Commonwealth

Administrative Appeals Tribunal of Australia

  • X (a pseudonym) (Migration) [2022] AATA 1149 (21 March 2022) – Administrative Appeals Tribunal of Australia
    Administrative law’ – ‘Application for review’ – ‘Cancellation of visa’ – ‘Deportation’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘Immigration’ – ‘People affected by drug and alcohol misuse’ – ‘People with mental illness’ – ‘Risk to domestic partners’ – ‘Risk to health, safety and good order of community’ – ‘S.116 of the migration act 1958 (the act)

    Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.

    Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to cancel Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

    Facts: The applicant, Mr X, came to Australia at the age of 7 and was 47 years old at the date of decision. He had an extensive criminal history commencing in 1996 including multiple series of domestic violence offending, the first commencing December 2001, the second commencing November 2007 and the third in 2009. There was also a series of domestic violence offences in 2016 and 2018. Mr X’s explanations did not fully correlate to the convictions and tended to minimize his offending. His former partner’s children were removed from her care following the offending and returned to her care after Mr X’s visa was revoked and he was taken into immigration detention. He has a history of breaches of community corrections orders, bipolar disorder and drug and alcohol misuse (addressed while in prison). He is the father of 4 children, 3 of whom are adults, the youngest 17 years old, and has contact with and good relationships with 3 of his children. He has no family or support in New Zealand. The delegate relied on his ongoing risk of offending to women with whom he may be in a domestic relationship pursuant to s116(1)(e) of the Act.

    Issues:

    1. Whether the ground for cancellation in s116(1)(e) of the Act - Mr X is or may be, or would or might be, a risk to:
      • the health, safety or good order of the Australian community or a segment of the Australian community; or
      • the health or safety of an individual or individuals;

    is made out, and if so,

    1. whether the visa should be cancelled.

    Decision and Reasoning: Decision to cancel the applicant’s Subclass 444 (Special Category) visa affirmed.

    The Tribunal held that Mr X may be a risk to individuals in the community and in particular previous and future domestic partners and a risk to children in the household (shown by the removal of his former partner’s children). The factors which favour Mr X remaining in Australia do not outweigh the risk he poses to a segment of the community.

    The Tribunal considered the distress and hardship Mr X would experience if returned to New Zealand, the likely impact on his children and mental health, his strong ties to the Australian community, his continued minimization of his offending, longstanding issues of aggression towards domestic partners and repeated non-compliance with court orders. The Tribunal also considered the fact that if the decision to cancel his visa is affirmed, he will be removed from Australia and be unlikely to be able to return. Consideration was also given to the fact that since his visa was cancelled he was sentenced to a further period of imprisonment, meaning he has a substantial criminal record as defined in s 501(7) of the Act; thus, if the visa cancellation is revoked his visa is likely be cancelled again.

  • A (a pseudonym) and Child Support Registrar (Child support) [2021] AATA 5499 (7 September 2021) – Administrative Appeals Tribunal of Australia
    Administrative law’ – ‘Application for review’ – ‘Child support’ – ‘Child support agency’ – ‘Children’ – ‘Counselling records’ – ‘Domestic and family violence’ – ‘History of domestic and family violence’ – ‘Non-compliance with parenting orders’ – ‘Percentage of care’ – ‘Risk to children’ – ‘Section 51, child support (assessment) act 1989’ – ‘Separation’ – ‘Special circumstances

    Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.

    Proceedings: The mother’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of a decision to dismiss her objection to the determination of Services Australia – Child Support (the Agency) that the care percentages of 80% to the mother and 20% to the father of the two younger children should be reflected in the child support assessment for an interim period.

    Facts: The mother and father are parents of three children in respect of whom there has been a child support assessment in place since 8 January 2020, which reflected that the mother had 100% care of all three children In March 2021 the father advised the Agency that since September 2020 there had been court orders in place granting him 14 per cent care of the children and that the mother had withheld care since November 2020. On 7 December 2020 the father filed an application for interim orders seeking 100% care of the children and to enforce the existing orders and commenced contravention proceedings on 11 February 2021. The Agency made an interim care decision that from the November 2020 to September 2021 the care record must reflect that the father had a care percentage of 20% care on the basis the mother withheld care and the father was taking reasonable action to have the court-ordered care arrangement complied with. The mother’s evidence was that the children ran away from the father when he attended their school to collect them, that they are fearful of him due to his history of violence towards the mother during the relationship, and that they have not had contact with the father for three years. The mother consented to disclosure of confidential notes from counselling sessions with her psychotherapist (including some sessions with the children in which they expressed their fear of the father) spanning a 10 year period from the time of separation.

    Issues:

    1. Whether the father (for the purpose of section 51, Child Support (Assessment) Act 1989 (the Act) was taking reasonable action to ensure the court orders were complied with; and
    2. whether there were special circumstances such that an interim care determination should not be made.

    Decision and Reasoning: The decision under review was set aside, and in substitution the tribunal decided that from 7 November 2020 the mother has had 100 per cent care of the children for the purpose of s51 of the Act.

    The tribunal was satisfied that the father took reasonable action to ensure the court-ordered care arrangements were complied with for the purposes of section 51 of the Act. In respect of the father, as required by subsections 51(2), (3) and (4) of the Act, the first care percentage is 14% while the second percentage is 0%.

    In the special circumstances of this case as they relate to the children of the assessment, the father should not have the benefit of an interim period. On balance, the tribunal was satisfied that the father’s own behaviour had significantly contributed to the care arrangements not being complied with. The tribunal placed significant weight on contemporaneous counselling records which reflected that the children had disclosed that they were exposed to family violence perpetrated by the father and were subsequently fearful of the father.

  • B and C (pseudonyms) (Child support) [2021] AATA 5500 (3 September 2021) – Administrative Appeals Tribunal of Australia
    Administrative law’ – ‘Application for review’ – ‘Child support’ – ‘Domestic and family violence’ – ‘Non-compliance with parenting orders’ – ‘Percentage of care’ – ‘Protection order’ – ‘Risk to child’ – ‘Section 51, child support (assessment) act 1989’ – ‘Suicide threat by child

    Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia.

    Proceedings: The father’s application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) of the decision to dismiss his objection to the determination of Services Australia – Child Support (the Agency) pursuant to s51 Child Support (Assessment) Act 1989 that the mother’s actual 100 per cent care of the child should be reflected in the child support assessment and no interim care determination should be made.

    Facts: The mother and father are parents of one child (aged 12) in respect of whom there has been a child support assessment in place since 30 September 2009. Parenting orders dated June 2020 provide that the child will spend 5 nights per fortnight and half of each school holidays in the care of the father. The pre-existing care determination was 33% care to the father and 67% care to the mother, which accorded with the care provided for in the parenting orders. On 18 December 2020 the mother advised the Agency that the child was in her 100% care due to a medical crisis, namely that the child had threatened suicide if returned to the father’s care. The child’s psychiatrist directed the child should reside with the mother and not be required to reside with the father. Medical records confirming this advice were adduced at the hearing. The father disagreed with the care change due to the court orders. The father did not respond to a disputed care contact letter issued by the Agency and on 16 February 2021 a delegate of the Agency decided that care of the child was 100% to the mother and 0% to the father from 2 November 2020. The father provided the court orders and reason for decision which make mention of the child’s mental health and the mother provided a provisional protection order made on 8 March 2021 for the protection of the child (which was later withdrawn). On 24 March 2021 an objections officer disallowed the father’s objection and the father sought review by the tribunal.

    Issues:

    1. What were the care arrangements in relation to the care of the child in the relevant care period and should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?
    2. Should an interim care determination be made in relation to the care of the child, or were there were special circumstances such that an interim determination should not be made?

    Decision and Reasoning: Decision affirmed.

    From 20 November 2020 the child’s actual care was 100% to the mother and 0% to the father. The tribunal acknowledged that there was a court-ordered care arrangement in place that was not being adhered to, and that the father contended that he was taking reasonable action to have his court-ordered care restored. However, the tribunal found that special circumstances existed on the basis of the psychiatrist’s advice that the child remain wholly in the mother’s care due to his medical crisis, and that it was therefore appropriate to determine the respective care percentages based on actual care, rather than making an interim care determination by reference to the parenting orders.

  • Simpson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 78 (1 February 2021) – Administrative Appeals Tribunal of Australia
    Another reason to revoke mandatory cancellation decision’ – ‘Application for review of decision not to revoke cancellation of visa’ – ‘Character test’ – ‘Criminal history’ – ‘People affected by substance misuse’ – ‘Uncharged acts

    Proceedings: Application for review of decision not to revoke cancellation of visa.

    Facts: A delegate of the Minister (the respondent) mandatorily cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. The applicant made written representations to the respondent requesting revocation of the cancellation of the visa. The respondent declined to revoke the cancellation.

    Issues: Under s 501CA(4) of the Act, the original decision may be revoked if –

    1. The applicant passed the character test (subsection (b)(i)).
    2. There is another reason why the decision to cancel the applicant’s visa should be revoked (subsection (b)(ii)).

    Decision and reasoning: Application for review of decision not to revoke cancellation of the applicant’s visa was dismissed.

    Issues 1: The applicant had a “substantial criminal record”. He did not pass the character test defined in s 501(6) of the Act and could not rely on s 501CA(4)(b)(i) as a reason for the mandatory cancellation of the visa to be revoked.

    Issue 2: The Tribunal was required to consider “Primary Considerations” under Direction 79 (as well as “Other Considerations”).

    On Primary Consideration A “Protection of the Australian community from criminal or other serious conduct”, the Tribunal member noted that under the Direction she was “not limited to considering proven offences” but “required to consider the nature and seriousness of the applicant’s ‘conduct to date’.” This included an incident where the applicant damaged his ex-partner’s new partner’s car, grabbed his ex-partner, and threatened her and her new partner with violence. This was “very serious conduct” (at [52]). The applicant had also committed 34 criminal offences and had a lengthy traffic history. There was a moderate risk he would commit further offences. Primary Consideration A weighed heavily against revocation of the cancellation of the Applicant’s visa ([49]-[84]).

  • D (a pseudonym) (Migration) [2020] AATA 3488 (30 June 2020) – Administrative Appeals Tribunal of Australia
    Administrative law’ – ‘Application for review’ – ‘Domestic and family violence’ – ‘Evidence of de facto relationship’ – ‘Evidence of family violence’ – ‘Immigration’ – ‘No family violence’ – ‘Partner visa’ – ‘S.65 of the migration act 1958

    Note: Names have been anonymised at the request of the Administrative Appeals Tribunal of Australia

    Proceedings: Application for review of the decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

    Facts: The applicant, Ms. D claimed that her relationship with Mr P, the visa sponsor, had ceased and she had been the victim of family violence. She applied for Partner (Temporary) visa (Class UK) visa under s.65 of the Migration Act 1958 (the Act). A delegate of the Minister refused to grant a visa to the applicant on the basis that she did not meet cl.820.211(2)(a) of the Migration Regulations (1994) because the evidence failed to demonstrate that the applicant was the de facto partner of the sponsor, as defined under section 5CB of the Act.

    Issues: To grant a Partner (Temporary) visa (Class UK) visa, the Tribunal must be satisfied:

    1. The evidence is sufficient to demonstrate the applicant and the sponsor had been in a de facto relationship and that the relationship has ceased to exist.
    2. The evidence is sufficient to demonstrate family violence.

    Decision and Reasoning: The Tribunal found that there was a de facto relationship and it had ceased but found there was no family violence, so affirming the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    After considering the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other, the Tribunal member was satisfied that the applicant and sponsor had been in a de facto relationship, and the relationship had ceased [14].

    Relying on statutory declarations provided by a social worker and a psychologist and a mental health plan written by a medical practitioner, the applicant made a non-judicially determined (see r1.24 and 1.25 Migration Regulations (1994)) claim of family violence.

    After considering the evidence, the Tribunal member was not satisfied that the applicant had suffered relevant family violence. The Tribunal member found no evidence of physical violence and was not convinced that the psychological trauma experienced by the applicant met the test required by the legislation to sustain a claim of family violence [28]. The Tribunal sought the opinion of an independent expert.

    The Independent expert report (the report) found that “the sponsor’s conduct did not cause [Ms. D] to reasonably fear for, or to be reasonably apprehensive about, her well-being or safety. … [Ms. D] said that she has maintained a friendship with the sponsor despite him reportedly continuing to verbally abuse her.”[33] The report found the applicant had not experienced family violence outlined in r1.21 Migration Regulations (1994).

    The applicant challenged the report. The Tribunal member was concerned as to whether the applicant had been afforded procedural fairness [42] and a second hearing took place.

    The Tribunal member considered the written responses of the applicant and her agent to the report, the responses of the independent expert to the matters raised by the applicant and her agent and discussed these issues with the applicant and her agent at the second hearing [62]. The Tribunal member found that the applicant had not suffered family violence committed by the sponsor.

  • Hamilton and Secretary, Department of Social Services (Social services second review) [2020] AATA 1918 (26 June 2020) – Administrative Appeals Tribunal of Australia
    Covid-19 pandemic’ – ‘Domestic violence’ – ‘Financial abuse’ – ‘New start allowance’ – ‘Special circumstances’ – ‘Workers compensation

    Case type: Review

    Facts: The female applicant sought review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division, which affirmed the decision of the Department of Human Services rejecting her new start allowance claim because she had a compensation lump sum preclusion period from 2 March 2010 to 21 April 2025. The applicant had received a workers compensation lump sum payment for injuries suffered in a motor vehicle accident. Her evidence was that she suffered severe financial hardship as her abusive male ex-partner had accessed and gambled her savings. She terminated the relationship and had to sell her home due to her financial difficulties, retaining about $400,000. The relationship resumed and he used her ATM card to take money from her bank account threatening to beat her if she did not provide access to her funds. The applicant finally terminated the relationship and said he had taken all the money which she had following the sale of her house which represented all that remained of the settlement sum she had received ([67]). The applicant was unable to obtain continuous employment and was experiencing severe financial hardship ([79]).

    Issue: Whether special circumstances exist.

    Held: The Tribunal set aside the decision and held that the applicant’s circumstances were "special" pursuant to s 1184K, such that much of her compensation payment should be treated as not having been made so as to reduce the preclusion period applicable to her compensation payment so that it ended on 21 May 2020 ([82]). The special circumstances in accordance with s 1184K(1) related to the totality of the applicant’s circumstances, including her financial hardship, her injuries, her financial deprivation following domestic violence and financial abuse ([79]).

    The hearing was conducted via telephone in accordance with the provisions of the Tribunal’s COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions ([29]).