Barron and Minister for Home Affairs (Migration)

Barron and Minister for Home Affairs (Migration) [2019] AATA 315 (4 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7287
Re:Hayden Barron
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:4 March 2019
Place:Sydney

The decision under review is affirmed.
........................[sgd] ........................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali and Minister for Home Affairs (Migration) [2018] AATA 2512
Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458
Mendoza v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
4 March 2019
INTRODUCTION

This matter relates to an application for review filed by Mr Hayden Barron (“the Applicant”) on 12 December 2018. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 11 December 2018 not to revoke the mandatory cancellation of the Applicant’s visa.
The Applicant was represented by Mr La Kiss, Migration Agent. The Respondent was represented by Ms Dejean, Australian Government Lawyer.
BACKGROUND
The Applicant is a 35 year old citizen of New Zealand, and was born in April 1984.
The Applicant arrived in Australia on 20 February 2010 at the age of 25.[1] He was granted a Class TY (Subclass 444) Special Category visa on 16 April 2015. This is the visa that is the subject of the application.
[1] Exhibit A, G Documents, page 35.
The Applicant has a lengthy criminal history, in both Australia and New Zealand, dating back to 2003. I will come back to that later. On 14 December 2017, the Applicant was convicted and sentenced in the Liverpool Local Court for a number of offences including driving an unregistered motor vehicle, two offences of stalk/intimidate intending fear of physical harm (domestic), contravene prohibition/restriction in Apprehended Violence Order (AVO) (domestic), dishonesty offences, and other traffic offences.[2] His sentence for the various offences was confirmed on appeal to the Parramatta District Court on 14 March 2018, together with other offences on appeal from the Parramatta and Bankstown Local Courts that were dealt with between 15 January 2018 and 21 February 2018.[3] The Applicant was sentenced to one year, seven months and 29 days imprisonment, with an 11 month non-parole period, commencing on 6 November 2017.[4]
[2] Ibid, pages 25 – 31.
[3] Ibid.
[4] Ibid.
On 18 January 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (Cth) (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.[5]
[5] Ibid, pages 44 – 47.
On 7 February 2018, the Applicant made representations seeking revocation of the mandatory visa cancellation and provided supporting documentation.[6]
[6] Ibid, pages 64 – 96.
On 11 December 2018, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked.[7] Accordingly, the delegate decided not to revoke the decision to cancel the Applicant’s visa.
[7] Ibid, pages 3 – 5.
On 12 December 2018, the Applicant lodged with the Tribunal an application for review of the delegate’s decision.[8]
[8] Ibid, pages 1 – 2.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been provided to a person if the Minister is satisfied of the following:
(a)The Minister is satisfied that the person does not pass the character test because of the operation of:
(i)Paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)The person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is defined in s 501(6)(a) of the Act. A person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act which provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)The person has been sentenced to death; or
(b)The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more;
…
Pursuant to s 501CA(4) of the Act, the Tribunal may revoke the Original Decision to cancel a visa if:
(a)The person makes representations in accordance with the invitation; and
(b)The Minister is satisfied:
(i)That the person passes the character test (as defined by section 501); or
(ii)That there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations on 7 February 2018 in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; and
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Consequently, I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, Ministerial Direction No 79 (“the Direction”), issued on 20 December 2018, applies on and from 28 February 2019, and replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(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 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 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.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to … revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and relevantly provides:
(1)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.
(2)Decision-makers should also give consideration to:
(a)The nature and the 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.
The Tribunal will address each of the considerations 13.1(2)(a) and 13.1(2)(b) in turn with reference to 13.1(1).
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The Applicant has a record of offending in New Zealand, with offences committed between 25 May 2003 and 31 December 2008. These offences include driving whilst disqualified in 2004 and 2005, driving at a dangerous speed and driving with excess breath alcohol (3^rd or subsequent offence) in 2008, dishonesty offences, wilful damage, drug-related offences, unlawful interference with a motor vehicle, and two offences of assaulting a female.[9]
[9] Ibid, pages 25 – 31.
In respect of the first offence of assault female committed on 12 February 2006, the Applicant said in cross-examination that it was a heated argument with his former partner and that he did not strike her. As to the subsequent offence committed on 31 December 2008, the Applicant gave a similar account involving his then fiancée.
The Applicant arrived in Australia in 2010 as an adult. His first recorded convictions were imposed by the Sutherland Local Court on 12 December 2013 for which he received a fine and 18 months licence disqualification for the following offences:
(a)Use unregistered registrable class A motor vehicle on road;
(b)Drive with middle range prescribed concentration of alcohol; and
(c)Drive recklessly/furiously or speed/manner dangerous.[10]
[10] Ibid.
On 28 July 2015, the Applicant was dealt with by the Blacktown Local Court for driving whilst disqualified and received a bond for 12 months.[11]
[11] Ibid.
On 4 August 2015, the Applicant was dealt with by the Parramatta Local Court for stalk/intimidate intend physical harm (domestic) and received a bond and a 12 month AVO.[12]
[12] Ibid.
The Applicant was also before various courts in 2016 and 2017 for a range of offences including drive unregistered motor vehicle, drive whilst disqualified, driving while licence was suspended (habitual offender), drink driving, theft, possess goods suspected of being stolen, drug possession, fail to comply with condition of bail, until he was imprisoned.
With reference to paragraph 13.1.1(a) of the Direction and the Applicant’s criminal history as outlined above, the Applicant has a criminal record that includes crimes of violence, and in particular assault, contravention of AVO, and stalk/intimidate intend physical harm. These offences can and should be viewed as objectively serious.
In determining whether the Applicant’s criminal conduct as a whole should be viewed as “serious”, the Tribunal takes into consideration the sentences imposed by the courts for his crimes. On 14 December 2017, the sentencing Magistrate imposed a term of imprisonment for offences that, in isolation, might not ordinarily carry a sentence of imprisonment. However, the offending was more serious because the Applicant was on a bond to be of good behaviour at the time, had repeatedly committed similar offences deliberately, and acted in contempt and disregard of the orders of the court and the law. This is demonstrated by his offending on 5 November 2017 when he, as referred to in the New South Wales Police Force Records (“NSW Police Records”),[13] was driving whilst disqualified. Further, he was in breach of a condition of bail that he not drive a motor vehicle together with breach of a further condition of bail that he report daily to police. On that occasion, the Applicant was seen by police driving a Toyota Hiace work van. When police directed the Applicant to pull over, he made a right-hand turn without indicating, and exited the vehicle, leaving his keys in the ignition. He was told to stop, however he ran from police, jumping numerous fences on private properties. Police detection dogs and a helicopter were called to the scene to search for the Applicant and he was finally located in the backyard of a home where he resisted arrest by thrashing his legs violently, striking the police dog numerous occasions. When questioned about this incident in evidence, the Applicant said he ran from police because he knew he was driving whilst disqualified. He said he was driving his work vehicle and that he repeatedly drove whilst disqualified because it was cheaper to pay the fine than employ a driver.
[13] Exhibit B, NSW Police Force Records.
On 4 August 2015, before the Parramatta Local Court, the Applicant was dealt with for the offence of stalk/intimidate intending fear of physical harm (domestic), and was placed on a bond and 12 month AVO. In evidence, the Applicant said this offending related to his former partner (“Ms A”) who suffered from bipolar disorder and had not taken her medication that day. He admitted no wrongdoing other than having an argument.
While the National Police Certificate (“the Certificate”)[14] details alleged offending in Australia, the Certificate does not identify the date of the offences and factual circumstances. However, there are a number of incidents of alleged violence against women that are detailed in the NSW Police Records, which include the following:
[14] Ibid, pages 25 – 31.
(a)On 5 January 2017, Ms A made a complaint to the police. She reported to have been in a relationship with the Applicant for two years. No violence was alleged on this occasion but there were two arguments, with one resulting in malicious damage to a door. The Applicant is alleged to have said “Better get some protective custody”. Ms A declined to give further information.
(b)On 18 January 2017, Ms A made a complaint to police. She reported to have been in a relationship with the Applicant for one year which ended in May 2016. The day prior, the Applicant had attended her home where he stayed for approximately two hours. Upon leaving, he took $400 of her money. The next day, on 18 January 2017, the Applicant contacted Ms A and asked that she assist him in his work. She did so. At about 4:30 p.m. at a worksite, they argued. Whilst driving Ms A home, the Applicant grabbed her by the back of her hair and pulled her across to the driver’s side of the vehicle. The Applicant reported the incident to police. Police later attended Ms A’s home and spoke to her. Ms A did not wish to make a formal statement. In evidence, the Applicant denied any threat or act of violence occurred and said that Ms A was having a manic episode.
(c)On 8 April 2017, another incident occurred involving Ms A. The police record indicates that there was an AVO in existence which included a condition not to assault, threaten, stalk, harass, or intimidate Ms A. It is reported that the Applicant drove whilst disqualified to Ms A’s home in a Toyota Hiace van, and they went driving in search of the Applicant’s dog. The Applicant was drinking from a premix can of Wild Turkey and Coke and they went into a store to purchase alcohol where the Applicant then stole a bottle of Ballentine’s Whisky. When they returned to Ms A’s home, they argued and the Applicant grabbed Ms A and threw her against the bed. She said “You’re a big man pushing a little girl”. The Applicant then grabbed Ms A by her wrists and threw her to the floor, pinning her arms behind back with his knee in her upper back, and took hold of her hair. When the police subsequently arrived, they observed redness to Ms A’s face and some skin off her fingers. Police also saw a bottle of Ballentine’s Scotch Whisky. Police noted that the condition of the house appeared consistent with the version of events given by Ms A. In evidence, the Applicant denied the allegations. He said that Ms A had been on amphetamines. He stayed the night in a separate bedroom and in the morning she took his iPad, logged into Facebook, and was ‘flipping out’ so he took his iPad and left. He said he rang an ambulance to assist her. The Applicant acknowledged Ms A was about five foot in height but did not recall her saying “You’re a big man pushing a little girl”. He could not explain why she called the police nor could he explain the injuries police observed on Ms A. He also said in evidence that he and Ms A were friends and they were never in a relationship. This is contrary to the NSW Police Records and also contrary to the evidence given by the Applicant’s current fiancée (“DC”). DC said that the Applicant and Ms A had been in a relationship and that, in respect of the allegations of abuse, Ms A had lied because the Applicant had refused to leave her and renew his relationship with Ms A.
(d)On 27 August 2017, DC made a report to police. She reported that she had two children by a prior relationship and that she and the Applicant had been in a relationship for about four months when he moved into her home with the two children. She reported an argument that occurred on 25 August 2017 in which the Applicant said “If you ever call the police on me I’ll slit your dogs’ throats and get someone to take care of the children”. DC reported she was in fear and too scared to call the police that day. On 27 August 2017, there was an argument about the children. DC walked into the bathroom and the Applicant followed, punching her once to the right side of the head. Subsequently, DC’s 8 year old child reported the smell of smoke. DC located the Applicant’s clothing on the front porch smouldering. Police obtained an AVO.
In evidence, the Applicant denied punching DC and denied making the allegation to slit her dogs’ throats and get someone to take care of the children. He said there was a heated argument during which DC threw clothes at him and admitted to deliberately setting the clothes on fire.
DC gave evidence about this incident. She said that it was her sister who called the police and pretended to be her. She said her sister lived over the road, she meant well but suffers from a bipolar condition. DC said that, when spoken to by police, she did not inform them that it was her sister who reported the incident. DC denied she was assaulted and, in relation to the burning clothes, she said they often had bonfires and that she did not believe the Applicant deliberately set his clothes alight. She believed the fire was caused accidentally when the Applicant discharged a cigarette. DC said that she did not ask police to take out an AVO. She denied the allegations of threats and violence referred to in the NSW Police Records, and said that she was the person who made the threat to slit the dogs’ throats and get someone to take care of the children.
(e)On 31 August 2017, a report was made to police by DC. DC said she had been in a de facto relationship with the Applicant for about four months and said that he was controlling and unemployed. She said there was a history of violence but she had not made any report prior to that made on 29 August 2017 (which I infer was a report referred to in the paragraph immediately above). She reported that since then she had been trying to leave the Applicant, describing him as her ex-partner. On this occasion, DC and the Applicant argued about the whereabouts of his dog. She referenced approximately 50 telephone calls and text messages received within the six hour period. She was concerned the Applicant was breaching the current AVO and so she attended Cabramatta Police Station to make the report. There, she was advised to attend the Liverpool Local Court to make a variation to the AVO to reduce contact. While DC was at the court, the Applicant continued to text message her. After court, DC went to her mother’s house to organise emergency accommodation. DC reported that she was scared and did not want to see the Applicant. Her mother helped her pack her belongings into a motor vehicle. A short time later, while reversing the motor vehicle with her mother and two children inside, the Applicant was seen walking in their direction. DC’s mother contacted the police. As DC drove away, the children were screaming, and the Applicant started to run after the vehicle. Both DC and her mother provided statements to the police.
In evidence, the Applicant maintained that DC never took out an AVO and that all he was doing was walking in and around the area trying to locate his dog.
DC gave evidence and said that, in respect of this incident, she was “cranky” and said things to the police to try and hurt the Applicant. She said that she and her mother were angry with the Applicant and that they conspired to tell a story to police to get him into trouble. She denied saying to police there was a history of violence, that she was trying to leave him, that she referred to him as her ex-partner, or that he was controlling and unemployed. She said that they have been in a de facto relationship for longer than four months, and that he had lived at her home for four months. She said that it was not unusual for the Applicant to message her 50 times a day. She denied going to her mother because she felt unsafe and she did not seek emergency housing, stating she was not scared. She also denied requesting an AVO, however acknowledged that her mother had an AVO in respect of the Applicant. DC said her mother took out the AVO because she was “cranky too”.
In response to questions by the Tribunal, DC agreed that, some days later, police attended her home to check on her wellbeing and to make sure the Applicant was not breaching the AVO by being present or living at the house. She acknowledged that she invited police into her home, and told police he was not residing there anymore. She had said the Applicant was at work when police arrived. She agreed that she lied to police.
DC said that she asked the police not to proceed with the allegations of domestic violence.
Further in evidence, DC said that the Applicant had never been violent towards her and that she was the violent one who had directed acts of violence towards him. She said he did not need domestic violence counselling but, when asked why he would attend such counselling when in gaol, said that a man can always better himself by undertaking such a course.[15]
[15] Exhibit B, NSW Police Force Records.

On 14 December 2017, the Applicant was dealt with for two offences of stalking and an offence of contravene an AVO.[16] However, in evidence the Applicant said he has never assaulted a woman and particularly not DC.
[16] Ibid, pages 25 – 31.
The Applicant has also been dealt with by the courts for a number of offences of dishonesty. One such offence is recorded in NSW Police Records on 22 February 2017.[17] On that occasion, the Applicant was driving a white Toyota Hiace whilst suspended. Whilst at Bunnings, the Applicant was observed loading a lawnmower into vehicle. As he was leaving, the premises’ Prevention Officers approached the Applicant and asked to look in the van. He initially refused that request but when they searched the van and located the lawnmower, the Applicant said “Oh I forgot to pay for it”. When the police arrived, they also identified shopping baskets and groceries in the vehicle which were also suspected of being stolen. In relation to that incident, the Applicant said that he was driven to Bunnings by a driver and that driver was responsible for the theft of the lawnmower. He accepted that he took shopping baskets because they were useful to carry his tools, but otherwise knew nothing about the theft. He said that, when Prevention Officers took him and his driver to an interview room, the driver ran away. When asked in cross-examination about the recorded observations made by the Prevention Officers that the Applicant was seen wheeling the lawnmower and putting it into the vehicle, and that the record makes no mention of another person being present or absconding, the Applicant could not provide any adequate explanation.
[17] Exhibit B, NSW Police Force Records.
The Applicant’s movement history provided by the Department of Immigration and Border Protection shows regular travel between Australia and New Zealand from 20 February 2010 to 16 April 2015.[18] The Tribunal also received a copy of the Incoming Passenger Cards[19] for those periods of travel and, on each occasion in response to question “Do you have any criminal convictions?” the Applicant has ticked the answer “No”. When asked in cross-examination about the incorrect record, he said he simply made a mistake. When further asked by the Tribunal how he could explain that mistake on seven separate occasions, he admitted that he deliberately lied when completing the card so as to not disclose any of his convictions.
[18] Exhibit A, G Documents, pages 34 - 35.
[19] Ibid, pages 36 – 42.
The Applicant submits that the offences are not to be regarded as serious and that the contents of the NSW Police Records were merely allegations. Insofar as the NSW Police Records refer to Ms A’s allegations of abuse, because Ms A has not been called to give evidence, there is strength in the argument that the records are mere allegations and are untested by cross-examination. I accept that argument and the Tribunal does not place great weight upon those allegations alone.
Further, it was submitted that s15GE of the Crimes Act 1914 (“the Crimes Act”) relevantly defines a serious Commonwealth offence as one that is punishable on conviction by imprisonment for a period of three years or more. It is submitted that definition should inform the Tribunal about such offences that may be regarded as serious. The Applicant submitted that his offending was not serious when compared to the more serious charges appearing in the criminal calendar, such as murder.
The Tribunal rejects this submission. The definition of “serious Commonwealth offence” in s15GE of the Crimes Act is a definition relevant to that Part of the Crimes Act which provides for the authorisation, conduct and monitoring of controlled operations. A controlled operation is defined within the same Part as an operation carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence. Elsewhere in the Crimes Act, “serious offence” is given a different definition for a different purpose.
The Applicant’s argument is misconceived. The Crimes Act definition does not inform the operation of the Act nor paragraph 13.1.1 of the Direction. The Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s criminal offending. Violent and/or sexual crimes are to be viewed seriously, and offences committed against vulnerable members of the community, and women and children, are serious. The Direction informs the Tribunal about how the government regards types of offending and, accordingly, how the Tribunal shall consider the nature and seriousness of criminal offending. The definition of “serious offence” as defined in the Crimes Act is irrelevant.
The Respondent submits that the combination of the Applicant’s history of domestic violence, and the recidivist offending over a long period of time, which includes offences demonstrating contempt for the law of Australia, constitutes serious conduct. The Tribunal agrees with this submission.
In Ahmed and Minister for Immigration and Border Protection[20] the Tribunal considered an Applicant whose poor driving record was a central issue to the determination of the Applicant’s good character. The Tribunal said:
[53] It may be thought, in the wider scheme of things, that driving offences, especially where no-one (fortuitously, to date) has suffered any physical injury, are relatively minor matters and should be given little weight in the process of assessing what constitutes “good character”.
[54] That is emphatically not the view of the Tribunal.
[20] [2018] AATA 4458.
In the present case, the Applicant’s driving record should be regarded as serious and is offending that should be given some weight against revocation of the mandatory visa cancellation.
In relation to the offences of domestic violence the allegations made to police, if accepted as a correct record of complaint, are also to be viewed seriously with the caveat that I have mentioned in relation to Ms A. It is not uncommon for a victim of domestic violence to fail to cooperate with the prosecution of an alleged offender or ask police not to proceed with the prosecution. That does not mean that the allegation should be ignored. Hence, pursuant to paragraph 13.1.1(b) of the Direction, both the convictions for offences against women, stalking and breach of AVO, together with the repots to police which I find were made in the terms reported, are to be viewed seriously. I do however place less weight on the allegations made by Ms A, but I do accept they were made by her to police.
The Respondent draws the Tribunal’s attention to Ali and Minister for Home Affairs which affirmed the Tribunal’s position in Mendoza v Minister for Immigration and Border Protection (Citizenship)[21] in relation to this issue namely:
[48] The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man, or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
[21] [2018] AATA 686.
Clear guidance for the approach to be taken in domestic violence matters is provided in XFKR v Minister for Immigration and Border Protection[22] which states:
[45] The Tribunal would add that, in a society that adhere to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harms for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. This impact has, socially, on systemic equality between the sexes cannot be underestimated.
[22] [2017] AATA 2385.
An offence of domestic violence is abhorrent and made worse when such conduct is repeated, and in deliberate breach of an existing AVO which is designed to protect victims and their families, including children. Taking into account the above guidance and paragraph 13.1.1(b) of the Direction, and having regard to the whole of the evidence, I find that the Applicant’s conduct in the commission of the acts of domestic violence is very serious.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers 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).
In relation to the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal notes the Applicant’s recidivist offending of the same or similar nature over a long period of time in both New Zealand and Australia. He appears to have not been deterred by various penalties or orders of the court. His evidence that he considered it cheaper to offend by driving whilst disqualified and risk a fine, rather than pay for a driver, further highlights his disrespect for the law.
The Applicant submits that his prior conduct was foolish and silly but not serious. The Applicant submits that he is remorseful for his actions and has made efforts in his drug rehabilitation. The Applicant has provided a number of character references in support, namely:
(a)An unsigned and undated letter from his brother (“RB”) who resides in New Zealand.[23] It references the Applicant’s difficult upbringing in New Zealand and says “Hayden has never previously been involved with drugs and certainly does not have any criminal record in NZ … he has a great deal of respect for the law and society”.
(b)An unsigned letter dated 4 March 2018 from the Applicant’s father (“DB”).[24] DB said he has a big family and the Applicant has a lot of support, with his difficulties caused by drug addiction. DB referenced the courses that the Applicant has undertaken and also acknowledges his failings in contributing to his son’s upbringing. He says he has made arrangements to move to Australia to support the Applicant.
(c)An unsigned letter dated 1 March 2018 from DC’s mother and step-father (“DS” and “TS” respectively).[25] DS confirms the love she has for the Applicant and that he has made mistakes whilst on drugs. She references the Applicant and DC’s small business which grosses over $100,000 per annum. She highlighted the Applicant and her daughter’s young family, their attendance at church, and strong family support. She refers to the damage non-revocation of the Applicant’s visa cancellation would have on the two children. The Tribunal notes the inconsistencies in the evidence given in respect of the business. DC referred in her evidence to the successful business she and the Applicant were running with large contracts in the glazing industry, and with an annual profit of $110,000. DC said that, in 2016 and 2017, their business was very successful with a 60% overhead and 40% profit margin. Conversely, the Applicant said that, for the same period, the business was in serious financial difficulty and that he was only making a profit of approximately $20,000 per annum.
(d)An unsigned letter dated 1 December 2017 from the Salvos Community Church’s pastor (“JS”).[26] JS says he has known the Applicant for five months and that he has been an active member of the church, volunteering for their weekly food or life market. He said the Applicant has been an excellent role model for those seeking a more active and rewarding relationship with God. He references the Applicant’s spiritual growth and he respects the Applicant is a person of good moral character and regards him as a “bright spot” in the congregation.
[23] Exhibit D.
[24] Exhibit A, G Documents, page 114.
[25] Ibid, page 115.
[26] Ibid, page 91.
The Respondent submitted that the Applicant’s evidence lacked credibility. His explanation in evidence about the alleged theft from Bunnings was not believable. Further, that on his own admission before the Tribunal, he was dishonest when completing his Incoming Passenger Cards. Whilst the Applicant may be remorseful, his pattern of offending demonstrates that the he is at risk of reoffending when released.
The Respondent submitted that the Tribunal can and should look beyond the Applicant’s criminal history to consider those events referred to in the NSW Police Records. The observations of police should be accepted.
The Respondent also urged the Tribunal not to rely on the character material provided as, not only are the letters unsigned and/or undated, in the absence of being tested in cross-examination, they are each wholly unsatisfactory. RB’s purported statement that the Applicant has no criminal record in New Zealand is plainly wrong and, if he is truly the author of that letter, he has either lied or has no knowledge of the Applicant’s true character. The letter from DS and TS is silent on the Applicant’s history of violence and the fact that DS has an AVO against the Applicant. The fact she references a profitable business earning $100,000.00 per annum, which accords with DC’s evidence and is diametrically opposed to the evidence of the Applicant, raises serious question about the bona fides and reliability of that letter. It is noteworthy that JS’s letter, while also unsigned, was written at a time when the Applicant was in custody, is silent on his criminal offending, provides no evidence that can properly assist the Tribunal and should be disregarded.
The Respondent submitted that DC’s evidence was unreliable and that she lied to the Tribunal. The reason for her lies, it was submitted, was that she has two children in relation to whom she has to secure an economic future and she sees that future with the Applicant.
Conclusion: Primary Consideration A
The Applicant submits that he is sorry for his actions. He submits that his efforts to engage in drug rehabilitation are indicative of that remorse and his determination not to reoffend. The Applicant has completed the EQUIPS drug rehabilitation program but he did not complete the domestic violence program, which he says was because of prison shut downs. Nonetheless, he has failed to acknowledge to any satisfactory degree the manner in which he has dealt with women in the past.
The Applicant maintains his offences should not be categorised as serious. He has not admitted to any acts of physical violence, directed towards Ms A, DC or the two assault victims in New Zealand. He does not acknowledge the gravemente of his recidivist criminal conduct. He has clearly demonstrated his disrespect for the law and orders of the court. He has a long history of recidivist criminal offending involving violence, violence against women, stalking, breaches of AVOs, demonstrated contempt for the law by regularly committing offences of drive disqualified, breach of bail, dishonesty, and lying to immigration authorities.
There were aspects of DC’s evidence that were not believable. There were numerous inconsistencies in her evidence. I do not accept her evidence that she and her mother lied to police in relation to the incident of domestic violence because they were “cranky” with the Applicant and wanted to get him into trouble with the police. That explanation defies common sense. I note she now accuses her mother of being deceptive in respect to her dealings with police.
From the beginning of her evidence in chief, DC said she was the violent one in the relationship and the Applicant had done nothing wrong. She regards the Applicant is an excellent role model for the two children. I do not accept DC’s evidence in that respect.
When balancing DC’s evidence with the NSW Police Records, I find that DC has lied to the Tribunal about the nature of her relationship with the Applicant. I accept the events contained in the NSW Police Records as a true record of what DC said had occurred when she reported the allegations. I place no reliance on DC’s evidence in so far as it is in conflict with the NSW Police Records.
I find that DC’s evidence in relation to her relationship with the Applicant was contrived in an attempt to minimise his culpability. DC confirmed she lied to police who attended her home to ensure she was safe, in saying that the Applicant was no longer living at the premises. She is plainly willing to lie and deceive others to achieve her desired goal.
I agree with the Respondent’s submission that the character letters from the Applicant’s family should not be relied on. Their contents are untested, and contain glaring omissions and errors.
I find that, on the available evidence, there is a high likelihood that the Applicant will engage in further criminal offending of the same or similar nature should he be returned to the Australian community.
Having considered of all the evidence, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next primary consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)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);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The Applicant is the step-father of two children, namely C, aged approximately 10 years, and E, aged approximately 8 years. The Tribunal accepts that the Applicant has, to some extent, been a father figure to the children, who do not have a relationship with their own biological father. The Applicant has been in a relationship with DC for some time however, for reasons that I will refer to later, the nature and extent of that relationship is unclear. The Tribunal also notes that the Applicant has been in custody continuously since 6 December 2017, and DC has visited him regularly when he was in custody and detention.
In addition to DC’s oral evidence, the Tribunal also received a letter from her.[27] She stated that the Applicant is regarded as the children’s father. It is unknown whether the children are aware of the Applicant’s criminal conduct, or to what extent each child may have witnessed any domestic violence issues. However, I note the NSW Police Records indicate that, in the events reported of 31 August 2017, both children were in the car screaming when DC and her mother drove from the premises. The report reads “The victim [DC] was scared as she believed that if the accused managed to get to the vehicle he would hurt her and the children”.[28]
[27] Exhibit C, Updated submission from the Applicant’s partner dated 26 February 2019.
[28] Exhibit B, NSW Police Force Records.
As I have indicated, I do not accept the letters from the Applicant’s family members and, accordingly, it does not assist me in making an informed decision about the nature and extent of the Applicant’s contribution to the children’s lives, including any likely contribution that he may make in playing a positive parental role in the future. Should the Applicant reoffend, which I have found is a real risk, and that reoffending is in the nature of domestic violence, there is a real risk that the Applicant will have a damaging impact on both children in future.
I accept that non-revocation of the Applicant’s visa cancellation will result in his return to New Zealand with the possibility that he will play no further role in the parenting of the children. However, for the reasons expressed, I find that this will not have any long-term or lasting detrimental effect on either child.
The Tribunal also received handwritten letters from the children to the Applicant.[29] They are addressed “Dear Daddy” and express the love that each has for the Applicant and the hope that he will return home soon. However, the children are young and there is no acceptable evidence before the Tribunal upon which I can be satisfied revocation is in the best interests of each child, which I have considered separately.
Conclusion: Primary Consideration B
I am not satisfied that it is in the best interests of the Applicant’s step-children to revoke the mandatory cancellation of his visa and accordingly the Tribunal gives this Primary Consideration B no weight in favour of the Applicant.
[29] Exhibit A, G Documents, pages 130 – 131.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the primary considerations the Tribunal should have regard to and relevantly provides:
(1)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.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other series conduct by people who have been participating in, and contributing to, the Australian community for only 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.
The Applicant arrived in Australian in 2010 and was first dealt with by the courts in Australia on 12 December 2013. However, the Tribunal notes that the Applicant did not arrive in Australia with clean hands. He has been convicted and sentenced for numerous offences in New Zealand dating from May 2003 to 31 December 2008.
In relation to this Primary Consideration, the Respondent contends that the Applicant has breached the trust of the Australian community given his extensive criminal record and blatant disregard of the legal institutions of Australia. The Respondent referred the Tribunal to the matter of YNQY v Minister for Immigration and Border Protection[30] where Mortimer J said:
[76] The Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[30] [2017] FCA 1466 (“YNQY”).
The Applicant submits that his antecedent history is not serious and that the Australian community would expect that he be given the opportunity to continue to reside in Australia. It was submitted that he would continue to be an active member of the community and is one to whom the Australian community would give another chance. The Applicant asked the rhetorical question of who was going to be punished – is the Applicant to be punished by returning him to New Zealand or does the family get punished?
The Respondent urged the Tribunal to have regard to the Applicant’s extensive criminal record and blatant disregard for legal institutions of Australia. In considering the principles referred to in YNQY, this Primary Consideration weighs against revoking the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration C
The Tribunal has taken into account that the Australian community may have greater tolerance for a person who has lived in Australia from a young age. That is not the case with the Applicant. He came to Australia at the age of 25. With him he brings a substantial criminal history in New Zealand and he has continued to offend whilst in Australia.
The rhetorical question asked by the Applicant is not to the point of Primary Consideration C. This has nothing to do with punishment and everything to do with the expectations of the Australian community where a person, such as the Applicant, has been convicted of serious crimes of the nature of those contained in his criminal record. That expectation is clearly non-revocation of the mandatory cancellation.
Having regard to the whole of the evidence, I find that Primary Consideration C weighs heavily in favour of non-revocation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14 of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence was advanced that the revocation of the Original Decision would have an impact on Australia’s non-refoulement obligations such that it is of any relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(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; and
(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 Australian indefinitely) must be examined.
The Applicant was first dealt with by the courts in Australia only three years after his arrival. The Tribunal therefore has given less weight to this consideration.
The strongest of the Applicant’s ties to Australia are his fiancée, her children, and her parents, who are all Australian citizens. The Applicant’s family, namely his father and stepmother, brother, and aunt and uncle, with whom he resided as a child, all reside in New Zealand.
The Applicant is engaged to DC, however the evidence in relation to their planned wedding was wholly unreliable. The Applicant said in evidence that no date had been set for the wedding. By contrast, DC in her email to the Minister dated 8 February 2018 said they had lost thousands of dollars cancelling their wedding.[31] In evidence, she referred to the cost of invitations and venue cancellations. She said that she cancelled the wedding approximately one week before the Applicant went into detention. He went into detention on 5 October 2018. However, DC was referred to an email dated 16 November 2017 which was after the Applicant was imprisoned. It was addressed to DC from St Luke’s Liverpool and provided cost estimates for the church hire, verger, organist, paperwork and marriage preparation.[32] DC was unable to nominate the wedding date. She said that she had changed it a number of times and that it could have been September or October 2018. DC was also referred to an email to the Minister dated 8 February 2018 in which she said “We have been together for many years and are due to be married this year and we have already lost thousands of dollars by cancelling our church and reception due to his incarceration”. This was clearly inconsistent with her earlier evidence that the cancellation occurred one week before the Applicant went into detention. When asked in cross-examination whether she would be surprised if the Applicant had said that no wedding date had been set, her response was “yes”. Later in cross-examination, she said the Applicant did not know the wedding date because the wedding was a surprise.
[31] Exhibit A, G Documents, pages 100 – 101.
[32] Ibid, pages 102 – 103.
The Applicant submits that he has positively contributed to the Australian community through his volunteer work with the Salvos and the local church, as outlined in a letter from JS as referenced above. The Tribunal notes that the JS had only known the Applicant for five months, and no satisfactory detail of that contribution was contained in the letter. The Applicant also referred to his business interests in Australia as further indication that he is positively contributed to the Australian community.
The Respondent submits that the length of the Applicant’s relationship with DC is in dispute. There was inconsistency about when the relationship commenced and the period in which they had been in a de facto relationship. In DC’s undated letter to the Minister,[33] she said she has known the Applicant for four years and have been living together in a de facto relationship for two and a half years. In her report to the police on 27 August 2017,[34] DC is reported to have said they had been in a de facto relationship for about four months and that she had been trying to leave the Applicant. She further referred to him as her ex-partner. There is other evidence in the NSW Police Records that the Applicant’s relationship with Ms A ended in about May 2016. Hence, it is argued that the nature and extent of the relationship is unclear. As previously referred to above, the Applicant said in evidence that in he was never in a relationship with Ms A. This is contrary to the evidence of DC who said that the Applicant was in a relationship with Ms A before DC.
[33] Ibid, pages 85 – 86.
[34] Exhibit B, page 16.
The Respondent further submits that the Applicant has contributed little to the Australian community. The only evidence of him having been employed is the registration of his own business in October 2017. As referred to above, DC referred to a thriving business, grossing $110,000 per annum, in which she was a partner. Further, that business she said was running successfully in 2016 and 2017. She said that they had lost major building contracts since the Applicant was imprisoned, however no evidence including business records were produced. This is to be contrasted with the Applicant’s evidence that the business was struggling and had been for a number of years due to unpaid accounts from a contractor. He said that he was earning about $20,000 per annum and, because of the dire financial circumstances, he chose not to employ a driver, as it was cheaper to pay court fines for driving whilst disqualified, and had resorted to stealing from Woolworths to provide food.
On the occasions when he travelled to New Zealand, he did so to work with his brother who was a builder. He also confirmed that he would be able to practice his profession as a glazier in New Zealand, albeit he would not ask his brother for work.
The Applicant’s business, Art of Glass (Sydney), was registered[35] on 13 October 2017, less than two months before he was imprisoned. The Applicant said in evidence that he had previously been operating under a business name and he did not know of the obligation to register the business. In the absence of any accounting or business records there is no evidence the Tribunal can accept that demonstrates the business was performing to any significant degree.
[35] Exhibit A, G Documents, page 81.
Conclusion: Other Consideration 2
The evidence about the nature and extent of the Applicant’s relationship with DC is wholly unsatisfactory. Further, I find that DC’s evidence about the wedding arrangements and loss of money was not credible. She deliberately altered her evidence in an attempt to overcome glaring inconsistencies and contradictory evidence about the wedding. Her evidence that the wedding was a surprise in an attempt to explain the Applicant’s evidence that no wedding date had been set, was not believable.
The Tribunal accepts that the Applicant has ties to Australia with his fiancée, her children and her family, all of whom are Australian citizens and live in Australia. There is no satisfactory evidence upon which the Tribunal accepts that the Applicant has any strong business ties to Australia and the Australian community. I agree with the Respondent’s submission about the insufficiency of evidence about the business, including lack of business records.
The Tribunal finds that the Applicant also continues to have considerable ties to New Zealand and, having regard to the whole of the evidence, I find that only slight weight in the Applicant’s favour can be given to Other Consideration 2.
Other Consideration 3: Impact on Australian business interests
No evidence was advanced that the revocation of the Original Decision would have a negative impact the delivery of any project or Australian business such that it is of any relevance in determining the application.
Other Consideration 4: Impact on victims
DC and potentially her children are the only known victims of the Applicant’s offending, however DC denies any acts of violence or breach of AVO. Hence, no evidence that the revocation of the Original Decision would have a negative impact on members of the Australian community or any victims of the Applicant’s criminal behaviour was advanced such that it is of any relevance in determining the application.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction considers the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing himself, and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant was born in New Zealand. Since coming to Australia in 2010, the Applicant has regularly travelled outside Australia and to New Zealand to visit family and to work for his brother who is a builder. The Tribunal finds that there is no substantial language or cultural barriers present and the Applicant would not face any difficulty in reintegrating into society. While the Tribunal accepts that the Applicant may initially face some financial impediment if returned to New Zealand as a result of the loss of his business, there is no evidence to suggest that the Applicant cannot re-establish himself in a similar way. The Applicant also has a particular advantage in that his trade qualification is recognised in New Zealand and he has a work history there. Although he said he would not ask his brother for work, there is no impediment to him perusing similar employment in New Zealand.
Conclusion: Other Consideration 5
Having regard to the whole of the evidence, I place no weight in the Applicant’s favour in relation to Other Consideration 5.
There are no more Other Considerations to be considered on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, I find:
(a)Primary Consideration A weighs heavily in favour of the Respondent;
(b)Primary Consideration B is given no weight in favour of the Applicant;
(c)Primary Consideration C weighs heavily in favour of the Respondent; and
(d)The combined weight of the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that I have attributed to the Primary Considerations.
I therefore find that, taking into account all of the considerations in the Direction, they weigh in favour of the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

107. I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...........................[sdg].........................
Associate
Dated: 4 March 2019

Date of hearing: 22 February 2019

Advocate for the Applicant: Michael La Kiss, Migration Agent

Advocate for the Respondent: Hervee Dejean, Australian Government Solicitor

[2019] AATA 315

4 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	22 February 2019
Advocate for the Applicant:	Michael La Kiss, Migration Agent
Advocate for the Respondent:	Hervee Dejean, Australian Government Solicitor