Albert and Minister for Immigration and Border Protection (Migration)

Albert and Minister for Immigration and Border Protection (Migration) [2017] AATA 2036 (2 November 2017)
Division:GENERAL DIVISION
File Number: 2017/4953
Re:Junior Albert
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:2 November 2017
Place:Brisbane

The decision under review is affirmed.
........................[SGD]...............................
Senior Member T. Tavoularis
MIGRATION – review of non-revocation of mandatory visa cancellation decision – Applicant is a citizen of Fiji - Applicant’s visa cancelled under s 501(3A) because Applicant did not pass character test and was serving full-time term of imprisonment – whether there is a reason discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No. 65 – expert opinion about risk of re-offending – minor children – ties to Australia - extent of impediments if removed – outweighed by nature of harm and community expectations – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Penalties and Sentences Act 1992 (Qld) s 9(13)
Cases
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)
REASONS FOR DECISION
Senior Member T. Tavoularis
2 November 2017
INTRODUCTION

This matter relates to an application for review filed by Junior Albert (“the Applicant”) on 21 August 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 9 August 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was not to revoke the original cancellation decision.[1]
[1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).
The Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a 30 year old citizen of Fiji. He first visited Australia on 6 June 2008 for a short holiday. He later returned to Australia on 3 November 2010, aged 23, to visit his girlfriend (now wife) for about 3 months. He subsequently visited Australia on a number of occasions until he married his Australian wife in 2011. The Applicant has primarily resided in Australia since then on a Class UK Partner (Temporary) Subclass 820 Partner visa (the “Visa”). His last recorded date of entry into Australia was 18 April 2013.[2]
[2] See Exhibit 4, s 501 G documents, G3, p 311.
The Applicant has lived a fairly ordinary life in Australia with his new family until the events of 27 March 2014. The Applicant had been visiting a cousin in Toowoomba and after a night on the town, the Applicant made the poor choice to drive whilst heavily intoxicated. The accident that transpired as a result is nothing short of horrific. The Applicant drove through a red light at an intersection and collided with a vehicle containing five occupants – a husband, wife, baby and the husband’s two sisters. The husband was thrown from the car and killed. The wife sustained injuries that amounted to grievous bodily harm and the sisters also sustained injuries. Thankfully the baby was uninjured. The incident occurred in an area where the speed limit was 50km/hr and the Applicant was travelling at no less than 77km/hr. At the time of the offence, the Applicant left the scene, walking past the dying husband on the road. About 90 minutes after the accident the Applicant was detained by police and found to have a blood alcohol concentration of 0.124 per cent.
On 10 February 2015, the Applicant was convicted in the District Court of Queensland in Toowoomba for the offence of dangerous operation of a vehicle causing death or grievous bodily harm whilst adversely affected by an intoxicating substance and left the scene without obtaining help. He was sentenced by His Honour Judge Rafter SC to eight years imprisonment with a three year non-parole period. His Queensland driver licence was disqualified absolutely.
This conviction is the extent of his criminal history as recorded in the National Police Certificate dated 19 February 2015.[3] I note that the Applicant has an additional traffic offence from 15 May 2012 for speeding (more than 10 but less than 20 kilometres over the speed limit), for which he lost demerit points.[4]
[3] See Exhibit 4, s 501 G documents, G3, p 27.
[4] See Exhibit 4, G3 p 29 in Sentencing Remarks of Judge Rafter SC on 10 February 2015.
On 14 November 2016, the Department of Immigration and Border Protection (“the Department”) wrote to the Applicant giving notice that his Visa had been cancelled pursuant to the provisions of s 501(3A) of the Act.[5] The Applicant’s Visa was mandatorily cancelled by a delegate of the Minister because he had a substantial criminal record and therefore did not pass the character test by virtue of s 501(7)(c) and s 501(6)(a). Additionally, he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth or a State or Territory.
[5] See Exhibit 4, G3, pp 305 – 309.
The Applicant was invited to make submissions in favour of revocation of the mandatory visa cancellation decision. On 12 December 2016, the Applicant, through his migration agent, lodged a request for revocation of the mandatory visa cancellation decision, including a Personal Circumstances Form.[6] The Applicant later provided a variety of other submissions and evidence in favour of his request for revocation, including a psychologist’s report from Professor Ian Coyle and letters of support.[7]
[6] See Exhibit 4, G3, pp 285 – 304.
[7] See Exhibit 4, G3.
On 9 August 2017, a delegate of the Minister considered the submissions and made a decision not to revoke the mandatory visa cancellation decision pursuant to s 501CA(4) of the Act. The Applicant’s representative was notified by email on the same day.[8]
[8] See Exhibit 4, G2, pp 11 – 24.
On 18 August 2017, the Applicant applied to this Tribunal for review of that non-revocation decision.
The Applicant is presently detained on Christmas Island. He has been in immigration detention since being released on parole on 26 March 2017, after serving three years imprisonment.
ISSUES
The issue I must consider is whether in the circumstances of this case the discretion in

s 501CA(4) of the Act should be exercised in favour of revoking the cancellation of the Applicant’s visa.
When making a decision on whether to exercise the revocation discretion in s 501CA(4) of the Act, there are two issues a decision maker must consider:
(i)whether the Applicant passes the “Character Test” as defined in s 501 of the Act; or
(ii)whether there is another reason why the mandatory visa cancellation decision should be revoked.
The Applicant concedes that he does not pass the character test and that the only issue for the Tribunal to address is whether there is another reason why the mandatory visa cancellation decision should be revoked, such that the discretion conferred by s 501CA(4) of the Act should be exercised.[9]
[9] See Exhibit 1, pp 1 – 2, at [3] – [5].
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
I acknowledge that both parties have conceded that the Applicant does not pass the character test and this issue is not in dispute.
I am satisfied that the Applicant does not pass the character test in s 501(6) of the Act for the following reasons.
As previously mentioned, on 10 February 2015, the Applicant pleaded guilty to and was subsequently convicted for the offence of dangerous operation of a vehicle causing death or grievous bodily harm whilst adversely affected by an intoxicating substance and left the scene without obtaining help. He was sentenced in the District Court of Queensland to imprisonment for eight years with a non-parole period of three years.[10]
[10] See Exhibit 4, G3, p 27 – National Police Certificate dated 19 February 2015.
Having regard to his criminal history, it is clear the Applicant has been sentenced to a term of imprisonment of 12 months or more and he is therefore deemed to have a “substantial criminal record” for the purposes of s 501(7)(c) of the Act. As such, he does not pass the “character test” pursuant to s 501(6)(a) of the Act.
I must therefore move to the next issue: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
“…a decision maker: must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.” [11]
[11] Direction No 65, paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct.
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further 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.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly (for present purposes), amongst those factors are: (i) the principle that violent and/or sexual crimes are viewed very seriously; and (ii) the sentence imposed by the courts for a crime or crimes.
There is an immediate concession from the Applicant that the offence he committed on

27 March 2014 was extremely serious.[12] There is a further acceptance by the Applicant that his “negligence” resulted in (a) violence to be done to the passengers of the vehicle that his vehicle struck; and (b) the death of another human being.[13]
[12] Exhibit 1, Applicant’s Statement of Facts Issues and Contentions (“SFIC”), at [44].
[13] Ibid at [45].
There is the further concession from the Applicant that the offending “… can be accurately described as a violent offence” and that, as a consequence, the Applicant was a “violent offender” within the meaning of s 9(13) of the Penalties and Sentences Act 1992 (Qld). [14]
[14] Ibid at [45]-[46].
The Applicant seeks to ameliorate the seriousness of his offending by categorising it as “…negligent [rather] than intentionally violent”.[15] I have misgivings about that contention in circumstances where the conduct resulting in the loss of another human being was so wanton that it, to my mind, moves beyond the realm of negligence and can better be categorised as criminally reckless.
[15] Ibid at [47].
This is reflected in the sentencing regime imposed upon him and the imposition of the further declaration of him as a violent offender. While oftentimes in applications such as this, much is sought to be made of the brevity of an applicant’s criminal history, I think the imposition of a very significant sentence, in circumstances of little or no criminal history, is itself indicative of just how serious and severe the sentencing court found the conduct to be.
Here, the Applicant went before His Honour Judge Rafter SC in February 2015 with little or no criminal or other history, yet His Honour saw fit to impose a head sentence of eight years with a non-parole period of three years. In sentencing the Applicant, His Honour made specific reference to aggravating features in the conduct giving rise to the tragic outcome. The totality of the aggravating features make for sombre reading: (1) the Applicant was intoxicated, not at a small or moderate level but at exactly two and half times over the legal limit; (2) he was driving beyond the speed limit (travelling at about 77km/hr in a CBD 50km/hr zone); (3) he went through a red light; (4) following the collision there was scant or no regard paid to a dying or deceased victim who had been thrown from the vehicle; (5) he left the scene of the collision and was only later detained by police; (6) after admitting he was the driver of the other vehicle in the collision his first query was about how much trouble he was in rather than the welfare or wellbeing of the people in the other vehicle.
As is often seen in matters involving the loss of an individual, there are devastating effects for the surviving family. The passengers in the other vehicle comprised a husband/father, a wife/mother, their baby, and the husband’s two sisters – five people in total. As a result of the collision the husband was killed, the wife sustained life threatening injuries necessitating her emergent passage from Toowoomba to Brisbane. Thankfully, the baby was not injured but the husband’s two sisters sustained minor injuries. Although there was no direct evidence on this point, the emotional trauma impacting upon the victims resulting from the loss of the male person is clear and palpable. One wonders about the care and management of the baby – without his/her father (forever) and his mother (presumably for months whilst she was recovering). As observed by His Honour Judge Rafter SC in his sentencing remarks “there are victim impact statements that show just how serious this has been for them. Any sentence imposed cannot in any way make up for the loss of a loved husband and parent.”[16] For this range of factors and not just the aggravating factors identified in the sentencing remarks, the finding can only be that the Applicant’s offending is extremely serious.
[16] Exhibit 4, G3, p 29.
I feel compelled to respond to some of the submissions made on behalf of the Applicant in relation to the nature and seriousness of his conduct. The criminally reckless and irresponsible nature of the offending renders immaterial and irrelevant any consideration that he is or is not by nature or by character a violent person. I reject the contention that the Applicant’s eight year sentence of imprisonment should be weighed in light of the maximum 14 year sentence that was available to the sentencing judge. As outlined earlier, this Applicant, with a hitherto minimal or non-existent criminal history received almost 60 percent of the maximum available sentence upon his first presentation to a criminal court. This submission does not help the Applicant.
I accept the contention put on behalf of the Applicant that his previous speeding offence is not a relevant consideration because it was not a criminal matter nor, when viewed in combination with his extremely serious offence, is it indicative of any pattern of offending.
While I accept, to some extent the contention that the Applicant has not been convicted of, or engaged in, any crime other than that committed on 27 March 2014, there cannot be said to be any identifiable frequency in his offending nor can there be found any cumulative effect of his offending. However, I do not accept the contention that his conduct on 27 March 2014 was some type of aberration because of a relative paucity of similar conduct in his history. This was not just an aberration or a momentary lapse of reason it was a dreadfully immature decision committed by a mature man, a family man with children of his own, who should have known better. I do not accept any suggestion that the ingestion of alcohol is to blame. The consumer of the alcohol is in control of the ingestion of that alcohol well before any such ingestion commences. The catastrophic consequences of drinking and driving have been made very well known – often in very graphic and stark advertising – which makes it clear that the commencement of responsibility for consumption of alcohol starts well before the first drink is consumed.
The Applicant’s conduct, for the purposes of this primary consideration is therefore very serious. In the final analysis, the parties were in agreement in this regard. To his credit, the Applicant conceded the seriousness of his offending at the hearing and reiterated his remorse.
I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the Applicant’s offending can only be viewed very seriously in terms of its overall impact on the community.
(b) The Risk to the Australian Community should the Applicant continue to commit further offences or engage in other serious conduct

Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:
(i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of Potential Future Harm
It is contended by the Applicant that the nature of the harm he represents to the Australian community is “minimal and not serious”.[17] This contention seems predicated on the basis that the Applicant entirely avoids alcohol and any possible consequent intoxication. I have difficulty in giving any traction to this contention because his self-professed intention to forever refrain from consumption of alcohol is unproven and untested in circumstances where he has been in prison and then immigration detention for something in the order of three years and seven months (where he does not have access to alcohol).
[17] See Exhibit 1, Applicant’s SFIC, at [55].
In his evidence, the Applicant said he was, in the main, a social drinker who would consume a moderate amount of alcohol on a social occasion where alcohol was available to him. He also admitted to having the occasional “big night out” as occurred on the evening during which the tragic incident occurred. On that evening, the Applicant said he consumed “one or two drinks” during a preliminary drinking session at a pub between approximately 7:30pm and 9:30pm. He said he then resumed drinking upon arrival at a nightclub at roughly midnight. At the nightclub he said he consumed 8-10 schooners of beer plus a “few shots” that in his recollection was about four shots in total.
I have difficulty in accepting the contention that the Applicant presents a minimal and not serious level of harm to the Australian community on the basis that he is “a generally well mannered” person and “… does not have a violent nature”.[18] The difficulty arises from the fact that one does not know how this Applicant behaves, reacts and makes (or fails to make) critically important decisions before embarking on a course of conduct, such as consuming alcohol.
[18] See Exhibit 1, Applicant’s SFIC, at [56].
The Applicant says it was the alcohol that is the root cause behind the circumstances leading to the tragic collision. We are told “his offending conduct occurred in the context of intoxication” and that intoxication was an essential cause of his drinking.[19] I have misgivings about this submission and the apparent predominant reliance it places on the element of alcohol as an explanation for the Applicant’s conduct in question. His use of the word “intoxication” in this context is, to my mind, self-serving and disingenuous.
[19] See Exhibit 1, Applicant’s SFIC, at [55].
It leads me to contemplate that if the Applicant concedes he caused such catastrophic harm while intoxicated, why should I be convinced that an identical amount of harm would not likely be caused were he to again assume control of a motor vehicle with say, half the blood alcohol concentration reading compared to his reading on the night of the dreadful incident?[20]
[20] When breath tested shortly after the offence, the Applicant’s blood alcohol concentration was 0.124 per cent. That is very close to 2½ times over the legal limit. Half that level would be 0.062 – still well beyond the legal limit of 0.05.
The very serious nature of the offence leads me to the view that I must be convinced this Applicant has either developed, or is likely to develop, a capacity to make correct and responsible decisions about alcohol before he commences an evening’s socialising involving consumption of alcohol. The deliberate and responsible decision to drink alcohol and not drive is one that must be taken before drinking commences. It is too late to expect such decisions to be made while the Applicant is in a pub or nightclub well on the way to becoming intoxicated or, worse still, in the carpark, keys jangling in his pocket or hand as he approaches his vehicle. This is because ingestion of alcohol adversely affects an individual’s capacity to make any rational or informed decision.
According to his evidence, the Applicant participated in, effectively, two “drinking sessions”. The first session was at the pub from about 7.30pm – 9.30pm. This was followed by a subsequent session at the nightclub that commenced at about 12am. It was, of course, after the second drinking session that the Applicant made the fateful decision to drive. The totality of this behaviour – relative to the drinking – warrants closer scrutiny.
The Applicant had the opportunity to make a responsible decision to consume alcohol and to refrain from driving on several occasions during the evening.   First, we are told how the evening started:
“43.     The night before the morning of the accident, I went drinking at the pub with my cousin and his friends. I don’t remember the name of the pub, but it was not far from cousin’s [sic] place. My cousin’s place was in Toowoomba.
44.      We went to the pub because it was a special occasion. My cousin and his friends had the next day off work.
45.      We were just going to have a few drinks, with some dinner and then go home. It turned out to be more than a few drinks.”[21]
[21] See Exhibit 3, Attachment 3, Draft supplementary Statement of Junior Ratu Albert, p 3.
The Applicant therefore had an early opportunity – before going to the pub for dinner and “… more than a few drinks” – to make the serious and rational decision not to drink alcohol and drive a vehicle throughout the entire evening. He failed to make that decision. Astonishingly, we are told:
“46. We started off with a few drinks at the pub. Then, I drove back to my cousin’s place before going out again to a nightclub.”[22] [my underlining]
[22] Ibid.
“Astonishing” is the only way to describe this conduct in circumstances (1) where on his own written evidence, “more than a few drinks” were consumed at the pub and (2) where his oral evidence at the hearing was that he was a social drinker, particularly on special occasions such as birthdays, during festive occasions, when watching sport or when socialising with his football mates after a game. I am prepared to find that the evening in question was a special occasion, away from home as it was for the Applicant, where the Applicant felt compelled to drink alcohol. He conceded in cross-examination that “sometimes, not often” on these special occasions, he would consume something in the order of the totality of the alcohol he consumed on the night in question.
There is a conflict in the Applicant’s evidence about how many drinks were consumed when they returned to the cousin’s place at about 9.30pm. In his written statement he speaks of “… just going [to the pub] to have a few drinks, with some dinner and then go home ….” but that “It turned into a few more drinks.” In his oral evidence, he sought to ameliorate this conflict by telling the hearing he only had “….. one or two …” drinks at the pub.[23] He added that he had no further drinks at the cousin’s home when they arrived there at about 9.30pm and that he resumed drinking at the nightclub from 12am onwards.
[23] Ibid.
This is a case – indeed a very serious case - having the level of consumption of alcohol at its core. I find that the absence of a reliable estimate of the number of consumed drinks in his written statement and the subsequent ameliorative nature of his oral evidence both curious and concerning.
The Applicant’s written evidence is that “I drove back to my cousin’s place before going out again to a nightclub”. There is no mention in the written evidence about how many drinks were consumed at the cousin’s place and what state the Applicant was in as they left the cousin’s place to head to the nightclub. Once again, the Applicant sought to ameliorate his written evidence by telling the hearing that “we had no more drinks at my cousin’s place, we had food there”.
The next decision point of the evening for the Applicant was how he was going to make his way from the cousin’s place to the nightclub, a drive of some 10 minutes. The written evidence is not clear. It records: “Then, I drove back to my cousin’s place [after the pub] before going out again to a nightclub.” There is no mention of the mode of transport and, if by private vehicle, who drove.
In his oral evidence, the Applicant said they “drove to the nightclub”. It is not immediately within my recollection as to whether any of the evidence revealed the driver of the vehicle for that journey. If the Applicant did drive the vehicle to the nightclub, then it would constitute his second very poor decision about drinking and driving that he made that evening. At best, even if someone else from the group did the driving, it is still a poor decision by the Applicant to enter a vehicle driven by someone else who was most likely under the influence of alcohol. There was no evidence of them taking a taxi to the nightclub.
The Applicant gave oral evidence that he drove from Kempsey to Toowoomba and that it was about a seven hour drive. The Applicant’s vehicle was therefore at the cousin’s place because it was presumably the vehicle driven to both the pub, then back to the cousin’s place, then to the nightclub and then, tragically, to the scene of the fatal collision. It should also be remembered that the Applicant must have had the car keys on him throughout his whole time at the nightclub and that he alone was in control of that vehicle the moment he stepped out of the nightclub. There was no evidence that anyone else put him up to driving the vehicle while intoxicated.
In summary, we therefore have a series of junctures throughout the evening where the Applicant made quite poor decisions about drinking and driving. For the reasons I mentioned earlier, I reject the contention that the Applicant could have made a responsible decision about driving immediately prior to, during or at the end of his time at the nightclub. That was plainly too late. It is not clear how much alcohol was consumed by the time they arrived at the nightclub. The amount consumed by that time is self-servingly sought to the minimised. The amount consumed at the nightclub is more quantifiable. Suffice it to say, the Applicant was not fit to drive – not just when he left the nightclub but most probably when he drove back from the pub to the cousin’s place at approximately 9 – 9.30pm.
This Applicant has no right to contend that any decision to drink and drive could have reasonably been made after the festivities started. That decision should have been made prior to 7.30pm as they departed the cousin’s place to head to the pub.
There can be no argument about the seriousness of the Applicant’s conduct. Very serious though this episode may be, it can be said to be isolated conduct when one has regard to the balance of the Applicant’s criminal history. The relative isolation of the offending conduct is tempered by its very high level of seriousness, involving, as it did (1) the loss of another human being who was no doubt a devoted husband and father, (2) the infliction of life threatening injuries to the surviving wife and mother resulting in her hospitalisation and treatment for six months, and (3) the resulting and permanent dreadful trauma to the deceased man’s surviving family, both immediate and extended. The trauma suffered by the other three passengers in the vehicle should not be overlooked either. The deceased man’s two sisters saw their brother killed. While only an infant, the baby no doubt suffered a trauma from the collision.
I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the nature of the harm, should the Applicant re-offend, would be of a similar very serious nature to his offence committed in March 2014.
Likelihood of engaging in further criminal or other serious conduct
The Applicant contends he does not present any risk of future harm to the Australian community because he has maintained an avoidance of alcohol while serving his three year term imposed by the Toowoomba District Court and now, subsequently, while in immigration detention. He says that the nature of any future harm he presents is “minimal and not serious”.[24]
[24] Exhibit 1, Applicant’s SFIC, at [55].
The Applicant further contends there is a minimal likelihood of him re-offending because he is genuinely well-mannered and does not have a violent nature.[25] We are told that he has accepted responsibility for his actions, that he has a deep remorse and insight into his offending and that he has enrolled in as many rehabilitation and training programmes that were available to him during his time in correctional detention.[26]
[25] Ibid, at [56].
[26] Ibid, at [58].
Commendable though these factors may be, the Applicant’s primary evidence for convincing the Tribunal that he is at low risk of re-offending was the report of the forensic psychologist, Professor Ian Coyle, dated 7 May 2017. [27]
[27] See Exhibit 4, G Documents, G3, pp 84 - 99.
Professor Coyle gave evidence at the hearing. I found his oral evidence both erudite and informative. His report is, at first blush, fulsome and lengthy and purports to address both the primary and other considerations contemplated by Direction No 65. Professor Coyle notes a number of general things about the Applicant:
·that he spent 75 minutes with the Applicant in immigration detention;[28]
·that he had a subsequent telephone conversation with the Applicant’s wife;[29]
·that the Applicant “…was oriented as to time and place”;[30]
·that he “…could detect no evidence of any elaboration or malingering on [the Applicant’s] part”;[31]
·that “…there is not a scintilla of evidence that [the Applicant] was suffering from any diagnosable condition at the time he committed his offences”;[32]
·that the Applicant, on clinical grounds, “…is not suffering from any lack of volitional control”;[33]
·that the Applicant “…has no mental disorder” and “… displays no lack of insight”;[34]
·that “there is not a scintilla of clinical evidence that indicates [the Applicant] has any current violent ideation or intent: quite the obverse”;[35]
·that “there is nothing in [the Applicant’s] clinical presentation that remotely suggests he suffers from any disorder or condition that predisposes him to commit any crimes in [sic] or other serious offences in the future;”[36]
·that the Applicant “…is very remorseful for the effect of his actions on the deceased and the deceased’s family”.[37]
[28] Ibid, p 84.
[29] Ibid, p 85.
[30] Ibid, p 86.
[31] Ibid, p 87.
[32] Ibid, pp 87 – 88.
[33] Ibid, p 88.
[34] Ibid, p 90.
[35] Ibid, p 90.
[36] Ibid, p 96.
[37] Ibid, p 97.
Professor Coyle also made the following findings on the specific point of any likelihood that the Applicant would re-offend:
·he thought that the concept of Specific Deterrence is of significant importance as a factor in predicting future conduct. Based on the principle of Specific Deterrence, Professor Coyle opined that “It is beyond any doubt whatsoever that if an individual perceives that the risk and/or the consequences of being caught exceed the perceived benefits of committing any particular crime they will not offend or re-offend; unless they have a lack of volitional control”;[38]
·applying the principle of Specific Deterrence to the Applicant, Professor Coyle made this finding:
“6.2 [The Applicant’s] Perception of Specific Deterrence
50. [The Applicant] is most acutely aware of the parlous position he finds himself in. Should his application to have the Minister’s cancellation
of his Permanent Visa be successful, he will be forever mindful that he is but a small step from finding himself in this position again. Considering the egregious psychosocial problems he would face were he to be removed to Fiji this shall act as a most powerful incentive indeed for him to not commit any crime or other serious offences in the future. In my opinion, simply considering this factor, in isolation from all others, it is unlikely in the extreme that he shall recidivate or commit any other serious offences.”[39]
·in terms of an overall finding about the Applicant’s risk of re-offending or committing other serious offences, Professor Coyle said “I regard this as minimal and remote”.[40]
[38] Ibid, p 92.
[39] Ibid, pp 95 – 96.
[40] Ibid, p99.
The Respondent sought to challenge Professor Coyle’s report primarily on the basis of the assessment tool deployed by the Professor in reaching his primary finding that the Applicant is at “low” risk of committing serious physical harm or violence. The relevant assessment tool is known by the acronym of HCR-20-3.
The contention of the Respondent is that HCR-20-3 is a violence risk assessment tool that was developed to facilitate structured decisions about an individual committing acts of violence. The distinction sought to be drawn by the Respondent is that whilst this Applicant’s offending does constitute an extremely serious offence, it did not necessarily involve the infliction of violence, but rather a criminally reckless disregard for the safety of others.[41]
[41] See Exhibit 2, Respondent’s SFIC p8, [34(c)].
The specific point sought to be made by the Respondent was that HCR-20-3 was not an appropriate tool by which to gauge recidivism of an incident involving operation of a motor vehicle while intoxicated and the resulting missing of the red light, speeding, collision and catastrophic consequences. The Respondent’s contention was that HCR-20-3 is an assessment tool more applicable to assessing a person’s risk of committing repeated offences involving serious physical harm or violence. In particular, the Respondent noted that HCR-20-3 “…did not assess the Applicant’s risk of recidivism more generally, or, in particular, whether the Applicant will again drive a vehicle while under the influence of alcohol.”[42]
[42] Ibid.
While noting the Applicant’s completion of the DO IT drug and alcohol programme in 2014, the Respondent contended “…there is no evidence that [the Applicant] has participated in any other form of drug and alcohol rehabilitation. The psycho-social report [of Professor Coyle] did not refer to assessment tools which may be used to assess the likelihood of [the Applicant] re-engaging with alcohol. Rather, the report placed an emphasis that [the Applicant] was genuine in his intention to never drink alcohol or drive again.”[43]
[43] Ibid, p8 at [34(d)].
There then followed a contest at the hearing about the HCR-20-3 testing or assessment tool. As I understood his evidence, Professor Coyle agreed under cross-examination that there are alternate assessment tools available to health care professionals who are making assessments in these circumstances. He said some of those assessment tools are well regarded by part of the profession and less so by other parts. For example, it was put to Professor Coyle in cross-examination that an alternate tool commonly used by the New South Wales Corrective Services Commission was something called “LSIR” which is perhaps a preferable tool for the assessment of this Applicant’s general risk of recidivism than HCR-20-3. Professor Coyle responded assertively and the upshot of his evidence in this regard seemed to be that HCR-20-3 is the best assessment tool.
His evidence in support of HCR-20-3 was based on a presumption that “violence” (and the assessment of recidivist risk in relation to it) should be regarded as a broad concept. He conceded that HCR-20-3 was an assessment tool applicable to assessing the risk of violence and that violence – as a broad concept – encompasses episodes such as the collision resulting from the Applicant’s criminal recklessness. On the basis of that broad conceptualisation of “violence”, Professor Coyle thought HCR-20-3 was the preferred tool (against LSIR and all other assessment tools) and was the best available tool for the assessment of this Applicant’s risk of recidivism.

At the end of this debate about the best assessment tool, it seemed that no-one at the hearing was much the wiser. My recollection of the hearing was that both parties (and indeed I) thought it best to leave the debate about assessment tools to the appropriate professionals and to simply proceed on the basis of what Professor Coyle said and found in his report rather than configuring the hearing away from any reference to his report on the basis of the assessment tool he used.
That said, I think there is nevertheless merit in the Respondent’s contention about the importance of the distinction between (1) this Applicant’s conduct leading up to the criminally reckless behaviour resulting in a tragic outcome and (2) an offence involving the specific and pre-meditated infliction of physical violence upon another. These are surely two different things.
The former involves an absence of self-discipline, self-control and an abject failure to follow an otherwise safe course of conduct that, in turn, results in (on these facts) a catastrophic outcome. This is essentially a lack of respect for oneself. The latter involves a refusal to respect the personal rights of others and the application of a pre-determined course of physical conduct designed to achieve a specific objective. This is essentially a lack of respect for others.
Professor Coyle’s report talks about the Applicant feeling sorry and remorseful for what he did. It talks about the principle of Specific Deterrence for this Applicant - in this case incarceration and deprivation from access to his family and community - as the main factor that should convince us that the Applicant will not re-offend in the way he has. While his commentary is both quite learned and informative, I thought Professor Coyle’s report was not instructive about the minutiae leading to the catastrophic collision.
As I have sought to particularise earlier, this is not a case about one motor vehicle collision and one decision made by an Applicant in the short moments prior to that collision. It is a case about a pattern of conduct – indeed, a pattern of failure - that began prior to the 7.30pm departure time when this Applicant and his entourage commenced their “special occasion” night out when they set off for the local pub for dinner and more than a few drinks. There is a litany of bad decisions and mis-steps by the Applicant:
·he knew they were going to the pub to drink alcohol at 7.30pm. He knowingly drove the others to the pub or agreed to be driven to the pub;
·they had more than a few drinks at the pub. Nevertheless, the Applicant drove home from the pub at circa 9.30pm;
·apparently, no drinks were consumed at the cousin’s place between 9.30pm until 12am. I have misgivings about that evidence because I am not convinced the Applicant and his group went back to the cousin’s place just to eat food but not drink any alcohol – given that they had been drinking at the pub;
·they (including the Applicant) then drove from the cousin’s place to the nightclub at 12am. The Applicant either drove his vehicle to the nightclub or was a passenger in a vehicle driven by someone else who was surely under the influence of alcohol;
·the Applicant arrived at the nightclub at 12am and, on his evidence, drank 8 – 10 schooners of beer and had four shots of spirit-based alcoholic drinks;
·he had his car keys on him and, alone, he walked to the car park, got into his vehicle, drove away, ran a red light, exceeded the speed limit by 27km/hr and caused a fatal collision.
I am not convinced by Professor Coyle’s report that, if he were again left to his own devices – hundreds of kilometres away from his family and the perhaps moderating influence of his wife – on another weekend away “with the boys”, this Applicant will not re-lapse into the tragic sequence of minutiae that resulted in the tragic outcome which has adversely impacted on his life and devastated the lives of others.
The hearing heard much evidence about what a nice and congenial person the Applicant is. There is nothing in my mind to doubt that. But it just may be that his congeniality and his resulting tendency towards collectivism constitute a dangerous and possibly fatal concoction of behavioural elements in this Applicant. It is not lost on me that this specific incident occurred in the absence of his wife and in the absence of any of his friends/ cousin with whom he socialised on the evening in question. I am concerned that if he were again left to his own devices on a weekend away “with the boys” in the absence of his wife, this Applicant’s kind disposition both towards others and, it seems, himself, may very well result in a similar or identical pattern of offending. Put another way, I can conceive of a situation where, at some future point, he could deceive himself into thinking that having only one or two drinks and then driving a short distance home was somehow in order simply because he had not had as many drinks as he did on the night in question.
I do not think Professor Coyle’s report, well written, expert and instructive though it may be, actually addresses the sequential minutiae of the Applicant’s decision-making that confronted him on the night in question and the risk of him again failing to properly discipline himself against the catastrophic risk resulting from such ill-discipline and poor judgment.
There is no traction to any contention that the Applicant is unlikely to re-offend because he says he has forever given up alcohol. He has been in detention of one form or another for the best part of four years. Alcohol is denied to him while in detention. That contention is therefore untested and unproven. His overall demeanour at the hearing seemed to suggest that his offending was something that occurred “in the past” and that he was a new man wanting to return to his family and his community. He sought to give the impression that any aspects of his personality resulting in the catastrophic consequences of his conduct have been resolved. Although informative, Professor Coyle’s report does not, for the reasons outlined earlier, convince me in this regard. Nor does the Applicant’s own evidence.
I therefore consider that the nature of any harm presented to the community should the Applicant engage in such further serious conduct would be significant and palpable. I note Professor Coyle’s assessment of a low risk of recidivism. As mentioned, that report does not address the risk of the Applicant falling into another series of disastrous minutiae and bad decisions that, taken as a whole, could result in a similar terrible and catastrophic incident. I am therefore not convinced that presented with similar opportunities and circumstances, the Applicant is now somehow immune from the risk of reoffending.
I therefore determine that on the totality of the material available to me, primary consideration A weighs heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision
The Applicant has two minor children with his wife. A daughter who is 6 years old and a son who is 5 years old, both of whom are Australian citizens.[44]
[44] See Exhibit 4, G3, p 296.
Paragraph 13.2(1) of the Direction provides that a decision maker must make a determination about whether revocation is, or is not, in the best interests of the child. This consideration only applies if the child is under 18 years old at the time of the decision.[45] I am satisfied that both of the Applicant’s children are relevant to this consideration. Where 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.[46]
[45] See Direction No. 65 at paragraph 13.2(2).
[46] See Direction No. 65 at paragraph 13.2(3).
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of the factors include:
·(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where …. there have been long periods of absence, or limited meaningful 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…;
·(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 other ways they could maintain contact;
·(e) Whether there are other persons who already fulfil a parental role in relation to the child.
As mentioned, the children are aged five and six years, respectively. The nature and duration of the relationship between the Applicant and his children has, on any reasonable view, been overwhelmingly conditioned by his absence from their lives by virtue of him being in custody for the best part of four years. While there is evidence of active and hands-on involvement by the Applicant as the primary carer for his children, specifically his son, from about March 2013 until the Applicant’s incarceration on 25 March 2014, it is difficult to make a finding that he has played any meaningful parental role in the lives of either or both children since his incarceration. Accordingly, only moderate weight can devolve to this primary consideration B as a result of this factor.
I must also have regard to whether there are other persons who already fulfil a parental role in relation to the children. There clearly are. The Applicant’s wife is the primary carer for the children and she seems generously assisted in this regard by her parents who conveniently live directly across the road from her. It was clear to me from both the wife’s evidence and that of the maternal grandmother that the children are familiar with their maternal grandparents and the role they play in their lives. The maternal grandmother was, for example, clear in her evidence that both she and her husband were involved in delivering and collecting the children from their school/day care commitments. Given the consistent presence of the Applicant’s wife as the primary carer of the children and the undeniably significant supporting parental role played by the grandparents, I consider that there are other persons – aside from the Applicant – who already fulfil a parental role in relation to the children. Again, only moderate weight can devolve to this primary consideration B as a result of this factor.
I must also consider whether the Applicant is likely to play a parental role in the future taking into account the length of time until the children turn 18. I am of the view that the best interests of the children are served by them living with and being raised by both of their parents. As was the case with all of her evidence, the Applicant’s wife frankly and honestly told the hearing that if the decision was not to reinstate the Applicant’s visa, she and the children would relocate with him to Fiji. She is to be commended for her honesty, frankness and for her stoicism in the face of dreadfully difficult circumstances for her and the children, bearing in mind that she and the children have done absolutely nothing to bring about these difficult circumstances.
Given the wife’s concession of a relocation to Fiji, I am of the view that the best interests of the children would thus be served. The geographical location of where the Applicant and his wife do their parenting is surely a matter of secondary importance to that of ensuring that both of them are present, on a full-time basis, to parent their children. The further point is that the children are of an age where they can more readily make the adjustment to a new country and community. The situation would, of course, be different if the children were of a more mature age, at a more pivotal point in their schooling or about to start secondary school or to sit for examinations involving entry to tertiary study or the undertaking of some other course of study or qualification. I therefore find that the Applicant, even if he were compelled to return to Fiji, would do so with his wife and children such that he could resume and play a positive role as a husband and father. For this reason, I am of the view that only moderate weight can devolve to this primary consideration B as a result of this factor.
It was urged upon the Tribunal that the children may be somehow exposed to disadvantage or a second rate life experience were they compelled to relocate to Fiji consequent upon a non-revocation of the mandatory cancellation of the Applicant’s visa. I was referred to a “summary table” comprising a comparison of Australian and Fijian health and education statistics.[47] While Fiji may not be on a par with Australia, it should be remembered that Australia is at the forefront of developed western countries in terms of available facilities for health and education (amongst other facilities). While the comparative figures appear more favourable towards Australia, it cannot be said that if compelled to relocate to Fiji, the children would be effectively consigned to third world conditions. With the generous help of her parents, the wife has (primarily) enabled and given effect to a more than satisfactory lifestyle for the Applicant and their children in Australia. I have little or no doubt that her proficiency in this regard will, to the best extent possible, result in a similar outcome for the family in Fiji.
[47] See Exhibit 5.
While I appreciate the statistical differences inherent in the summary table, those statistics do not incline me to a view to allocate anything greater than moderate weight to this primary consideration B based upon this factor.
Some health issues were raised in relation to the children such that any relocation to Fiji would somehow place them in jeopardy or at least a risk of inadequate treatment. I have misgivings about that contention. Firstly, the hearing was told that the eldest child (a daughter) does have a respiratory condition (asthma) but that she is satisfactorily medicated for it. While professing no expertise in respiratory medicine, I note Fiji is a warm climate country and, as such, would be a much more conducive place for a patient with asthma or a similar respiratory-related condition. Similarly, the hearing heard evidence about the younger child (a son) and certain “seizures” he is said to have experienced in the course of his life thus far. The evidence from the Applicant’s wife was that the child has not experienced those seizures for at least two years and that no diagnosis in relation to those seizures has yet been obtained. As I have understood both the written and oral evidence, there is nothing before me from an independent medical witness to indicate either or both of the children will be placed at some type of medical disadvantage or risk were they compelled to relocate to Fiji. I again cannot allocate anything greater than moderate weight to this primary consideration B as a result of this factor.
I also have regard to the evidence that both children have been traumatised by their father being incarcerated as a result of the tragic outcome of his conduct.[48] While this emotive evidence is both convincing and moving, as I mentioned earlier, both children are of a sufficiently young age such as to be readily malleable to adapting to life in Fiji were they required to relocate there with their parents. Most, if not all, of the emotional aspects detailing the children’s obvious love and nostalgia for their father will be remediated by both parents being available for their continued upbringing. At the risk of repeating myself, I consider this element considerably more important and in the best interests of the children than the geographical location of where the family unit is located.
[48] See Exhibit 1, Applicant’s SFIC, paragraphs [63(e), (f) and(g)].
For the reasons outlined above, I am of the view that although primary consideration B may present in favour of revoking the Applicant’s visa cancellation, it only attracts a moderate weighting.
Primary Consideration C: Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect.
The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa.
The real question with respect to this Primary Consideration C is surely whether the Australian community as whole would expect that a non-citizen with the Applicant’s history of offending should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is different. This broadly stated question must be broken down into a series of components so that it is properly understood.
The question may be stated thus - would the Australian community expect this Applicant to hold a visa to remain here in circumstances where:
·he made, not just one, but a series of disastrous and criminally reckless decisions resulting in the catastrophic outcome involving, as it did, (1) the loss of another human being who was no doubt a devoted husband and father, (2) the infliction of life threatening injuries to the surviving wife and mother resulting in her hospitalisation and treatment for six months, and (3) the resulting and permanent dreadful trauma to the deceased man’s surviving family, both immediate and extended;
·his offending involved aggravating features including intoxication, speeding and running a red light;
·he walked past the dying husband/father immediately after the collision indicating behaviour that was indicative of “…callousness …. that is somewhat inconsistent with any remorse on [the Applicant’s] part”;[49]
·he admitted to having been the driver but nevertheless prioritised his own position
·by asking the Police how much trouble he was in. According to the District Court Judge who sentenced him (The Honourable Judge Rafter SC), this was “…. Indicative of [the Applicant] being more concerned about [his] own predicament than the welfare and well-being of the victim”;[50]
·although he “…. started crying when speaking to the Police but, again, I’m [Judge Rafter SC] of the view that it is likely to be out of concern for your own predicament”;[51]
·as noted by Judge Rafter SC, “Importantly, the sentence must make it clear that the community, acting through the Court, denounces this sort of conduct”;[52]
·the head sentence of eight years imposed by the Toowoomba District Court (per Judge Rafter SC) represented almost 60% of the maximum penalty of 14 years imprisonment.[53]
[49] See Exhibit 4, G Documents, G3, sentencing remarks of His Honour Justice Rafter SC, p 30;
[50] Ibid.
[51] Ibid.
[52] Ibid.
[53] The Applicant served 3 years in actual custody of the head sentence of 8 years.

I am mindful of the aspects required to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. One must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[54]
[54] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
The Applicant submits that historically accepted principles of criminal sentencing should, in the absence of legislative alternation, be accepted as reflecting community expectations.[55] In this regard, His Honour Judge Rafter SC is clear: His Honour sentenced the Applicant on the basis that “….the sentence must make it clear that the community, acting through the Court, denounces this sort of conduct”.
[55] See Exhibit 1, Applicant’s SFIC, at [77].
The application of paragraph 13.3(1) of Direction 65 has quite recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]:
“102. …. I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.
…..
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.”
An ancillary question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a term of imprisonment of three years for his criminal offending such that he should now be allowed to remain in this country. In light of (1) my above findings as to (a) the nature of harm were the Applicant to re-offend and (b) his likelihood of re-offending and (2) the comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the Australian community, I am of the view that the Australian community – especially with reference to catastrophic consequences arising from any form of criminally reckless substance abuse:
(i)would expect this Applicant to obey Australian laws while he is in Australia;
(ii)would, in the circumstances of the Applicant’s very serious breach of the trust behind that expectation, consider it appropriate to not revoke the mandatory cancellation of his visa.
Does the Applicant deserve a second chance? This depends on the circumstances of each case that must be considered in light of the overriding purpose of the legislation. [56]
[56] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
This Applicant arrived here seven years ago when he was 23 years of age. He committed the subject very serious offence four years after arriving in Australia. He would undoubtedly have been exposed to the quite significant government advertising and derivative warnings about the catastrophic consequences of drinking and driving. It cannot be said that he did not have sufficient time in this country to become aware of those consequences. The seriousness of his offending is that he has spent almost 43% of his time in this country in actual custody. Taking into account the five year parole period representing the balance of his eight year head sentence, we are talking about him having either a custodial and/or parole-based involvement with lawful authority for a total of eight years. If allowed to remain here, those five years on parole would expire upon the 12^th anniversary of his time in this country. Put another way, by that theoretical 12^th year here, he will have spent eight out of those 12 years here in either actual custody and/or subject to parole-based orders.
His participation in the Australian community has only been for a relatively short time. I consider that paragraph 6.3(5) of the Direction has application in these circumstances. The Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have only been here for a short period of time. I consider that the community has an expectation that the Government should cancel a non-citizen’s visa if a serious crime(s) is committed in these circumstances.
The nature of his offence is clearly very serious. Were he to re-offend, the risk of harm he would present to the Australian community would be quite significant. I think the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it previously reposed in him.
I therefore do not consider the Australian community would be prepared to give this Applicant “another chance”.
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation. I accordingly find that this consideration weighs strongly in favour of non-revocation.
Other Considerations
It is necessary to look at the other considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I address each in turn.[57]
[57] Direction No 65, paragraph 14(1).
With reference to other consideration (a) – International Non-refoulement obligations – There has been no submission that this consideration is relevant in this case.
With reference to other consideration (b) – Strength, nature and duration of ties to Australia – the Applicant has been in Australia on virtually a continuous basis since 2010. He is married to an Australian and they have two Australian children. Any weight attributable to this factor is tempered by his wife’s evidence that were the Applicant compelled to return to Fiji, she and the children would relocate to Fiji with him.   While the children have lived all of their short lives in this country thus far, as outlined earlier, they are of an age where they can be readily introduced and become accustomed to life in another community. Consideration should also be given to three additional factors:
(i)     the maternal grandparents will, to an extent, be deprived of ready access to their grandchildren. That said, Fiji is not an inordinate distance away from this country and they could travel to Fiji to visit the children. Likewise, their mother could bring them to Australia for visits. Interim contact can be maintained via electronic means or social media platforms;
(ii)    the Applicant has two sisters, two brothers and a step-father currently residing in Fiji.   It is not beyond the realms of possibility that any one or all of them could take on perhaps part of the supportive parenting role played by the maternal grandparents in Australia;
(iii)    the matrimonial home at Kempsey which was built primarily by the wife (with significant material and other support from her parents) will most likely have to be sold. As also mentioned earlier, it is not unreasonable to assume a new matrimonial home will be able to be established in Fiji.
With reference to other consideration (c) – Impact on Australian business interests – there was no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.
With reference to other consideration (d) - Impact on victims – there is no specific evidence about the impact on any victims of the Applicant’s offending. However, I am mindful of the Honourable Judge Rafter’s reference, when sentencing the Applicant, that “…. there are victim impact statements that show just how serious this has been for them. Any sentence that is imposed cannot in any way make up for the loss of a loved husband and parent.”[58]
[58] Exhibit 4, G Documents, G30, p29.
With reference to other consideration (e) - Extent of impediments if removed – as noted by the Respondent, the Applicant may experience a degree of emotional hardship in dealing with any relocation to Fiji. This reality is tempered by his wife’s intention to relocate to Fiji with him if his visa cancellation is not revoked. As well, the Applicant has spent the vast majority of his life in Fiji and would almost certainly suffer no language or other cultural barriers if compelled to return there. He has family support in Fiji. As mentioned earlier, he has two sisters, two brothers and a step-father already living there. As also mentioned earlier, the general infrastructural facilities in Fiji may not be on a par with Australia but there is surely no suggestion that in being compelled to relocate there, the family is being consigned to third world conditions. To repeat, the state of the evidence is to the effect that neither the Applicant nor any of the family are placed in any medical jeopardy by having to reside in Fiji.
I agree with the contention of the Respondent. To the extent that any of these other considerations may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh against revocation.
CONCLUSION
There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in Direction No. 65.
Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh Primary Consideration B, to which I have assigned moderate weight. I do not consider that any of the Other Considerations, alone or combined, assist the Applicant to any sufficient degree, certainly not to the extent they would outweigh the Primary and Other Considerations which favour non-revocation.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................[SGD]........................................
Associate
Dated: 2 November 2017

Date of hearing: Wednesday, 25 October 2017

Date final submissions received: Monday, 30 October 2017

Counsel for the Applicant:
Michal Horvath
(assisted by his reader, Sean Lamb)

Solicitors for the Applicant: Samuta McComber Lawyers

Solicitors for the Respondent: Z. He, Clayton Utz

[2017] AATA 2036

2 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	Wednesday, 25 October 2017
Date final submissions received:	Monday, 30 October 2017
Counsel for the Applicant:	Michal Horvath (assisted by his reader, Sean Lamb)
Solicitors for the Applicant:	Samuta McComber Lawyers
Solicitors for the Respondent:	Z. He, Clayton Utz