Anae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 6

Anae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 6 (11 January 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6521

Re:Malo Kamuta Anae

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:11 January 2021

Place:Sydney

The reviewable decision made on 15 October 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside.

In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa on 8 March 2019, is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 79 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement obligations – impact on Australian business interests – impediments to removal – impact on victims – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

11 January 2021

BACKGROUND

1. The applicant is a 31-year-old New Zealand citizen. The applicant has permanently resided in Australia since he was 13 years old in 2002.

2. The applicant started offending in 2006, and in 2008, 2011, and 2014 the applicant was convicted of a number of offences including ‘destroy or damage property’ (five counts), ‘assault officer in execution of duty’, ‘resist officer in execution of duty’, ‘resist or hinder police officer in the execution of duty’ and ‘refuse/fail to comply with direction under Part 14’.

3. On 14 March 2012, the respondent warned the applicant in writing that his visa may be cancelled on character grounds. On 20 April 2012, a decision was made not to cancel the applicant’s visa and the applicant signed an acknowledgment in which he stated that he understood he could:

   Again be considered for refusal or cancellation of any visa granted to [him] if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, [his] past conduct and previous relevant information can also be reconsidered.

4. On 10 March 2017, the District Court of New South Wales sentenced the applicant to imprisonment for four years and six months for the offence of recklessly inflicting grievous bodily harm to which he plead guilty. The victim was a boyfriend of the applicant’s cousin, who was left with what the sentencing judge described as “permanent mild cognitive impairments” as a result of the incident.

5. The applicant appealed against the severity of the sentence to the New South Wales Court of Criminal Appeal. The appeal was dismissed on 20 April 2018.

6. On 8 March 2019, the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa) was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (Act).

7. The applicant was notified of the decision on 19 March 2019 and on 5 April 2019 he sought revocation of the cancellation decision, making representations in support of that request.

8. On 15 October 2020, a delegate of the Minister (the delegate) decided not to revoke the mandatory cancellation of the applicant’s visa.

9. On 21 October 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

   LEGISLATIVE FRAMEWORK

10. As the parties agree that the applicant does not pass the character test set out in section 501(6) of the Act given the length of his sentence, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.

11. Accordingly, the issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79), there is ‘another reason’ why the mandatory cancellation decision should be revoked.

12. There are a number of relevant principles contained in Clause 6.3 of Direction 79 that I have considered, which provide the framework within which the task of exercising the discretion is to be approached:

    (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) 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.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa

    (5) 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) 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

    (7) 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 in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.

13. Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.

14. Those primary considerations in Direction 79 are as follows:

    (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.

15. Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:

    (a)strength, nature and duration of ties to Australia;

    (b)international non-refoulement obligations;

    (c)extent of impediments to the applicant if removed from Australia;

    (d)impact on Australian business interests; and

    (e)impact on victims.

    THE ISSUES

16. It is agreed between the parties that the applicant does not pass the character test as defined in section 501(6) of the Act. The primary issue is therefore whether there is ‘another reason’ why the mandatory cancellation decision should be revoked under section 501CA(4) of the Act.

    THE EVIDENCE

    The applicant’s evidence

17. At the hearing the applicant was taken to his statement of 2019, his statuary declaration of 2020 and his statement of 2020, all of which he relied upon.

18. The applicant gave evidence at the hearing that he was born in Wellington, New Zealand and had first visited Australia in 1996 or 1997 on holiday. He had moved to Australia permanently in 2002 and initially lived with his parents and brother. The family at first stayed with an aunt until his father found a job and then went to live in their own house. The applicant’s evidence was that he had loving parents and a positive childhood.

19. The applicant completed years nine and ten at school in Australia and then left school to find work to assist his family financially, and he has worked in a number of jobs in Australia since. The applicant was the eldest of six children, with five younger siblings who live at home with his parents in Australia. His four younger siblings were all born in Australia.

20. The applicant said he had no siblings or relatives in New Zealand. He said that returning to New Zealand would be difficult for him, as he did not know anyone in New Zealand, and he would be very upset by the effect it would have on his family in Australia. The applicant said it would be “shattering” for his family and he did not want his children to lose the opportunities that would be available to them and the ties that they had established in Australia if he were returned to New Zealand.

21. The applicant said he had started drinking at approximately 14 years of age, but that alcohol consumption became a big problem for him after the age of 18. He said alcohol took over his life, that he was a binge drinker and that he would drink to the point where he could not remember anything.

22. The applicant met his wife at a family function, they started to date in August 2009 and married in November that year.

23. The applicant said that when his children were born, he played an active parental role in their lives, including assisting in changing nappies and other routine tasks associated with having children.

24. The applicant was questioned about a number of incoming passenger cards when he had travelled to and from Australia, where he had failed to disclose his previous criminal convictions. His explanation was that he had not really understood the purpose of the question or how to answer it and that he believed the question referred to having served time in prison.

25. The applicant was sentenced to nine months imprisonment as a result of an incident that had occurred in 2011. The applicant accepted that his behaviour during the incident in the car, where he “bashed” the car window with his wife and young child inside, had frightened his wife and exhibited behaviour that was clearly not in the best interests of their child. The applicant said he had been drinking heavily at the time.

26. After he was released from prison in 2012, the applicant said that he did not touch alcohol for at least a year. He had a full-time job from 2012 to 2015 and he prioritised work and family over drinking. He took pride in providing for his family and he also helped the children getting ready for school and doing their homework. He said he had a very good relationship with his children.

27. The applicant moved out of home in 2015 because he started to drink heavily again and went to his parent’s house for eight or nine months. During that period, he said his wife cared for the children but that he continued to provide them with financial support.

28. In relation to the incident which resulted in his imprisonment in March 2017, the applicant said that the offence occurred in the early hours of the morning after he had been drinking for a long period of time. He said that the incident had taken place after he had found out that the victim was in a relationship with his cousin. He invited the victim to walk with him after his wife had told his cousin and the victim that they needed to leave. He walked down the road talking to the victim and then struck the victim in the face without any warning or provocation. The victim fell backwards, striking his head hard, which resulted in serious injuries and permanent cognitive impairment. After the incident, the applicant left the scene saying that everyone had turned on him. He said he panicked and went for a walk around the block. The applicant admitted that he had lied to police in relation to the incident initially, but later he confessed and told the police that he had been angry with the victim and that he had intended “to just wack him”.

29. The applicant acknowledged that all of his offences involved alcohol and that he knew he had to stop binge drinking, but he did not do so initially and had continued to reoffend. The applicant received a warning from the Department about possible visa cancellation in 2012. At that time, he had two children and his wife was pregnant with a third child, but he acknowledged he still reoffended.

30. The applicant had also given undertakings to his family and to a Church leader that he would stop drinking, but he acknowledged that he had failed to honour that undertaking. He admitted that he had not properly engaged in Alcohols Anonymous after the offences in 2012 and said that he was young at that time but now he really wanted to change. He had completed a number of alcohol programs in jail. He accepted that his offending and incarceration had had a negative effect on his family and that other people were able to deal with alcohol without committing serious violent offences.

31. The applicant said that the reason the Tribunal could be satisified that he would not engage in alcohol abuse if he were released was because he had missed his family so much over the nearly three and a half years he was incarcerated and that he had witnessed all sorts of events whilst in jail and immigration detention, which led him to appreciate the value of his family and the negative consequences of alcohol abuse. He said that he had been previously stubborn and in denial about his alcohol problem, but he accepts now that he cannot handle alcohol and he does not want to miss out on more important family occasions, having missed out on many birthdays, anniversaries and Christmases with the children.

32. The applicant expressed remorse in relation to his offences and said that he wanted the opportunity to prove that he is rehabilitated now and to show his family that he has changed. He said he would go back to his wife and children, that he would work hard to support his family and that he would work with Mr Sava Tsolis, his psychologist, to ensure that he was able to continue to make positive progress and not reoffend.

    Mrs Anae’s evidence

33. The applicant’s wife, Mrs Anae, was referred to her statements of 12 March 2019, 26 August 2020 and 18 November 2020, which she said were true and correct. The applicant’s wife confirmed that she was 31 years of age.

34. The applicant and his wife met in July 2008. The applicant and his wife were married in November 2009. Initially the couple lived with the applicant’s wife’s parents before moving into their own accommodation.

35. The couple currently have five children aged from 11 to three years of age. All of the children currently live with their mother whilst the applicant is incarcerated. I accept the mother’s evidence that the first-born child, who was born in 2009, is not the biological son of the applicant. However, he regards the applicant as his father, is treated no differently by the applicant to his biological children and he is clearly the father figure in the child’s life. The applicant’s wife said that the applicant is a great father to all the children and that he had always been hands on in helping with the care of the children when they were very young.

36. The applicant’s wife gave evidence that the applicant had a problem with alcohol. In an incident in August 2011, the applicant had been drinking a lot with other members of the family and so his wife decided to leave. In the car on the way home, the applicant’s wife took the applicant’s phone after which point the applicant became aggressive towards her, punching the windscreen. After he was asked to leave the car, he “bashed” the car windscreen when his wife was driving, damaging the glass. His wife left him by the side of the road, went back to her uncles’ home and asked her parents to come and collect her. The incident took place in front of one of the applicant’s children, who was only a few months old.

37. When giving evidence as to the period when the applicant was in prison following this offence, the applicant’s wife said that it was “a very hard time”. At that time, she had two minor children and was pregnant with their daughter. They were regularly in touch via telephone and she would also go to visit the applicant in jail.

38. After his release in March 2012, the applicant’s wife said that the applicant did not drink for about a year. During the period, the applicant worked very hard, their daughter was born, and the applicant’s wife said that without alcohol he was “a loving and supportive husband and father”.

39. The applicant’s wife emphasised his work ethic but said problems arose if the applicant had “one too many” drinks. She said that the applicant did not have any issues if he did not drink. Under cross-examination, the applicant’s wife gave evidence that the applicant’s drinking had put pressure on their marriage and that there had been a period of separation where the husband had moved out of the family home and went back to live with his parents. The move was at the applicant’s instigation.

40. In relation to the incident in 2016 for which the applicant was sentenced by the District Court of New South Wales to imprisonment for four years and six months for the offence of recklessly inflicting grievous bodily harm, the applicant’s wife said that the applicant’s cousin and the victim of the assault had been at their home that evening. The applicant had been drinking heavily over a period of some twelve hours on the occasion, and the wife knew that he became more aggressive when he was drinking. She had in fact feared for her own safety when the applicant was drinking. As a result, she asked her cousin and the victim to leave the house. The applicant walked out of the house with his cousin and the unsuspecting victim before assaulting the victim in an unprovoked attack.

41. The applicant’s wife gave evidence that whilst he was in jail, she had been involved in a very serious car accident in January 2017. This resulted in her suffering significant injuries including a shattered right femur, broken toe and loss of some teeth. Her injuries limited her capacity to look after the children or engage in work. The wife also gave evidence that she was “let go from her work” because she could not meet her targets and suffered significant pain if she was forced to stand for a long period. The applicant’s wife was therefore currently not working, although she had tried to find suitable work. Currently she and the children were totally reliant on Centrelink payments.  

1. As a result of their financial difficulties, the applicant’s wife said she could only buy basics for the children, that she relied on assistance from the family whenever it were possible for them to help out and that day to day life involved “a lot of struggles”. She said that she would like to return to work but that this was very difficult because of her injuries and the need to look after their five minor children.

2. The applicant’s wife had also suffered from mental health issues, primarily anxiety and depression. After the accident, she was afraid to be in a car. She said she had “worked on herself” for the sake of the children, but that she still suffered from serious anxiety.

3. When asked about the children, the applicant’s wife said that they really missed their father. For instance, the applicant’s son, who is currently nine years old, was very emotional about his father, easily upset and had been referred by the family General Practitioner to a paediatrician and a psychologist. The applicant’s wife said that their son was unable to understand why his father was not able to come home.

4. The applicant’s wife gave evidence that despite being held in detention, the applicant still had a very good relationship with the children, spoke to them regularly and tried to assist both her and the children in every way he could. She said that the applicant had a very positive effect on the children when he interacted with them. However, the children were suffering because of the absence of their father whilst he has been incarcerated in prison and immigration detention.

5. The applicant’s wife said that it would be extremely difficult for her and the children if the applicant had to return to New Zealand. She said that the children’s lives were in Australia where they were attending school and that it would be very difficult for them to adjust to life in New Zealand. She herself had not been to New Zealand for about 25 to 29 years. There would also be a problem in that the applicant’s children would be separated from their extended family, all of whom were in Australia.

6. The applicant’s wife said that she had been very pleased that the applicant had been regularly seeing his psychologist, Mr Sava Tsolis. She felt that the applicant had previously not been able to discuss his feelings and she said that it was very positive now that he was able to talk about his feelings openly and that he was getting help with his alcohol issues.

7. The applicant’s wife felt that the applicant had had a lot of time to think about his actions and she felt that he genuinely wanted to look after his family, not reoffend and bring stability back into the lives of the children.

   Mr Sava Tsolis’s evidence

8. Mr Sava Tsolis, the applicant’s psychologist, prepared a report dated 9 August 2020 after he had made an assessment based on interviews of approximately one and a half hours each with the applicant and his wife.

9. In Mr Tsolis’s opinion, the applicant did not meet any clinical diagnosis for major psychiatric illness. He said the applicant had a problem with impulse control, but the applicant would not meet the diagnostic criteria for explosive impulse control.

10. Mr Tsolis referred to the applicant’s offending history and noted that all of his offences had been committed whilst under the influence of alcohol. Mr Tsolis had a recommended treatment plan for the applicant which, in particular, involved the applicant keeping away from binge drinking and self-monitoring to minimise situational factors which might lead to him consuming alcohol.

11. Mr Tsolis felt that the applicant was reasonably balanced when abstaining from drinking and that he was well motivated to not drink in the future. In particular, he was seen as desperate to be released into the Australian community so he could get back to looking after and supporting his wife and family.

12. When questioned by the respondent’s representative, Mr Tsolis acknowledged that factors such as social and family support, which might be protective factors, had not worked to stop the applicant reoffending in the past. Mr Tsolis also acknowledged that multiple court mandated rehabilitation programs had not worked. However, he said that these were group programs rather than an individual program such as he had recommended.

13. Mr Tsolis agreed that the applicant’s failure to carry through on court programs did mean the applicant was at greater risk of reoffending. He said, however, that he hoped that the applicant had learnt something from his very lengthy sentence and time spent incarcerated. Mr Tsolis said that the applicant could go for very long periods without drinking but then binge drink. He said that the applicant’s poor impulse control was a symptom of his drinking but that it was not abnormal.

14. Mr Tsolis emphasised that the applicant has to focus on never drinking again. Mr Tsolis said that if the applicant was able to stop binge drinking, he thought the applicant had a good chance of not reoffending, but that if he were to drink there is a risk of reoffending.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community

15. The first primary consideration, namely the protection of the Australian community, requires the Tribunal to consider both the nature and seriousness of the applicant’s conduct and the risk to the Australian community if the applicant were to commit further offences or engage in other serious conduct.

    Nature and seriousness of the applicant’s conduct

16. The applicant has been found guilty of multiple offences involving violence, which appears to have escalated over time. The applicant’s crimes have involved destroy or damage property, assault on a police officer in the execution of duty, refusal/fail to comply with police directions and recklessly inflicting grievous bodily harm, in an attack which was unexpected and unprovoked. These multiple acts of violence must be considered as very serious (paragraph 13.1.1(1)(a) of Direction 79).

17. The applicant’s offending started shortly after he arrived in Australia and continued up until his most recent offences in 2016, for which he was imprisoned in 2017.  In sentencing, prison is viewed as a last resort in the sentencing hierarchy, so the fact that the applicant has been sentenced to more than one term of imprisonment should be viewed as serious (paragraph 13.1.1(1)(d) of Direction 79).

18. The applicant’s most recent sentence was lengthy and reflects the seriousness of the crime, which was unprovoked and resulted in lifelong cognitive impairment for the victim. In relation to this incident, the victim was a boyfriend of the applicant’s cousin. The applicant slapped the victim in the face without warning and the victim fell backwards and struck his head on the road. The applicant left the scene without offering assistance to the victim and he initially denied the offending to the police. The victim “sustained an extremely severe traumatic brain injury as a consequence of his head striking the footpath”, was left with what the sentencing judge described as “permanent mild cognitive impairments” and his personality changed and his senses of smell and taste reduced. The fact that the applicant ran away after his victim fell to the ground and subsequently lied to the police about the crime must be considered. It is also of significance that both the sentencing judge in the District Court and the NSW Court of Appeal were of the opinion that the applicant had shown no remorse for what was described as a cowardly attack on the victim.

19. The 2011 offence for which the applicant was sentenced to nine months imprisonment involved property damage, mainly bashing the windscreen of his wife’s car, leaving his wife to feel afraid. This offence occurred whilst the applicant’s son, then two months old, was in the car. It is also noteworthy that the applicant had been drinking prior to the incident and his wife was trying to get him home. Violent offences against women are to be treated very seriously (paragraph 13.1.1(1)(b) of Direction 79).

20. I agree with the remarks of the sentencing magistrate who said that even though the child was very young at the time there would be an impact:

    When you are violent like this around your child, even though your child is a baby, they soak it up like a sponge. So your child will get used to it, have to get used to being in a violent home, and that is not on. 

21. I note that the applicant also failed to disclose his convictions on incoming passenger cards on a number of occasions. His explanation was that he had not understood the nature of the question, however given that the question is quite clear, I find the applicant’s explanation that he thought it relates to a prison sentence lacks credibility.

22. The applicant has offences against police whilst they were on duty, which are to be treated seriously (paragraph 13.1.1(1)(c) of Direction 79), and the applicant has also been previously warned that continued offending may lead to his visa being cancelled in 2012, but nevertheless reoffended after this (paragraph 13.1.1(1)(h) of Direction 79).

23. Having regard to the fact that the applicant has been sentenced to more than one term of imprisonment, that he has been found guilty of a number of serious violent offences for which he received a custodial sentence, most significantly having been sentenced to his most recent conviction for recklessly inflicting grievous bodily harm in an unprovoked attack, I am of the view that the applicant’s offending must be viewed as extremely serious.

    Risk of reoffending

24. It is relevant when considering the risk to the Australian community that any reoffending by the applicant is likely to result in serious harm. It was put on behalf of the respondent that the applicant was at high risk of reoffending, but that any risk of reoffending was unacceptable.

25. In his evidence before the Tribunal, the applicant’s psychologist, Mr Tsolis, said that he did not consider the applicant to be a risk unless he consumed alcohol, in which case the applicant would be at risk of committing further offences. Mr Tsolis said that the applicant would need to refrain from the consumption of alcohol effectively for the rest of his life, in order for there to be confidence that he would not reoffend. In the psychologist report by Mr Tsolis dated 9 August 2020, he stated that the applicant “does not exhibit an entrenched criminal proclivity or propensity to engage in offending behaviour… alcohol use has been the attributing factor of his offending behaviour… if successful in remaining abstinent from alcohol his impulse control problems will accordingly dissipate”.

26. Unfortunately, besides the evidence of Mr Tsolis and some evidence of the applicant’s discipline in detention, there is no clear objective evidence that the applicant is able to continue to refrain from drinking alcohol if he were released. There is evidence that in the past he had been able to avoid alcohol for long periods of time, but ultimately has gone back to binge drinking and offending behaviours.

27. Mr Tsolis said that the reason the Court sponsored rehabilitation programs had not worked for the applicant was because they were group programs and the applicant needed a tailored program, specific to his needs. For instance, the applicant has previously been ordered to attend Alcoholics Anonymous and counselling sessions in relation to previous offences, which proved unsuccessful by the applicant continuing to offend. Mr Tsolis said he had designed such a program and it would be affordable for the applicant but that to date the applicant has not completed such a program because he has been incarcerated. Whilst the applicant said that he has abstained from alcohol since being detained in February 2017 and undertaken courses and counselling to address his alcohol abuse, the applicant has not been in an unsupervised environment in the community since his incarceration for this period. The Tribunal is therefore left with a situation where there is no guarantee that the applicant would complete such a program nor that after completion it would mean that an objective observer could be reasonably confident that it would ultimately result in the applicant never touching alcohol again. This is important because the evidence is that if the applicant were to binge drink again, he is likely to reoffend.

28. The applicant submits that he “does not pose such a risk to the Australian community that should operate or suffice to prevent a decision by this Tribunal to… revoke the cancellation of his visa”. The evidence showed clearly that the applicant has previously also expressed an intention not to consume alcohol nor commit further offences so as not to pose a further risk. An example of this was the letter which the applicant had signed with a Pastor of his Church to not reoffend. The applicant did not keep this promise.

29. It was also pointed out by the respondent’s representative that many of the expressions of support and statements that the applicant was not at risk of reoffending made by relatives and friends in respect of the current proceedings before the Tribunal had previously been made in similar terms. For example, the letter from the applicant’s stepfather was very similar to the assurances that he had made in relation to the applicant’s previous criminal proceedings. This respondent claimed that this was also the case in relation to the letters of the applicant’s brothers and sisters.

30. It is also relevant to this consideration that the applicant received a warning from the Minister’s Department in 2012 that further offending could lead to the cancellation of his visa. The applicant signed an acknowledgement that he had received and understood the warning from the Department. His subsequent conduct would indicate that he ignored the warning.

31. It is also relevant when looking at risk that, although the applicant claimed that he was remorseful for the harm he had caused to the victim of his assault in 2016, the sentencing judge said that he could not accept that the applicant was genuinely remorseful and this was also the view of the NSW Court of Appeal. It is of very serious concern that the applicant did not seem to have expressed genuine remorse for the harm caused by his offending conduct and in particular for the lifelong damaged caused to the victim of his assault in 2016. The sentencing judge concluded that the applicants “prospects for rehabilitation are guarded at best” on the basis of “an absence of genuine remorse and the repeated failure of the offender to adequately address his long term alcohol issues”. The judge that dismissed the applicant’s appeal in March 2018 whilst upholding the ground of bias in relation to the first sentence judge which I have considered, was also “unable to conclude on the balance of probabilities that he is unlikely to re-offend and has good prospects of rehabilitation”.

32. I have considered that the applicant has evidenced an attempt to rehabilitate whilst in custody, including participating in the EQUIPS Addiction Program, EQUIPS Foundation Program and EQUIPS Aggression and his behaviour appears to have been disciplined whilst in prison and immigration detention, particularly in relation to alcohol consuption.

33. However, despite numerous convictions, rehabilitation programs and expressions of a determination to give up alcohol, the applicant continued to consume alcohol and offend until his most recent offence in 2016, which resulted in his long prison sentence and subsequent immigration detention. Mr Tsolis’s evidence is that the applicant is at risk of offending if he does not abstain from alcohol completely.

34. In light of the evidence, I find that there is a risk that the applicant would not be able to abstain from alcohol over the longer term and therefore there is a risk of him reoffending, which is more serious given the serious nature of his offending and the harm that could be caused from any further offending conduct. Accordingly, I find that this primary consideration of the protection of the Australian community weighs very heavily against revocation.

    Best interests of minor children in Australia

35. The applicant has five minor children who are Australian citizens ranging from four years of age to 11 years of age. I accept the evidence of the applicant’s wife to the effect that the children are missing their father and that at least in the case of the nine year old son, the father’s absence has caused psychological distress and the mother has been forced to seek medical treatment for him.

36. I accept that the applicant has made a very considerable effort to maintain contact with his children on a regular basis by telephone whilst he has been incarcerated, that he has a genuine interest in the wellbeing of his children and wants to be part of their lives. I also accept that he wants to be able to provide for them financially.

37. Both the applicant and his wife gave evidence, which I accept, as to the important and ongoing role that the applicant played in the children’s life when he was living at home. This included assistance with the children’s homework and care for the younger children, including chores such as changing nappies. All of the evidence would indicate that the applicant was a caring and hands on father.

38. The applicant’s wife is currently the primary carer for the children, particularly the younger children given the amount of time the applicant has spent in prison or immigration detention. I accept the mother’s evidence as to the struggle she is having in caring for the children without her husband, both physically and financially, particularly in light of the injuries she suffered as a result of the car accident in 2017. I note that the report of Dr Teoh, Consultant and Forensic Psychiatrist, assessed the applicant’s wife’s level of impairment at 15%. Even without the injuries she sustained in the accident, it would be very difficult for the children’s mother to work and also take care of five minor children.

39. It was put to the Tribunal by the respondent’s representative that the applicant would be able to provide financial support for the family and he would be able to have contact with the children by electronic means if he were to live in New Zealand. Although this is undoubtably true, it is clearly in the best interests for the children that their father lives with them and is physically available to them on a daily basis. The applicant’s ability to provide financial support is also likely to be more limited if he has to establish and sustain his own living arrangements in New Zealand. It is also the case that even though the children might be able to visit their father in New Zealand, this could never be considered a substitute for actually living with their father.

40. Apart from the domestic violence incident in 2011, which was witnessed by one of the applicant’s children and is likely to adversely impact this child, all of the other evidence before the Tribunal would indicate that the father is a positive influence in the children’s lives.

41. I give this consideration very heavy weight in favour of revocation of the delegate’s decision.

    Expectations of the Australian community

42. In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to paragraph 13.3(1) of Direction 79.

43. The applicant has been convicted of a history of violent offences and has displayed a disregard for the Australian legal system. Having regard to the provisions of Direction 79 and the applicant’s cumulative history of offending, including serious and violent offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa. Direction 79 prescribes at paragraph six that the Australian community expects non-citizens to obey Australian laws while in Australia.

1. Given the nature and seriousness of the applicant’s cumulative offences, I give substantial weight to this consideration which weighs in favour of non-revocation of the delegate’s decision.

   OTHER CONSIDERATIONS

2. Direction 79 prescribes other considerations that may be taken into account where relevant, which I have considered below.

   Strength, nature and duration of ties to the Australian community

3. The applicant was born in New Zealand and arrived to live permanently in Australia when he was approximately 13 years old. He is now 31 years old. The applicant has not returned to reside in New Zealand since coming to Australia.

4. All of the applicant’s family including his parents and five siblings live in Australia. The applicant’s four youngest siblings were born in Australia. The applicant said he has some 20 uncles and/or aunts and 50 cousins living in Australia.

5. The applicant said that he has no relatives in New Zealand. His wife gave evidence that her family also live in Australia and she has no relatives in New Zealand. The evidence of both the applicant and his wife indicates a very strong and expansive family network, with both the applicant and his wife having very close family ties in Australia. The evidence indicates that the families of the applicant and his wife are a significant support to both them and their children.

6. The evidence of the adverse impact of the applicant’s removal on his wife and children was uncontroversial. Letters of support from the applicant’s wife attest to the applicant’s good character, his reflection and remorse and the important role the applicant plays in her and their children’s lives, stating a non-revocation decision will “tear their family apart”. There is no doubt that it would be devastating for the family if the applicant were to be removed from Australia. In particular, the wife sustained serious injuries in a car accident which make it more difficult for her to work and to look after their five minor children. The children have also been impacted by their father’s absence, particularly since he has been detained in immigration detention after his release from prison.

7. The many letters of support that were submitted for the applicant indicate that he has strong family and community ties, including with his Church, and these people would also be adversely impacted by the applicant removal from Australia. In his submissions to the Tribunal, the applicant stated his intention to assist the community and his Church congregation by sharing his experiences of the harm of alcohol if he is released into the Australian community.

8. The applicant has worked since leaving school after year 10. He said he left school in order to work and assist his family financially. The applicant obtained qualifications as a forklift driver in Australia after he was released from jail in 2012 and worked consistently. If released into the Australian community, the applicant gave evidence that he wants to work and use his qualifications to provide financial support for his family.

9. I accept that the applicant has substantial familial, employment and social ties to Australia and accordingly this consideration weighs strongly in favour of revocation of the delegate’s decision.

   Impact on Australian business interests

10. I note that an argument was put on behalf of the applicant that there would be an adverse effect on Australia’s business interests if he were to be deported to New Zealand. In support of this argument, the applicant provided a letter offering him a job as a labourer if he were released, but there was no evidence which demonstrates an impact beyond his employment potential on Australia’s business interests for this business or generally.

11. Accordingly, I give minimal weight to this consideration in favour of revocation.

    International non-refoulement obligations

12. In the applicant’s evidence, he said that he “will suffer discrimination from non-state actors because he is a “s 501 deportee” and that this has been “spurred by negative media coverage of section 501 deportees to New Zealand” and will make it difficult for him to obtain employment and “be accepted”.

13. However, there was no evidence presented on this issue nor an explanation as to how this would engage Australia’s non-refoulement obligations. It was accepted by the applicant’s representative at the hearing that whilst there is likely to be some prejudice towards such a class of people, it would not engage Australia’s international non-refoulement obligations and therefore I give this consideration neutral weight. Rather, this issue is relevant to the extent of impediments the applicant might face on removal, which I have considered below.

    Extent of impediments to removal

14. The applicant has lived in Australia since the age of 13 and has not spent any time in New Zealand since his arrival. He completed his education in Australia and all of his family, including his extended family, live in Australia. The applicant said he has no idea what life is like in New Zealand and that he wants his children to be raised in Australia because he sees them as Australian and believes that they will have much greater opportunities in this country.

15. I accept the applicant’s evidence that he is totally unfamiliar with New Zealand and there is no doubt that he would face a period of adjustment if he were to return to that country.

16. Furthermore, separation from his wife and family would be likely to exacerbate the applicant’s alcohol issues and make it more difficult for him to continue with abstinence from alcohol. I accept that the applicant is likely to lack social and familial support in New Zealand and this will be exacerbated by the negative impacts of his relocation on his wife and children who will likely remain in Australia.

17. It is likely that the applicant would be able to attend support groups for alcoholism and obtain mental health services in New Zealand, although I accept that his relocation would create at least some initial difficulties in accessing services. The applicant does not appear to suffer from any major health conditions and, in any event, as a New Zealand citizen, he would have access to good health care in New Zealand.

18. It is also unlikely that the applicant would face any languages or cultural barriers and his work skills would be largely transferrable and would likely enable him to obtain work in New Zealand.

19. It was put to the Tribunal by the applicant’s representative that a further impediment to the applicant moving to New Zealand was the poor regard had for New Zealanders described as ‘501 deportees’. Even though this might add to the applicant’s discomfort if he were returned to New Zealand, there is no objective evidence before the Tribunal as to how any perceived prejudice might manifest, apart from a vague claim that it might impact the applicant’s job prospects in New Zealand. There was also no evidence as to why others in New Zealand would need to know the circumstances of the applicant’s return to that country. It would presumably be up to the applicant as to whether he would want to disclose the circumstances of why he returned to New Zealand.

20. I give this consideration limited to moderate weight in favour of revocation.

    Impact on victims

21. The applicant’s wife, who was the victim of the applicant’s offence in 2011, provided three letters of support and oral evidence to the Tribunal, which I have considered in relation to this consideration. Whilst she has forgiven the applicant for his actions and does not believe there is an ongoing impact of the 2011 offences, I do note that her statement is premised on an assumption that the applicant will refrain from alcohol consumption in the future.

22. There was also no evidence presented by any other victims of the applicant’s offences, particularly the victim in the applicant’s most serious offence where the applicant was convicted of recklessly inflicting grievous bodily harm and who was left with what the sentencing judge described as “permanent mild cognitive impairments” as a result of the incident.

23. This consideration is given neutral to very limited weight in favour of revocation of the delegate’s decision.

    CONCLUSION

24. In this case, those factors which weigh in favour of revocation, including the best interests of the applicant’s minor children to which I ascribe very heavy weight, must be balanced against the serious nature of the applicant’s offences, the likelihood of him reoffending and the expectations of the Australian community, which weigh heavily against revocation.

25. On balance, I am reluctantly of the opinion that those factors which weigh in favour of revocation of the delegate’s decision, particularly the best interests of the applicant’s minor children who are Australian citizens, slightly outweigh those factors against revocation.

26. The applicant should bear in mind for the future the catastrophic consequences for his family which could have resulted from his offending conduct and which would almost certainly flow from any future offending. Successfully completing his treatment program with Mr Tsolis should be a significant priority for the future.

27. Accordingly, I find that the correct or preferable decision is that the reviewable decision made on 15 October 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, be set aside. In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa on 8 March 2019, is revoked.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

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

Associate

Dated: 11 January 2021

Date of hearing:	17 and 18 December 2020
Applicant’s representatives:	Mr I. L. Ehimudiamen, Ozidi Migration
Respondent’s representatives:	Mr C. Orchard, Sparke Helmore Lawyers