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

[2021] AATA 205

Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 205 (11 February 2021)

Division:GENERAL DIVISION

File Number:          2020/7780

Re:Quintin Michael Anderson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C.J. Furnell  

Date:11 February 2021

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides to revoke the decision to cancel the Applicant’s visa.

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

Senior Member

Catchwords

MIGRATION – applicant held Class TY Subclass 444 Special Category (Temporary) visa –– substantial criminal record – failed the character test – consideration of Direction No. 79 – Part C – primary considerations – protection of the Australian community – the best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties – impact on Australian business interests – extent of impediments if removed – decision under review set aside – revocation of the mandatory cancellation of applicant’s visa

Legislation

Administrative Appeals Tribunal Act 1975

Migration Act 1958, s 499, 500, 501, 501CA

Cases

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305
Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138; [1999] FCA 938
BFH16 v Minister for Immigration & Border Protection [2020] FCAFC 54
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Breeze v R [1999] QCA 303
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336
Director of Public Prosecutions v Perry [2016] VSCA 152
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HSCK v Minister for Home Affairs [2019] AATA 4392
Hughes v R [2017] HCA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394
NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
R v Butcher [1986] VR 43
R v Galas [2007] VSCA 304
R v. Verdins [2007] VSCA 102
Re Tait [2003] AATA 413
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
SGQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4594

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409

Secondary Materials

Migration Act 1958 – Direction No. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
Victoria’s Criminal Procedure Act 2009, s256
Halsbury’s Laws of Australia-130-17100 to 130-17150-Hence

REASONS FOR DECISION

Senior Member C.J. Furnell

11 February 2021

1. In this proceeding, the issue before the Tribunal is whether a discretion conferred by the Migration Act 1958 (the Act) to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 special category (Temporary) visa is exercisable and, if so, should be exercised.

2. For reasons that follow I have decided that it should be.

   BACKGROUND

3. On 28 May 2020 the Applicant was convicted of a number of charges and sentenced to a term of imprisonment of 14 months.[1]

   [1] G3, 40-45. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.

4. On 22 June 2020 the Applicant’s visa was subject to mandatory cancellation.[2] The cancellation was mandatory because, under s 501(3A) of the Act, a delegate of the Minister was satisfied that the Applicant:

   [2] G5.

   (a)did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[3] having been sentenced to a term of imprisonment of 12 months or more;[4] and;

   [3] As defined in the Act, s 501(7).

   [4] Act s 501(7)(c).

   (b)was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.[5]

   [5] G5,403.

5. On 15 July 2020, on appeal, the sentence resulting from the May 2020 convictions was set aside and replaced by a sentence of imprisonment for a term of three months.[6]

   [6] G3, 46

6. The Applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[7].

   [7] Act, s501CA(3).

7. As a result, the Respondent could then have revoked the decision to cancel the Applicant’s visa if satisfied that he passed the character test or that there was another reason why the visa cancellation decision should be revoked.[8]   On 19 November 2020, however, a decision was made not to revoke the visa cancellation decision.[9]

   [8] Act, s 501CA(4).

   [9] G2,10-32

8. The Applicant applied to the Tribunal for review of that decision on 26 November 2020.[10]

   [10] G1.

9. Later I will elaborate on the role of the Tribunal in conducting that review. In essence, however, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[11] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[12]

   [11] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].

   [12] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21].

10. The Applicant submits that he passes pass the character test.[13] If he does so, that is the end of the matter. As a fallback, however, the Applicant also submits that there is another reason why the visa cancellation decision should be revoked. 

    [13]A’s SFIC [2]

11. While I do not accept that the Applicant passes the character test, I have found that there is another reason why the visa cancellation decision should be revoked.  

    Jurisdiction

12. The task of the Tribunal in this proceeding reflects the role that the Tribunal generally has on review of decisions made under certain laws of the Commonwealth. That review role was recently described by the High Court in Makasa.[14] It was said to be:

    [14] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [100].

    "’to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision maker for the purpose of making the decision under review’ . The function of the AAT, in other words, is ‘to do over again’ that which was done by the primary decision maker.”

13. Both parties accept that, in this proceeding, the shoes the Tribunal is stepping into are those of the delegate who decided not to revoke the visa cancellation decision under s501CA(4)[15].

    [15] The Applicant does so despite curious references in the A’s SFIC to s501(1), said by counsel to be typographical errors

14. It was not contended that the discretion conferred by that section was inapplicable in the circumstances because there had been no valid visa cancellation decision made in relation to the Applicant. This might have been suggested because while the cancellation of the Applicant’s visa in June 2020 was based on the Minister’s delegate being satisfied that the Applicant had a substantial criminal record,[16] he has no such record (noting that, as mentioned earlier, the 14 month imprisonment sentence imposed in May 2020 was set aside as a result of an appeal decision in July 2020[17]).

    [16] G6, 402, 403 - where it was said that the Applicant had a substantial criminal record as he had been sentenced in May 2020 to a term of imprisonment of 12 months or more.

    [17] Under Victoria’s Criminal Procedure Act2009, s 256, an appeal of the type undertaken by the Applicant gives rise to a requirement to conduct a rehearing and to set aside the sentence imposed. Indeed, the orders of the Court from which the Applicant appealed were set aside and replaced by orders of the appellate court-G2,46.

15. If such a contention had been made, I would have rejected it.

16. Even if the result of setting aside the May 2020 sentence is such that it may now properly be regarded as never having been imposed (so that, in fact, the Applicant not only does not have but has never had a substantial criminal record), this does not invalidate the decision to cancel his visa. The decision would not thereby have been rendered nugatory in the sense that it would be ``regarded, in law, as no decision at all''.[18]

    [18] Cf. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].

17. That capacity to make that decision was not dependent on the Applicant having such a record. Rather, it was dependent on the Minister’s delegate being satisfied that the Applicant had such a record. The delegate’s arrival at that state of satisfaction did not reflect the making of a jurisdictional error.[19] It is to information available to the delegate at the time of the delegate’s decision in June 2020 that regard must be had in determining whether it was infected by error due, for instance, to irrationality or unreasonableness.[20] Having regard to that information, there would have been a reasonable basis for then being satisfied (or a legal capacity to support  a conclusion[21]) that the Applicant had a substantial criminal record. The implicit finding of fact that the Applicant had been sentenced to a term of imprisonment in excess of 12 months would have been based on material then before the decision-maker, material that is rationally probative of the fact.[22]

    [19] Ibid.

    [20] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [38] where it said that “Implicit in the statutory need for satisfaction or non satisfaction is that the satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker” (emphasis added). See also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130] – [131], [133] and [135]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [56].

    [21] BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [326-327].

    [22] BFH16 v Minister for Immigration & Border Protection [2020] FCAFC 54 at [40].

    Material before the Tribunal

18. I turn now to outline the material I had before me in arriving at a decision in this proceeding.

19. I have had regard to the submissions made and evidence adduced at the hearing of this proceeding[23] and to certain documentary material lodged with the Tribunal prior to the hearing.

    [23] Being evidence adduced from the Applicant, Mika, her brother and nephew.

20. That documentary material is extensive. It comprised:

    (a) Two volumes of documents provided by the Respondent under s 501G of the Act (which I refer to as the “G” documents and being Exhibit R1).

    (b)  Compiled bundle of summons material (Exhibit R2).

    (c)   The Respondent’s statement of issues, facts and contentions of 25 January 2021 (including Annexures A, B and C thereto) (R’s SFIC).

    (d)  Respondent’s submissions addressing CPJ16[24] of 5 February 2021.

    [24] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033.

    (e)  The Applicant’s statement of facts, issues and contentions of 13 January 2021 (A’s SFIC).

    (f)    Chronology provided by the Applicant (A’s Chronology).

    (g)  Timeline of Applicant’s life (A’s Timeline).

    (h)  Employment History of Applicant (A’s Employment History).

    (i)    Unsigned statement of the Applicant of 13 January 2021 (Exhibit A1).

    (j)    Further, signed, statement of the Applicant of 28 January 2021 (Exhibit A2).

    (k)   Witness statement of the Applicant’s de facto spouse (who in this decision I shall refer to as “Mika”) of 13 January 2021, unsigned (Exhibit A3).

    (l)    Witness statement of Mika’s brother made on 13 January 2021 (Exhibit A4).

    (m) Witness statement of Mika’s nephew made on 13 January 2021 (Exhibit A5).

    (n)  Witness statement of Helen Duru, apparently signed on 23 December 2020 (Exhibit A6).

    (o)  Witness statement of Neil Turner made on 23 December 2020 (Exhibit A7).

    (p)  Letter of support from Steve Kilpatrick of 27 January 2021 (Exhibit A8).

    (q)  Applicant tax returns for the 2014 to 2017 financial years (Exhibit A9).

    (r)    Applicant photo collage (Exhibit A10).

    (s)   Splash paediatric therapy-undated family case coordination initial consultation summary (Splash summary) (Exhibit A11).

    (t)    NDIS Change of Circumstances Form dated 1 Dec 2020 seeking a NDIS plan review for the daughter (Exhibit A12).

    (u)  Splash paediatric therapy-Occupational Therapy Summary and Recommendations Report for NDIS Plan Review for the daughter of 29 October 2020 (Splash NDIS plan report) (Exhibit A13).

    (v)   Splash paediatric therapy- letter of 11 December 2020 to support recent early NDIS review and justification for recommended funding (Splash NDIS funding justification letter) (Exhibit A14).

    (w)  Natasha Chelva, psychologist, undated letter of support of NDIS review for the daughter (Exhibit A15).

    (x)   Anne-Marie Shenouda, physiotherapist, letter of 27 Oct 2020 in support of NDIS review for the daughter (Exhibit A16).

21. I have not had regard to certain documentary material lodged with the Tribunal and apparently given to the Respondent on the day before the hearing (comprising a witness statement and pages of material apparently obtained by the Applicant pursuant to applications made under freedom of information legislation). That material was, as accepted by counsel for the Applicant, submitted in support of the Applicant’s case. I consider that I am obliged by s500(6J) of the Act not to have regard to it.

    Background Facts

22. The Applicant is aged 46 having been born in New Zealand on 8 November 1974.

23. When aged 15 and while in New Zealand the Applicant was convicted of numerous property (primarily burglary) and motor vehicle offences.[25]

    [25] G7, 409-411

24. He arrived in Australia alone in April 2004, aged around 29.[26]

    [26] G9,416

25. In 2008 he entered into a relationship with a lady who I shall refer to as Mika. The Applicant describes her as his de-facto spouse.

26. The Applicant and Mika have two children, a girl aged 12 (who I shall refer to simply as the daughter) born in October 2008 and a son aged 11 (who I shall refer to as the son) born in February 2010.[27]

    [27] Birth certificates at G3;321 and 323

27. The Applicant apparently has three other children each of whom has a different mother.[28] One of those other children, a son, is said to live in Australia, along with his son (the Applicant’s grandson). The Applicant is estranged from this other son[29] (and, I infer, from all his other children) and little is said about him (or them), or the Applicant’s grandson, in material before the Tribunal.  

    [28] G3,268

    [29] G3,225

28. Outlined below is a chronology pertaining to the Applicant’s offending in Australia.

29. On 1 August 2007, the Applicant was convicted of recklessly causing serious injury. He received a community-based order of six-months and was ordered to perform 200 hours of community work over the six months. As to this offence the Applicant stated that “I had been drinking and I lost my cool and unfortunately led to an altercation with my deceased’s brother’s girlfriend.”[30]

    [30] G3,188

30. On 20 February 2012 the Applicant was convicted of contravening a family violence intervention order, contravening a family violence final intervention order hindering police and criminal damage. He was fined an aggregate of $1,000 and ordered to pay compensation of $229.40.

31. On 14 January 2013 the Applicant was convicted of aggravated assault of a female. He received a $750 fine.

32. In relation to his offending in 2012 and 2013 the Applicant stated that “I was never physical violent against Mika. At this time, I had undiagnosed PTSD and ADHD and was going through substance abuse which led to the offending.”[31]

    [31] G3,189

33. On 25 June 2014 the Applicant was convicted of contravening a family violence final intervention order, unlawful assault and contravening a family violence intervention order intentionally causing harm/fear. He was sentenced to a 12-month community corrections order for all offences. As to this offending the Applicant stated that “I believe it may have been when I was contacting Mika or calling her names when I was under the influence. There have also been times when I have lost control when I was coming off the substance and when I was in withdrawal.”[32]

    [32] Ibid

34. On 27 July 2015 the Applicant was convicted of contravening a family violence final intervention order (two charges) and failing to answer bail. He received a $1,000 fine.

35. On 15 July 2016 the Applicant was convicted of persistent contravention of a family violence order (two charges), contravening a family violence final intervention order (two charges),  contravening a community corrections order, threatening to damage property (two charges), making a threat to kill (two charges) and contravening conditions of bail (three charges). The Applicant was sentenced to an aggregate of 180 days in imprisonment and a community corrections order for 15 months.

36. On 18 December 2017 the Applicant was convicted of persistent contravention of family violence order, contravening a community corrections order and failing to stop a vehicle on police direction. The Applicant was sentenced to a community corrections order for 18 months, 150 hours of community work, disqualified from driving for six months and fined $600. As to his offending in 2016 and 2017 the Applicant stated that “During 2016 I stopped taking drugs because I wanted to see my family. I was withdrawing at the time which led to the offending. I have never hurt my children and I do not recall any incidents of me hurting my children, particularly …[the daughter] as stated in the 2017 charge sheet. I sent messages to Mika whilst I was under the influence.”[33]

    [33] G3,190

37. On 28 May 2020 the Applicant was convicted of contravention of a family violence final intervention order, criminal damage (intent damage/ destroy), contravening a family violence intervention order intending harm or fear, persistent contravention of family violence intervention order and contravening a community corrections order. He was sentenced to 14 months imprisonment.[34] As mentioned earlier, that sentence and all but the last of those convictions were subsequently set aside.

    [34] G3;38-39

1. On 15 July 2020 on appeal, the Applicant was convicted of contravention of a family violence final intervention order, criminal damage, contravening a family violence intervention order intending harm or fear and persistent contravention of family violence intervention order. He was sentenced to a reduced term of imprisonment of three months and a community corrections order for two years. As for his offending in 2020 the Applicant stated that “In February 2020 I breached the FVO that was against me by Mika. My family had come over for a visit from New Zealand and I had been drinking too much. I had recently been put on medication… The affect of alcohol and anti-depressant medication and the Quetiapine was terrible, and it caused me to become violent.”[35]

   [35] G3,191

2. As is apparent from the foregoing chronology (and from explanations offered by the Applicant):

   (a)While having been convicted of a variety of offences, including assault and criminal damage, the focus of the Applicant’s offending appears to comprise persistent and frequent intervention order contraventions. He has been convicted of such contraventions in each of the years 2012 to 2017, inclusive, as well as in 2020. Generally, the “protected person[s]” in relation to those orders would appear to have been Mika, the son and the daughter.[36]

   [36] An intervention order currently in place includes Mika, the son and the daughter as protected persons-G3;313. So too did the protection order in place for three years from September 2016, G3;53.

   (b)Excluding the order made in 2020, the Applicant has been made the subject of three community corrections orders (CCO) since 2013 and would appear to have been convicted of contravening each of them.[37] The Applicant suggested that his contraventions of the CCO arose in circumstances where there had been no response to his requests for time extensions and that his attendance failures were often due to work commitments and being homeless.[38]

   [37] In a 2017 report the Applicant is said to have been made the subjects of two CCOs since 2013 “both of which he has contravened by way of non-compliance and further offending”, Exhibit R2, 315.

   [38] G3,192

   (c)The Applicant’s offending is frequently associated with substance abuse and, from his perspective, the effects of withdrawal from the use of illicit substances.

3. The intervention order contraventions of which the Applicant has been convicted commonly involved the Applicant directing vile threats and abuse at Mika.

4. Details of the contraventions of which the Applicant was convicted in 2020 are set out in a transcript of the appeal sentencing.[39] There (with my emphasis) it is said that the: 

   [39] G3,50

   “…first of these related to an incident on the 20th of May 2019, when you were abusive to her, then when she sought safety for herself and her children by taking refuge in the car, you smashed a container on the windscreen of her car, causing it to crack. I note that your children were in the car. It must have been terrifying, not only for …[Mika], but also for your children. The second incident was two weeks later and again, you were verbally abusing […Mika], and you only ceased and left when another family member intervened. In that incident you taunted her about calling the police, and blamed her for your previous period of incarceration… …[Mika] obtained a further intervention order and sometime later, you were at her home, with permission, doing some work, and you began drinking, which seems to be one of your flaws. A verbal argument developed and then you raised your fist at …[Mika] saying “I should fucking bash you” a number of times. She was cowering in fear. Your children were present and they were crying. You threw a phone at her and it hit her foot, and your children pleaded with you to stop. Eventually you did and …[Mika] fled to another house and sought police assistance… Two things are of concern to me arising out of those facts, aside from the offending itself, and the first was that when you were alcohol-affected you blamed her for your previous period of incarceration. The second is that your offending occurred at least twice in front of your very vulnerable children. Your behaviour was disgraceful… Your criminal history causes me real concern, and while the instances before me do not involve actual physical violence, they demonstrate that you need to learn more from your previous sentences and your previous involvements with the law…[when speaking of a community corrections order] your past offences and breaches of order do cause me concern about your ability to abide by the order in future…”.

   42.Details of the contraventions alleged to have occurred in 2015, 2016 and 2017 are found in police informant statements.[40] Generally I attribute little probative value to such statements.[41]  There are, however, some aspects of the police material which I do take into account. For instance, from that material (as well as the Applicant’s history of offending and his response to that history) it seems clear that the threatening and abusive conduct described in the transcript of the Applicant’s 2020 appeal sentencing was not a “one off”.  Rather, it is consistent with what has occurred in the context of repeated incidents over a number of years (with the Applicant employing extremely vulgar language).[42]

   [40] G3;53-58, see too Annexure A to the R’s SFIC.

   [41] While the police records are usually contemporaneous records, I attribute little probative value to them largely because they usually comprise representations that are prejudicial hearsay made by persons not called to give evidence. Moreover, to do otherwise would run counter to the principle derived from the Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 decision, a principle applicable in the context of Tribunal decision-making. (Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [37] (Briginshaw); LLSY and Minister for Immigration and Citizenship [2011] AATA 334 at [50], citing Briginshaw. See the discussion of these cases in HSCK v Minister for Home Affairs [2019] AATA 4392 at [141]-[147]; see also NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326 at [41].) As so applied, the more serious the allegation, the less likely it is that the Tribunal ought be satisfied of its validity on the basis of “inexact proofs, indefinite testimony or indirect inferences.”(In Briginshaw at 361-362, it was suggested that a state of satisfaction ought not be “… attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”)

   [42] See, for instance, G3,56 and Exhibit R2,322

   43.It would seem that since 2010 the Applicant had been recorded as the respondent with respect to 17 incidents involving Mika, with seven intervention orders having been issued naming the Applicant as the respondent. It is clear that Mika has, on a number of occasions, been rendered fearful of the Applicant by reason of his conduct (noting that, according to the Applicant’s and Mika’s psychologist, Mika sought intervention orders due to fears of domestic violence).[43]

   [43] G3;216, 269. According to Cynthia Davis, psychologist, from 2014 to 2019, Mika has had intervention orders against the Applicant due to fears of domestic violence

   44.That Mika has been abused and threatened by the Applicant, and rendered fearful of him, is reflected in several statements made by Mika to the police over a number of years. For instance, in January 2020, Mika described being fearful that the Applicant will try and stalk her, as he had in the past.[44] In June 2019[45] she described events which were said to have occurred on 3 June 2019. The Applicant had indicated he was leaving the house to buy drugs (after first having apologised to Mika, saying he loved the drugs too much). Mika’s response had been that he could not then come back to the house. In reply the Applicant had stated that he was going to slit her throat.[46] In May 2017 she described how she had become scared of the Applicant following several arguments with him about money and about him not going to see a doctor and counsellor, as he had earlier said he would, to help him deal with his desire to use drugs.[47]

   [44] Exhibit R2,61

   [45] R’s SFIC, Annexure A, 82

   [46] See also Exhibit R2, 418

   [47] R’s SFIC, Annexure A, 116, see also Exhibit R2,445.

   45.At the hearing of this proceeding Mika explained that in dealing with the police she thought she had been manipulated. The impression she said she had from them was that her children might be taken away from her were she to allow the Applicant to use illicit drugs in her home. Barring him from using Ice[48] at home meant that she dealt with the Applicant when he was “coming down” from his use of the drug. Her evidence was that this was when he was dangerous.

   [48] Which the Tribunal understands to be a colloquial name for methamphetamine (Ice).

   46.The inference that I was apparently being asked to draw was that, by having to bar the Applicant from using Ice in her home due to police “manipulation”, she was being forced to deal with the Applicant when he was dangerous.[49] This gave rise to the issue of whether Mika intended, were the Applicant allowed to remain in Australia, to permit him to use Ice  in her home (with clear implications for the interests of her minor children were she to do so). After some hesitation, she stated that she would not. Hence, despite her now characterising the police conduct as manipulation, she does not intend to make any relevant change in approach which, in the past, she feels required that she deal with the Applicant when he was dangerous.

   [49] That Mika now perceives that efforts to stop the Applicant using illicit drugs are misplaced are consistent with a curious statement she made (Exhibit A3 at [12]) to the effect that trying to get the Applicant into “rehab” was not the right thing to do

   47.Mika has also stated that she believes she was manipulated by the police because they told her that she needed to say that she feared the Applicant in order to get an intervention order.[50] She says she never feared for her life with the Applicant.[51]

   [50] Exhibit A3 [26]

   [51] Exhibit A3 [27]

   48.As already indicated, the material before me suggests that Mika was rendered fearful by the conduct of the Applicant albeit not necessarily fearful for her life. While she might have been told by the police that she needed to have feared the Applicant she does not in her statement in this proceeding deny she was fearful. She clearly felt the need to obtain the protection of a number of intervention orders. Her psychologist reported that she feared domestic violence. She refers frequently in her statement to “the family violence”. In oral evidence she spoke of the Applicant being dangerous when coming down from his use of Ice. In her statement in this proceeding she acknowledged that she would “call the police when family violence occurred”[52] which, apparently, only commenced in 2012.[53] Indeed, she states that “there have only been two occasions where physical assault occurred.”

   [52] Exhibit A3 [17].

   [53] Exhibit A3 [31].

   49.A Dr Davis, psychologist, diagnosed the Applicant in 2014 as suffering from major depressive disorder (moderate, recurrent) as well as methamphetamine addiction and borderline personality traits.[54] It is said in submissions made on his behalf that he also suffers from ADHD[55] which, at the time of his offending in 2019, was undiagnosed. I was not taken to any direct evidence of this diagnosis and was unable to locate any in the material before me.[56]

   [54] G3,271.

   [55] A’s SFIC [16]; G3,207

   [56] In June 2017 Dr Davis reported that she had done “a preliminary screen for Adult ADHD” in relation to the Applicant who had scored in the severe range. She queried whether the Applicant’s GP might consider referring the Applicant to a specialist in the field for “assessment and treatment options”. While the Applicant has been taking anti-depressant medication for some time, in oral evidence he confirmed that no medication to address ADHD has been prescribed.

   DOES APPLICANT PASS THE CHARACTER TEST?

   Character test

5. The character test is set out in s501(6) of the Act. Under that section a person is considered not to pass the test if any of a number of circumstances applies in relation to the person.

6. The Respondent submitted that the Applicant did not pass the character test because two such circumstances applied to him.

7. The first circumstance is set out in 501(6)(c) of the Act. It is, essentially, that the Applicant is not of good character having regard to his past and present conduct, criminal and general. There is an issue about the Tribunal’s capacity to rely on this circumstance in this proceeding. I will address that issue shortly but suffice to say that I do not need to come to a decision about it. I have concluded that the Applicant fails the character test on the basis of the second circumstance relied upon by the Respondent.

8. That second circumstance is set out in 501(6)(d)(i) and (ii) of the Act. Rather than addressing past or present conduct, this circumstance looks to the prospect of certain conduct in the future. It applies, essentially, where there is a risk that the Applicant would engage in certain conduct were he allowed to remain in Australia. The conduct includes criminal conduct, and conduct amounting to harassment or intimidation of another person, in Australia.

9. Direction on the application of the character test is found in a document entitled “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).[57] I am bound by s 499 of the Act to comply with it.

   [57] Direction 79 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J.

   Past and present conduct-501(6)(c)

10. At the hearing of this proceeding I raised with the parties the issue of whether I was at liberty to conclude (as the Respondent had submitted that I should) that the Applicant did not pass the character test based on his past and present general and criminal conduct (i.e., based on 501(6)(c)). I referred to the decision of Rares J in CPJ16.[58] In doing so I noted that, in concluding there had been a failure to pass the test, the decision-maker in the decision the subject of review had only relied upon the risk of certain future conduct (being the conduct described in 501(6)(d)(i) and (ii)) and had expressly declined to rely upon 501(6)(c).

11. In CPJ16 there had been a refusal to grant a visa on the basis that the visa applicant had failed to pass the character test because there was considered to be a risk of criminal conduct were the applicant allowed to enter Australia (501(6)(d)(i)). On review by the Tribunal, in seeking to establish a failure to pass the character test, the respondent in that matter sought to rely on the applicant’s past conduct (501(6)(c)). The Tribunal declined to consider that additional ground. Rares J concluded that the Tribunal was right to do so. His Honour stated (at [66]) that

    “… the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration.” Later (at [68]), His Honour concluded that  “… because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.”

    57.The Applicant submitted that in this proceeding the issues were similarly confined. Here, too, in the exercise of certain power the ground on which the decision-maker relied was set out in s501(6)(d). Section 501(6)(c) was not so relied upon and, indeed, reliance on it was expressly disclaimed.

12. The Respondent submitted that CPJ16 was wrongly decided but that, in any event, did not bind me as it was distinguishable. It was said to be distinguishable principally because, in the decision the subject of review in CPJ16, the decision-maker did not consider whether there had been a failure to pass the character test other than on one specific ground.[59]

    59.It is not clear to me that this basis for distinguishing CPJ16 is valid. According to Rares J (with my emphasis) it was “… apparent from the terms of s 501(6) that the delegate had eliminated from the scope of his consideration any other potentially adverse criteria, because, it should be inferred, he had considered that they could not, or did not, arise."[60]

    [58] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16), a decision upon which the Respondent sought to rely in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 [51].

    [59] See Respondent’s submissions addressing CPJ16 at [7]

    [60] CPJ16 at [58]

13. Whatever be the case, however, I need not decide this issue. I have concluded that the Applicant fails the character test based on the risk of certain future conduct (ie, s501(6)(d)). I note in passing, however, that confining the role of the Tribunal on review of a decision by reference to grounds relied upon by the decision-maker appears inconsistent with the role of the Tribunal being to “do over again” that which was done by the decision-maker, as well as authority for the general proposition that the Tribunal reviews decisions, not reasons for decisions.[61]

    [61] Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138; [1999] FCA 938 at [25]; Re Tait [2003] AATA 413

    Risk of certain conduct (s 501(6)(d))

14. A risk of the Applicant engaging in relevant conduct will be considered to arise if there is more than a minimal or remote chance that he would do so.[62]

    [62] Direction 97, Annex A, cl 6(2)

15. Any finding I make as to whether there is more than such a minimal or remote chance must be based on probative material. That probative material includes the Applicant’s history of offending. As was said in Guo “… proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.”[63]

    [63] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 574.

16. As is made clear in Direction 79, however, the Applicant’s history of offending is not, of itself, sufficient to support a finding as to risk.[64] There is no direct analytical bridge between a finding that past conduct has been engaged in and a conclusion that there is a risk of its being engaged in again.[65] According to Mortimer J in Splendido[66] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. More needs to be shown if over-valuing personality-based explanations and under-valuing situational based explanations for conduct is to be avoided.[67].

    [64] Direction 97, Annex A, cl 6(3) See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65] “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”

    [65] SGQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4594 at [79]. I cite this decision simply to make clear that aspects of the A’s SFIC (where extracts from the decision were made without attribution) are not simply being adopted.

    [66] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.

    [67] See Hughes v R [2017] HCA 20 at [70-72] per Gageler J (in dissent).

1. What that “more” includes is revealed by decisions in cases such as Guo.

2. In Guo it was said that“…[t]he extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”[68]

   [68] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.

3. In Hughes[69] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated at [154] that  … “[e]vidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence…”.

   [69] Hughes v R [2017] HCA 20 at [154].

4. In Splendido[70] Mortimer J said that “[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”

   [70] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].

5. Hence, facts need to be identified about the Applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the Applicant engaging in the relevant conduct.  I now endeavour to do so.

   Risk of Harassment or Intimidation

6. I turn now to address the risk that the Applicant would harass or intimidate another person in Australia were he allowed to remain in Australia (being conduct of the type specified in 501(6)(d) (ii) of the Act).

7. I find that there is such a risk, the other person being Mika. As I see it, the risk is more than minimal or remote; it is significant.  

8. The concepts of “harassment” and “intimidation” are to be given their ordinary meaning.[71] In this regard, as is clear from the description of the Applicant’s offending:

   a)He has troubled or “vexed” Mika by repeated attacks. As such, he has harassed Mika and, therefore, engaged in her harassment.[72]

   b)He has made Mika afraid and has used threats of violence in an effort to force her or restrain her from some action. He has, therefore, engaged in intimidation of her.[73]

   [71] Direction 79, Annex A, 6.2(2)

   [72] Oxford English Dictionary, online version as at 8 February 2021 - Engaged in the “the action of harassing…” with the verb “harass” including “To trouble or vex by repeated attacks”.

   [73] Oxford English Dictionary-online version as at 8 February 2021- The action of intimidating or making afraid; the fact or condition of being intimidated; now, esp. the use of threats or violence to force to or restrain from some action, or to interfere with the free exercise of political or social rights.

9. The Applicant’s history of offending and the circumstances in which it occurred suggest an ingrained habit, one that has, over a number of years, involved repeated abuse of Mika and threats of violence directed at her, especially when she would refuse to do as he wished.  She has been rendered fearful on a number of occasions, having sought multiple intervention orders and the repeated protection of the police.

10. In order to not engage in conduct reflective of this ingrained habit, the Applicant would need to make changes to his life. The more pronounced the necessary changes the less likely it is that they will be made. On behalf of the Applicant it is contended that he has no option other than to make severe changes.[74] 

    [74] A’s SFIC [46]

11. On the Applicant’s behalf it is put that his poor conduct in relation to Mika is attributable, at least in part, to his cultural upbringing. The “… Applicant in this case was raised in a strict Pasifika/Maori household, meaning the patriarch of the family is in charge, and all must defer to him. The Applicant has outlined in his witness statement another common feature of typical Samoan/Maori households: violence against women and children carried out by the provider of the family.[75]

    [75] A’s SFIC at [34]

12. I make no finding as to this aspect of the Applicant’s submission. Insofar as it is true, however, it suggests that there is in the Applicant a tendency to harass and intimidate which is both ingrained and one likely to enhance the Applicant’s risk of adverse conduct, rather than mitigate it. Indeed, on behalf of the Applicant it is said that “It will take time for whanau [family] violence to be unlearned.”[76]

    [76] A’s SFIC [26]

13. The Applicant’s adverse conduct generally occurred in the context of his abuse of illicit substances and excess consumption of alcohol.

14. On his behalf it is said that the Applicant is an addict.[77] As mentioned earlier, in 2014 his psychologist diagnosed that he had a methamphetamine addiction. He would seem to have been a regular user of Ice, for instance, stating in March 2020 that he had used it daily. This was so despite him having been involved in four rehabilitation programs[78] (two before 2016[79]). While he submits that his substance abuse started in 2012,[80] material before me suggests that he, in fact, started indulging in illicit substances as a teenager in New Zealand.

    [77] A’s SFIC [48]

    [78] G3, 286

    [79] G3, 284

    [80] G3, 194

15. According to the Applicant, the “…offending in question has happened when I was in withdrawal from substance abuse and due to alcohol”.[81] He is said to speak of “…his past violent offending occurring when he was under the influence of drugs, alcohol, or both.”[82] Mika sates that “[w]ithout the substance use and alcohol I definitely believe that none of…[the Applicant’s] offending in question would have happened.”[83]

    [81] G3,192

    [82] A’s SFIC [35]

    [83] Exhibit A3 [32]

16. Also, according to the Applicant, he is now clean, not having used illicit drugs since February 2020[84] (a proposition corroborated by the results of urine analysis tests conducted in the middle of 2020[85]).

    [84] G3,194

    [85] G3;328-329

17. Insofar as the Applicant’s use of illicit substances was a driver behind the Applicant’s past poor conduct, the issue is whether he would return to that use outside an institutional context, when free in the community. While I can hope that he would not, I find that there is a significant risk that he would. As the Respondent submits, this issue has not been tested. What is known, however, is that the Applicant is an addict. When released from prison in the past, and despite participation in a variety of rehabilitation programs (an issue to which I will return), he has relapsed into drug use and, in particular, the use of Ice (which, perhaps, is a reflection of the specially pernicious hold which the Tribunal understands Ice has over its users).

18. At the hearing, some significance was attached to the Applicant being bound by a two-year community correction order imposed in July 2020 but commencing on the Applicant’s release from detention. Presumably by reason of this two-year order, the Applicant is said by Mika to know that “…for the next two years there is no drinking, drugging, only counselling and focussing on the family.”[86]

    [86] Exhibit A3[44]

19. In addition to the mandatory terms of such an order, it requires that the Applicant:

    (a)be under the supervision of a community corrections officer for two years.

    (b)undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency “as directed by the Regional Manager.”

    (c)undergo any mental health assessment and treatment in a hospital or residential facility “as directed by the Regional Manager.”

    (d)participate in programs and courses that address factors relating to his offending “as directed by the Regional Manager.”[87]  

    [87] G3, 47-48

20. History suggests that any hope that being bound by terms such as these would significantly mitigate the risk of the Applicant again engaging in his past poor conduct and relapsing into illicit drug use would be misplaced.

21. As I mentioned earlier, excluding the order made in 2020, the Applicant has been made the subject of three community corrections orders since 2013 and would appear to have been convicted of contravening each of them. 

22. Moreover, the Applicant remained a regular user of Ice despite all three of those orders requiring that he undergo assessment and treatment (including testing) for drug use or dependency.[88] In an assessment as to the Applicant’s suitability for an order in December 2017 he is said to have stated that he used  Ice two to three times a week, having abused drugs since the age of 14.[89] Subsequently, in an assessment of his compliance with the December 2017 order, the Applicant is said to have reported ongoing use of methamphetamine two to three times weekly.[90] In oral evidence the Applicant sated that he was a daily user of Ice.

    [88] The CCO imposed in July 2016 required, amongst other things, that the Applicant undergo assessment and treatment (including testing) for drug use or dependency, as well as a mental health assessment and treatment “as directed”-see Exhibit R2, 320.  The CCO imposed in December 2017 required, amongst other things, that the Applicant undergo assessment and treatment at a residential facility for withdrawal from or rehabilitation for drug abuse or dependency-see Exhibit R2, 299

    [89] Exhibit R2,294

    [90] Exhibit R2,99

23. In a similar assessment made in relation to the July 2020 order the Applicant is said to have advised that at the time of his offending in 2019 he had been using Ice daily.[91]

    [91] Exhibit R2,190

24. It is of some significance that in both assessments the Applicant was assessed as being a high risk of re-offending.

25. It is said that the “Applicant’s family involvement in the church community, the Applicant’s history of stable employment and his relationship with his partner and children provide strong protective factors against future conduct of the kind identified in s 501(6)(d) of the Act.”[92]

    [92] A’s SFIC [51]

26. I note that these protective factors have not, in the past, been strong enough to prevent the Applicant form engaging in both criminal and “serious conduct”.

27. A more elaborate statement of factors said to result in there being no more than a minimal or remote chance of the Applicant again engaging in such conduct is set out in the A’s SFIC at [29]. Those factors are:

    (a)“The Applicant has an Australian partner and two special needs children and desires to be with them in the future.” Given that there is nothing to suggest that this factor was not in play when the Applicant did engage in the relevant conduct, it is not clear why its existence mitigates the risk of him doing again what he did in the past.

    (b)“The Applicant’s relationship with …[Mika] and the children provide strong protective factors against future conduct of the kind identified in section 501(6)(d) of the Act.” Again, given that there is nothing to suggest that this factor was not in play when the Applicant did engage in the relevant conduct, it is not clear why its existence mitigates the risk of him doing again what he did in the past.

    (c)“The Applicant has no history of past offending in New Zealand, he does not have a substantial criminal record under the Act or committed any offences whilst in prison or detention.” While the first statement is incorrect (noting that, as previously mentioned, the Applicant has several convictions in New Zealand), I do not accept that this factor is of any particular relevance to an assessment of the risk of the Applicant engaging in relevant conduct.

    (d)“The Applicant has taken significant positive steps in rehabilitating himself and sought counselling individually and with …[Mika] as a couple. He has sought medical professional help for both his Major Depressive Disorder, Attention Deficit Hyperactivity Disorder and trauma.” I will elaborate later on that part of the proposition dealing with steps in rehabilitation. As for counselling, it is not clear why the Applicant’s engagement with it mitigates the risk of him again doing what he did at a time when he was attending counselling sessions.[93] As for seeking medical help, I note that it is said the Applicant attended a psychologist regularly in the period 2014 to 2019[94]  and has been prescribed medication for depression for a number of years. He does not take medication for ADHD and, as I mentioned earlier, I have not been taken to any direct evidence of him being diagnosed as suffering from it.   

    (e)“The Applicant history of stable employment and has a real prospect that he will gain employment if released.” The material before me suggests that, as contended, the Applicant has had stable employment while in Australia. It is not clear why the prospect of employment on release from detention, however, mitigates the risk of him doing again what he did previously despite stable employment.

    (f)“He has been imprisoned and in immigration detention for a period of time, which has constrained his liberty, separated him from his partner and children, and he has paid a heavy price for the offending conduct in question. In light of this, he would not risk doing anything which might cause him to be incarcerated or detained again. He has been given a salutary lesson about the prospects of removal from Australia should he again offence, has acknowledged his personal responsibility for the offending and has expressed remorse, and has taken active steps to address the issues that had confronted him. The deterrent effect of his criminal sentences to date and detainment both act as significant disincentives to the Applicant’s reoffending and are likely to contain this risk.” I deal with this factor later in terms of the Applicant’s remorse and insight and his awareness of the risks to himself and his presence in Australia should he again engage in the relevant conduct.

    (g)“The Applicant has strong support from his family. He presents with insight into the wrongfulness of his offending and has a greater appreciation now, then he did previously, of the serious repercussions should be caught reoffending in the future.” Again, I deal with this factor later in terms of family support, the Applicant’s remorse and insight, and his awareness of the risks to himself and his presence in Australia should he again engage in the relevant conduct.

    [93] Noting that the Applicant attended counselling sessions with a psychologist in the 2014 to 2019 period.

    [94] G3,286; G3,194

28. The Applicant is said to be a low risk of engaging in conduct of concern because of his willingness to participate in various behavioural improvement and rehabilitation programs.[95] The Applicant’s participation in such programs in the past, however, has not proved to be particularly fruitful. In this regard:

    (a)By 2014 the Applicant had completed a men’s behaviour program and a drug and alcohol programme[96] (which he apparently thought were full of crap).[97]

    (b)In September 2016 the Applicant was said to be keen to start a rehabilitation program while noting that he had started such a program twice before.[98]

    (c)By March 2020 it was noted that the Applicant had had four rehabilitation admissions.[99]

    (d)According to the Applicant, he has completed “heaps of courses”, including anger management courses.[100] He completed a men’s behaviour program in each of 2018 and 2019 and had seen a drug and alcohol counsellor for a couple of months (which would appear to have been the months of September and October 2017[101]). He says he wants to do more courses but that they are unavailable due to COVID-19 restrictions.[102]

    [95] G3;216-217

    [96] G3,275

    [97] G3,276

    [98] G3,284

    [99] G3,286

    [100] Exhibit A1 [31-32]

    [101] Exhibit R2,293

    [102] G3,193

29. Indeed, it is acknowledged on behalf of the Applicant that he has had multiple opportunities to reform but has not done so.[103]  The Applicant is said to have made “…many attempts to rehabilitate himself in the community over a long-term duration in Australia and has followed the court’s orders in undertaking a number of rehabilitation programs and treatment in prison and the community.”[104]

    [103] A’s SFIC [44]

    [104] G3,216

30. This time is said to be different because of the Applicant’s insight into the triggers for his conduct and because of the deterrent effect of the consequences of losing his visa.[105]

    [105] A’s SFIC [44].

31. As for insight, I see it as coupled with remorse. While a person truly remorseful for certain conduct might be less likely to repeat it this only applies where the person has insight into the conduct concerned. In this matter, I accept that the Applicant is remorseful about the situation he, Mika and their children are in. Mika states that the Applicant calls her every day to apologise.[106] I do not consider this remorse to be a material risk mitigation factor, however, as the Applicant’s insight into what he did seems limited.

    [106] Exhibit A3 [37].

32. The Applicant characterises his intervention order contraventions in a way to suggest that they occurred simply because he wanted to assist his family.[107] In such a characterisation his abusive and threatening behaviour as the frequent catalyst for the police becoming involved and charging him with those contraventions is ignored. Similarly, he characterises his community correction order breaches in a way which suggests that they occurred because of unintended scheduling difficulties.[108] At least in terms of an order imposed in or around December 2017, he was in fact assessed as having demonstrated poor compliance and engagement across all conditions of the order.[109]

    [107] Exhibit A1 [17], this is also reflected in A’s SFIC [22], see also the explanation offered by the Applicant for his conduct at G3,192.

    [108] Exhibit A1 [18]

    [109] Exhibit R2, 100

33. As for the deterrent effect of imprisonment and, in particular, losing a visa (and the risk that entails to his ongoing presence in Australia), I see this as having a potentially significant ameliorating effect on the level of risk of the Applicant again engaging in relevant conduct. The Applicant is very much alive to the potential consequences for his right to remain in Australia were he to be released into the community and continue to engage in criminal or other serious conduct. As such, he may well hesitate before making a conscious decision to, say, re-offend. The difficulty with this, however, is that this ameliorating effect is likely only to subsist when the Applicant is able rationally to consider the consequences of certain conduct. When using illicit substances, however, it is not clear to me that the Applicant remains rational. His family are said to “…speak of him being a completely different person when he consumed alcohol or other intoxicating substances…”.[110] Conduct of the type outlined when discussing the circumstances of the Applicant’s offending is not that of a person acting rationally. Accordingly, as I see it, the deterrent effect of, say, cancellation of a visa is unlikely to be of significance if the Applicant, when free in the community, relapses again into drug use. As outlined earlier, I believe there to be a significant risk that he would.

    [110] A’s SFIC [75]

1. Mika, her brother and nephew are very supportive of the Applicant. All of them, both in written statements and in oral evidence before the Tribunal, made clear their very strong desire that the Applicant be allowed to remain in Australia. On the material before me, however, their support for the Applicant would not appear to be new. This raises the issue as to why their ongoing support now should be any more successful in mitigating the risk of the Applicant engaging in poor conduct than it has been in the past.

2. One new aspect of the family support being afforded to the Applicant is what is characterised in the material as a “safety plan”. While the precise details of the plan are unclear, it would appear from the oral evidence of Mika’s brother and nephew to entail offering accommodation to the Applicant, and a preparedness to discuss (or, at least, listen to) his concerns, if and when he feels temporary separation from Mika is necessary to avoid a situation where he might again engage in the type of problematic conduct he has engaged in in the past.

3. While Mika’s family’s efforts to pro-actively address concerns that might arise if the Applicant is permitted to remain in Australia are admirable, they are untested. As such, I am unable to find that they would be likely to affect materially the extent of the risk of the Applicant again engaging in the type of conduct of concern.

   Risk of criminal conduct

4. I turn now to address the risk that the Applicant would engage in criminal conduct were he allowed to remain in Australia (being conduct of the type specified in 501(6)(d) (i) of the Act).

5. I find that there is such a risk. As I see it, the risk is more than minimal or remote; it is significant.

6. My reasons for this finding are those upon which I relied in finding that the Applicant was a significant risk of harassing or intimidating Mika. In this context, however, I need address an additional submission made on the Applicant’s behalf.

7. It is submitted that the Applicant’s risk of engaging in criminal conduct is no more than minimal or remote because either there will not in the future be intervention orders in place or, insofar as there are, their terms will be permissive of the type of conduct that, under past orders, would have constituted contraventions.

8. I do not accept that submission.

9. First, while it is true that the Applicant’s past offending principally comprised intervention order contraventions constituted by the Applicant’s physical presence in the family home, it is clear from his history of offending that this has not always been the case and he has been convicted of a variety of charges. I note, for example, multiple convictions for having breached a community corrections order and that such an order will be in place for two years, if and when the Applicant is released from detention.

10. Second, the proposition that there will be no future intervention orders is based on speculation that Mika will not (and no one else, including the police, will) seek them. Mika is clearly currently very supportive of the Applicant being with her and remaining in Australia. Mika’s attitude may well change (and any reluctance she might now have to seek an intervention order dissipate) if, for example, the risk (which I believe to be significant) of the Applicant again engaging in abusive and threatening conduct on release into the community were to crystallise.

11. Similarly, the proposition that any future intervention orders will be permissive of the Applicant’s physical presence in the family home is again speculative. The terms of any such orders are likely to be a function of the conduct that precipitated their making. If that conduct were, for example, to be abusive and threatening, one might well imagine that the conditions of any order would place physical presence restrictions on the Applicant.

    Result of conclusion that the Applicant does not pass character test

12. In A’s SFIC it is submitted that, should the Applicant be considered to not pass the character test, “the Tribunal should nonetheless remit this matter to the Department with a direction that the cancellation of the visa should not be revoke on that basis.”[111] I do not understand this submission.

    [111] A’s SFIC [3]

13. As stated earlier, the task or role of the Tribunal is clear. Having found that the Applicant does not pass the character test set out in the Act it becomes necessary to decide whether there is another reason why the visa cancellation decision should be revoked.

    IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

14. I am satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.

15. In arriving at that state of satisfaction I have endeavoured to comply with Direction 79. Compliance with that Direction requires that I consider whether to revoke the decision to cancel the Applicant’s visa “given the specific circumstances of the case.”[112] It also requires that I take certain considerations (where relevant)[113] into account, informed by certain principles.[114]

    [112] Direction 79, cl 6.1(3) and 13(1).

    [113] Direction 79, cl 8(1).

    [114] Direction 79, cl 7(1).

16. Those principles are:[115]

    [115] Direction 79, cl 6.3.

    6.3      Principles

    (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 expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (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.

17. These principles not only inform the process by which I take the relevant considerations into account, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[116]

    [116] Direction 79, cl6.2(3).

18. I turn now to the considerations which I am required by Direction 79 to take into account.

    PART C CONSIDERATIONS - OVERVIEW

19. The relevant considerations are those set out in Part C of Direction 79.

20. Part C is divided into primary considerations and other considerations. 

21. The primary considerations are protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia, and expectations of the Australian community.[117] 

    [117] Direction 79, cl13(2).

22. The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and extent of impediments if removed.[118]

    [118] Direction 79, cl14(1).

23. The primary considerations are generally to be given more weight than the other considerations[119] and one or more primary considerations may outweigh other primary considerations.[120] 

    [119] Direction 79, cl8(4).

    [120] Direction 79, cl8(5).

24. While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration (so that, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations).[121]

    [121] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

    Protection of the Australian community

25. The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[122]

    [122] Direction 79, cl13.1(1).

26. As applied in context, this means that I must have regard to a commitment which encompasses protection of the Australian community from harm as a result of criminal or other serious conduct by the Applicant, a non-citizen.

27. Taking this primary consideration into account requires that regard be had to two subsidiary considerations being, in the circumstances, the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[123]

    [123] Direction 79, cl13.1(2).

28. Before addressing these subsidiary considerations I note that the concept of “serious conduct” is defined in Direction 79 in a way which encompasses conduct which may be considered in the context of the character test under s501(6)(d) of the Act.[124] As such, it encompasses conduct amounting to harassment or intimidation.

    Nature and seriousness of conduct

    [124] Direction 79, Annex B

29. Consideration has been given to the nature of the Applicant’s conduct to date in discussing the history of his offending.

30. As for the seriousness of that conduct it is conceded by the Applicant that Direction 79 requires that I regard it as very serious,[125] and I do so.

    [125] Conceded at the hearing of this proceeding as well as in material lodged with the Tribunal-see G3,211

31. Given the Applicant’s concession I will only briefly mention factors to which I am required by Direction79 to have regard in considering this issue. Before doing so, however, I note but reject a submission made on the Applicant’s behalf concerning the way I should address the nature and seriousness of conduct consideration in the circumstances.

32. It is said that the Applicant’s offending was “not an entirely conscious choice”.[126] The Applicant’s offences “…which are of a type consistent with drug-related behaviours - took place in the context of his addiction problems and undiagnosed MDD and ADHD. As such, the nature and seriousness of the offending  should be read in a context of intergenerational trauma and undiagnosed mental health issues… In light of …[the Applicant’s] mental health issues that were undiagnosed at the breach of the contraventions, we submit that a lower standard of culpability should therefore be attributed to…[the Applicant].”[127]

    [126] A’s SFIC [38]

    [127] G23, 211-212

33. While factors such as these might go to moral culpability, as I see it, none of them operate to affect an assessment of the nature and seriousness of the Applicant’s conduct.

34. I turn now to the factors which Direction 79 requires that I take into account in considering the nature and seriousness of the Applicant’s conduct.

    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.[128]

    [128] Direction 79 cl13.1.1(1)(a).

35. By and large, in terms of the legal description given to them,  the crimes of which the Applicant has been convicted are not what might be characterised as ones of violence, albeit that I do consider that the Applicant did engage in violence in their commission.

    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.[129]

    [129] Direction 79 cl13.1.1(1)(b).

36. The Applicant’s history of offending reveals crimes of a violent nature against a woman, Mika.

37. The concept of “violence” is not one that appears to have been the subject of exhaustive definition.[130] Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.”[131] Hence, an act of violence includes “…acts of intimidation and menaces as well as physical force.”[132]

    [130] R v Butcher [1986] VR 43 at 48

    [131] IBID at 52; see also Breeze v R [1999] QCA 303 at [19] and R v Galas [2007] VSCA 304 at [31]-[32]. In Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305 at [38] it was suggested that violence, in a particular context, required force significantly greater than mere physical contact but this suggestion was couched so a s to exclude “for present purposes threats and intimidation”.

    [132] Director of Public Prosecutions v Perry [2016] VSCA 152 at [40]

38. As I have already concluded, the Applicant’s offending did involve acts of intimidation.

    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious.[133]

    [133] Direction 79 cl13.1.1(1)(c).

39. It has not been contended, and nor does the material before me suggest, that this principle is of relevance in this proceeding.

    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.[134]

    [134] Direction 79 cl13.1.1(1)(d).

40. On behalf of the Applicant it was submitted that the three-month sentence of imprisonment imposed on appeal in 2020 “demonstrates the lower level of relative seriousness “of the Applicant’s conduct”.[135]

    [135] G3,213

41. The imposition of any term of imprisonment, however, reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[136] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[137]

    [136] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].

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

42. Second, while a conviction not accompanied by a sentence of imprisonment or fine might be suggestive of a more benign view of a person’s offending,[138] the sentence imposed in a particular case does not necessarily reflect the view taken as to the seriousness of the offending involved. Other factors come into play, such as matters personal to the offender.[139] In this case, it would seem clear that in sentencing the Applicant in July 2020 Dalziel J very much took into account the Applicant’s status as a non-citizen at risk of losing his visa.

    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.[140]

    [138] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [202].

    [139] Halsbury’s Laws of Australia, 130-17100 to 130-17150. Hence, the application of the Verdins principles-see R v. Verdins [2007] VSCA 102

    [140] Direction 79 cl13.1.1(1)(e).

43. The Applicant’s offending has been frequent, sustained and repetitive, albeit that it does not reveal a trend of increasing seriousness.

    The cumulative effect of repeated offending.[141]

    [141] Direction 79 cl13.1.1(1)(f).

44. Neither party made a substantive submission directed to this particular factor. Nevertheless, as I see it, the sustained and repetitive offending of the Applicant would, cumulatively, have resulted (and clearly did result) in a significant and increasing amount of community resources being consumed.

    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.[142]

    [142] Direction 79 cl13.1.1(1)(g).

45. The Applicant did not disclose his prior criminal convictions in New Zealand. Indeed, it was submitted on his behalf that he had none. In a statement he made in January 2021[143] the Applicant went to some lengths to try and explain that non-disclosure. The gist of the explanation was that he had no recollection of any such convictions.

    [143] Exhibit A2

46. I do not find that non-disclosure to be of material relevance in assessing the nature and seriousness of the Applicant’s conduct. Convictions of a person aged around 15 (as the New Zealand convictions were) do not, to my mind, appear particularly germane to an assessment conducted in relation to the person now aged around 46.

    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).[144]

    [144] Direction 79 cl 13.1.1(1)(h).

47. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.[145]

    [145] Direction 79 cl 13.1.1(1)(i).

48. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    The risk to the Australian community

49. I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community; the risk to the community should the Applicant commit further offences or engage in other serious conduct.

50. In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the Applicant engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[146]

    [146] Direction 79 cl13.1.2(1).

51. As to the nature of harm to individuals should the Applicant commit further offences or engage in other serious conduct, based on his history of offending, it would involve emotional and, possibly, psychological harm being suffered by Mika associated with her being the target of abuse and threats. While Mika has , I have found, been fearful of physical harm on occasion, the Applicant’s history of offending does not reveal a propensity to inflict such harm and the tenor of Mika’s evidence is to the effect that she does not consider there to be a material risk of it.  

52. Emotional and, possibly, psychological harm would also be suffered by the daughter and the son should the Applicant commit further offences or engage in other serious conduct given that the Applicant’s abuse of Mika has, in the past, been in the children’s presence or, I infer, within the range of their hearing in the family home.[147]

    [147] As noted in R’s SFIC- The Fourth Action Plan by the Australian Government to address domestic violence

    (2010 to 2022) indicates that children who witness domestic violence "may experience psychological, behavioural and health issues over the course of their lives as a result. Their wellbeing, development, identity and connection to culture may also be impacted negatively. Children who witness abuse before the age of 15 are also at an increased risk of experiencing intimate partner violence themselves"-(G3, 144);

1. As to the nature of harm to the Australian community should the Applicant commit further offences or engage in other serious conduct, I note that when individual members of the community are harmed, the community is harmed. I also refer to the comments I made earlier in the context of considering the cumulative effect of the Applicant’s repeated offending. It is clear that significant community resources have been deployed in the past to deal with the Applicant’s offending.  

2. As to the likelihood of the Applicant committing further offences or engaging in other serious conduct, on the material before me I am not satisfied that it is unlikely. I am satisfied, however, that the risk of him re-offending or engaging in other serious conduct is significant.

3. I am satisfied that the risk is significant for the reasons for having reached that conclusion outlined earlier in the context of considering whether there was a risk of the Applicant engaging in conduct of the type described in ss501(6)(d)(i) and 501(6)(d)(ii) of the Act.

   Conclusion

4. I have found that the Applicant’s offending has been very serious and that, should he commit further offences or engage in other serious conduct, Mika, the daughter and the son would likely suffer emotional and, possibly, psychological harm and community resources would be lost. 

5. As to the likelihood of him committing further offences or engaging in other serious conduct, I am not satisfied that the risk of it is significant.

6. The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

   THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

7. The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. Indeed, I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.

8. At the hearing of this proceeding the children whose best interests the Tribunal was being asked to take into account were identified as the daughter (aged 12) and the son (aged 11).

9. To the extent I can (given the absence of information about him in the material before me), I also take into account the interests of the grandson (being the son of one of the Applicant’s three adult children in relation to whom the Applicant is said to be estranged). He is understood to be a minor living in Australia.

10. As I understand the Applicant’s submissions, in summary, it is said that revocation of the Applicant’s visa cancellation decision is in the best interests of the daughter and of the son because, by allowing the Applicant to remain physically present in Australia:

    (a)he will not be precluded from (and the children will not be denied the opportunity of him) assisting them directly in meeting their own physical and emotional needs.

    (b)he will not be precluded from (and the children will not be denied the opportunity of him) indirectly assisting them in meeting their own physical and emotional needs through his physical, emotional and financial support of their primary carer, Mika.

    (c)It avoids a risk of the children suffering psychological harm, a risk that is said to exist were the Applicant to be removed from Australia.

11. I accept those submissions.

12. Each of the daughter and the son have more in the way of physical and emotional needs than might ordinarily be expected of children their age. Each of them has significant mental and physical health issues. The daughter has “significant problems with chromosome abnormality, autism spectrum disorder and intellectual disability as well as behavioural issues.”[148] The son has “autism spectrum disorder level 2 severity” and a number of other issues.[149] Each is a participant in the NDIS. On the material before me I find it to be likely that the Applicant would, were he allowed to remain in Australia, seek to assist in meeting those needs directly. He is said by Mika to have always been gentle with the children and to have “gone out of his way to make sure the kids have everything they need.”[150]

    [148] G3,296

    [149] G3,298

    [150] Exhibit A3

13. Mika is currently a sole parent endeavouring (albeit with NDIS assistance) to meet the extensive needs of two children with health issues of sufficient significance as to warrant their participation in the NDIS. The chances of those needs being met would be improved were she to receive additional support. Currently, Mika feels that she cannot cope, has found it really difficult to “keep up” and is in “survival mode”.[151] I note that Mika has several health issues of her own.[152] Grief at losing the physical presence of the person she describes as “the love of her life” could only negatively affect her capacity to meet her children’s needs. By allowing the Applicant to remain in Australia Mika would not be deprived of an opportunity to obtain from the Applicant the additional support she needs (such as physical and emotional support) to continue to care for and meet the needs of the daughter and the son. On the material before me I find it to be likely that the Applicant would seek to provide that support were he allowed to remain in Australia.

    [151] Ibid [47]

    [152] Those issues are said to include back pain arising from spinal disc issues and nerve root compression, as well as depression-G3,310.

14. As for the risk of the daughter and the son suffering psychological harm should the Applicant be removed from Australia I note that this is adverted to by their paediatrician who states that  “the effect of not being able to see their father could cause the children to have significant emotional trauma”.[153]  

    [153] G3, 297

15. I note that it might be said that issues surrounding the interests of the daughter and the son could be addressed if, upon the Applicant’s removal to New Zealand, Mika and the children were to move there. They will not. Mika says she cannot live in New Zealand for reasons which I find to be quite understandable. She has other children and grandchildren in Australia, as well as her elderly father. All the health professionals treating her children and with whom her children would, presumably, have built up some rapport are located in Australia.

16. In taking their best interests into account Direction 79 requires that certain factors be considered, where relevant. To the extent that I have not already done so I do so now.

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

17. The Applicant has had a long-term parental relationship with each of the daughter and son.

18. His evidence (which I accept) is that “…I have been in my children’s lives from day 1 and was the first one to hold them after they were born. I have helped out with the chores at home, shopping, cooking and doing the lawns. Mika and I have shared looking after the children... I share a very special bond with my children… Since I have been in the detention, I have video called them every day and they are  always telling me that they miss me and want me to come home.”

19. The relationship which the Applicant has with his grandson is not parental. I infer that, in fact, he has no relationship with his grandson given that he is estranged from the grandson’s father.

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

20. If the Applicant is allowed to remain in Australia he is likely to play a parental role for some time in the future, in relation to each the daughter and the son (and noting that they are both still quite young).

21. As to the likelihood of that role being positive depends, in part, on whether the Applicant re-offends or again engages in “serious conduct” on release into the community. If he were not to do, I find it to be likely that his role would be positive. If, however, the Applicant were to be released into the community but then, say, start to abuse or threaten Mika in the family home within earshot of the children, whether or not his role would then be positive would depend on an assessment of the effect on the children of that conduct (and how often it occurred) netted off against the effect of any contribution to their welfare the Applicant was then making.

22. In relation to his grandson, the Applicant is unlikely to play a positive parental role in the future. He has not played such a role in the past and, on the material before me, there is no reason to suspect that he will do so in the future.

    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

23. While the material before me suggests that each of the daughter and the son are close to their father, the Applicant, it would seem likely that his past conduct (entailing the offending and “serious conduct”) has had a negative impact on them. Not only is there the direct impact of that conduct (abusing the children’s mother in their presence) but the indirect impact of his inability to assist in meeting their needs by reason of his imprisonment and detention.

24. As for the impact of the Applicant’s likely future conduct, I refer to my comments earlier concerning the likelihood of the Applicant playing a positive parental role.

25. As for the grandson, the Applicant’s past and future conduct is unlikely to have had or have any impact given the Applicant’s estrangement from his father.

    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways

26. I addressed earlier the likely effect of separation when discussing the submissions made by the Applicant.

    Whether there are other persons who already fulfil a parental role in relation to the child

27. Mika fills a parental role in relation to both the daughter and the son.

28. As to the Applicant’s grandson, the material before me does not contain information as to who fulfils a parental role in relation to him.

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

29. According to Mika[154] the “…children miss him terribly and they want their Daddy home. [The son]… has taken one of …[the Applicant’s] pillows into his room and misses him a lot. [The son]…  would say that he wants …[the Applicant] to come home and misses him a lot, and we all then break down. [The son]…  says to me that he feels like half of him is missing.”

    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect

    [154] Exhibit A3 [21]

30. There is no evidence of this before me.

    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct

31. There is no evidence of this before me.

    Conclusion

32. As for the grandson, revocation of the Applicant’s visa cancellation decision would not appear to affect his interests.

33. In relation to each of the daughter and the son, however, my determination is that revocation of the visa cancellation decision made in relation to the Applicant is in her and his best interests.

34. Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

35. The weight I attribute to this consideration is very significant basically for the reasons outlined earlier for having accepted the Applicant’s submissions. In brief, the daughter and the son have needs beyond what might ordinarily be expected of children their age, needs which the Applicant is likely to assist in meeting should he be released into the community, both directly and indirectly (by providing much-needed support to Mika).

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

36. The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.

37. The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[155]

    [155] FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 (FYBR) at [68].

38. In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of the non-citizen.

39. Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred,  this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[156]

    [156] FYBR at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that 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”.

40. In the result:

    “…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”[157]

    [157] FYBR at [101]-[102]

41. As the Applicant has committed what is regarded in Direction 79 as serious crimes, a principle provided for in Direction  79 which informs the process by which I take the relevant considerations into account suggests a deemed expectation of the Australian community that the decision to cancel the Applicant’s visa not be revoked.[158]

    [158] Direction 79, cl6.3(2)

42. Hence, the community expectations consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa. 

43. As recognised in FYBR, however, the weight to be attached to this consideration may vary, depending on what is appropriate in “the particular circumstances of the character assessment”. It is clear that the character assessment to which reference was made in FYBR is one which harks back to Direction 79’s first primary consideration given that it is said to be based on the “commission of an offence or the risk that an offence will be committed”.

44. Hence, in this matter, of relevance to such a character assessment are my conclusions concerning the nature and seriousness of the Applicant’s offending and other serious conduct, and the risk of him re-offending and again engaging in the relevant conduct.

45. As I have said, the Applicant’s offending has been very serious and his risk of re-offending (and of again engaging in other serious conduct) is significant.

46. These conclusions suggest that, in the circumstances of the Applicant’s character assessment, it would be appropriate to accord to the community expectations consideration significant weight.

47. Another process-informing principle provided for in Direction 79 is, however, of relevance to an assessment of weight.

48. In particular, reference is made to the principle which has the length of time a non-citizen has been making a positive contribution to the Australian community as a consideration in the context of determining whether the non-citizen’s visa should be cancelled.[159]

    [159] Direction 79, cl6.3(7)

49. The Applicant has been in Australia for around 16 years. In that time the Applicant has been making a positive contribution to the Australian community. As I stated earlier, I accept that while in Australia he has maintained stable employment in a variety of field.[160] Mika’s relatives speak of the Applicant having a very strong work ethic,[161]as do others.[162]

    [160] The Applicant initially worked as a self employed carpenter, then as a plasterer, then in security and lastly in remedial concrete work-G3,197

    [161] Exhibit A5

    [162] Witness statement of Neil Turner -Exhibit A6

50. This circumstance is suggestive of it being appropriate to accord to the community expectations consideration a reduction in the weight otherwise attributable to it.

    Conclusion

51. The consideration concerning the expectations of the Australian community weighs against a finding that there is another reason to revoke the decision to cancel the Applicant’s visa. It does so to a moderate extent despite the particular circumstances of his character assessment given the ameliorating effect of his long-term positive contribution to the community through stable employment.

    OTHER CONSIDERATIONS

52. The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.

53. Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of international non-refoulement obligations; strength, nature and duration of the Applicant’s ties to Australia; the impact of non-revocation of  the Applicant’s visa on Australian business interests; the impact of non-revocation of the Applicant’s visa on victims and the extent of impediments if the Applicant is removed from Australia. This list is not exhaustive, and the considerations need only be taken into account where relevant.

    International non-refoulement obligations

54. The Applicant’s circumstances are not such as to result in Australia’s international                non-refoulement obligations being engaged. 

55. As such, this consideration neither weighs in favour or against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa. Hence, this consideration weighs neutrally.

    Strength, nature and duration of ties

56. In the context of this consideration, Direction 79 requires that regard be had to two further considerations.

    a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

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

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

    b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Applicant has resided in Australia for around 16 years, having arrived here aged around 29. While he started offending within three years of his arrival, for the reasons expressed earlier, I find that he has made a positive contribution to the Australian community for much of that time.

2. He has strong family links with Australian citizens. He has the daughter and the son in Australia and is clearly close to them. His ties to Mika,[163] her brother,[164] her nephew[165] and her sister[166] are significant as reflected in the statements of support of the Applicant that each of them provided in this proceeding.  

   [163] Exhibit A3

   [164] Exhibit A4

   [165] Exhibit A5

   [166] G3,317

3. As for social links beyond the family, they would not appear to be particularly significant albeit that the material before me includes supportive statements from two non-family associates.[167] 

   [167] Exhibits A6, A7-there is  third supportive statement but it is from someone who has only spoken to the Applicant twice and not met him-Exhibit A8-Moreover, it is unclear whether one such statement has been provided by a person who might not be a citizen the nature of whose right to reside in Australia is unclear.

4. As for the effect of non-revocation on the Applicant’s immediate family in Australia, in relation to the daughter and the son, I refer to my discussion of the consideration concerning the best interests of minor children in Australia.

5. In relation to Mika, I also refer to that discussion and, in particular, to that aspect of it concerning her need for support in the context of raising two young children with special needs.

6. In light of the foregoing, the strength, nature and duration of ties consideration weighs in favour of revocation of the Applicant’s visa cancellation decision to a significant extent.

   Impact on Australian business interests

7. Direction 79 requires that I consider the impact on Australian business interests if the Applicant’s visa cancellation decision is not revoked, but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

8. Given the absence of material before me of relevance to this consideration, it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa. 

   Impact on victims

9. Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel the Applicant’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and the Applicant has been afforded procedural fairness.

10. The Applicant submits that this consideration weighs in favour of revocation of the decision to cancel his visa. Put simply, it is said that the principal victim of the Applicant’s offending is Mika and that the impact of a decision not to revoke the decision to cancel the Applicant’s  visa would be adverse to her and to members of her family (the daughter and the son).

11. I reject that submission.

12. As I construe Direction 79, the reference to “victims” is a reference to persons in their capacity as such. The impact of a decision not to revoke the Applicant’s visa cancellation decision might be adverse to Mika but not in her capacity as a victim of the Applicant’s offending but in her capacity as the de-facto spouse of the Applicant and the mother of two of his children.

13. That adverse impact would be taken into account twice were the Applicant’s submission accepted; in the context of both the impact on victims consideration and the strength nature and duration of ties consideration. It would be “double counted”.

14. Accordingly, absent information before me of relevance to this consideration (in particular, information about the impact of a decision not to revoke the visa cancellation decision on Mika, in her capacity as a victim of the Applicant’s offending), this consideration neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa.

    Extent of impediments if removed

15. In the circumstances, Direction 79 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.

16. It is submitted[168] on behalf of the Applicant that he would face significant impediments if removed from Australia to New Zealand for a number of reasons.

    [168] A’s SFIC [91]

17. First, it is said that in New Zealand he would face a lack of social and economic support.

18. In terms of governmental and non-governmental organisation economic and social support, there is no material before me suggestive of any lack in New Zealand, either in an absolute sense or relative to that available in Australia. 

19. In terms of familial economic and social support, the Applicant’s mother and several siblings live in New Zealand, albeit that the Applicant asserts that he is estranged from all family members in New Zealand.[169]

    [169] G3,241

20. Second, it is said that in New Zealand the Applicant will be unable to re-establish himself in a home or in a job in a timely fashion.

21. There is no material before me suggestive of the Applicant being unable to access support in terms of accommodation and benefits generally available to other citizens of New Zealand.

22. I accept that in a COVID-19 context and little in the way of business contacts it may be difficult for the Applicant to find employment in New Zealand in a timely fashion. I do not accept, however, that this constitutes a material impediment to his removal to New Zealand. The Applicant has, for a long period, been able to obtain stable employment in Australia. He is said to have a strong work ethic and clearly (given the variety of his occupations in Australia) has a broad range of employable skills. 

23. Third, it is said that the in New Zealand the Applicant’s health would deteriorate “…to a point where the consequences would be fatal.”[170]

    [170] See also G3, 197 where the Applicant states that “In light of my mental health conditions I do not believe that I will get better if I return to New Zealand. I believe that being separated from Mika and the children would take a big toll on my mental health.”

24. There is no probative material before me supportive of the suggestion that the Applicant would die were he to be removed to New Zealand. I was not taken to any probative material suggesting that the Applicant had suicidal ideation or would have it were he to be removed to New Zealand. Nor was I taken to any probative material suggesting that the Applicant would be unable to access in New Zealand medical treatment for his diagnosed depression.

25. I accept that he has been diagnosed with depression and that a forced return to New Zealand may have an adverse effect on his mental health. I have no reason to believe, however, that medical treatment that would be available to the Applicant in New Zealand would be unable to deal with the Applicant’s depression.

    Conclusion

26. I find that this consideration as to impediments to be faced by the Applicant in establishing himself and maintaining basic living standards on removal to New Zealand weighs in favour of a conclusion that there is another reason to revoke the decision to cancel his visa but only to a slight extent.

    CONCLUSION AS TO OTHER REASON FOR REVOCATION

27. In considering whether there is another reason for revocation of the decision to cancel the Applicant’s visa, my conclusions in relation to the various considerations to which Direction 79 requires that I have regard, do not point in a uniform direction.

28. In particular, in the circumstances of this matter:

    (a)  The primary consideration as to protection of the Australian community from criminal or other serious conduct weighs heavily in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision.

    (b)  The primary consideration as to expectations of the Australian community offers moderate support for such a conclusion.

    (c)   The primary consideration as to the best interests of minor children in Australia supports the contrary conclusion. It weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa to a very significant extent.

    (d)  The other consideration concerning the strength, nature and duration of the Applicant’s ties to Australia also weighs in favour of a conclusion that there is another reason to revoke the visa cancellation decision to a significant extent.

    (e)  Lastly, the other consideration concerning the extent of impediments if removed to New Zealand also weighs in favour of a conclusion that there is another reason to revoke the visa cancellation decision, but only to a slight extent.

29. I find that the overall balance of these considerations favours a decision to revoke the Applicant’s visa cancellation decision.

30. While two of the three primary considerations favour a contrary conclusion, in the circumstances, they are overborne by a combination of the very significant weight I have attributed to the interests of children consideration and the significant weight attributed to the Applicant’s ties to Australia consideration.

    DECISION 

31. As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.

32. I am not satisfied that the Applicant passes the character test.

33. I am, however, satisfied that that there is another reason why the decision to cancel his visa should be revoked.

34. For these reasons, the Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel the Applicant’s visa.  

239.    I certify that the preceding 238 (two hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

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

Associate

Dated: 11 February 2021

Date of hearing:	3 February 2021
Counsel for the Applicant:	Angel Aleksov
Solicitors for the Applicant:	WLW Migration Lawyers
Advocate for the Respondent:	Deborah Mak
Solicitors for the Respondent:	Clayton Utz