Bean and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3492

Bean and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3492 (28 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5165
Re:Hohepa Paetai Bean
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:28 September 2023
Date of written reasons: 26 October 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
…………[sgnd]……………………….
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – whether another reason for the cancellation decision to be revoked – Direction no. 99 – conviction for manslaughter – sentencing remarks considered – positive assessment of applicant’s prior character – special circumstances of crime – excessive force in self-defence – primary considerations – community’s expectations weigh against the applicant – low risk of reoffending – applicant’s ties to Australia and the best interests of minor children weigh in applicant’s favour – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 ‒ Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
26 October 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These reasons include certain standard paragraphs I use, especially [6] and [26].
This is an application by Mr Hohepa Paetai Bean seeking a review of the decision of the respondent’s delegate dated 6 July 2023. By that decision, the delegate declined to revoke the cancellation of Mr Bean’s visa.[2] The cancellation had earlier taken place, and mandatorily so, after Mr Bean was found guilty of the offence of manslaughter in circumstances that I shall describe in due course. He was sentenced to a lengthy term of imprisonment, part of which he was required to serve on a full-time basis in jail. In these circumstances, the delegate was required to cancel Mr Bean’s visa under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
[2] A class TY subclass 444 special category visa.
Mr Bean sought an internal review of the delegate’s decision.[3] The internal-review delegate was required to address two questions under section 501CA(4)(b) of the Act. The first was whether Mr Bean passed the so-called “character test” as defined in section 501. Given his lengthy term of imprisonment, Mr Bean could not pass the character test, and the delegate’s conclusion in this regard was clearly correct. The second question, which arose if Mr Bean did not pass the character test, was whether there was “another reason” to revoke the cancellation decision. In this regard, the delegate was required to apply any direction issued under section 499 of the Act. The delegate applied Direction no. 99 (“the Direction”)[4] that has been issued under section 499. Having weighed the various considerations required to be addressed by the Direction, the delegate concluded, on balance, that the visa cancellation should not be revoked. The delegate then formally decided that there was not “another reason” for the visa cancellation to be revoked under section 501CA(4)(b)(ii).
[3] The internal-review delegate’s reasons appear as part of document G3 in Ex R1.
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
Mr Bean has now sought a further review in this Tribunal.
TRIBUNAL’S TASK ON REVIEW
Hearing the matter afresh on the evidence before me, I must address the same two questions. I have already indicated that the answer to the first question given by the delegate was clearly correct in light of Mr Bean’s conviction for manslaughter. Like the delegate, I must apply the Direction when considering the second question.
In exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[5] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[5] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467 at [98] and [141].
At the hearing before me, Ms Maher appeared for the applicant; Ms Jones-Bolla for the respondent. I acknowledge particularly Ms Jones-Bolla’s assistance to me.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Bean’s visa be revoked. I now set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The background facts are as follows. Mr Bean was born on 3 June 1975 and was, therefore, 48 years old at the time of the hearing before me. He was born in New Zealand and remains a citizen of that country. His father left the family home when Mr Bean was very young. Mr Bean’s evidence to the Tribunal, which I accept, was that his father had been violent towards his mother. The sentencing remarks, which were before me and to which I shall refer in some detail in due course, refer to Mr Bean’s troubled childhood. It involved much physical and verbal abuse by his father.[6] Mr Bean was raised by his mother. He has a number of siblings and half-siblings. He has an older sister presently living in Queensland and he has contact with her frequently, he says. Mr Bean also has a younger sister living in Hawkes Bay, New Zealand, but he does not have regular contact with her. He has no contact with his three half siblings, one of whom lives in Hawkes Bay and another in Adelaide, as I understand the evidence. Mr Bean’s mother died some 15 years ago. I accept this evidence.
[6] See R v Bean [2022] NSWSC 783, [79] (reproduced at Ex R1, G6).
Mr Bean came to Australia in 1997 when he was about 21 years of age. He came here to get away from Hawkes Bay, he said in his oral evidence. Hawkes Bay was a place where he had employment but which he also described as having gangs and few job opportunities. Mr Bean settled in the vicinity of Coffs Harbour, New South Wales to work with an uncle on a farm. The farm involved potato cultivation and cattle rearing. Mr Bean said that he also did seasonal work around Coffs Harbour, he said. He gave evidence that he enjoyed the work very much; but mechanisation ended up reducing his hours. He continued to work on and off in the potato sheds, he said, but he also began working in a sawmill. He would also help out with odd jobs and fencing. I accept this evidence.
Mr Bean met his partner, Ms Carter, in a town called Dorrigo. They did not have any children, but the sentencing remarks refer to the couple having raised Ms Carter’s niece.[7] Mr Bean also had a long-standing friendship with a man named Mr Boardman. Mr Boardman was a mechanic in the town. Mr Bean had met him at the local pub and started playing rugby with him. They became firm friends, he said. I accept this evidence.
[7] Ibid [81].
Despite his friendship with Mr Bean, Mr Boardman began an intimate relationship with Ms Carter, who, as I have said, had been Mr Bean’s long-standing partner. Mr Bean found out about the infidelity about six weeks before the shooting that led to Mr Boardman’s death, which I shall now describe.
The shooting occurred in October 2018. Mr Bean pleaded guilty to manslaughter (on the basis of self-defence with excessive force). I accept them, and I rely on them. The remarks refer to a statement of agreed facts that informed the Court’s sentencing.[8]
[8] Ibid [9]. The Court also had regard to the transcript of evidence of the earlier murder trial to resolve matters that remained in dispute: see Ibid [11].
The Court records the following facts. In late August 2018, Mr Bean learned that his long-term partner Ms Carter had been in a relationship with Mr Boardman. For a period of some five days in August 2018, she did not come home and instead stayed with Mr Boardman. For some ten days prior to 18 October 2018, Ms Carter left Mr Bean and moved in with Mr Boardman. They had been in a relationship for approximately eleven months at that time. This was unknown to Mr Bean until August 2018.
Once Mr Bean found out about Ms Carter’s relationship with Mr Boardman, the friendship between the two men ended, and they became hostile toward one another. Mr Boardman and Mr Bean exchanged many abusive and threatening texts. These included messages from Mr Boardman taunting Mr Bean. Ms Carter returned to reside with Mr Bean after living with Mr Boardman for some five days. They resided together during September and early October. From 8 October 2018 to 18 October 2018 the texts between Mr Bean and Mr Boardman became “even more acrimonious, abusive and threatening” according to the Court.[9] Ms Carter left for Queensland with Mr Boardman on or around 9 October 2018, but they did not tell anyone where they were going. Mr Bean began at that point to sleep with a loaded .22 calibre rifle under his bed.
[9] Ibid [26].
On 17 October 2018, Ms Carter and Mr Boardman travelled back from Queensland. Ms Carter arranged to see Mr Bean at her property, where Mr Bean was residing. She was dropped off at the property by Mr Boardman, who then left.
Mr Bean had been asleep when Ms Carter arrived at the property to speak with him.[10] Ms Carter and Mr Bean discussed their relationship. During their conversation Mr Bean heard his phone beep and saw the many offensive text messages that had recently been sent to him by Mr Boardman. Mr Bean sent similarly threatening and taunting text messages back, and he challenged Mr Boardman to come and pick up Ms Carter. Ms Carter also texted Mr Boardman and asked him to pick her up.
[10] Ibid [31].
Shortly thereafter, Mr Boardman arrived at the property in his car. He drove down the property’s driveway towards Mr Bean, who was standing at the rear of a silver vehicle. Mr Boardman drove straight at Mr Bean and would have hit him had Mr Bean not jumped out of the way. Mr Boardman crashed into the back of the silver vehicle. Mr Bean entered the house and grabbed the rifle from under the bed. When Mr Bean re-emerged from the house, Mr Boardman was sitting in the driver’s seat of his vehicle pushing away deployed airbags. Mr Boardman leaned over to the passenger side of the vehicle. Mr Bean raised the rifle and pointed it toward Mr Boardman. Mr Boardman stopped reaching over to the passenger side and turned back to look at Mr Bean, whereupon Mr Bean lowered the rifle so that it was pointing to the ground. Mr Boardman then turned back to the passenger side of the vehicle and reached towards the floor and appeared to be trying to locate something.
Mr Bean believed Mr Boardman was reaching for a gun in order to shoot him. He aimed the rifle at Mr Boardman and fired once through the open window, hitting him in the right upper back near the shoulder blade. Mr Bean believed that Mr Boardman carried guns and that he would have had a gun with him in the vehicle that day.[11]
[11] Ibid [35].
Mr Bean believed that it was necessary to shoot Mr Boardman to defend himself.[12] The Court was not satisfied beyond reasonable doubt that Mr Bean intended to kill Mr Boardman, but he did intend to cause him serious harm.[13] Mr Bean’s actions were not a reasonable response, even in the circumstances as he perceived them to be. Mr Bean’s actions were properly described as unreasonable and excessive, but, according to the Court, they were not grossly disproportionate in the circumstances as Mr Bean perceived them to be.[14]
[12] Ibid [36].
[13] Ibid [56] – [57].
[14] Ibid [71].
The Court found that the offending was objectively serious, but the Court also found that Mr Bean was suffering from a complex post-traumatic stress disorder (or PTSD) that materially contributed to the offending. This had the effect of reducing his moral culpability.[15]
[15] Ibid [76].
The Court accepted that Mr Bean was genuinely remorseful. He was entitled to a 25 per cent discount for his early plea.[16] But for the early plea, the Court would have imposed a head sentence of eight years: this became six years after the 25 per cent reduction. A non-parole period of four years was set. The six-year sentence will expire on 30 October 2024, in approximately 13 months’ time. In the meantime, Mr Bean will be subject to parole conditions.
[16] Mr Bean had been tried for murder on two earlier occasions, but there had been a hung jury on each occasion. On these earlier occasions he had offered to plead guilty to manslaughter but the plea had been rejected on each occasion. Mr Bean offered the plea again on his third arraignment for murder and on this occasion, the plea was accepted. See Ibid [3] – [6].
Mr Bean was taken into custody but released on, I believe, 30 October 2022, when he was immediately taken into immigration detention. He has remained there for the past eleven months.
I should mention at this stage the other criminal offences which appear in Mr Bean’s record; but I note that this record did not disentitle Mr Bean to leniency according to the sentencing Court.[17] On 7 August 2008, the local Court in Armadale convicted Mr Bean of cultivating a prohibited plant (cannabis) for which he received a bond of 18 months and a fine of $500. He was also convicted on the same day of supplying a prohibited drug and was placed on a bond for 18 months and received a fine of $500. On 5 March 2007, in the same court, Mr Bean was convicted of driving without a seatbelt and of having driven a vehicle on the road without having being licensed to do so (1^st offence). He received fines of $200 and $300 respectively on that occasion. On 5 March 2014, Mr Bean was convicted once again of driving on the road not being licensed (1^st offence)[18] and of exceeding the speed limit by more than 10 km an hour. He received two fines of $500 each on this occasion.
[17] Ibid [91]. Mr Bean’s criminal records in Australia and New Zealand appear at EX R1, G4 and G5, respectively.
[18] For reasons that are not clear to me, the record describes this as a first offence despite the earlier conviction.
I note that in 1993 Mr Bean was convicted of three traffic-related offences which had taken place on the same day in New Zealand when he was 18 years of age.[19]
REASONS
[19] These are recorded at Ex R1, G5.
Considerations arising under the Direction
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. There are five so-called “primary considerations” for me to consider and weigh. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear 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 the non-citizen. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will not cause or threaten harm to individuals or the Australian community. I bear this in mind.
By paragraph 8.1(2), decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and to the risk to the community of further offences or engagement in other serious conduct. By paragraph 8.1.1 (1), when considering the nature and seriousness of Mr Bean’s criminal offending or other conduct to date, I must have regard to the matters listed in subparagraphs (a) to (h).
I am prepared to act on the basis that Mr Bean had been involved more than once in the cultivation of cannabis. I also believe that the evidence before me supports a finding that he had on occasion sold that cannabis or exchanged it for goods.[20] There is no sufficient evidence before me, however, that would warrant a finding that this behaviour constituted an enterprise of significance. It is, however, appropriate to deprecate any participation in the supply of drugs in the Australian community even on a small scale. I regard such offending as very serious. Drug dependence is a serious problem in Australia and anyone who participates in the supply of illicit drugs, even on an occasional basis and in small quantities only, is behaving in a strongly antisocial way. I regard Mr Bean’s behaviour as serious in this regard.
[20] Ex R2, 25.

I also regard the driving offences as serious, giving particular weight to Mr Bean’s conviction of driving a vehicle when never having been licensed to do so on two separate occasions.[21] As I have made clear in the past, unsafe driving ‒ and driving without the necessary qualification can only ever be unsafe ‒ may have profound and far-reaching effects for innocent road users.
[21] And once also in NZ when he was 18 years of age.
Clearly, however, it is the conviction for manslaughter that gives rise to the greatest concerns, and it was rightly the principal focus of the respondent’s submissions. I am required under the Direction to consider violent offences as very serious,[22] and I do so. I have had regard to the sentences imposed by the courts, and I note that the sentence for manslaughter was long, marking the court’s view of the gravity of the offending.
[22] See para 8.1.1(1)(a)(i).
There has been some frequency in offending when the records from New Zealand and Australia are combined. I would not say that there is a trend as such of increasing seriousness, but clearly the offence of manslaughter represented a dramatic escalation in Mr Bean’s criminality on that occasion.
There is a cumulative effect of repeated offending and I take that into account.
I also accept the respondent’s submission that Mr Bean provided inaccurate information on his passenger entry card in 2001.[23]
[23] Ex R4, [31].
I must also evaluate the risks to the Australian community should Mr Bean commit further offences or engage in other serious conduct: see paragraph 8.1.2 of the Direction. I note what appears in paragraph 8.1.2 (1) without recapitulating it.
By paragraph 8.1.2 (2), I must have regard to several matters “cumulatively”. The first is the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of his so doing, taking into account information and evidence on the risk of reoffending and evidence of rehabilitation achieved by the time of the decision.
It is sufficient if I confine my detailed remarks to the risks to the Australian community in connection with Mr Bean’s conviction for manslaughter, although I record that I have taken the other offending into account. The other offending has been occasional only, however, and is some years old, the last conviction having been recorded in 2014. I note, however, that dealing in cannabis, even on a limited basis, and driving without ever having had a licence are very antisocial acts. Cannabis can have very harmful effects upon users, and serious injury to others can be – and often is – the result of driving when unlicensed.
Clearly enough, the nature of the harm to individuals or the Australian community should there be any recurrence of the offence of manslaughter of which Mr Bean was convicted could be death (as it was in Mr Boardman’s case) and, if not death, then serious permanent injury.
But it is also important to bear in mind the special circumstances of this offending. Mr Bean subjectively entertained a belief that he needed to defend himself. He honestly held that belief, and the crime of which he was found guilty was one of using objectively unreasonable and excessive force in self-defence, but not force that was, objectively, grossly disproportionate. Furthermore, Mr Bean did not intend to kill Mr Boardman, although he did intend to wound him severely. I bear in mind all the circumstances of the offending in this regard, including the acrimonious relationship stemming from his partner’s infidelity and the attempt by Mr Boardman immediately before the shooting to injure Mr Bean seriously by ramming him with a vehicle.
Importantly, Mr Bean had thought that Mr Boardman was reaching for a gun when he shot him. Mr Bean’s violence was not a wanton act. It constituted a crime that arose from particular circumstances, and involved excessive force in self-defence although it was self-evidently a serious crime.
The respondent submitted that there is evidence that the applicant was under the influence of drugs at the time of the offending. This was a controversial submission in my opinion. The sentencing Court found that the applicant was suffering from a PTSD that materially contributed to the offending. It impacted his behaviour and lessened his moral culpability.[24] The Court found that Mr Bean had a history of misusing alcohol and drugs,[25] that he had “developed drug and alcohol addictions consequent” upon his PTSD,[26] and further accepted that his use of ice increased after he had discovered Ms Carter’s infidelity.[27]
[24] Ex R1, G6, R v Bean [2022] NSWSC 783 [76]
[25] Ibid [83].
[26] Ibid [90].
[27] Ibid [86].
But the sentencing Court did not expressly find that Mr Bean was labouring under the influence of alcohol or any other drug at the moment he shot Mr Boardman, a fact that would, self-evidently, have made the offending more serious. I believe this fact would have been mentioned if it had been agreed before the Court or otherwise found to exist by the Court. In the absence of a finding by the Court, there would have to be other evidence led by the respondent to support that contention. During cross-examination before me, Mr Bean pointed out that he had been woken up by Ms Carter when she came to the house, and he denied that he was under the influence of alcohol or drugs at that point in time. I accept that evidence. The fact that Mr Bean was asleep when Ms Carter arrived is referred to in the sentencing remarks as an agreed fact.[28] In my opinion the cross-examination of Mr Bean was not fruitful in this regard, and it did not give me confidence in the respondent’s contention; nor do I regard the statement in the pre-release report that Mr Bean had reported being under the influence of cannabis and ice in the lead up and during the commission of the offences[29] as reliable if the author intended to say that Mr Bean was directly affected by drugs at the time he shot Mr Boardman. All in all, I do not proceed on the basis that Mr Bean’s behaviour in shooting Mr Boardman was immediately influenced by drug or alcohol misuse.
[28] Ibid [71].
[29] Ex R1, G38, 3.
The respondent further referred me to a passage in the pre-release report which recorded that Mr Bean used violence when unable to manage his heightened emotions appropriately.[30] I do not regard that statement as justified in that unqualified form given the sentencing remarks. The sentencing Court referred explicitly to Mr Bean not being an aggressive person at all,[31] to his being, to the contrary, a person of good character before the offending,[32] and to his being a person who had led a quiet and purposeful life,[33] a person who was well regarded by friends and a valued member of his extended family.[34] Whilst the Court said he had used drugs and for many years and had consumed excessive amounts of alcohol, there was no evidence in the Court’s view of earlier periods of erratic behaviour or violence which would cause the court to reject the extensive evidence of Mr Bean’s good character.[35] The Court evaluated Mr Bean’s abusive texts as those of a man seeking to stand up to an aggressive man.[36]
[30] Ibid.
[31] Ibid [49].
[32] Ibid [90].
[33] Ibid [93].
[34] Ibid.
[35] Ibid.
[36] Ibid [49].
I accept that Mr Bean’s behaviour in jail and detention has been good. I accept that he has expressed genuine remorse, and this finding is consistent with the Court’s sentencing remarks.[37] I accept also that the offending was uncharacteristic as the court itself indicated, and I further note again that his violence was not wanton, but arose from a negligent appreciation of the appropriate level of force he could lawfully use in self-defence in circumstances where his PTSD had the effect of reducing his moral culpability.
[37] Ibid [98] – [101].
I note further that until October 2024, Mr Bean will be subject to parole conditions and these will offer something of a protective factor. I accept that he earnestly wishes, to express his genuine regret to Mr Boardman’s family in person, but I do not believe there is a serious risk that he will approach them without the prior approval of his parole officer.
All in all, I regard the risk of his reoffending in this way as low, although not nil. This finding is consistent with the Court’s observations when it addressed the need for specific deterrence.[38]
[38] Ibid [94(3)].
There is no family violence to consider: see paragraph 8.2 of the Direction.
I must consider the strength, nature and duration of ties to Australia: see paragraph 8.3 of the Direction. In this regard I largely accept the delegate’s analysis at paragraphs [55] to [78] of the statement of reasons for decision.[39] Like the delegate, I believe these ties strongly favour revocation of the cancellation decision. Given my agreement with the delegate, there is no need in these reasons to canvass the matter further.
[39] Ex R1, G3.
I must also consider the best interests of minor children: see paragraph 8.4 of the Direction. The delegate made certain findings with which I agree in general. The delegate gave the interests of Mr Bean’s nieces and nephews significant weight and the delegate separately weighed the interests of his niece’s baby (as was appropriate to do) and gave her interests significant weight.[40] I would differ with the delegate to this extent; namely, that I would not attach much weight to the interests of children above the age of 15, two of whom are recorded at paragraph [80] of the delegate’s reasons for decision. They are relatively close to their majority as at the date of my decision today, and their interests should be discounted significantly on that account. But I do not believe that affects the overall conclusion of the delegate, with which I agree. Once again, it is sufficient for me to note my broad agreement with the delegate’s approach without providing detailed analysis.
[40] Ibid [79] – [84].
I am required to have regard to the expectations of the Australian community: see paragraph 8.5 of the Direction. I note that by paragraph 8.5(1) the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen seriously breaches this expectation the Australian community “as a norm” expects the Government to exclude that person from Australia. I acknowledge that this principle applies in this case.
Subparagraph (2) makes it clear that the nature of character concerns may be such that the Australian community would expect the person not to continue to hold a visa and that non-revocation of a mandatory cancellation of a visa may be appropriate in the circumstance. Clearly enough, crimes of violence must be weighed very closely in this regard. I note that by subparagraph (3) the expectations as given in the Direction apply whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community, and that is an important aspect of the decision before me today given my risk assessment of “low”. I am also cognisant of subparagraph (4), which requires me to proceed on the basis of the Government’s views as articulated in paragraph 8.5 without independently assessing what the community’s expectations might be in any given case. Overall, this consideration counts substantially against Mr Bean in my opinion.
I must address so-called “other” considerations under paragraph 9 of the Direction. A non-exhaustive list of such considerations is given in paragraph 9.1. There is no impact on Australian business interests to consider. I was not provided with information concerning the impact on Mr Boardman’s family members of a decision to allow Mr Bean to return to live in the community. They may properly be regarded as “victims” of the offending in an extended sense. Accordingly, I give this consideration neutral weight.
I proceed on the basis that New Zealand has a broadly equivalent economy and welfare system to Australia’s. I further bear in mind that Mr Bean lived in New Zealand until he was about 21 and so is familiar with its life and culture. I do not ascribe any significance to any impediments arising from the process of relocation to New Zealand as such. Like the delegate,[41] however, I do believe that Mr Bean would experience a strong degree of emotional dislocation if he were permanently removed since Australia has become his home and given his connections here. That is a matter I should take into account.
[41] Ibid [104].
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations I have identified. This has not been an easy matter. I am conscious of the extreme violence that has occurred in this case. There is other antisocial behaviour that has occurred, but I have concluded that this behaviour is not a “tipping point” in my deliberations, and so it is sufficient for me to concentrate in these remarks on the manslaughter conviction.
As I have said, the violence in question was extreme. There can be no more serious violence than that resulting in a person’s death. The violence in question was the result of the use of a firearm that had the potential for lethal effect. The community-expectations consideration counts clearly against Mr Bean. The Direction taken as a whole speaks strongly against violence, and for the very reason that violence threatens directly and immediately the well-being of members of the Australian community. It is better for violent non-citizens to be removed from Australia as a general principle or norm. Mr Bean’s risk profile, whilst low, is not nil.
In this case, however, the circumstances of the violence need to be borne in mind so as to reach the preferable decision in the weighing process. It is appropriate, in my opinion, to bear in mind closely the sentencing remarks in this regard. Although Mr Bean’s offending involved a crime of extreme violence, it arose in highly unusual circumstances (although not unprecedented). Mr Bean genuinely believed he needed to act in the way he did to defend himself. The Court was not satisfied beyond reasonable doubt that he intended to kill Mr Boardman, although he did intend to wound him severely. His use of the weapon, whilst excessive and unreasonable in all the circumstances, was not judged to be a grossly disproportionate response. The crime is one, therefore, of negligence and not one involving the deliberate infliction of unjustifiable harm by a perpetrator who knows the harm to be unjustifiable. That aspect of the matter does need to be weighed carefully in my opinion, as do the Court’s remarks in respect of the applicant’s prior character, which reflected quite positively on him. Mr Bean was not found to be a violent man by the sentencing Court, which viewed many abusive and aggressive texts from Mr Bean and formed the impression that he was trying to stand up to an aggressive and threatening person in Mr Boardman.[42] I have assessed the risk of reoffending to be low, although not nil. I do not doubt that the circumstances of jail, and now detention for almost a year, with the prospect of losing his life in Australia have had a significant impact on Mr Bean. I believe that he will do what he can to minimise the chances of any recurrence. His intimate relationship with Ms Carter is now over, of course, and it was that relationship that was the catalyst for the events that took place.
[42] See R v Bean [2022] NSWSC 783 [49] (reproduced at Ex R1, G6).
I must bear in mind as primary considerations the applicant’s ties to Australia and the interests of minor children both of which favour Mr Bean (as the delegate also found in his or her consideration of the matter).
CONCLUSION AND FORMAL DECISION
All in all, I find on balance, after applying the Direction, that revocation of the cancellation decision is the correct or preferable decision on the evidence adduced before me. That is my decision on balance. Having reached this conclusion, I shall formally find that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act. I shall set aside the decision under review and substitute a decision that the cancellation of Mr Bean’s visa be revoked.
I certify that the preceding fifty-eight (58)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]…………………………..
Associate
Dated: 26 October 2023
Date of hearing:  18 September 2023
Advocate for the Applicant:      Barbara Maher,
Queensland Australia Migration Consultant
Advocate for the Respondent:  Daphne Jones-Bolla,
  Sparke Helmore