Bayly and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2477

Bayly and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2477 (4 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4035
Re:Joshua John Bayly
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar
Date:04 August 2022
Place:Adelaide

The decision under review is affirmed.
.........[sgnd]...........................................
Senior Member K Millar
CATCHWORDS
MIGRATION – mandatory revocation of Class TY Subclass 444 Special Category (temporary) visa under section 501(3A) – where Applicant does not pass the character test – whether the discretion to revoke the visa cancellation should be exercised – consideration on Ministerial Direction. 90 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Millar
04 August 2022
INTRODUCTION

The applicant is a citizen of New Zealand. He arrived in Australia on 19 May 1994, when he was 13 years old, and is now 41 years of age.
The applicant has a lengthy criminal history commencing in 1996. He has multiple motor vehicle offences, drug offences and breaches of orders imposed by the Court. The more significant offences are supply of a prohibited drug, aggravated assault against his spouse, stalk/intimidate, custody of a knife in a public place, break and enter and aggravated burglary.
On 25 March 2021, the applicant was sentenced to imprisonment for 15 months as an aggregate sentence for a series of offences including the supply of a prohibited drug.
As he had been sentenced to a term of imprisonment of more than 12 months, his Subclass 444 visa was cancelled on 28 April 2021.
The applicant sought revocation of the decision to cancel his visa, which was refused by a delegate of the Minister. The applicant has applied to the Tribunal for a review of the decision not to revoke the cancellation of his visa.
The matter was heard on 19 July 2022, and the Tribunal heard oral evidence from the applicant, his mother and his ex-partner.
BACKGROUND
The applicant was born in Rotorua in 1981 and had a difficult childhood. According to his mother, he never really learned how to read and was assessed at the Queen Elizabeth Hospital in Rotorua, where she says they found out he doesn’t comprehend well and “things don’t last for him”. He was diagnosed with dyslexia.
The applicant’s sister was sexually abused by her paternal grandfather and according to the applicant, their grandfather was charged and imprisoned for this abuse. The applicant and his immediate family do not have any contact with his father’s side of the family.
The family migrated to Australia on 19 May 1994 and settled in South Australia. The applicant has not left Australia since he arrived.
The applicant’s father was an alcoholic and his mother worked two jobs to try and keep the household. In his childhood, his father was in and out of rehabilitation. His father was violent towards the family and the applicant states his father would punch him for no reason. His father was also violent towards his mother and his sister. His sister left home early and joined the Australian Navy to get away from the problems at home. His father died from throat cancer in 2011, and the applicant cared for him between approximately 2009 until his death.
The applicant struggled at school because of his difficulty with reading and writing. He left school in the first term of year nine and started an apprenticeship as a spray painter. The applicant can read at primary school level and struggles with larger words. He was able to read the first paragraphs of his statement slowly and with some hesitation. He says his reading is better than his writing and has improved with using text messages.
When he finished his apprenticeship, he moved to Sydney to live with his sister, and worked as a spray painter. His sister has an adult daughter, who now has two children. He has not met these children.
The applicant returned to Adelaide between 2001 and 2004, then returned to Sydney.
The applicant started using drugs when he was 14 or 15 years old and began injecting ice at around 16 years of age, and said he was injecting for around 10 years. He attempted rehabilitation in 2004 and completed three months of a 10-month rehabilitation program. He says he stopped taking drugs while he was caring for his father between 2009-2011 however when his father died, he started using again. He says he has used ice once in immigration detention but his not used since.
The applicant was in a relationship with his now ex-partner from approximately 2010. His daughter A was born in 2011 and his son B was born in 2014. His ex-partner also has an older child C from a previous relationship. His ex-partner was unable to maintain the rent in Sydney after he was imprisoned and returned to live with her parents and the children in Adelaide. She is now in a new relationship.
The applicant provided a reference from his employment as a spray-painter which he commenced on 16 November 2020, with his employer stating he saw him as a future team leader and as a person who trains apprentices. He also provided a letter from a taxi owner in Adelaide who states he will always have work available for him.
His mother and his ex-partner are supportive and state they will provide the support he needs for rehabilitation if he is released from detention.
OFFENDING HISTORY
The applicant has a lengthy and extensive offending history. His first offence was committed as a minor two years after arriving in Australia. His criminal offending includes assault, drug offences, property offences, weapons offences, family violence, public order offences, traffic offences and offences involving breaches of orders.
Assault
The applicant was convicted of assault in 2004. He could not recall this offence, but thought it may have been a fight at a pub.
He was again convicted of assault in 2013 as part of a series of offences. He could not recall this offence but thought it may be an offence against a police officer.
Drug related offences
The applicant’s drug related offences commenced in 1996 with possessing a controlled substance and possessing cannabis. In 2013 he was fined for possessing equipment to use with a controlled drug. He was convicted of possessing a controlled drug and possessing equipment to use with a controlled drug in 2014. The same year he was convicted of driving with methylamphetamine in his blood. Late in 2016, he was again convicted of possessing controlled drug equipment in order to use a controlled drug.
On 12 May 2017, he was convicted of selling a controlled drug and sentenced to a term of imprisonment of 3 years and 3 months. Sentencing remarks were provided from Judge McEwan of the District Court in South Australia. The applicant and his ex-partner were convicted, and the applicant was sentenced to a term of imprisonment of 3 years and 6 months with a non-parole period of 23 months.
In 2019 he was fined for possessing a prohibited drug and in 2021, he was fined and disqualified from driving for driving with an illicit drug in his blood.
On 25 March 2021, the applicant was convicted of supply of a prohibited drug. In an aggregate sentence with driving offences and custody of a knife in a public place he was sentenced to a term of imprisonment of 15 months. Sentencing remarks were provided from the Local Court in Sutherland from Magistrate Boulos for this series of offences. This is the offence that led to the cancellation of his visa.
Property Offences
On 30 June 2006, the applicant was convicted of aggravated break and enter and commit a serious indictable offence in company. He was given a suspended sentence of imprisonment for 1 year 3 months and 4 weeks.
On 22 March 2007, he was convicted of break and enter and stealing less than $15,000 and sentenced to a term of imprisonment of 15 months.
There are two outstanding warrants in Queensland from 2009 for two charges of unauthorised dealing with shop goods.
In 2011 he was convicted of dishonestly taking property without consent. On 19 April 2013, he was convicted of damaging a building or motor vehicle.
On 6 August 2013, he was convicted of unlawful possession, deceiving another to benefit self or third person, and aggravated deceive another to benefit self or third person and given a suspended sentence of imprisonment for 3 months.
Weapons offences
In 2011, the applicant was fined for carrying an offensive weapon at night or near licensed premises, and on 25 March 2013 was convicted of custody of a knife in a public place.
Family violence offences
In 2001, the applicant was convicted of two counts of breaching a restraining order.
On 19 April 2013, he was convicted of 4 counts of aggravated assault (no weapon) against a child or spouse.
On 7 June 2021, he was convicted of intimidating his ex-partner with the intention to cause her to fear physical or mental harm. Sentencing remarks of Magistrate Connell of the Local Court at Sutherland were provided for this offence.
Public Order Offences
In 1998 and 2000 the applicant has convictions for offensive language. He was convicted of failing to truly answer in 2001.
He was fined in 2009 for resisting an officer in the execution of their duty, and again for resist or hinder an officer in the course of their duties. In 2010 he was convicted of stating false personal details, and in 2013 for using indecent or profane language.
On 19 April 2013 he was convicted of disorderly behaviour and resist police. In 2015 and 2016 there were further convictions for resist police.
In 2021 he was convicted of stating a false name and address.
Traffic Offences
There are over 70 traffic offences in the period 1996 – 2021. Most of these offences are driving unlicensed and unregistered, however there are also offences of driving under the influence of alcohol or other drugs. There is a conviction for driving a vehicle with misleading plates, one for failure to obey traffic signals and one for fail to comply with breath analysis.
Of greater concern is the conviction in 2006 for driving a vehicle recklessly or furiously or in a speed or manner that is dangerous. In 2016 he was convicted of aggravated driving dangerously to cause police pursuit.
Offences involving a breach of Court Orders
There are over 40 offences involving a breach of court orders. The most common is failure to comply with a bail agreement, however breach of bond, fail to appear and contravene a direction or requirement also feature. Penalties have ranged from discharge without penalty through fines to terms of imprisonment.
In looking at the seriousness of the breaches, the Tribunal has considered the terms of imprisonment imposed for these offences. The applicant was sentenced to one month imprisonment in 2006 for a breach of bond, 12 days in 2014 for failing to comply with a bail agreement and was twice sentenced to imprisonment for seven days in 2015 for failing to comply with a bail agreement. In 2016 he had two periods of imprisonment for failing to comply with a bail agreement, one for 7 days and one for 21 days. A suspended sentence was revoked for breach of bond in 2016 and he was in imprisoned for 3 months.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a substantial criminal record and 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.
A person does not pass the character test if he or she has a “substantial criminal record”.[1] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[1] Section 501(6)(a) of the Act.
The decision to cancel the visa can be revoked after a person makes representations in accordance with an invitation and the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[2]
[2] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[3]
[3] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 90, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The issue to be decided is whether the Applicant does not pass the character test and if so, whether there is another reason the cancellation of the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 25 March 2021 the applicant was sentenced to an aggregate term of imprisonment of 15 months after being convicted of supply of a prohibited drug, custody of a knife in a public place, three counts of driving while disqualified, giving a false name or address and driving an unregistered vehicle. A sentence of 15 months means he has a substantial criminal record as defined by s 501(7)(c) of the Act, and it is correctly conceded that he does not pass the character test.
The remaining question is whether there is another reason the cancellation of the visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether the cancellation of the applicant’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in paragraph 5.2, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[4]
[4] Paragraph 6 of the Direction.
Principles that inform the decision-maker
Paragraph 5.2 of the Direction sets out a number of principles that inform the decision-maker, they are:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Taking the relevant considerations into account
Clause 6 of the Direction states that informed by the principles in paragraph 5.2 the decision maker must take into account sections 8 and 9 where these are relevant. Section 8 sets out four primary considerations and section 9 sets out four other considerations.
Paragraph 7 instructs that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
The Primary and Other Considerations
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
THE PRIMARY CONSIDERATIONS
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering the protection of the Australian community, cl.8.1 of the Direction requires decision-makers to keep in mind 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In examining the protection of the Australian community, cl.8.1(2) of the Direction requires decision-makers to consider:
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.
The nature and seriousness of the conduct

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, and the Tribunal has considered each of these factors.
Violent or sexual crimes, crimes involving violence against women or children and acts of family violence
Sub-clause (a) of cl.8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The term “family violence” is defined in cl.4 of the Direction as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The applicant has three convictions that could amount to family violence, and the Tribunal examined each of these in turn.
The first of the incidents which could be considered family violence occurred in 2001 when he was convicted of two counts of breaching a restraining order. This was an order to protect his mother. The applicant said this was to prevent verbal abuse.
His mother said the applicant was on drugs and had mental health issues he has never addressed. The applicant’s mother further stated that the applicant threatened her, which left her frightened, as she was separated from her husband and there was no-one there to help. The Tribunal accepts the account of the applicant’s mother. As his mother felt threatened, this is behaviour that falls within the definition of family violence.
The second incident is reflected in convictions on 19 April 2013 for aggravated assault against his spouse (4 counts), disorderly behaviour, resist police, fail to comply with bail agreement, drive which disqualified or suspended, damage a building or motor vehicle, aggravated assault and refuse name and address. The applicant was given a suspended sentence of imprisonment for 4 months. The applicant claimed this series of offences arose out of an incident where he and his ex-partner were arguing in the car, and his ex-partner had a can of coke in her hand. He flicked the can of coke and it hit her in the face. He said he had never raised a hand to her. The applicant admitted that he was not proud of it, however he was on drugs. His ex-partner said she could not recall the incident, but that the applicant definitely had a huge drug dependence which contributed to his outbursts of anger.
The Tribunal does not accept the applicant’s benign description matches the convictions of 4 counts of aggravated assault (no weapon) against a child or spouse, assault, disorderly behaviour, resist police and damaging a building or motor vehicle and which attracted a suspended sentence of imprisonment for 4 months. The behaviour that led to 4 counts of aggravated assault, even if this were only flicking a can of coke, is violent behaviour and therefore is behaviour defined as family violence under the Direction.
The third incident resulted in a conviction on 13 September 2021 for stalk or intimidate with an intention to cause fear of physical or mental harm for which he was sentenced to a term of imprisonment for 5 months.
The sentencing remarks of Magistrate Connell describe the day of offending as follows:
“On 17 January 2021 at about 8:30am the victim [the applicant’s ex-partner] was in the lounge room of her home when the offender yelled at her from the bedroom, “Where’s my breakfast you dog?”. According to the facts this was a regular occurrence for the offender to speak to the victim in this manner. The victim did not respond. The offender said, “Oi, did you not hear me you rat, I can’t hear you moving out there”. The victim made the offender his breakfast, according to the fact, because she knew he would keep verbally abusing her until his breakfast was made. She did not say a word to the offender during the interaction.
According to the facts, between breakfast and 3:30pm, on the same day, the offender continued to belittle the victim by making underhanded and rude remarks towards the victim, calling her “useless”, “you’re a dog”, “you’re a rat”. He also made comments to the children, derogatory comments about their mother. About 3.30pm the victim dropped the offender at a friend’s house with the intention of picking him back up later in the afternoon. About 5pm the offender called to be picked up. The victim drove to the friend’s house and waited out the front, trying to call the offender several times with no answer. The victim went back home without the offender. When the victim got home the offender rang to see what was taking so long. The victim explained that she came past but the offender did not answer the phone so she went home. That is when the offender started again saying things like, according to the facts, “You’re so full of shit”. The victim hung up on the offender and went to pick him up.
On returning home the offender saw a pair of his jeans on the floor that fell from the balcony. The offender stepped over the jeans and said, “Look at my jeans still on the floor. Pick them up you dog or you’ll get your head caved in”. The victim picked up the jeans as she was scared if she didn’t pick them up it may fuel a bigger argument. Once inside the house the offender wanted to use the victim’s phone to call a friend. The facts then go into some detail about that aspect of the mater.
The victim attended the police station to report the matter later. The victim told police “I feel scared that the controlling behaviour may increase and turn to physical violence if I do not do what Josh says as this has occurred in the past… ”[5]
[5] G7, Attachment B, pp 79-80.
The applicant pleaded guilty to the charge and was represented. He said he pleaded guilty because otherwise the matter could have continued another 8 months but because his family was falling apart outside, he just wanted to get to immigration detention and get this sorted, as it was “not like he was going to be released”. He states he would have succeeded if he had pleaded not guilty. He said they were arguing, but it didn’t happen like that, and the neighbours would have called the police if it was loud. He denies this happened.
He said his ex-partner did not go to the police to write a statement, rather she wanted to get an AVO in place.
This account is different to his statutory declaration where he states he was sentenced to 5 months imprisonment due to his actions against his ex-partner. He declares:
“On that day, I admit I had lost it. She was sneaking off at night and I did not know she was going to see someone at the time. I regret my actions and that the children witnessed my poor behaviours”.[6]
[6] A1, p 5, para 37.
The applicant’s ex-partner gave vague evidence about this incident. She said she did not make a report, as although this was the last straw, they were living together and still cared about each other. She said at the time, the home was uncomfortable and the was a lot of tension and discussion about who would leave, and she thought the only way was to get police assistance to have him removed but “it all went pear shaped from there”.
His ex-partner said she went to the police who told her that unless they had more information than her saying she wanted him to leave, there were no grounds to remove him from the property. She said the police encouraged her to say more. She said she was very clear she did not want him charged. The police told her they were going to the house to have him removed and asked if anyone could take him to the police station. His mother was unavailable so the police took him to the station, and they could not put him in the car unless they arrested him. She said the applicant’s interaction with the police officer led to the charge being laid. On being asked why she felt she needed the assistance of police, she said it was “the most civil way to do it without arguments” because they were both on the lease.
It strains credulity that the applicant would be charged with intimidate with intent to cause fear because he had behaved badly with police as there are other charges that can be laid, and would be far more likely to be laid, if he verbally or physically abused a police officer. I do not accept that his ex-partner went to the police only as the most civil way to get him to leave the house.
Neither the applicant nor his ex-partner were reliable in explaining what had happened. It is accepted his ex-partner wanted him to leave the house and went to the police to have him removed. The applicant pleaded guilty and was legally represented at the hearing of the matter. The Tribunal is required to accept the essential facts of a conviction, and the Tribunal accepts the facts as set out by Magistrate Connell.
Examples provided in the definition of family violence at cl.4 of the Direction include repeated derogatory taunts, which the applicant clearly used against his ex-partner and also used a threat which caused her to be fearful. This falls within the definition of family violence in the Direction.
The applicant has been convicted of breach of a restraining order in 2001, aggravated assault against a child or spouse on 19 April 2013 and stalk/intimidate intending to cause physical or mental harm in 2021. The Tribunal finds these are acts of family violence as defined in the Direction.
Turning to other violent crimes for which the applicant has been convicted, the applicant could say little about the assault convictions; the assault in 2004 he thought resulted from a fight at a bar. The second assault charge in 2013 was aggravated assault and was part of the series of charges which included aggravated assault on his ex-partner as previously discussed. He could not say who was assaulted or provide further details of the conviction other than to speculate it may have been a police officer.
Sentences imposed
The sentences imposed for offences, other than sentences for offences involving violence or family violence, must be considered under cl. 8.1.1(c). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
Sentences have been imposed on several occasions, with terms ranging from one week to three and a half years. Excluding consideration of the family violence offences, a term of imprisonment of 3 years and 3 months was imposed for sale of a controlled drug, and a term of imprisonment for 15 months was imposed as an aggregate sentence for supplying a prohibited drug, driving offences, custody of a knife in a public place and stating false name and address.
A term of one year 3 months and 4 weeks’ imprisonment was imposed for aggravated break and enter and commit a serious indictable offence in 2006, and a term of imprisonment of 15 months was imposed for break and enter in 2007.
Custodial sentences have also been imposed for breach of bond, resist police, on multiple occasions for failing to comply with a bail agreement, for failing to appear, driving in a manner to cause police pursuit, and a series of offences involving unlawful possession and deception.
These custodial sentences reflect the objective seriousness of these offences.
Frequency of offending
The frequency of offending and whether there is any trend of increasing seriousness is to be considered on accordance with cl. 8.1.1(1)(d) of the Direction.
The applicant has a very lengthy offending history from July 1996 to June 2021. His offending initially consisted of driving offences but went on to aggravated break and enter and the sale of drugs. These offences are interposed with many driving offences and breaches of bonds and bail. The progression from driving offences to break and enter and sale of drugs can fairly be described as a trend of increasing seriousness.
The frequency of the offending, in particular his breach of bail and driving offences is significant. His criminal check runs to eight pages with over 70 traffic and driving offences, 22 separate breaches of bail and over 10 drug related offences.
The cumulative effect of repeat offending
The cumulative effect of an Applicant’s repeated offending is a consideration under paragraph 8.1.1(1)(e) of the Direction.
The applicant’s criminal history records over 100 offences between 1996 and 2021.
False or misleading information
There is no information before the Tribunal to suggest the applicant has provided false or misleading information to the Department.
Reoffending since being warned
Whether the non-citizen has reoffended since being formally warned, or otherwise since being made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status is to be considered under cl. 8.1.1(1)(g) of the Direction.
The applicant’s visa was cancelled on 3 January 2018 following his conviction for sale of a prohibited drug, for which he was imprisoned for a period of 3 years and 3 months. The cancellation of his visa was revoked on 8 February 2019.
On the same day the cancellation of his visa was revoked the applicant signed an acknowledgement that he received notice of a decision to revoke the cancellation of his visa. This includes a statement that “I understand that if I engage in any further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered”.[7]
[7] G17, Attachment N, p 150.
The applicant told the Tribunal he understood the warning. The Tribunal had some reservations about the depth of his understanding given his low level of literacy, and as his initial response indicated he thought this related to the aggravated burglary (for which he was sentenced to 1 year, 3 months and 4 weeks’ imprisonment), however the information before the Tribunal showed it related to the previous conviction to trafficking methylamphetamine.
The applicant explained that at the time his visa was cancelled he planned to leave for New Zealand with his ex-partner and the children as he “had forgiven her what she had done”. He was in immigration detention at the time the cancellation of his visa was revoked. In circumstances where he was detained after being released from prison and knew the effect of his visa being cancelled was that he would be required to leave Australia, the Tribunal finds he understood that the warning related to the cancellation of his visa, the consequences of his visa being cancelled, that this was a result of his offending and that he understood the broad terms of the warning given.
The applicant has been convicted of 12 offences since this warning was issued including a further drug offence, driving offences, a breach of bail and stalk/intimidate with intent to cause fear. According to the sentencing remarks of Magistrate Boulos, the supply of a prohibited drug (offence ending in 670) occurred on 17 August 2019, a mere six months after he was warned.
Conclusion - nature and seriousness of the conduct
Having considered the matters in cl.8.1.1 of the Direction, the nature and seriousness of the offending weighs heavily against revoking the cancelation of the applicant’s visa.
The risk to the Australian community
In considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl.8.1.2(1) of the Direction). Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that may be repeated may be unacceptable.
Factors in assessing the risk that may be posed by the non-citizen to the Australian community, are set out in cl.8.1.2(2) and must be considered cumulatively. As they apply to the applicant, they are:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)….
Nature of harm should the applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community if the applicant engages in further criminal or other serious conduct is informed by the nature of his offending to date, including any escalation in offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The harm associated with the sale of drugs on the community is significant. The applicant has been convicted of offences that cause fear to others including the stalking/intimidation and aggravated break and enter. He has not been deterred by bail or orders of the court, nor has he been deterred by a previous cancellation of his visa.
The applicant has been convicted of break and enter and aggravated burglary. This causes fear and economic loss to people in the community. He has been convicted of driving recklessly or dangerously, driving with methamphetamine in his blood, and driving dangerously to cause police pursuit. The harm should these offences be repeated should not be underestimated, as these are offences that can result in serious injury or death for other road users.
Of considerable concern is the potential risk of harm he poses to his ex-partner should his offending be repeated, and to members of the community if the assault is repeated as well as his lack of respect for law enforcement officers and for orders of the Court.
Likelihood of engaging in further criminal or other serious conduct
In looking at the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal must consider the information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
In sentencing the applicant in 2017 for trafficking methylamphetamine, Judge McEwan stated, “his persistent offending does not fill me with enthusiasm about prospects of rehabilitation, especially as it includes breaches of bond and bail”.[8]
[8] G5, Attachment D, p 65.
In sentencing the applicant for further drugs and driving offence on 25 March 2021 Magistrate Boulos noted there was nothing before the Court in terms of rehabilitation, and that “there is nothing that the Court can have any confidence that there are any prospects of rehabilitation …”.[9] Magistrate Boulos considered the applicant a high risk of reoffending.
[9] Ibid, G7, Attachment C, p 77.
The applicant has not been deterred by court orders, bail agreements or the previous cancellation of his visa.
The applicant states he intends to enrol in a 12-month rehabilitation program if released and has contacted Odyssey House in Sydney who told him to wait until he gets out. In his statement he said he will call Odyssey House and ask to be put on the waiting list. Odyssey House is in Sydney and if released he plans to return to Adelaide to be with his new partner and his children, but said if they call him, he will fly back to Sydney. The Direction requires the Tribunal to have regard to evidence of rehabilitation achieved by the time of this decision, and at its highest the effort he has made has been to call Odyssey House to enquire and is not engaging in rehabilitation. The Tribunal has little confidence in his intention to enter and complete rehabilitation as he failed to complete a previous rehabilitation program, and he plans to relocate to Adelaide away from the rehabilitation centre.

The applicant states he plans to consult a doctor about his mental health, and in his response states he did not address his mental health until September 2020. He states he believes had he made his mental health a priority he would not have re-offended. He states now he has a clearer understating of the importance of mental health and engaging in mental health services.
His mother states that the applicant has never been diagnosed with a mental illness as every time he would go to see a psychiatrist he would end up in jail or something would come up. His ex-partner states he has never had a proper diagnosis regarding his mental health, but she believes he exhibits bipolar symptoms or some sort of personality disorder. She states he knows he needs to see a doctor and start getting regular mental health treatment. The applicant states he has been told he suffers bipolar disorder but could not recall whether he had seen a psychiatrist.
The Tribunal does not consider that the belief of the applicant, his mother or ex-partner establishes that he has a mental illness. It does accept they all have concerns about his mental health and believe he needs assistance with his mental health.
There were no health records or sentencing reports before the Tribunal, and the applicant was asked about treatment for his mental health in prison and in immigration detention. He said there was no rehabilitation in jail, but he did a landscaping course and attended a relapse prevention program which was a group at which participants talked about what has gone on in their lives and what you can do to stop drug use.
Before he went into prison, the applicant had a mental health plan and said he had seen a counsellor twice, and that he and his ex-partner planned to get counselling.
The Tribunal is not satisfied that he has undertaken treatment for his mental health that would reduce his risk of re-offending.
The applicant asserted it has been a huge wake up call that he may lose his family, as when he thought he may have to return to New Zealand when his visa was previously cancelled, his ex-partner and the children were going to go with him. Now that he has separated from his ex-partner, this is no longer the case, and he states that when faced with the prospect of being separated from his family, he will not re-offend. His ex-partner stated that he is finally taking ownership for his actions and wants to better himself and wants to be present for the children in a positive way. The Tribunal appreciates that his children are very important to him, however given the history of breaching orders and reoffending after being warned, it has very little confidence in his fear of losing his family significantly reducing the likelihood of him engaging in further criminal or other serious conduct.
The applicant refers to attending part of a rehabilitation course in 2004, attending three months of a 10-month program. He left the program before it was complete as he thought he “was already good”.[10] He also refers to a period of abstinence for 2 years while he was caring for his father who died in 2010 from throat cancer. On each occasion he has relapsed. The Tribunal does not consider he has shown a commitment to rehabilitation in the past.
[10] A1, p 4.
He has undertaken courses while in detention completing the following courses:
·Depression Management - 5 hours –2 June 2022
·Domestic Violence 101 – 8 Hours –2 June 2022
·Drug and Alcohol Abuse 101 – 7 hours- 31 May 2022
·Positive Parenting Techniques – 5 hours – 21 May 2022
·Stress Management – 4 hours- 2 June 2022
·Anxiety therapy 101 – 5 hours – 4 June 2022
·Basic parenting 101 – 5 hours – 31 May 2022
·Anger Management 101 – 5 hours – 31 May 2022
·Understanding Addictions – 10 hours – 7 June 2022
Certificates from these courses show they were issued between 31 May and 3 June 2022, after his visa was cancelled. The courses were online, and he completed the courses with the assistance of a friend in detention due to his limited literacy.
The applicant states he is participating in a relapse prevention program with Smart Recovery but has only attended 2 sessions due to an outbreak of COVID-19 in the detention centre. At the time of the hearing, he said he was attending this weekly. He also states he attends Narcotics Anonymous.
These efforts have come late in the day in the shadow of removal from Australia, and accordingly do not show a significant commitment to changing his behaviour or addressing the underlying causes of his offending.
The applicant has not had the opportunity to be in the community since his most recent offence as his visa was cancelled while he was in prison, and since release has been in immigration detention. It follows his ability to abstain from drugs in the community is untested.
He is no longer subject to parole, and there are will not be any formal supervision of any future rehabilitation attempts.
Turning to factors which may reduce the likelihood of him engaging in criminal conduct, the applicant’s mother states that he can stay with her if he is released, and she will support him in his rehabilitation. His ex-partner also says she will support his rehabilitation.
The applicant states that now he knows he may lose his family if he is removed from Australia, and his desire to be with his children will prevent him reoffending. While this is his intention his past intentions to improve his drug use, while successful in the short term, have not been able to be sustained over time.
The applicant is a qualified spray painter. He provided a letter from a taxi owner who has used the applicant’s services in repairing and painting cars. This employer says he will have work available to the applicant if he returns to South Australia. The applicant also says he worked in Sydney and was offered a job managing the paint shop where he was working, but he ended up in prison.
The applicant is rightly proud of his work history and says he can get a job immediately if he is released. In his response to the cancellation of his visa he said he was in full-time work in October 2020, which gave him a sense of purpose and that his life was heading in the right direction. This made him confident that his risk of re-offending was low. However, he then committed further offences which undermines this statement. Potential employment is generally a protective factor, however in this case it has not prevented the applicant from reoffending in the past.
Having considered the information before it, the Tribunal concludes there is a high likelihood of the applicant engaging in further criminal or other serious conduct.
CONCLUSION – THE PROTECTION OF THE AUSTRALIAN COMMUINITY
Having considered the factors in cl.8.1 of the Direction, the Tribunal finds this consideration weighs heavily in favour of not revoking the cancellation of his visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Clause 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Tribunal has found the applicant has been convicted of a breach of a restraining order in 2001, four counts of aggravated assault against a child or spouse on 19 April 2013 and stalk/intimidate intending to cause physical or mental harm in 2021 in the circumstances described above. It has found these are acts of family violence as defined in the direction.
Clause 8.2(3) specifies the factors to be considered in considering the seriousness of the family, and the Tribunal turned to each of these factors.
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
Evidence before the Tribunal about the frequency of conduct by of the applicant that amounts to family violence is limited to three incidences, with the aggravated assault in 2013 being 4 counts.
In looking at the four counts of aggravated assault against his ex-partner, he was sentenced to a number of offences at the same time, and as result it is difficult to discern the proportion of the term of imprisonment for 4 months that can be attributed to family violence in looking at the severity of the incident. However, as outlined above, the Tribunal does not accept the applicant’s account that flicking a can of coke and it hitting his ex-partner in the face, accounts for 4 counts of aggravated assault for which he was convicted.
In sentencing the applicant for intimidation with an intent to cause fear of physical harm in 2021, Magistrate Connell said he did not accept that the offence was “towards the lower end of objective seriousness”.[11] As the threat made to the victim was a serious one and the mental harm to the victim could readily be imagined by the threat to “cave her head in”, Magistrate Connell states “it is not behaviour anyone should have to put up with”[12] and sentenced him to a term of full-time imprisonment of five months. Given a custodial sentence is a sentence of last resort, this reflects the seriousness of the offence.
[11] G8, Attachment B, p 85.
[12] Ibid.
The sentence which the applicant has received for the family violence offences has increased over time, which is an indicator of increasing seriousness. However, it is difficult to measure the acts of family violence against each other. Overall, the Tribunal is not satisfied there is an increasing trend of seriousness.
b)the cumulative effect of repeated acts of family violence;
There are 3 offences which could be said to constitute family violence. This is more than an isolated offence but is not repeated and habitual offending.
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
The extent to which the person accepts responsibility for their family violence related conduct
On being asked about conviction for intimidating his ex-partner with the intent to cause fear of physical harm, and otherwise in the course of the hearing, the applicant repeatedly returned to his perception of his ex-partner’s infidelity and that he “had done everything she asked”. He stated at times that he needed to forgive his partner, and that he wanted her to “tell him what had happened” and “what has gone on” as “other people are telling me about things.” He states he wanted her to take responsibility and tell him what has happened, but he has forgiven her for what she has done.
In response to the sentencing remarks made by Magistrate Connell, the applicant said:
“You know when there is something going on and you don’t know. At the end of the day you know my behaviour I look at it now and I think wow .. But I'm not trying to take anything away from that itself just what you understand what’s going on for us at the time … I was acting silly because I knew something was going on … Even today she says I have not should not have pled guilty to that.
…
I was very upset like I was doing the right thing everything she ever asked of me in the past I was doing. I got a job, got off drugs I was doing the right thing I went to do the MERIT program. In the end if she didn’t want to be with me that’s fine, why did she have to lie, to get me back? That’s what it was about. At the end of the day what I’m saying is that’s not true and she will even tell you that.”
The applicant also made remarks that his ex-partner wants to be back in a relationship with him when he is released, that he has lost trust in her and she has betrayed him, and that he was trying to get her to do the right thing and own up to what she had done, and that he felt responsible for her behaviour because “that’s not how she was brought up… [my ex-partner] thinks when I get out of here, she wants to get back together but that is never ever happening. I’ve lost trust and it’s the ultimate betrayal. If she says I’ve done wrong things in the past, two wrongs don’t make a right. I feel responsible about the way she has acted because that’s not how she was brought up.”
He also said:
“When I first got out there were things coming out - that guy who she had been seeing the first time I was in jail had been playing happy families in my house, sleeping in my bed, all my clothes everything gone …”.
He went on to say that he is 100% to blame and while he does not blame her, she is now in a relationship with someone who is 10 times worse than him. He claims she was lying to him when something was going on and because he was not told about it “there was a lot of stuff going on in my head”. He said he has lost respect for his ex-partner and that she is not doing anything to make her life right at the moment.
As noted above, this account differs from his statutory declaration in which he admits he lost it that day because he considered his ex-partner was seeing someone else.
The applicant feels aggrieved by the charges against him and stated on several occasions during the course of the hearing that he was doing everything she wanted him to do.
At one stage he attributed her complaint to police as being because she wanted to re-establish the relationship. Even according to her account, this was not the case and she wanted him to leave the property. He also referred to her wanting to get back together with him when he leaves detention.
On being asked if he was blaming her, he said he was not blaming her but “could call her every name under the sun for what she had done.” He did say he blamed himself for what happened, however that related to him being absent and in prison, and not for his actions.
The Tribunal finds he does not accept responsibility for his family violence related conduct, he accepts blame for being in prison and unavailable.
The extent to which the applicant understands the effect on victims and witnesses to the abuse (particularly children)
Despite the sentencing remarks of Magistrate Connell referring to the applicant making derogatory remarks about his ex-partner to the children, and his own statutory declaration stating he regretted his actions and that his children witnessed his poor behaviour, in oral evidence the applicant denied arguing in front of the children and returned to his sense of “having done everything she [his ex-partner] wanted”.
The Tribunal finds the applicant deflects responsibility for his behaviour onto his partner and feels aggrieved by a sense of having done what she had asked of him. He attributes her actions in contacting police as a desire to re-establish the relationship. He denied having argued in front of the children, or making derogatory comments about their mother. The Tribunal finds he has little understanding of the effect of his offending on his ex-partner or his children.
Efforts to address factors which contributed to their conduct
The applicant made significant efforts to have his ex-partner return when she left him for a period of 4 months and returned to South Australia. He obtained work, stopped taking drugs and was doing the MERIT rehabilitation program. However, he then further offended.
The applicant has undertaken courses while in immigration detention on anger management, drug and alcohol use and domestic violence. These were undertaken in the last two months. He said he learned that “you need to not let your anger get out of control and not to overreact.” He identified that he needed further rehabilitation for his drug use and assistance with his mental health.
The Tribunal considers he has a considerable road to travel to address factors such as his drug use and mental health that contribute to his conduct, and that his rehabilitation is only commencing.
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no specific information to show the applicant was warned about the consequences of further acts of family violence as the Tribunal does not have sentencing remarks from the aggravated assault or the breaches of the restraining order.
CONCLUSION: FAMILY VIOLENCE
Having considered the factors in cl.8.2 of the Direction, the Tribunal considers this factor weighs significantly in favour of not revoking the cancellation of the applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
In making a decision about whether the cancellation of the applicant’s visa should be revoked, under cl.8.3(1), the Tribunal must make a determination about whether this is in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years at the time the decision is made (cl.8.3(2)).
If there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ (cl.8.3(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.
The applicant has two biological children who are minors; A who is 10 years old and B who is 7 years old. He has a stepson C who is 15 years old.
His niece has two minor children. The applicant said these children are babies, and he has been in prison. He could not name the children, and the Tribunal finds he has not had any contact with these children. The Tribunal finds his niece’s children will not be affected by a decision not to revoke the cancellation of his visa and do not need to be considered further.
He did not identify any other children affected by the decision.
Factors common to each of the children is the lack of his physical presence while he has been in prison. He said he was with his ex-partner for 13 years and was out of jail for four years at once. After his eldest child was born in 2011, the applicant said he went to jail for 10 months. Approximately 6 months after his son in was born in late 2014, he said he was detained or in jail for 5 years. In this period, his stepson, C moved in with his grandparents, where he has remained other than for a period of approximately 4 months. The applicant has most recently been in immigration detention for over a year, and before then was in jail in NSW.
In the period his ex-partner and the children live in NSW, he said his ex-partner would bring the children to see him every weekend.
The Direction sets out several factors to take into consideration with respect to the best interests of minor children in Australia. These 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 (including whether an existing Court order restricts contact);

The applicant and his ex-partner both state he has been very close to his oldest child A, and he refers to her as a “daddy’s girl” and said she was attached to his leg when he was released from jail. He said being in jail had affected his relationship with A because when he went to jail his ex-partner had a new boyfriend. As A had seen her mother’s new boyfriend, A felt she would get her mother in trouble if she said the wrong thing. He says he talks to A every day.
The Tribunal finds he has a parental role with A with moderate periods of absence, albeit with regular contact while his children lived in NSW. The periods of absence reduce slightly the weight to be attributed to this role.
The applicant also has a parental role with B and but says he was in prison for 5 years from when B was 6 months old. B is now 7, and this is a considerable part of B’s early years. The applicant finds it more difficult to talk to B over the telephone, as B does not like talking on the telephone and needs more physical contact. As with A, the weight given to his parental role is slightly reduced by his periods of absence.
The applicant says C’s father died in 2016 and he took a stronger role in C’s life. At the time of his application to have the cancellation of his visa revoked, C was living in Adelaide and the remainder of the family were living in Sydney. The applicant has been involved with C for approximately 11 years.
C’s mother states that C has seen his grandfather as the paternal figure, however as his grandfather gets older, this is turning into a grandparent role. C’s mother states that there were times C, and the applicant had a great relationship but over the years they were not able to keep that up.
At hearing, it became apparent that the applicant had lived with C for a limited time, as from 2019 they had moved to Sydney and C remained with his grandparents in Adelaide. C came to Sydney and stayed with them for 4 months but missed his sport and friends in Adelaide so returned to Adelaide. The applicant speaks to C occasionally, but as C is a teenager the applicant says at times it is hard to talk to him.
The Tribunal finds the applicant’s relationship with C is non-parental and that C’s grandparents and mother have parental roles. He has been absent from C’s life for long periods of time, and therefore less weight is given to his role with C.
(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;
The applicant states, and the Tribunal accepts he genuinely believes, that involvement in the lives of his children is a motivating force for him and that he wants to be actively involved in his children’s life.
His ex-partner in the statement accompanying the request for revocation states that “Josh is finally taking ownership for his actions and wants to better himself. He wants to be present for his children in a positive way.” The Tribunal accepts that is what the applicant wants in the future, however his history has shown that wanting to change for the better has not resulted in changes that can withstand the vicissitudes of life.
Both the applicant and his ex-partner have said that when he has been available, he has provided for the family financially and has worked.
However, the Tribunal has found he has engaged in behaviour that involved the sale of drugs from the property in which the children were living and that he has been derogatory about his ex-partner to the children. If this behaviour were to be repeated, he would not be playing a positive parental role. As he is in the very early stages of rehabilitation from his drug use and in engaging with mental health services, his desire to play a positive role, the future prospects of him playing a positive parental role in the future are guarded.
There are lengthy periods before the children turning 18, as A is currently 10 and B is currently 7.
There is a possibility the applicant will play a positive parental role until the children turn 18 .
(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;
The sentencing remarks of Judge McEwan in 2017, note that the applicant and his ex-partner turned their family home into a methamphetamine outlet and that “using the family home to traffic drugs with all the obvious risks and the disgraceful example it sets, is a total failure of basic parenting.”[13]
[13] G5, Attachment D, p 66.
Magistrate Connell in sentencing found the applicant made derogatory comments to the children about their mother.
In light of these comments, the Tribunal infers that his past conduct has had a negative impact on the children. However, little can be made of this inference as there is no direct evidence before the Tribunal on the actual impact on the children.
The applicant states he stopped using drugs between 2009 and 2011, and then was using drugs until he went to prison, he has used ice following using once in immigration detention. His children were born in 2010 and 2014, and this means he was using ice for much of his children’s lives while he has been with them.
The Tribunal has found he has a high risk of reoffending.
The Tribunal infers his previous conduct has had a negative impact on the children, but that this inference can be given little weight. He has a high risk of reoffending, and the prospects of him having a negative impact in the future are reasonable.
(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;
His ex-partner states that A seeks male attention and will attach herself to her mother’s male friends, or to her grandfather when the applicant is not around which concerns her. She said the youngest child, B is considered likely to suffer from dyslexia and needs his father’s support.
The applicant’s mother said separation from the applicant would be horrendous for the children, and they will become further estranged from their father.
The applicant currently maintains contact with his children over the phone and occasionally on video calls. He says he absence of physical interaction affects their relationship as when the children were living in Sydney, they would visit him every weekend.
While the applicant can maintain a contact by electronic means, the Tribunal accepts this is not a substitute for physical interaction, particularly for his son. The Tribunal accepts the applicant is very concerned that the lack of a physical presence will result in the children growing apart.
The Tribunal finds there would be a significant adverse effect on A and B if the applicant’s visa remains cancelled. It finds there is a slight adverse impact on C.
(e)whether there are other persons who already fulfil a parental role in relation to the child;
The children’s grandparents play a parental role, which their mother says is becoming increasingly difficult over time as they get older. Her father suffers from Parkinson’s and finds the noise from the children increasingly difficult. Their mother also plays a parental role.
Their mother says her new partner does have contact with the children, but he had another child from a different relationship and his priority will always be his own child.
The Tribunal finds there are other people who fulfil a parental role, however this is becoming more difficult for the children’s grandfather over time.
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
There is no direct evidence of the views of the children.
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
The sentencing remarks of Magistrate Connell were that during the family violence offence, the applicant was making derogatory comments about their mother .
The children were also present in the period that their parents were selling drugs as noted in sentencing by Judge McEwen as using their home as a methylamphetamine outlet, and Judge McEwan refers to this as a “total failure of basic parenting”.[14]
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[14] Ibid, p 65.
There is no evidence before the Tribunal the children have suffered physical or emotional trauma from the applicant’s conduct.
CONCLUSION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
It is in the best interests of all of the children that the applicant remains in Australia. This is to a greater degree for A and B than it is for C due to the parental role the applicant has with A and B.
In looking at the weight to be attributed, the Tribunal accepts that if the applicant leaves Australia the children will remain in Australia and he will be unable to return due to his criminal offences. It accepts he plays a parental role but has been incarcerated for lengthy periods. His behaviour towards his ex-partner, the sale of drugs while they were in the home, and the consideration that the children have other people who perform a parental role reduce the weight to be attributed to this consideration.
The Tribunal finds this consideration weighs significantly in favour of revoking the cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In considering the expectations of the Australian community, cl. 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
In accordance with cl.8.4(2), non-revocation of the mandatory cancellation of a visa 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 be granted or continue to hold a visa.
Clause 8.4(2) goes on to state that in particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[15]
[15] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Accordingly, in assessing the weight attributable to the expectations of the Australian community, it is necessary to have regard to the expectation that the applicant’s visa will be cancelled. He has been convicted of acts of family violence. He has been convicted of resist police, being offences against a government officials acting in the course of their duties.
The applicant has been in Australia for approximately 28 years, arriving when he was 13 years old. His length of residence and youth on arrival means a greater tolerance can be extended to him. The applicant has been extended that tolerance when, having had his visa cancelled, a decision was made not to cancel his visa and to issue a formal warning. Since then, he has continued to offend.
The applicant’s offending commenced within two years of his arrival. He has made a positive contribution through being employed in Australia.
The applicant has an extensive criminal history over the period he has been in Australia. The nature of his crimes is serious and if repeated could result in serious harm to individuals and the community.
CONCLUSION: EXPECTATIONS OF THE AUTRALIAN COMMUNITY
Overall, the expectations of the Australian community consideration weighs heavily in favour of not revoking the cancellation of his visa.
OTHER CONSIDERATIONS
The other considerations are set out in cl.9(1) of the Direction, and are international non-refoulement obligations, the extent of impediments if removed, the impact on victims and links to the Australia community.
International non-refoulement obligations
The applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This factor is neutral.
Extent of Impediments if Removed
As a guide for exercising the discretion, cl.9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·     the non-citizen’s age and health;
·     whether there are any substantial language or cultural barriers; and
·     any social, medical and/or economic support available to that non-citizen in that country.
The applicant is 41 years old. He has a longstanding drug problem and suffers from dyslexia which results in low levels of literacy. His mother and ex-partner as well as the applicant consider he has difficulties with his mental health which have not been diagnosed or treated. He does not otherwise have any health conditions.
It has been accepted that the government services in New Zealand are commensurate with those offered in Australia.[16]
[16] McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109; Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296.
He would not have language barriers in New Zealand, but as he left the country at 13 years of age and has not travelled out of Australia since, he may face some cultural barriers.
He does not have family support in New Zealand. The family came to Australia after his grandfather sexually abused his sister, and they have no contact with his father’s family. His mother provided a statutory declaration stating she was adopted, and since she has been in Australia has located her half-brothers and sister, but the applicant has never met them.
The applicant has limited literacy, and difficulty completing paperwork. The applicant will experience greater difficulty re-establishing himself because of his literacy in terms of entering a lease or accessing government services.
The applicant has a trade as a spray painter, a work history in Australia and the ability to find work. He is confident he could obtain work immediately on being released in Australia, and the Tribunal finds he has skills to obtain work in New Zealand and re-establish himself.
The Tribunal considers this factor weighs moderately in favour of revoking the cancellation of his visa.
Impact on victims
The Direction requires decision-makers to consider the impact of the decision to cancel the visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The only information from victim is the applicant’s ex-partner and his mother. There is information from the applicant’s ex-partner is that they are on good terms, that she cares for him deeply and wants him to stay in Australia for the sake of their children and to share the financial and emotional labour of parenting. She provided evidence of being evicted from her rental property in NSW and says this was due to a lack of financial support.
His mother, as the victim of the breach of a restraining order, gave evidence that she doesn’t like it when he offends. She said she will be devastated if he is deported as there is no-one for him in New Zealand, and that for his children it is horrendous.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any other victims. This consideration is marginally in favour of revoking the cancellation of his visa.
Links to the Australian Community
This requires that decision makers must have regard to the following factors set in cl 9.4.1 and cl 9.4.2 which are:
(i)the strength, nature, and duration of ties to Australia; and
(ii)the impact on Australian business interests.
Immediate family members
In making a decision, under cl.9.4.1(1) decision-makers must consider the impact of the decision on the non-citizen’s immediate family members in Australia where those family members are Australia citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The applicant identified his ex-partner, his children, his mother, his sister, his niece and his new partner as the people who will be affected if he is removed from Australia. On being asked if there was anyone else, he said there was no-one else as everyone else was in the drug scene. His children are considered above in the best interests of the children above, and will not be repeated here.
Ex-partner

The applicant maintains contact with his ex-partner and says he speak to her every day. When she was still in Sydney, she brought the children to visit him every weekend. In a statement provided before they separated, his ex-partner speaks of her worry for the applicant if he is sent to New Zealand as it holds bad memories for the family. She states she worries for herself and the children and that if she leaves to keep the family unit together, she and the children would leave their home and family support. She also raises the time and money wasted in establishing her small business in NSW.
Since this statement, she has been evicted from the rental property in NSW and she and the children have returned to Adelaide to live with her parents. She has separated from the applicant, and now has a new partner. She states she has been looking for a rental property, but this is difficult to obtain.
In her more recent statement of 14 July 2002, she states they were together a long time, but it was a bit toxic at the end, and they have come to realisation they are better off apart co-parenting their children. She wants the applicant to stay in Australia for the sake of their children. She seeks the applicant’s opinion and confides in him in their role as parents. She considers that they have lost a lot by moving back to South Australia, as they had a good community, and the children were at a good school in NSW with her son in a school that met his needs. She said she had a better life when he was not detained, as he stepped up and helped financially and emotionally.
The Tribunal accepts that if he is deported, this will have an adverse effect on his ex-partner in sharing the parenting for their children. Any financial support that he can contribute for his children will be delayed while he establishes himself in New Zealand and finds work.
The applicant’s mother
The applicant says he speaks to his mother at least 3 times a week. His mother is an Australian citizen.
In her statement, his mother states she is terrified for the applicant if he returns to New Zealand because he has no contacts in New Zealand and the rest of his family is in Australia. In evidence, she said she would be devastated.
The Tribunal accepts there will be an adverse effect on the applicant’s mother given her concern for him if the cancellation of his vias is not revoked.
The applicant’s sister and his niece
The applicant’s sister is an Australian citizen and is in the Australian Navy. On being asked if he has contact with his sister he said he has “spoken to her a couple of times”. The applicant said his sister has a daughter who is about 25 years old. His niece has two children, but he could not name the children and said he has not had contact with them as they are only babies and he has been in jail.
There is no evidence from his sister about the impact on her if the cancellation of his visa is not revoked. Paragraph 7(1) of the Direction states information from independent and authoritative sources should be given appropriate weight. In the absence of a statement from his sister, the Tribunal places slight weight on any adverse effect on his sister if the cancellation of his visa is not revoked.
His new partner
The applicant is in a new relationship. He has not lived with his new partner but said he will live with her if released. He said he has known her for 5 years and she was in a relationship with one of his friends, but after they broke up he started communicating with her. He said they have not been together other than when he has been in detention, but she knows what he has been though and is an optometrist with a good job.
The Tribunal assumes in the applicant’s favour that that his current partner is an immediate family member. There is no direct evidence from his new partner, but it is accepted that in light of their new relationship, she will suffer distress if he is required to leave Australia.
Strength, nature and duration of other ties to Australia
Under cl 9.4.1(2) of the direction, we consideration is being given to whether to revoke the mandatory cancellation of the fees are, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community in doing so I must have regard to:
(a)how long the non- citizen has resided in Australia, including whether the non- citizen arrived as a young child, noting that:
i.Less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non- citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has been in Australia for approximately 28 years, arriving as a teenager when he was 13. He began offending within 2 years of arriving in Australia. He has worked as a spray painter when not in prison and has contributed positively to the community through his work.
The applicant did not specify anyone else who would be affected by the cancellation other than his family, as he said that everyone else is in the drug scene.
His application for revocation of the cancellation contained a statement from Ms Sheree Tilbrook who states she is a friend of his mother. Ms Tilbrook states she considers the applicant to be an Australian and speaks of the hardship to the applicant, his children and his ex-partner if his visa remains cancelled. The Tribunal accepts that Ms Tilbrook may experience some distress if he is removed from Australia.
The reference from Mr Peng Chun shows that Mr Chun will lose the benefit of the applicant’s services if he leaves Australia. Similarly, the reference from Central Signs shows that he was viewed a potential team leader.
Having had regard to the length of time he has been in Australia, the time before he commenced offending, and his contribution to the community through his employment Tribunal and the distress of Ms Tilbrook, the Tribunal is not satisfied his ties to the Australian community, other than his family members, weighs more than slightly in his favour.
Having considered the impact on the applicant’s immediate family members, and the strength nature and duration of any other ties the applicant has to the Australian community, Tribunal finds the links to the Australian community weigh significantly in favour of revoking the cancellation of his visa.
The applicant does not claim that his removal from Australia will have an adverse impact on Australian business interests.
CONCLUSION
Having considered the factors in the Direction, the Tribunal has found that of the primary considerations:
·The protection of the Australia community weighs heavily in favour of not revoking the cancellation of the applicant’s visa;
·The family violence consideration weighs significantly in favour of not revoking the cancellation of the applicant’s visa;
·The best interests of minor children in Australia affect by the decision weigh significantly in favour of revoking cancellation of the visa.
·The expectations of the Australian community weighs heavily in favour of not revoking the cancellation.
Of the other considerations:
·International non-refoulment obligations do not apply
·The extent of impediments if removed weighs moderately in favour of revoking the cancellations of his visa,
·The impact on victims weighs slightly in favour or revoking the cancellation of his visa, and
·The links to the Australian community weighs significantly in favour of revoking the cancellation.
According to cl.7(2) primary considerations should generally be given greater weight, and in the circumstances of this case the Tribunal considers that the primary considerations should be given greater weight than the other considerations.
While one or more primary considerations can outweigh other primary considerations, and in this case the bests interests of his children weigh significantly in favour of not revoking the cancellation of the applicant’s visa, in the circumstances of this case the Tribunal does not consider this outweighs the other primary considerations.
As a result, the Tribunal considers another reason to revoke the cancellation of his visa has not been established for the purposes of s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

....[sgnd]...................
Legal Associate
Dated: 04 August 2022

Date of hearing: 19 & 20 July 2022

Advocate for the Applicant: Ms Marta

Advocate for the Applicant:
Ms Marta Mamarot, SouthWest Migration & Legal Services

Advocate for the Respondent: Mr Charles Bavin, Hunt and Hunt Lawyers

Advocate for the Applicant:	Ms Marta Mamarot, SouthWest Migration & Legal Services
Advocate for the Respondent:	Mr Charles Bavin, Hunt and Hunt Lawyers