Bartlett v The Minister for Immigration and Boarder Protection (Migration) - [2017] AATA 1561

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (28 September 2017)
Division:GENERAL DIVISION
File Number: 2017/4233
Re:Michael Bartlett
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:28 September 2017
Place:Brisbane

The decision under review is affirmed.
........................[SGD]...................................
Senior Member T. Tavoularis
MIGRATION – non-revocation of mandatory cancellation of visa – visa mandatorily cancelled under s 501(3A) – Applicant did not pass character test and was serving a term of imprisonment - whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Considerations in Direction No. 65 - discretion should not be exercised to revoke visa cancellation – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)

REASONS FOR DECISION
Senior Member T. Tavoularis
28 September 2017
INTRODUCTION

This matter relates to an application for review filed by Michael William Bartlett (“the Applicant”) on 18 July 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 7 July 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was to not revoke the original decision.[1]
[1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).
The Tribunal has jurisdiction to review the decision of the delegate under section 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a citizen of New Zealand. He first arrived in Australia on 1 March 1982 when he was 16 years old.[2] He has since returned to New Zealand twice.
[2] See Exhibit 3, ‘Section 501 – G documents’, G15, p 88.
The Applicant last re-entered Australia on 25 February 1996 and was granted a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) upon arrival.[3] He has been here since.
[3] See Exhibit 3, G15, p 87.
This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the subsequent refusal of the Minister’s delegate to revoke that cancellation.
The Applicant has accumulated quite an extensive history of criminal offending in Australia that is reflected in his eight page National Police Certificate.[4] I will summarise his offences later in my consideration but most relevantly for the purposes of this matter, the Applicant was convicted and sentenced for 32 offences on 13 June 2013 relating to: fraud, forgery, utter forged document, obstructing a police officer, serious assault of a police officer, stealing, burglary and commit indictable offence, possess cannabis, and breach of bail (to name a few). For these offences he was sentenced to a total effective sentence of two years imprisonment. While committing these offences, the Applicant simultaneously breached earlier bail conditions and was returned to custody a number of times. At the time of sentencing on 13 June 2013 he was granted a parole release date of 30 July 2013. However, on 7 November 2013 he breached those parole conditions by committing the offences of: (1) failure to properly dispose of needle and syringe, and (2) possess property suspected of having been used in connection with the commission of a drug offence. He was then sentenced for these offences at the Cleveland Magistrates Court on 5 December 2013, receiving a conviction and fine of $200.
[4] See Exhibit 3, G10, pp 57 - 64.
It should also be noted that the parole granted to him on 30 July 2013 was suspended on 10 October 2013 and he was returned to custody on 7 November 2013. He received the benefit of various re-releases on Court Ordered Parole. His parole was cancelled on

9 March 2015 and he was later returned to custody. His sentence was fully discharged on 25 April 2017.
On 1 February 2017 the Applicant was notified that his visa has been cancelled pursuant to the provisions of s 501(3A) of the Act.[5] The Minister was satisfied that the Applicant did not pass the character test as he had a ‘substantial criminal record’ as defined by

s 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more. The Minister was also satisfied that at the time the Applicant was serving a sentence of imprisonment on a full time basis in a custodial institution.
[5] See Exhibit 3, G3, p 16.
The Applicant was invited to make representations to seek revocation of the mandatory cancellation decision in accordance with sections 501CA(3)(b) and 501CA(4)(a) of the Act.
On 12 February 2016 the Applicant lodged a request for revocation of the mandatory visa cancellation along with a personal circumstances form.[6]
[6] See Exhibit 3, G13 and G14.
On 7 July 2017 the Minister’s delegate refused to revoke the mandatory visa cancellation pursuant to s 501CA(4) of the Act.[7] This decision was hand delivered to the Applicant who acknowledged receipt on 11 July 2017.[8]
[7] See Exhibit 3, G8 pp 43 - 55.
[8] See Exhibit 3, G8 p 56.
On 18 July 2017 the Applicant applied to this Tribunal for review of that decision.[9]
[9] See Exhibit 3, G2, p 4.
ISSUES
When making a decision pursuant to s 501CA(4) of the Act, about whether to revoke a mandatory cancellation of a visa there are two issues the decision maker must consider:
(i)whether the Applicant passes the “Character Test” as defined in s 501(6) of the Act; and
(ii)if not, whether there is another reason why the mandatory cancellation decision should be revoked.
The Minister contends that the Applicant does not meet the character test, and that the correct and preferable decision is to not revoke the mandatory cancellation of the Applicant’s visa.[10]
[10] See Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) at [3].
I agree with the Minister’s contention that the Applicant fails the character test. I will expand on this below.
Apart from the character test, the remaining consideration upon review by this Tribunal is whether I can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
I consider that the Minister’s delegate correctly exercised the discretion in s 501CA(4) of the Act to not revoke the mandatory visa cancellation. My reasons follow.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
It was immediately clear to me from the material filed in this matter that the Applicant does not pass the character test. For the sake of completeness I will still address that issue.
At the hearing, I confirmed that the parties agree about the nature and extent of the Applicant’s offending. As previously mentioned, that offending is set out in the Applicant’s National Police Certificate.[11] Whilst residing in Australia the Applicant has been convicted and sentenced for something in the order of 73 criminal and traffic offences.[12]
[11] See Exhibit 3, G10, pp 57 - 64.
[12] See Exhibit 4, Respondent’s SFIC at [7].
The character test is defined in s 501(6) of the Act, which provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is

s 501(6)(a), under which a person does not pass the “character test” if they have a “substantial criminal record” as defined in s 501(7). According to s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.
Having regard to his criminal history, it is clear the Applicant has been sentenced to more than 12 months imprisonment.[13]
[13] Even if the Applicant had not received a single sentence of more than 12 months, he would still fail the “character test” if he had been sentenced to two or more terms of imprisonment totalling more than 12 months or more, pursuant to s 501(7)(d) of the Act.
According to his criminal history[14] the Applicant has been given sentences of imprisonment on the following occasions:
[14] See Exhibit 3, G10 – National Police Certificate dated 16 February 2017, pp 57 - 64.
·On 16 April 1984 he was sentenced to 1 month imprisonment for each charge of burglary (2 charges), theft by deception, attempted theft by deception, handle / receive / retention of stolen goods;
·On 6 May 1993 he was sentenced to 3 months imprisonment, wholly suspended subject to a two year good behaviour bond, for the offences of burglary and stealing;
·On 12 February 2002 he was sentenced to a total of 42 months and 7 days[15] imprisonment for the offences of: receive property stolen outside NSW greater than $15,000, resist or hinder police officer in the execution of duty, drive with middle range prescribed concentration of alcohol, drive vehicle recklessly/ furiously or speed/ manner dangerous, possess prohibited drug, break and enter building (steal) value of equal to or less than $15,000, intimidate police officer in execution of duty, goods suspected stolen in custody of other;
[15] See Exhibit 3, G10, pp 61 & 61 – On 12 February 2002, the Applicant was charged with eight separate offences. The totality of the custodial sentences is 42 months and 7 days. Two of those sentences are for custodial terms of 16 months each. It is not clear from the National Police Certificate whether some or all of the custodial time for these offences was to be served concurrently.
·On 19 June 2007 he was sentenced to 9 months imprisonment for the offence of assault occasioning bodily harm;
·On 12 March 2008 he was sentenced to a total of 24 months imprisonment[16] for the offences of: common assault, drive with high range prescribed concentration of alcohol, larceny value of less than $2,000, destroy or damage property less than $2,000, drive on road while licence suspended;
[16] See Exhibit 3, G10, p 61 – On 12 March 2008, the Applicant was charged with ten separate offences. The totality of the custodial sentences is 24 months. At least one of those sentences was for 12 months alone. It is not clear from the National Police Certificate whether some or all of the custodial time for these offences was to be served concurrently.
·On 13 June 2013 he pleaded guilty to 32 charges and was sentenced as follows:
o2 years imprisonment (concurrent) and $1,000 compensation on all charges of: serious assault police, serious assault police armed / pretend to be armed with dangerous/ offensive weapon/ instrument, burglary and commit indictable offence;
o3 months imprisonment (concurrent) for the charge of assault or obstruct police officer;
o30 days imprisonment (concurrent) and restitution of $41.96 for the charge of stealing;
o12 months imprisonment (concurrent) on all charges of: enter premises and commit indicatable offence, enter premises with intent to commit indictable offence, stealing (x 2);
o1 month imprisonment (concurrent) for the charge of assault or obstruct police officer;
o6 months imprisonment (concurrent) and $50 restitution on all charges of: fraud – dishonestly obtains property from another (x 2), receiving tainted property, attempted fraud – dishonestly obtains property from another (x 2), forgery, utter forged document, personation in general – falsely represent self to be a person living/ dead/ real/ fictitious;
o3 months imprisonment (concurrent) and a total of $1,277.25 restitution on all charges of: fraud – dishonestly obtains property from another (x 2), forgery (x 3), utter forged document (x 3), personation in general – falsely represent self to be a person living/ dead/ real/ fictitious (x 3), fraud – dishonestly gain benefit/ advantage;
oHe also had a conviction recorded but was not further punished for the charges of: breach bail and possessing dangerous drugs.
There is no doubt the Applicant has a “substantial criminal history” within the meaning of subsection 501(7)(c) of the Act, such that he does not pass the character test.
I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound in accordance with section 499(2A) to comply with any directions made under the Act. In this case Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
“…a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”[17]
[17] Direction No 65, paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker’s consideration. I note that these principles have been accurately cited at paragraph [22] of the Respondent’s SFIC.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct.
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly, amongst those factors are: (a) the principle that violent crimes are viewed very seriously; (b) the principle that crimes committed against vulnerable members of the community, or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; (c) the sentence imposed by the courts for a crime or crimes; (d) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and (e) the cumulative effect of repeated offending.
The Applicant’s conduct to date is clearly of a serious nature. After some initial cavilling, the Applicant eventually conceded the seriousness of his offending at the hearing. In my view, his history of offending is both serious and appalling. Putting aside for a moment the repeated nature of the offending, the Applicant has contrived to continue his offending in circumstances where he has received multiple warnings and/or concessions from the sentencing courts in the form of community service orders, grants of bail, probation and previous terms of imprisonment.
There is no escaping the seriousness of his criminal history. We are talking about – in custodial sentences alone – a total period that is easily in excess of 52 months of custodial time.[18] It is not clear from the sentencing record whether some of the custodial sentences were ordered to be served concurrently or were otherwise suspended. The salient point is that the offences were committed in the first place and that they subsequently attracted a sentencing regime of custodial time.
[18] With reference to the sentences handed down on 12 February 2002, 12 March 2008, 13 June 2013, if one has regard to the highest or “head sentence” imposed on each of those three dates the custodial time comes to 52 months calculated as follows 16 months, 12 months and 24 months respectively. Of course, if a concurrent regime of sentencing does not in fact apply, and each individual sentence appearing in this Applicant’s criminal history was added the total custodial time would be at least twice this figure.
A further and perhaps more forensic examination of his criminal history reveals the sentencing court(s) have tried to ameliorate the harshness and sheer disruption that custodial terms have on any offender’s life by (1) at first imposing fines, then (2) on occasion, suspending some of his custodial terms, (3) imposing concurrent sentences instead of cumulative sentences, and (4) giving him the benefit of purely remedial and non-custodial forms of retribution such as community service orders or time to be spent at a youth training centre.
The sentencing courts have therefore done everything within their legislative power to lessen the severity and impact of the sentencing regimes imposed on the Applicant. Despite these concerted efforts by the sentencing courts, none of it seems to have succeeded in moderating or controlling the Applicant’s offending. One of his final episodes of serious offending is extraordinary, both for its level of seriousness and for the brazen nature of the offending, culminating in his eventual surrender to lawful authority.
In the proceedings before the Magistrates Court of Queensland (at Cleveland) on 13 June 2013 whilst sentencing the Applicant the presiding Magistrate made the following comments:
“… The most serious offences in my view are those related to the serious assaults of the police on the 23^rd of October 2012. Why you would do what you did it (sic) beyond me. Until then your offending would probably have led to a suspended sentence at worst given your history, but your behaviour that day was unbelievable.
Police officers are just ordinary people doing a fairly difficult job and your behaviour that day made it so much harder and more dangerous for them. That constable didn’t deserve to have your foot in his face. He didn’t deserve a fire lit above his head in the ceiling nor things thrown down on him, nor threats of violence….
… the court must have regard to principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable. That doesn’t apply when violence is used as in the serious assaults.”[19]
[19] Exhibit 3, G11 “Transcript of proceedings - Magistrates Court at Cleveland on 13 June 2013 – Decision and sentencing remarks of Magistrate Kennedy”, pp 66 - 67.

As far as I am concerned one is able to comprehend the sheer seriousness of this episode of offending by having regard to how the police were compelled to resolve it. The police did not resolve it by simply man-handling the Applicant and forcibly taking control of the situation. This is because the situation created by the Applicant demanded more than that. It is beyond question that the Applicant, by his absurdly serious conduct, caused a situation of a siege necessitating the involvement of police negotiators and, indeed, the deployment of special operations police officers (akin to “SWAT teams” as they are known in the popular media), in an effort to protect the public by isolating the incident and to otherwise resolve the deadlock. The Applicant’s conduct can only be described as quite simply outrageous.
There can be no argument about the seriousness of this conduct. Serious though this episode may be, it is not isolated conduct when one has regard to the balance of his criminal history. Viewed holistically, the offending has the consistent themes of the Applicant (1) refusing to respect the personal and property rights of others, and (2) refusing to accept and submit to lawful authority. The balance of his history cannot be read and comprehended in any other way.
I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality and consistently serious nature of the Applicant’s offending can only be viewed seriously in terms of its overall impact on the community.
(b) The Risk to the Australian Community should the Applicant continue to commit further offences or engage in other serious conduct
Paragraph 13.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:
(i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of Potential Future Harm
As previously mentioned, the Applicant has committed a number of offences involving significant transgressions against the personal and property rights of others. He has also committed at least five criminal offences involving the direct infliction of physical harm on others in the form of assaults. This offending can only be viewed as serious. There are at least another five criminal offences relating to physical altercations with lawful authority (assault/obstructing police). As mentioned earlier, in perhaps the most significant escalation of the severity of the offending, his conduct gave rise to a siege situation after, yet again, directly challenging lawful authority.
There is a clear consistency in the offending in terms of its escalating severity and refusal to submit to lawful authority. The Applicant’s criminal history is suggestive of an overall demeanour oriented towards him getting his own way and trying to make sure nothing obscures or otherwise gets in the way of what he wants to achieve.
There is a further theme to his offending and it relates to his offences involving unlicensed driving and driving with a high range concentration of alcohol in his blood. When he was well past his fortieth birthday, he was sentenced for both of these types of offences. There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”.[20] Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
[20] See Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16].
Having regard to the nature of this past conduct, were he to reoffend in a similar manner, I am of the view that he would pose a grave risk to individuals in the Australian community. His offending against the personal rights of others, the property rights of others, and wanton disregard for court orders or any lawful authority could result in members of the Australian community suffering anything from financial loss, serious physical and/or psychological injuries to, conceivably, death.
The conduct giving rise to the siege situation is, to my mind, especially significant. We live in a world now dominated by constant threats of social disruption, be it in the form of terrorist derived violence or via electronic hacking. It should be appreciated that the last thing our lawful authorities want is to be compelled to unnecessarily deploy resources to deal with conduct of the type exhibited by this Applicant that resulted in the siege situation.
Though I recognise that the Applicant contends he is a changed man and that he poses no future risk of harm, this contention is unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is great.
Likelihood of engaging in further criminal or other serious conduct
The Applicant contends that he has apparently undertaken a course of rehabilitation that has effectively resolved his previous issues with drugs and alcohol. It seemed common ground at the hearing that the influence of these substances was a primary cause behind his offending. He told the hearing that about 9-10 years ago he attended a rehabilitation clinic at Cleveland, Brisbane known as the “Goori House”. He said the clinic has since closed and that he did not have any written material or names of any doctors evidencing (1) the treatment he received, and (2) the outcome of that treatment.
While I do not dismiss or discount this evidence I cannot allocate any significant weight to it because there is no oral or written expert evidence to support the underlying contention. There is, in my view, simply too great a deficiency between any reliably demonstrated change in the Applicant’s behaviours involving illicit drugs and alcohol and any properly verifiable and completed course of rehabilitation or psychological therapy to address those issues.
The state of the evidence is suggestive of the Applicant being at real risk of relapsing into abusing alcohol and illicit drugs and thus committing further offences. Were he to be released back into the community at this juncture, I have a firmly held apprehension that he would be at real risk of re-offending and, most likely, of causing serious harm. Indeed, I think this apprehension is correct because his criminal history reveals that he did relapse into a pattern of offending after his apparent rehabilitation at Goori House. According to his evidence, he ended his stay at Goori House 9-10 years ago. Yet he continued his offending after this time:
·     In May 2011 he was charged for stealing.
·     In August 2012 he is charged with assault or obstruct police officer.
·     In October 2012 he is charged with possessing dangerous drugs.
·     At the end of 2012 he commits the offences culminating in the siege incident.
·     In February 2013 he is charged with a stealing offences and breach of bail.
·     In December 2013 he was convicted for at least two further drug related offences.
·     There are also a number of fraud related charges for which the Applicant was dealt with in June 2013.
It is therefore simply not safe to rely on any component of his evidence relating to his asserted rehabilitation at Goori House.
There are four key characteristics of the Applicant’s criminal history and conduct to date that further point towards the likelihood of his reoffending.
First, as briefly mentioned above, his offending has continued over a long period of time (over 31 years[21]), at fairly consistent, indeed increasing, levels of seriousness.
[21] Court events from July 1982 – December 2013.
Second, in addition to his offending, the Applicant’s history of a refusal to accept and respect lawful authority is, to my mind, of particular concern. In considering matters like this, I have regard to the nature and severity of the offending. When the offending involves repeated challenges to lawful authority and a refusal to acknowledge lawful authority, the offending becomes, to my mind, of a nature that is more likely to be repeated. This is because the offender often does not fear retribution by lawful authority for his offending. In those circumstances the risk of reoffending is higher.
Third, it should be noted that the Applicant talks about taking positive steps to rehabilitate himself and that he is a changed man. He referred in his evidence to certain psychological issues in his life involving depression and suicidal ideation. However, as was the case with the asserted rehabilitation at Goori House, there is no probative medical evidence of these psychological symptoms and to what extent, if any, they may have contributed to his offending. I have misgivings about these types of factors raised, as it were, at “death’s door”, when applications like this come before tribunals or courts for determination. One wonders about the reason for the Applicant’s silence and absence of complaint about these factors throughout his adult life thus far and why these factors only emerge when serious decisions about these types of applications have to be made.
Finally, the Applicant initially sought to downplay and minimise the circumstances of his past offending. His overall demeanour seemed to suggest that much of his offending was something that occurred “in the past” and that he had turned a corner and was otherwise ready to make a positive contribution to the community. He sought to give the impression that all past problems and trigger points had been resolved. There is a dearth of any probative medical or other evidence to convince me that this is the case.
In consideration of the above factors, I determine that primary consideration A weighs heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision
The Applicant has two Australian daughters, aged 20 and 17 respectively.[22] Paragraph 13.2(2) of the Direction says that “this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made”. Therefore, this consideration only applies to the younger of the Applicant’s two daughters.
[22] See Exhibit 3, G13 at p 73, & G14 at p 79.
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of the factors include:
·(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where 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;
·(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…;
…
·(d) The likely effect that any separation from the non-citizen would have on the child, taking into account other ways they could maintain contact;
·(e) Whether there are other persons who already fulfil a parental role in relation to the child;
…
The Applicant’s personal circumstances form indicates that both of his daughters reside with their mother, who is also the primary carer of the younger daughter.[23] The Applicant says he has had regular contact with his oldest daughter who previously lived with him but admits that he has intermittent contact with the younger daughter who is the only relevant minor in this matter. The Applicant confirmed at the hearing that although his daughters grew up with both their parents, his youngest daughter has only lived with her mother since she was 4 years old.
[23] See Exhibit 3, G14, pp 79 - 80.
The elder daughter attended the hearing and gave certain evidence on behalf of her father. Of course, as she is an adult, I cannot take her views into account for the purposes of this Primary Consideration. She was visibly upset at the situation her father now finds himself in. Notably, there was nothing – be it in the form of oral evidence or anything in writing – from the younger daughter deposing to any type of positive relationship she may have (or had) with her father. Be that as it may, it should be noted that the younger daughter will attain the age of majority next month. She will therefore be freely able to travel to New Zealand to see her father were he to be returned to that country.
I find that this consideration attaches very little weight in circumstances where (a) the Applicant’s only minor child will be 18 years old in one month; (b) he has played a limited parental role in her life; (c) the minor resides with her mother who has had responsibility for her primary care; and (d) the Applicant would still be able to otherwise maintain contact with his children from New Zealand by telephone, skype or other social media. Additionally, there is nothing stopping his children from travelling to New Zealand to visit him.
Primary Consideration C: Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community, and whether the Australian community would expect that someone with his character concerns and history of offending should continue to hold a visa. I must also have regard to the Government’s views in this respect.
The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Taking into account the consistent and quite serious nature of his offending for which he has been charged and convicted, there is, to my mind, little or no doubt that the Australian community would expect that this Applicant should not hold a visa.
The inexcusable offences against the personal and property rights of other people could – on their own – quite understandably result in a lowered tolerance in the Australian community of any criminal or other serious conduct. This offending is further adversely flavoured by his refusal to submit to lawful authority and by the escalating nature of his offending. This Applicant is aged 52 years. He first came to Australia in March 1982, when he was 16 years of age. His offending commenced almost immediately upon his arrival here. He was before the courts on 5 July and 11 October 1982. These were for relatively minor offences but, ominously, the nature and severity of the offending rapidly escalated. On 20 May 1983 he was dealt with at the Warburton Magistrates Court for theft of a motor vehicle. On 17 June 1983 he was dealt with at the Warragul Magistrates Court for burglary and other property–related offences.
Without going into the detail of each offence it is worth noting the chronological sequence of the offending throughout his time in this country. This Applicant has been before the courts in Australia as follows (following the 1982-83 appearances): April 1984, March 1987, October 1988, May 1993, June 1993, August 1993, January 1996, July 1996, September 1996, October 1996, December 2001, February 2002, June 2007, March 2008, January 2010, July 2011, June 2013, August 2013, and December 2013.
The Applicant’s contribution to Australia as a minor would, to be fair to him, be limited. His constant brushes with lawful authority since being in Australia have most probably prevented him from making any positive contribution to the Australian community. There was, for example, no reference (oral or written) tendered on his behalf at the hearing. A friend of his, a Mr Whitten, showed up at the hearing and sought to act as the Applicant’s representative. Mr Whitten spoke of the Applicant’s virtues and positive aspects which, to my mind, did not reveal very much about the Applicant. On the contrary, the basic theme of Mr Whitten’s comments was that the Applicant did have a serious past offending history but that he had turned the corner and would now be a good and benevolent man if released back into the community. More telling is the absence of, for example, a reference from a former employer or former work colleague, or even a “pillar” of the community (such as a minister of religion or a local member of parliament), either of whom could have attested to some type of positive role the Applicant has played in the community and may in future play. There was no evidence in this regard. There was only the Applicant telling the hearing that he was a changed man and the abovementioned comments of Mr Whitten. There was similar evidence from the Applicant’s elder daughter but given the proximity of that relationship, I cannot allocate much weight to what she had to stay in this regard.
As mentioned in my commentary about primary consideration A, the Applicant’s offending is serious yet he has not provided any probative medical evidence indicating completion of any rehabilitative treatment for factors that may have contributed to that conduct. Such evidence, from a suitably qualified medical or other expert giving a scientific reason or other rationale behind the offending behaviour, could have been of utilised as a lever against the community’s expectation that this Applicant should not hold a visa. The only evidence about amelioration of the Applicant’s conduct came from him and to a lesser extent Mr Whitten and the eldest daughter of the Applicant. That evidence is not, to my mind, sufficient to rebut the community’s expectation that this Applicant should not hold a visa.

Any contribution this Applicant may have made to this community – not apparent to me from the evidence in any event - is significantly outweighed by his serious conduct resulting in the custodial and other terms imposed on him. The evidence of his eldest daughter and comments of Mr Whitten, do speak well of him and indicate that given a life away from constant offending, the Applicant does have potential for playing a positive role in the community.
Starkly absent from the evidence is any indication that the Applicant has completed any course that could orient him towards a viable career or line of employment. Even in the absence of that material, there is nothing from a past or prospective employer who valued his contribution to a given workplace. This reluctantly leads me to a conclusion that he has spent much of his life (1) battling addictions and/or other problems with illicit drugs and alcohol, and (2) dealing with the consequences of quite consistent criminal and similar offending, which has now culminated in this challenge to his right to remain in this country.
This Applicant has, to my mind, a significant way to go before he can convince any decision maker in my position that were he to remain in this country, the Australian community could (1) reasonably expect there would be no risk of him reoffending, (2) that he has resolved his drug and alcohol issues and that (3) he will then embark on a crime-free career involving fulfilment for himself and positive benefits for the Australian community.
I therefore have grave difficulty in accepting that this Applicant, with: (a) his total history of offending from virtually straight after his arrival here as a 16 year old, (b) his unconvincing demonstration of rehabilitation and re-orientation of his life, and (c) his minimal contribution to the Australian community; would meet the expectations of the Australian community that he hold a visa to stay here.
Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of not revoking the mandatory visa cancellation.
Other Considerations
It is necessary to look at the other considerations listed at paragraph 14 of the Direction.[24] I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I address each in turn.
[24] Direction No 65, paragraph 14(1).
With reference to other consideration (a) – International Non-refoulement obligations – There has been no submission that this consideration is of any relevance in this case. New Zealand is a sufficiently large and expansive country. There is no legal or other requirement on this Applicant to return to a specific area or district.
With reference to other consideration (b) – Strength, nature and duration of ties to Australia – the Applicant has been in Australia on virtually a continuous basis since he was 16. The Respondent acknowledges that the Applicant has certain family ties to Australia with both of his biological children residing here and one of whom (on the evidence) wants to remain here. Be that as it may, the Applicant nevertheless has family in New Zealand, including three brothers, his grandmother, over ten aunts and uncles, nieces and nephews and cousins.[25] I am inclined to agree with the Respondent’s contention that although the Applicant has spent something in the order of 35 years in Australia, pursuant to paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this fact because his offending commenced very shortly after his arrival here. At best, this consideration can only be given a neutral weighting. It certainly does not outweigh primary considerations A and C, which weigh heavily in favour of non-revocation.
[25] See Exhibit 4, Respondent’s SFIC at [45], referencing Exhibit 3, G14 p 81.
With reference to other consideration (c) – Impact on Australian business interests – there was no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.
With reference to other consideration (d) - Impact on victims – although not directly contended by the Respondent, there can be little doubt the Applicant’s violent and other offending has resulted in significant physical and/or financial harm to others. Although there is no specific evidence about the impact on those victim(s) were the Applicant allowed to remain in Australia, my finding is that this other consideration does not assist the Applicant.
With reference to other consideration (e) - Extent of impediments if removed - the Respondent acknowledges that relocation to New Zealand would not be entirely straight forward for the Applicant. The Respondent concedes that if forced to relocate, the Applicant would be separated from his two daughters and that he may experience some financial and emotional hardship. However, any weight that could be allocated to this other consideration is outweighed by the factors anticipated in paragraph 14.5 of the Direction. These factors include: (a) the Applicant’s age and health; (b) whether there is a substantial language or cultural barrier; and (c) any social, medical and/or economic support available to him in that country. Reference can be made to the Tribunal’s comments in Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301. That matter also involved the potential return of an applicant to New Zealand:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand. …[He has previously lived there and visited on occasions]... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.”[26]
[26] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301 at [101] per SM Kelly.
I consider that this fifth other factor is of minimal weight in favour of the Applicant. In addition to the quoted reasons above, the Applicant apparently has some measure of work experience in construction and labour hire organisations. Although no guarantee of employment, he would not be entirely precluded from finding and performing similar work in New Zealand.
CONCLUSION
There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in Direction No. 65. Primary considerations A and C weigh heavily in favour of non-revocation. I have assigned very little, if any, weight to Primary Consideration B. I do not consider that any of the ‘Other Considerations’, alone or combined, assist the Applicant to any sufficient degree, certainly not to the extent they would outweigh the Primary and Other Considerations which favour non-revocation.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

............................[SGD]......................................
Associate
Dated: 28 September 2017

Date of hearing: 20 September 2017

Applicant: By video

Advocate for the Applicant: (Mr Whitten as support)

Solicitors for the Respondent: M. Hawker, Sparke Helmore Lawyers

Date of hearing:	20 September 2017
Applicant:	By video
Advocate for the Applicant:	(Mr Whitten as support)
Solicitors for the Respondent:	M. Hawker, Sparke Helmore Lawyers