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

Asomua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5425 (17 December 2019)
Division:GENERAL DIVISION
File Numbers: 2019/6699
Re:Mose Avia Asomua
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date: 17 December 2019
Place:Melbourne

The decision under review is affirmed.
...............................[sgd].........................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under section 501CA – property offences – offences against the person – breaches of apprehended violence order – whether mandatory cancellation should be revoked – Ministerial Direction 79 – primary considerations – other considerations – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Appeals Tribunal Regulations 2015
Migration Act 1958
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 20
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION

This application is an expedited review of a decision made by a delegate of the respondent dated 4 October 2019 not to revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa (the “visa”).
The visa had been cancelled mandatorily under section 501(3A) of the Migration Act 1958 (the “Act”) on the basis of the applicant’s criminal convictions and subsequent term of imprisonment exceeding 12 months.
The applicant sought review of the decision by application to the Tribunal on 17 October 2019.
The matter was heard on Thursday, 12 December 2019. The respondent was represented by Mr Keith Sypott, a lawyer with the Australian Government Solicitor. The applicant was unrepresented.
Prior to the hearing the respondent submitted that the application be dismissed under section 69C of the Administrative Appeals Tribunal Act 1975 for a failure to pay the prescribed application fee. The applicant had not paid the prescribed fee of $100 at the commencement of hearing. The respondent submitted that the wording of section 69C clearly infers a discretion on the part of the Tribunal in deciding whether or not to dismiss in such circumstances and that it should exercise that discretion in favour of dismissal in the “interests of proper administration”. Section 69C(1) states that:
The Tribunal may dismiss an application to the Tribunal if:
(a)regulations under section 70 prescribe a fee to be payable in respect of the application; and
(b)the fee has not been paid by the time worked out under regulations under section 70.
Regulation 24 of the Administrative Appeals Tribunal Regulations 2015 provides a grace period of six weeks for payment of the prescribed fee. Having regard to the date of the application the grace period for payment of the prescribed fee concluded on 28 November 2019. The Tribunal accepts that the wording of the section 69C infers a discretion on the part of the Tribunal in deciding whether or not to dismiss an application in such circumstances. This is reinforced by the wording of regulation 24 itself which also includes language that infers discretion providing that “the Tribunal is not required to deal with the application unless, and until, the fees paid”. While the Tribunal accepts that proper administration dictates that the exercise of a discretion to proceed with an application in the absence of payment of a prescribed fee should be used very reluctantly and only in exceptional circumstances, it is satisfied that such circumstances exist in the present case. In reaching this conclusion the Tribunal notes that the applicant is currently in detention and has had practical difficulties in accessing the funds, the bulk of the costs to be incurred by the Tribunal and the respondent in proceeding with the hearing have already been incurred and the nature of the application before the Tribunal has particularly serious and potentially permanent consequences for the applicant. For these reasons, the Tribunal has decided to proceed with the hearing and determine the matter.
The applicant did not lodge with the Tribunal or serve on the respondent any materials in support of his application. This was despite having been reminded of the opportunity to do so on multiple occasions prior to the hearing itself and where the implications of section 500(6H) and (6J) were explained to the applicant. Section 500(6H) provides that the Tribunal must not have regard to any information presented orally in support of an application for review unless the information has been provided in a written statement to the Minister at least two business days before the hearing. Section 500 (6J) is a similar provision that relates to documents in support of an application. The provisions are commonly referred to collectively as the “two-day rule”.
On each occasion that the applicant had been reminded of the implications of the two-day rule he had made representations to the Tribunal of his intention to provide “statements” in support of his application but then failed to do so. The Tribunal considered the potential for a further adjournment in order to facilitate the provision of information in support of the applicant’s case but decided against that course because it had no confidence that the applicant would actually provide any information given that he had failed to do so on each occasion previously.
The Tribunal proceeded with the hearing in a manner consistent with the reasoning in Uelese v Minister for Immigration and Border Protection [2015] HCA 15. Uelese is authority for the proposition that sections 500(6H) and (6J) do not prevent the Tribunal from having regard to evidence presented by the applicant in response to questions put by the lawyer for the respondent or the Tribunal itself. Both the lawyer for the respondent and the Tribunal itself asked questions of the applicant based on the materials that were otherwise before the Tribunal. Those materials included the applicant’s personal circumstances form which he had previously provided to the respondent as part of his revocation request. The applicant gave oral evidence in response to the questions put and also made brief submissions to the Tribunal at the conclusion of the hearing.
BACKGROUND
The following background information is drawn from the materials before the Tribunal as well as the respondent’s Statement of Facts, Issues and Contentions and the applicant’s oral evidence. This background information was not in dispute at the hearing and is accepted by the Tribunal.
The applicant is a 25-year-old dual citizen of Samoa and New Zealand. He was born and raised in Samoa before spending a brief period of time in New Zealand. He migrated to Australia with his brother and sister on 28 November 2009 at the age of 15. He has lived in Australia since that time other than a brief trip back to Samoa in 2012. The applicant’s parents, siblings, aunt and uncle and cousins all live in Australia, as do a number of wider family members with whom he maintains no contact.
The applicant completed his secondary schooling in New Zealand up to year 11 and then repeated years 10 and 11 in Australia. The applicant then took up a variety of employment including working in a chicken factory, as a farm hand and also briefly as a shearer.
The applicant was previously in a de facto relationship with his former partner, BB. He met BB in around 2015. Together they have a daughter, MA, who is currently two years old.
The applicant commenced using drugs in around 2013 and then subsequently developed an addiction to methamphetamine or “Ice” in around 2015. At some point during the intervening period the applicant became estranged from his family having been asked by his parents to leave home due to his anti-social behaviour. As a consequence his lived for a period on the streets.
The applicant has a significant criminal record. Details of his record are set out in the Criminal History Check dated 8 November 2018 which was included in the materials before the Tribunal. The applicant does not dispute the accuracy of the Criminal History Check although he did dispute some details relating to his offending which will be dealt with further below.
In total the applicant has committed 18 offences since his arrival in Australia, with his first offence having been committed in June 2011. The applicant’s offending can be broadly categorised into three types. First, offending involving property including breaking and entering, dishonestly obtaining a financial advantage by deception and larceny. Second, offences against the person including assault occasioning actual bodily harm, stalking and intimidating a person with intent to cause physical or mental harm and common assault. The third category involves multiple breaches of an apprehended violence order (“AVO”). Most of the second and all of the third categories of offending involve offences against his former partner.
The applicant has received a number of substantive sentences including a sentence for 18 months imprisonment with a non-parole period of six months and 15 days in December 2015 as a result of a conviction of breaking and entering and committing a serious indictable offence (larceny) in circumstances of aggravation. In January 2016 the applicant was sentenced to 10 months imprisonment with a non-parole period of five months for a conviction of assault occasioning actual bodily harm. His most recent offence resulted in a conviction in September 2018 for common assault and contravening a prohibition or restriction in an AVO for which he was sentenced to 13 months imprisonment with a non-parole period of seven months. It was following this most recent conviction that the applicant’s visa was cancelled.
ISSUE
The Tribunal is satisfied that the applicant does not pass the character test under section 501(6)(a) of the Act as a result of having a substantial criminal record.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the cancellation decision, having regard to all the relevant considerations, including those set out in Part C of Direction No. 79, which was made under section 499 of the Act on 20 December 2018 (the “Direction”).
CONTENTIONS AND CONSIDERATION
The Preamble to the Direction specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Direction provides that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
Primary Considerations
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction states that decision-makers should give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the risk to the Australian community, the Direction provides that the Tribunal must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The respondent contended that the applicant has a lengthy criminal record which includes offending involving extreme violence, domestic violence and violence against women and should therefore be viewed as very serious.
The Tribunal accepts this contention. While the Tribunal views the applicant’s property offences as involving some serious elements, it is the applicant’s offences against the person that the Tribunal finds most troubling. They are unquestionably extremely violent, and involve offending against the applicant’s former partner in a domestic setting. In the view of the Tribunal the applicant’s offending also involves a trend of increasing seriousness.
The applicant’s conviction on 14 January 2016 for assault occasioning actual bodily harm involved particularly serious violence. In that offence the applicant entered a house uninvited and attempted to stab his victim, who was located in the house, with a fork. He also placed his arm around the victim’s neck and punched the victim in the head. In the course of giving his evidence to the Tribunal the applicant explained that he had attended the house at which the victim was located in order to collect a debt that was owed by the victim to a third party. It became apparent in the course of the applicant’s evidence that he had from time to time been involved in collecting debts on behalf of third parties. He told the Tribunal that he sometimes threatened people for the purpose of obtaining money in this context.
The applicant admitted to the conviction and to the essential elements of the offence although he did question some of the specific details of the offending as described in the sentencing remarks.
The Tribunal is mindful of the fact that it would be inappropriate for it to look behind the convictions or the essential evidence on which the convictions were based, however, it accepts that it is open to the applicant to provide evidence in relation to the context of the offending.[2]
[2] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
In the view of the Tribunal, in giving evidence in relation to this offence the applicant sought to downplay the impact of his violence telling the tribunal that he did not hit the victim in the head and describing the injuries to the victim as involving some “scratches”. The Tribunal rejects the applicant’s evidence in this regard. The Tribunal found the applicant’s denial of some details of his offending entirely unpersuasive and prefers to rely on the details of the offending included in the Sentencing remarks. It is clear from the sentencing remarks that the injuries to the victim were serious. The sentencing Magistrate described the offending as follows:
the accused yelled at the victim “Do you want me to stab you with this fork?” and swung the fork towards the side of the victim’s neck. The victim grabbed the accused’s hands - started yelling to “Go away, you’re being a fool.” Further, the accused walked towards the victim and yelled “Do you Fuckin’ want to have a go?” and he raised his arm in a fist and punched the victim to the right side of his mouth. As a result of the punch, the victim fell to the ground. While he was on the ground, the accused placed his arm around the victim’s neck from behind in a fashion similar to a headlock and started squeezing it tightly. The victim was still able to breathe.
The accused punched the victim about three to four times to the head and the victim felt pain and dizziness. The accused released his grip on the victim stood up and walked away. He was then pushed in the back by the accused and he fell over two chairs. He landed with the side of his chest landing onto a chair. The accused further walked over to him and placed his hand around his throat and then punched him a further two to three times, hitting him in the left and right cheek.
… The result of the assault, the victim sustained a cut to his lip that bled and he had super glued - he had red marks to his rib cage and a bleeding ear where his earing had been and that was pulled out during the altercation. It presents as a serious instance of violence. It was a prolonged assault against the victim in which he was punched numerous times, his throat was squeezed and despite moving away and removing himself from the accused, the accused pursued after him and continued the assault.

Of even more concern to the Tribunal was the applicant’s conviction for common assault and contravening a prohibition or restriction in an AVO on 26 September 2018. At the time of this offence, which appears to have occurred sometime before 22 August 2018, the applicant was already the subject of AVO as a result of an earlier domestic violence incident in which he had threatened his former partner. The applicant engaged in verbal argument with BB before grabbing her by the hair, swinging her around and causing BB’s head to collide with a wall. The offending occurred in front of the applicant and victim’s 11-month-old child, MA. The sentencing Magistrate described the offences as follows:
… they are at the upper end of objective seriousness and they are at the other end because when I read the facts it was a continual sustained ongoing attack on the mother of your child in the presence of your 11 month old child. She tells you she could not afford to feed you and your daughter - she could not afford to feed you.
It was a verbal argument that commenced, you then became angry, you grabbed her by the head with handfuls of hair, you pulled her around by the hair, then her head collided with parts of the wall. He then threw her over the arm of the lounge, you then struck the victim in the head with closed fists and she kept yelling out “Stop it, Moses, stop”, [MA], the 11 months old is watching. You did not stop and in fact at some stage you said to her, “See, look at that big fucking hole in the wall now, look what you made me do”. Pathetic behaviour, absolute pathetic behaviour.
The applicant accepted the essential facts of the offending as described by the sentencing Magistrate. When asked why he did it, the applicant told the Tribunal “drugs”. In addition, there was an earlier domestic violence offence where the applicant had threatened to kick his former partner’s teeth down her throat and approached the lounge she was sitting on and punched it 10 times approximately five centimetres from her head. When describing the incident the applicant told the Tribunal that he accepted that his partner had been very scared of him at that time. That offence also occurred in front of their young daughter.
The Tribunal is satisfied that by any objective measure the applicant’s offending is very serious in nature, particularly given the extreme violence involved in some of his offending and also the fact that some of his offending was committed in the presence of his young daughter. Further, the Tribunal is satisfied that if offending of that kind were to be repeated that it has the potential to cause very significant physical and psychological harm to members of the Australian community including potentially members of the applicant’s family.
In relation to the risk of re-offending the Tribunal is at somewhat of a disadvantage due to the absence of any evidence from a treating medical practitioner in relation to underlying causes of the applicant’s offending.
The Tribunal accepts that some of the applicant’s lower level offending was contributed to, in part, by the fact that he had fallen in with the wrong crowd and also that he had subsequently become estranged from the stabilising influence of his family and had become homeless.
The Tribunal is satisfied that the applicant’s lower level offending also reflects the general disregard that the applicant has displayed for the law. When asked about his earlier break and enter offences the applicant stated “it was fun until we got caught” and “we were drunk… It was fun… I drank a lot.” The applicant’s offending also includes two driving offences for unlicensed driving. When asked why he did it the applicant stated “I thought I would never get caught”.
However, having regard to the evidence before it the Tribunal is satisfied that the two most significant contributing factors to the applicant’s more serious offending are the difficulties he appears to have in appropriately managing feelings of anger and stress and also his history of drug addiction.
There is no question in the mind of the Tribunal that a significant proportion of the applicant’s offending involved a violent element. This is particularly so in respect of his assault offences including the assault of his former partner. The Tribunal is satisfied that the offending demonstrates that the applicant has had an issue with managing his behaviour when angry or in times of stress.
The applicant also told the Tribunal that he had been involved in violence during his time living on the streets and that he had on a number of occasions threatened violence for the purpose of obtaining money owed to third parties. He told the Tribunal he did this as a way of building his reputation on the streets.
The applicant also told the Tribunal that he been involved in a significant number of fights while in prison and that had he had been a member of a gang where he had sometimes been relied on for “protection”. When asked details in relation to one particular fight in prison that had resulted in charges being brought against him the applicant indicated that he was unable to recall the details of the fight because he had “lots of fights” in prison. He also stated that he found it difficult to remember some details because of memory loss as a consequence of being hit in the head number of times.
The Tribunal is also satisfied that the applicant has had a history of issues associated with alcohol use as well as drug addiction. The applicant admitted that he had a history of drinking too much during his teenage years and subsequently developed a drug addiction that had caused him to behave in ways he was not proud of. He told the Tribunal that he had previously been a frequent user of marijuana and subsequently had become addicted to methamphetamine or “Ice”. He told the Tribunal that he had started using Ice in about 2015. He said he “liked it and wanted to do it again and again until I hit rock bottom”.
The respondent contended that the applicant’s property offending and acts of extreme violence are consistent with a serious drug addiction, and more specifically, an addiction to Ice.
It is also apparent from the sentencing remarks of the various sentencing Magistrates and sentencing Judge that they viewed the applicant’s drug use to be a significant underlying cause of the applicant’s offending.
The respondent also contends that observations made in a pre-sentence report prepared for the purpose of the applicant’s most recent court appearance also identifies difficulty the applicant has in managing feelings of anger and stress as being a significant contributing factor in his offending. In the sentencing remarks for that offending the sentencing Magistrate makes the following comments in respect of the Community Corrections report:
...It says, “In relation to his criminal history he has been physically reactive behaviour when he faces stressors in his life” so every time there is some sort of stress you behave in this fashion where you seem to normalise violence and domestic violence as the standard, and you acknowledge that methamphetamine has often made you act outside your normal moral boundaries.
In the course of giving his evidence, the applicant conceded that he had previously had great difficulty in managing feelings of anger and stress.
In his evidence the applicant told the Tribunal that “all relationships have violence… This is not the worst… Others do worse”. This is of particular concern to the Tribunal and appears to reinforce the observations in the Community Corrections report. When pressed on the point the applicant appeared to backtrack somewhat and told the Tribunal that engaging in violence was not the right way to behave and that he regretted his offending, in particular his offending against his former partner and doing so in front of his young child.
The applicant told the Tribunal that he had been exposed to considerable levels of domestic violence as a young child and that his uncle in particular had engaged in serious domestic violence on a frequent basis when drunk. When asked whether he believed he had learnt violent behaviours from his uncle the applicant said that he believed he had although he went on to say that he does not believe it is okay to behave in that way.
The respondent contended that despite having been put on notice in relation to his issues with drug addiction and managing aggression and stress, the applicant has not taken reasonable steps to address his underlying issues.
The respondent noted that the various sentencing Magistrates and sentencing Judge had made reference to the underlying causes of the applicant’s offending including his drug taking and issues with aggression and stress and yet notwithstanding those comments the applicant appears not to have made any substantive efforts to obtain counselling or undertake courses addressing those concerns.
In the sentencing remarks for the applicant’s most recent conviction the sentencing Magistrate stated that:
The pre-sentence report does not paint a good picture of you either. It says, during supervision you have come in contact with Community Corrections in the past and has been unwilling or unable to address the identified substance abuse issues. Clearly from this report ice is your problem.
… In relation to your attitude to behaving to your offending, you said you weren’t proud of your offending behaviour, you acknowledged using illicit drugs on a daily basis, you accept full responsibility for your actions and the good thing for you is that you did not attempt to justify minimise the behaviour in any way, so you need some real guidance in the community and for that reason it says that you are medium to high risk of offending because of all the problems you have.
The applicant told the Tribunal that he did not consider this assessment of being a medium to high risk of offending to be a fair assessment of his risk but was not specific as to the basis of his objection.
The respondent noted also the failure of the applicant to undertake the EQUIPS Program despite having previously requested the opportunity to do so. The EQUIPS Program is a series of therapeutic programs overseen by Corrections Services NSW with the goal of reducing risk in “medium to high risk offenders”. When asked by the lawyer for the respondent why he had not undertaken the course the applicant stated that he “couldn’t be bothered” and “was too lazy”.
During the course of his evidence the applicant told the Tribunal that he had seen a psychologist made available to him through the prison system and had discussed his offending with them. He told the Tribunal that they had confirmed to him that he may be suffering some form of post-traumatic stress disorder and that they recommended he undergo further counselling or courses in respect of those issues. The applicant told the Tribunal he had not undertaken any such counselling or courses.
When asked by the Tribunal what trauma he’d been exposed to in his life he told the Tribunal that his early childhood was traumatic and, in particular, his exposure to domestic violence by his uncle.
While the respondent conceded that the applicant had not engaged in any drug taking during his time in prison or detention the respondent noted that the applicant had admitted that he had last used drugs just prior to going to prison and that therefore his drug free status has not been tested outside of the prison/detention environment. Again the respondent contended that the fact that the applicant had not engaged in any treatment or undertaken any courses of any kind in respect of his previous drug addiction puts him at a higher risk of having drug issues again in the future.
In the course of giving his evidence the applicant told the Tribunal that he had previously used drugs to deal with stress and while he conceded that he would again have stress in his life in the future he told the Tribunal that he would not use drugs again and not engage in any violent behaviour towards anyone because “my past is my past” and “I am a changed man”. The applicant told the Tribunal that he wants to find employment and make a better life for himself and his daughter and be a better example to his siblings.
The applicant told the Tribunal that he now recognises that the way he behaved previously was wrong and that it is not appropriate to engage in violence when faced with feelings of anger or stress. He said “I have done a bad thing” and “I wish I could change what happened”. He told the Tribunal that he very much regrets his previous behaviour, that his former partner did not deserve to be exposed to it and that he didn’t want his siblings to be exposed to it. He told the Tribunal “I dream of being a better person” and “the person who did those things is long gone”. The applicant also told the Tribunal that he took solace in his Christian faith and that he spent a lot of time in prison reading the Bible and reflecting on how he can live a better life consistent with Christian values including the importance of being “calm and humble”. He told the Tribunal that he had also changed his ways by staying off drugs, talking to people when he felt stressed and going to the gym to release stress. He told the Tribunal that while he did have a problem with aggression he now knows how to deal with it and he is no longer addicted to drugs.
The applicant also told the Tribunal that if a person caused him to feel angry in any way in the future that he would walk away from the situation and not engage in violence. He told the Tribunal that he was committed to living in a different location if released back into the community in order to avoid old social groups and thereby reduce the risk of him engaging in drug taking in the future. The applicant also told the Tribunal that he was committed to not re-offending because he had “too much to lose”. He told the Tribunal that he realised if he re-offended again he would almost certainly be removed from the country and would lose the opportunity to watch his young daughter grow up and be removed from his broader family and he was determined for that not to happen. He told the Tribunal that if he offended again he would “lose his daughter” and that he would “lose everything”. He also told the Tribunal that prison was “not a nice place” and that he did not want to return.
The Tribunal accepts that the applicant has a strong desire to find employment, make a better life for himself and set a better example to his daughter and siblings.
The Tribunal accepts that the applicant’s pleas of guilt for his offending demonstrate a genuine remorse and regret for his offending and that this is reinforced by statements of regret the applicant expressed during the course of his evidence.
The Tribunal also accepts that the applicant has acknowledged that his previous offending was wrong and that he has a stated determination not to repeat it.
However, while it is clear from applicant’s evidence that he is seeking to turn over a new leaf and not re-offend, in the absence of more substantial demonstrated actions by the applicant to actually address his underlying causes of offending such as engaging in appropriate courses or counselling, and in circumstances where his drug free status and new methods for dealing with anger and stress have not been tested in the community, the risk of the applicant falling back into drug use or inappropriately responding to a stressful situation in the future is significant.
The fact that the applicant failed to undertake the EQUIP course and other courses that could potentially assist the applicant in working through his underlying issues is of real concern to the Tribunal. The applicant was somewhat equivocal about seeking help if released into the community. At various points in his evidence he suggested he was “over” his issues and at other points accepted that he need some help and would seek it although there appeared to be no specific plans in that regard. At one point in his evidence in response to a question regarding his intention to undertake treatment in the future the applicant told the Tribunal “I will do everything to get my life back and be with my daughter here in Australia”.
The Tribunal is also mindful of the applicant’s stated intention to relocate to Sydney if released. While this has the benefit of removing himself from old social networks with established connections to drug use it also removes him from the stabilising influence of his parents and siblings. In the course of his evidence the applicant told the Tribunal that he had previously been kicked out of home by his parents because of his behaviour. He told the Tribunal that his parents had done this to “teach him a lesson” but that they are very supportive of him and would continue to support him if he was released into the community. While the Tribunal didn’t have the opportunity to hear from the applicant’s parents it found the applicant’s evidence in this regard to be persuasive and the Tribunal accepts it as being truthful. The Tribunal remains concerned however that should the applicant establish a home for himself in Sydney it would be difficult for his parents, who are based in Griffith, to provide day-to-day support for the applicant in his transition back into the community notwithstanding a desire to do so.
The Tribunal is of the view that there remains a very considerable risk of the applicant re-offending and that the risk is properly assessed as being moderate to high.
The Tribunal has had regard to the principle set out in paragraph 6.3 (4) of the Direction which states that:
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 visa.
Given the very serious nature of the applicant’s offending, the fact that it has involved extreme violence including against his former partner and in front of his young child, the serious risk of harm to the Australian community should such conduct be repeated, and the Tribunal’s conclusion that the risk of the applicant re-offending again in a similar manner is moderate to high, the Tribunal is satisfied that the risk of harm posed by the applicant to the Australian community is unacceptable.
For these reasons, the Tribunal finds that the protection of the Australian community consideration weighs heavily against revoking the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
As previously noted, the applicant has a daughter, MA, with his former partner. MA is currently two years of age.
The applicant told the Tribunal that he loves his daughter and is committed to playing a positive role in her life and having the opportunity to watch her grow up here in Australia. He told Tribunal that he wants to be an “amazing” father to MA and be a better person so that he can be a good example to her. He told the Tribunal that he did not intend to seek any form of shared custody of MA but that he wanted to provide support to his former partner in raising MA and also to provide emotional and financial support to her. He told the Tribunal that he also wanted to find work so that he could provide financially for his daughter and “spoil her”.
The applicant told the Tribunal that he maintains regular contact with MA via the telephone with the assistance of his former partner although he is not seen her in person while in prison and detention.
The applicant described in some detail the role he played in looking after his daughter before going into custody including making her breakfast taking her for walks taking her to his parent’s house. He told the Tribunal “I miss her” and that “she is why I want to stay”.
The applicant told the Tribunal that his former partner wants the applicant to be engaged in their daughter’s life and to assist in raising her. The applicant told the Tribunal that his former partner maintains close contact with his parents and that his parents see MA on a regular basis. He also told the Tribunal that his parents continue to provide a level of financial assistance to his former partner and MA.

The applicant was very clear in his evidence that if he was unsuccessful in obtaining a revocation of his cancellation he would move back to New Zealand to live. He told the Tribunal that in those circumstances his former partner would remain here in Australia with their daughter but that he expected that they would visit for special events such as birthdays. He also told the Tribunal that in those circumstances he expected that his parents would continue to provide his former partner and daughter with some financial assistance. Further, he told the Tribunal that if he were to return to New Zealand it was his intention to get any work that he could and that to the extent he was able to he would also provide financial assistance to his daughter.
Having regard to the evidence, the Tribunal is satisfied that the applicant has a genuine love and affection for his daughter and is committed to playing a positive role in her life in the future. In that context the Tribunal is satisfied that it is in the best interests of MA for the applicant’s visa cancellation to be revoked.
This conclusion is tempered to some degree by the fact that the applicant has previously offended against MA’s mother in MA’s presence. The Tribunal is satisfied that the applicant’s offending as well as the limited physical contact the applicant has had with MA during his time in prison and detention has had a detrimental effect on MA to some degree. The Tribunal is also particularly mindful of the fact that it has assessed the risk of the applicant engaging in similar conduct again in the future as moderate to high. As a consequence, there is a risk that MA will be exposed to similar conduct again in the future. The Tribunal is also mindful of the fact that the applicant is presently subject to an AVO which prevents contact with BB and until at least September next year. At a practical level this will also limit the applicant’s contact with MA given that she will most of the time be in her mother’s presence.
The conclusion is also tempered by the fact that the applicant has indicated that he does not intend to seek a shared custody arrangement and that MA continues to be cared for by BB together with the support of the applicant’s parents. The Tribunal accepts that in the event the applicant’s visa cancellation is not revoked BB and MA will not relocate to New Zealand with the applicant but rather will remain living here in Australia. The Tribunal is also mindful of the fact that if the applicant is forced to relocate to New Zealand he can continue to maintain contact with MA through the telephone and Internet.
The applicant also has a number of siblings who are minors. They include: his youngest brother BA who is aged nine; another younger brother, SAA aged 17 and two of his sisters, SIA aged 15 and GA aged 17. The evidence the applicant gave in relation to each of his siblings was relatively similar. He expressed having a very strong and loving relationship with each of them and to speaking to them on a daily basis by telephone. He also described having had a very close relationship with them prior to going into custody. He spoke admiringly of his brothers’ rugby ability and his strong desire to be a better role model for each of them. The applicant told the Tribunal that because of the close relationship that they all have, each of his siblings would be very “sad” if he were forced to move to relocate to New Zealand to live. The applicant told the Tribunal that his family, including his parents and siblings, travel to New Zealand and Samoa on a regular basis, potentially as frequently as every one or two years, and that he expected that this would continue in the future.
The Tribunal is satisfied based on the evidence that the best interests of each of the applicant’s minor siblings would be served by revoking the applicant’s visa cancellation. However, this conclusion is tempered by the fact that separation from their brother does not appear to give rise to any substantive practical consequences for any of them. This is particularly so given that the applicant does not perform any form of parenting type role nor does he provide any form of substantial financial support. With the exception of the youngest, the evidence was that each of the other minor siblings were aware to some degree of the applicant’s offending. Given that the applicant’s offending does not appear to have involved them directly in any way the Tribunal is satisfied that the applicant’s past offending has not had a significant adverse impact on any of his minor siblings. The applicant told the Tribunal that he wanted to be a better person and be a better role model for his siblings. The Tribunal acknowledges the potential for that to occur but again this is tempered by the Tribunal’s assessment of the risk of the applicant re-offending again in a similar manner as being moderate to high. The Tribunal has also taken account of the fact that with the exception of BA each of the applicant’s other minor siblings are relatively close to reaching the age of majority.
For these reasons, the best interests of minor children in Australia consideration weighs moderately in favour of revoking the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
13.3 (1) of the Direction provides 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 such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[3] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs[4]. In particular, the Tribunal notes that in applying the expectations of the Australian community consideration:
(a)It is not for the Tribunal to make an assessment for itself as to the expectations of the Australian community in any particular case, but rather the task of the Tribunal is to have due regard to the Government’s stated views regarding the expectations of the Australian community as set out in the relevant clause in the Direction.
(b)In determining what the Government’s stated views are, regard should be had to the words set out in paragraph 13.3 (1) itself (or its equivalent provision in paragraph 11.3 (1) or 9.3 (1) whichever is relevant to the case before the Tribunal).
(c)In determining the weight to be given to the consideration, the Tribunal must be mindful of the fact that it is a primary consideration. The Tribunal should also have regard to the nature of the offences that have been committed, the risk the applicant poses to the Australian community and other factors relevant to any character concerns that exist with respect to the applicant.
(d)Ultimately, the weight to be given to the consideration and whether it should outweigh other relevant considerations is a matter for the decision-maker to determine in the exercise of their discretion. In this sense, while generally the consideration is likely to weigh against the applicant, in some circumstances it may not be “decisively so” and there may well be circumstances that could exist where the consideration does not weigh against the applicant at all.
[3] [2017] FCA 1466.
[4] [2019] FCAFC 185.
In applying this consideration, the Tribunal has had due regard to:
(a)the Government’s stated views in relation to the expectations of the Australian community as set out in paragraph 13.3(1) of the Direction;
(b)the principle set out in paragraph 6.3 (5) which provides that:
Australia has a low tolerance of any criminal or other serious conduct by people 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 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.
The Tribunal has also had regard to other factors relevant to its assessment and weighing of the consideration and notes in particular:
(a)the applicant’s stated regret for his offending; and
(b)each of the mitigating measures identified in the Tribunal’s earlier assessment of risk although acknowledging that notwithstanding those mitigating measures the Tribunal has assessed the applicant as having a moderate to high risk of re-offending.
However, given that the applicant’s offending is very serious and violent, that his offending occurred shortly after his arrival in Australia, and that he continues to represent an unacceptable risk of harm to the Australian community, the Tribunal finds that the Australian community expectations consideration weighs heavily against revoking the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
There was no evidence before the Tribunal of any non-refoulement obligations owed to the applicant and therefore this consideration weighed neither for nor against revoking the mandatory cancellation of the visa.
Strength, nature and duration of ties
In assessing this consideration the Tribunal has had regard to the principle set out in paragraph 6.3 (5) of the Direction which states that:
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.
The Tribunal has also had regard to paragraph 14.2 (1) (i) which states that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has resided in Australia for approximately 10 years having arrived here as a 15-year-old in late 2009. The Tribunal recognises that this period of time in the Australian community is not insignificant but it is tempered by the fact that the applicant has a substantial criminal record and has spent a significant period of time in custody. It is also tempered by the fact that the applicant offended only a relatively short time after he first arrived in Australia.
The Tribunal accepts that the applicant has made some contribution to the Australian community through his employment activities. The applicant told the Tribunal that he had worked in a chicken factory and as a truck driver and farmhand on a farm as well as some time as a sheep shearer. The applicant also told the Tribunal that he had spent a relatively short period of time undertaking work experience in a car mechanic shop.
The Tribunal also accepts that the applicant has made some contribution to the community through various volunteer activities undertaken through his church. Those activities included volunteering to clean up the local area as well as assisting in collecting clothes for delivery to St Vincent de Paul Society.
It is clear from the evidence that the applicant has a very significant wider family living in Australia. This includes his parents, siblings, aunt, HU, his uncle, UU, and his cousins, WU and MU.
The applicant described having a very close relationship with his parents who live in Griffith and are in their late 50s and early 60s. The applicant told Tribunal that they are in relatively good health. He told the Tribunal that he speaks to his parents every day by telephone. Despite having been asked to leave home by his parents the applicant told the Tribunal that they have had made it clear that he is welcome back home. The relationship the applicant has with his minor siblings has been dealt with earlier in these reasons. In addition, the applicant described having a very good relationship with his brother MIA who is 18 years of age. He told the Tribunal he speaks to MIA every day and that MIA has plans to play rugby at a senior level which makes the applicant very proud. The applicant told the Tribunal has a very good relationship with his sister VA who is 19 years of age. Again he describes speaking to her every day by telephone. He describes his family as being particularly close and loving. The applicant told the Tribunal that his siblings had previously looked up to him but because of what he has done he now does not want them to follow in his footsteps.
The applicant did not describe any particular practical impact his relocation back to New Zealand would have on his parents or siblings but he did tell the Tribunal that he believed they would be devastated and sad if that were to happen because of the strong love and affection they feel for each other. The Tribunal accepts that a decision against revocation would have a significant emotional impact on the applicant’s parents and siblings. This conclusion is tempered to a degree by the fact that if the applicant were to relocate to New Zealand the applicant’s parents and siblings could maintain contact with the applicant via the telephone and Internet and also the fact that the applicant indicated that his parents and siblings travel to New Zealand approximately every one or two years and therefore would be in a position to visit him there on occasion.
The applicant also described having a very strong relationship with his aunt, uncle and cousins. Again the applicant didn’t describe any particular practical impact a decision against revocation would have for his aunt, uncle and cousins but again he did say that he believed that they would be very sad and upset if he were to relocate to New Zealand. The applicant told the Tribunal that he did not believe his cousins had previously been to New Zealand but that he is sure that they would come if they had a chance to. The Tribunal is satisfied that the decision against revocation would have a significant emotional impact on his aunt, uncle and cousins.
The applicant also described having a substantial broader family in Australia beyond the group already described but he told the Tribunal that he does not maintain contact with that broader family. In those circumstances the Tribunal is satisfied that a decision against revocation would not have a significant adverse impact on them.
The applicant also described having a significant friendship group and he identified three friends in particular JA, S and JO. The applicant described having a close relationship with these friends in particular having met them through the church and having played music with them on a regular basis. The applicant did not describe any particular practical impact his relocation back to New Zealand would have on his friends however he told the Tribunal that they would be particularly disappointed and upset if he were to relocate. The Tribunal accepts that these friends in particular would be significantly impacted by a decision against revocation.
The applicant told the Tribunal that he remains on friendly terms with his former partner despite his offending against her and the ongoing existence of an AVO until at least next year. The applicant told the Tribunal that his former partner maintains close contact with his parents. He stated that they are no longer in a domestic relationship and that there are no plans to resume the relationship however he maintains regular contact with her via the telephone for the purpose of maintaining contact with his daughter. The applicant told Tribunal that his former partner wants him to remain in Australia and to help as a support for their daughter. The applicant also stated that in the event he is required to relocate to New Zealand BB will stay in Australia with their daughter. He told the Tribunal that he expected that BB would travel with MA to New Zealand to visit for special events.
As previously noted, the Tribunal did not have the benefit of hearing from the applicant’s former partner herself. However, the Tribunal found the applicant generally speaking to be a truthful and reliable witness and found his evidence in this regard to be persuasive and the Tribunal accepts the truthfulness of it. In particular, the Tribunal found the applicant’s assertion that BB maintains close contact with his parents and that they continue to provide some ongoing financial support for BB and MA to have a ring of truth about it. In the absence of direct evidence from BB it is difficult for the Tribunal to assess the level of impact a decision against revocation would have on her but the Tribunal does accept that it will have some impact on the extent of engagement the applicant will be able to have with his daughter and that this in turn may adversely impact BB to some degree.
The interests of the applicant’s daughter, MA, have already been addressed earlier in these reasons.
For these reasons, the Tribunal is satisfied that the strength, nature and duration of ties consideration weighs moderately in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
The evidence in relation to the impact of the applicant’s former partner is dealt with above. There was no specific evidence before the Tribunal as to the impact a revocation of the cancellation of the applicant’s visa would have on any other victim of his offending. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
The applicant told the Tribunal that if his visa cancellation is not revoked he will relocate to New Zealand to live. The applicant raised no language or cultural difficulties he would have in relocating to New Zealand and the Tribunal is satisfied that no such difficulties will present for the applicant particularly given that he has previously lived in New Zealand.
The applicant told the Tribunal that he is a New Zealand citizen and the Tribunal is not aware of any impediment to the applicant accessing health and social services in New Zealand consistent with those of other New Zealand citizens.
The applicant told the Tribunal that he is in relatively good physical health although he noted that he had previously had a shoulder injury. As previously mentioned, the applicant also told the Tribunal that he had been told by prison psychologist that he may have some form of post-traumatic stress disorder. While the Tribunal is not satisfied that the applicant has been diagnosed as having such a disorder, it recognises that the applicant has experienced a difficult childhood and faced difficult life circumstances and as such is likely to require ongoing counselling of some form in managing those issues and also managing his issues with anger, stress and drug use. The Tribunal is satisfied that the applicant will be in a position to access health services to assist in meeting such needs consistent with those available to other New Zealand citizens.

The applicant indicated that he believed he may have some difficulty getting employment initially although he stated that he has a strong commitment to obtaining employment and indicated that he was prepared to take up any employment that is available to him. He expressed an interest in pursuing work as a car mechanic but recognised that this was a long-term aspiration which may require some training. Having regard to the applicant’s young age, practical skills obtained through his previous employment and good physical health, the Tribunal is satisfied that while the applicant may face some challenges in obtaining employment initially there is no reason to believe that he would not be able to secure employment in the medium-term.
The Tribunal accepts that in relocating to New Zealand the applicant will go through a period of transition and will be emotionally impacted as a consequence of his separation from his close family and also from his daughter, MA, and former partner. The Tribunal reaches this conclusion acknowledging that the applicant has no immediate family or close friends living in New Zealand. This conclusion is somewhat tempered by the evidence of the applicant that he anticipates his partner and daughter will visit him in New Zealand for special events and also his evidence that his parents and siblings travel to New Zealand on a semiregular basis.
Having regard to all of these considerations the Tribunal is satisfied that the impediments on return consideration weighs moderately in favour of revoking the mandatory cancellation of the visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) of the Act. Therefore, the Tribunal is required to exercise the discretion in section 501(1) of the Act in accordance with the Direction.
In weighing each of the relevant considerations the Tribunal has been particularly mindful of the impact a decision not to revoke the cancellation would have for the applicant’s daughter, siblings, parents, aunt and uncle, cousins as well as the potential implications for his former partner. The Tribunal is satisfied that the best interests of the applicant’s daughter and each of his minor siblings would be served by revoking the visa cancellation although this is tempered for the reasons set out above.
The Tribunal recognises that the applicant has lived in Australia for approximately 10 years, has made some contribution to the community through employment and other community activities and has developed some significant social connections here in Australia. These factors are tempered somewhat by extent of the applicant’s prior offending, the impact that his offending has had on his daughter and former partner and the fact that he offended only a relatively short time after having first arrived in Australia.
The Tribunal also acknowledges that if the applicant were to relocate back to New Zealand it would require some adjustment and that he may face some challenges in obtaining employment in the short term.
Notwithstanding these considerations, the Tribunal is satisfied that the very serious nature of the applicant’s prior offending and the unacceptable risk of further harm to the Australian community as well as the expectations of the Australian community are such that the balance falls in favour of not revoking the mandatory cancellation of the applicant’s visa.
DECISION
The decision under review is affirmed.

117.

118.    I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

........................[sgd]............................................
Associate
Dated: 17 December 2019

119.    Dates of hearing:

12 December 2019

120.    Advocate for the Respondent:

Keith Sypott

121.    Solicitors for the Respondent:

Australian Government Solicitor

[2019] AATA 5425

17 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

119. Dates of hearing:	12 December 2019
120. Advocate for the Respondent:	Keith Sypott
121. Solicitors for the Respondent:	Australian Government Solicitor