job offer, although given the uncertainties of the present pandemic restrictions it may not provide immediate financial support.

110. There is no doubt that his removal will have an emotional impact on his brothers, and other member of his family in Australia.

111. I note that his parents in Samoa are retired and depend heavily on regular income from their sons in Australia. The imprisonment of the Applicant has fallen heavily on them. It has also placed a heavier burden on his brothers - the three brothers take turns to remit money to Samoa.

112. If removed to New Zealand, it is doubtful whether the Applicant will be able to contribute as much as he did in the past to his parent's income, taking into account his need to establish himself in New Zealand, as well as the exchange rate.

113. I find that that, OC4.1 weighs moderately in favour of revocation of the mandatory cancellation.

(ii) Impact on Australian business interests: OC4.2

114. I find that there is no evidence of any impact on Australian business interests. This consideration has no application to this matter.

115. The Direction contains principles and rules relating to the weighting of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[44]

116. The Direction also refers to a myriad of subsidiary issues relevant to each of the specified considerations. I have regard to each of these factors referred to in the Direction.

117. My conclusion in weighing the primary and other considerations is as follows.

PC1 safety of the community (heavily);
PC4 expectations of the community (heavily).

Impediment to resettlement (OC2) (heavily);
Links to the Australian community (OC4.1) (moderately);
The best interests of minor children in Australia affected by the decision to remove (PC3) (slightly).

Non-refoulement (OC1);
Victim impact (OC3);
Family violence (PC2).

121. It is also of note that the class of 'other considerations' is not closed - it naturally includes those things that must also be evaluated in order to decide whether there is 'another reason' for revocation.

122. In terms of balancing the various considerations, the self-harming that preceded the offending stands out as a significant feature.

123. According to an Australian Government study, there were 2,502 deaths by suicide in males and 816 suicides deaths by females in 2019.[45] This is a remarkable and little known statistic. It would appear that COVID is not the only pandemic currently at large in the community.

124. The same report shows that over the four months of March, June, September and December, ambulances attended 22,400 incidents involving suicidal behaviours (including suicidal ideation and suicidal attempt) in NSW, Victoria, Tasmania and the ACT, 53% of which occurred in New South Wales. In 2020 ambulances in NSW attended 56% of 4,400 incidents involving actual self-harm in those months. The Applicant is one of many recorded amongst these statistics.

125. It is significant that the incident giving rise to criminal charges occurred within 48 hours of the self-harm incident. During his short stay in hospital he received invasive treatment and morphine as a painkiller. He did not receive follow up mental health care.

126. Mr Tsolis states that the risk of harm (either self-harm or relationship harm) may have been significantly mitigated had the Applicant been scheduled following his presentation at hospital. His discharge from hospital untreated and without any ongoing medication underlines the fact that, at the time of the incident, the Applicant was in a state of high agitation and emotionally unstable. This led to a highly dangerous outburst of anger and rage. The lack of follow up care after his suicide attempt weighs heavily on the Tribunal.

127. The Applicant's solicitor said that this was a finely balanced case. He said that the Applicant was fully aware of the criminality of his behaviour and that he was sorry for it. He said that it would not happen again.

128. I agree that the case is very finely balanced.

129. After considering all the factors to which the Tribunal must have regard, my conclusion is that his visa should be restored.

130. Although he fails the character test, having been sentenced to a term of imprisonment exceeding 12 months, there is another reason, or a set of reasons, why the mandatory cancellation should be revoked.

131. The decision under review is set aside and substituted with a decision to revoke the cancellation of the Applicant's visa. As a result, the Applicant's visa is not cancelled.

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.....................[sgd]...................................................

ANNEXURE 1: FAMILY VIOLENCE UNDER COMMONWEALTH LAW

Family Violence is defined under the Family Law Act 1975 (Cth) in section 4AB.[46] For the purposes of that section,

'a person (the first person ) is a member of the family of another person (the second person ) if:

...

(d) the first person is or has been married to, or in a de facto relationship with, the second person; or

(e) the first person is or has been a relative of the second person (as defined in subsection (1AC)); or

(f) an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force:

(i) a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons;

(ii) an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or

(g) an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force:

(i) an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons;

(ii) an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or

(h) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or

(i) the first person is or has been a member of the family of a child of the second person.

(1AC) For the purposes of subsection (1AB), a relative of a person is:

(a) a father, mother, grandfather, grandmother, step-father or step-mother of the person; or

(b) a son, daughter, grandson, grand-daughter, step-son or step-daughter of the person; or

(c) a brother, sister, half-brother, half-sister, step-brother or step-sister of the person; or

(g) if the person is or was married--in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person's spouse; or

(h) if the person is or was in a de facto relationship with another person--in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.

Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPVA), 'domestic violence offence' is defined in section 11 as follows.

LEAU and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3090 (27 August 2021)

At a glance

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Judgment (250 paragraphs)

LEAU and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3090 (27 August 2021)

Legislation Cited (8)