Belmont and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1285

Belmont and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1285 (22 May 2023)

Division:GENERAL DIVISION

File Number:          2023/1242

Re:John Rudolf Dansel Belmont

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis
Senior Member Wayne Pennell

Date:22 May 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 February 2023 to not revoke the cancellation of the Applicant’s visa.

.......................[SGD]..............................	......................[SGD]........................
Senior Member Theodore Tavoularis	Senior Member Wayne Pennell

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed.

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR461
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis
Senior Member Wayne Pennell

22 May 2023

1. Mr John Rudolf Dansel Belmont (‘the Applicant’) is a 45-year-old man, born in New Zealand in July 1977. He has frequently travelled out of Australia since his initial arrival in 1998.[1] His most recent arrival in Australia was in January 2019. The visa he was granted upon that arrival was a Class TY Subclass 444 Special Category (Temporary) Visa (‘the Visa’).

   [1] Exhibit 6, pp 193-195.

2. On 9 November 2021, while the Applicant was serving a fulltime custodial term of imprisonment, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa under

   
   

   s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) because he did not pass the character test as he was serving a full-time custodial term.[2] On 26 November 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his Visa.[3]

   [2] Exhibit 1, p 89.

   [3] Ibid, pp 35-39.

3. On 27 February 2023, a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation.[4] This was delivered by hand to the Applicant on the same day. On 28 February 2023, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision. We are satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.

   [4] Ibid, p 13.

4. The hearing of this application proceeded before us on 3 May 2023 (‘the Hearing’). Oral evidence was received from:

   ·the Applicant; and

   ·Alwy Belmont (Applicant’s father).

5. The Hearing also received written evidence and the totality of that material was consolidated into an agreed Exhibit List,[5] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.

   [5] Transcript, p 3, 1-12.

   LEGISLATIVE FRAMEWORK

6. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

7. We are satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.

8. There are therefore two issues presently before the Tribunal:

   (a)whether the Applicant passes the character test; or

   (b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.

   Does the Applicant pass the character test?

9. The parties agree that the Applicant does not pass the character test[6], because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 12 months in September 2021.[7] Accordingly, We find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

   [6] See Transcript, p 70, lines 44-46 p 3, lines 33-38.

   [7] Pursuant to ss 501(6) (a) and 501(7)(c) of the Act.

   Is there another reason for the revocation of the cancellation of the Applicant’s Visa?

10. In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[8]

    [8] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

11. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

    
    

    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia 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.

    2Non-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.

    3The 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.

    4Australia 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.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    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 8.55(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.

12. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and 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 strength, nature and duration of ties to Australia:

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

13. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequence of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

14. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind 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.

15. As best as we understood the material, it does not contain any reference to offences committed by the Applicant outside of Australia. He has compiled a relatively lengthy history of criminal offending in this country. in terms of sentencing episodes it runs from November 2015 to September 2021. The offending involves convictions for the commission of some 21 offences that were dealt with across 13 sentencing episodes.[9] His offending history may be summarised thus:

    [9] Exhibit 1, pp 28-29.

Court	Date	Offence	Sentence
Queensland Magistrates Court	September 2021	Breach of probation Order (x2)	Conviction recorded Not further punished Sentenced Imprisonment: 3 Months concurrent
		Contravention of domestic violence order (aggravated offence)(x2)	Conviction recorded Sentenced to imprisonment: 12 months concurrent
Queensland Magistrates Court	June 2020	Contravention of domestic violence order	Conviction recorded Sentenced to imprisonment: 65 days concurrent
		Contravention of domestic violence order	Conviction recorded Probation period: 18 months
Queensland Magistrates Court	April 2020	Failure to appear in accordance with undertaking	No conviction recorded Fined: $300
Queensland Magistrates Court	October 2018	Commit public nuisance Obstruct police officer	On all charges No conviction recorded Fined $450
Queensland Magistrates Court	April 2017	Commit public nuisance	Conviction recorded Fined: $500
Queensland Magistrates Court	March 2017	Commit public nuisance licensed premises or in the vicinity of licensed premises	No conviction recorded Fined: $200
Western Australian Magistrates Court	January 2017	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fined: $300
Western Australian Magistrates Court	January 2017	Possessed drug paraphernalia in or on which there was a prohibited drug of plant	Fined: $400
Western Australian Magistrates Court	November 2016	Possess a prohibited drug (Methylamphetamine)	Fine: $1000
		Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fined: $300
Western Australian Magistrates Court	October 2016	Ride bicycle without lights on the front	Fined: $100
		Ride bicycle without lights on the rear	Fined: $5
		Bicycle rider fail to wear protective helmet	Fined: $50
		Possessed drug paraphernalia in or on which there was a prohibited drug	Fined: $100
Western Australian Magistrates Court	June 2016	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fined: $300
Western Australian Magistrates Court	November 2015	Possess a prohibited drug (Methylamphetamine)	Fined: $400

1. The Applicant has also compiled a traffic history during his time in Australia. It runs from October 2020 until June 2021 – a period of eight months.[10] During that short period, the Applicant has committed traffic infringements that attracted the imposition of 26 demerit points. That is in excess of three demerit points per month. His final offence involved a conviction for unlicensed driving which saw his driving privileges suspended for six months on and from September 2021. Of further concern is his first infringement involving a three demerit point penalty and $400 fine for having a child over six months but less than four years of age travel unrestrained in a vehicle he was driving.

   [10] Exhibit 6, pp 19-21.

2. In determining the weight allocable to this Primary Consideration 1, paragraph 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.

3. We will consider each in turn.

   The nature and seriousness of the Applicant’s conduct to date

4. 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 the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)     violent and/or sexual crimes;

   (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

   (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

   Paragraphs 8.1.1 considerations

5. Sub-paragraph 8.1.1(1)(a)

   : the Applicant has convictions for multiple violent offences. That violence has been visited upon female victims in the context of family violence-type offending. There is little or nothing to cavil with the proposition that this offending falls squarely within the auspices of sub-paragraphs 8.1.1(1)(a)(i), (ii) and (iii). One need look no further than the sentencing remarks of the learned sentencing Magistrate, Her Honour Magistrate Crawford who noted the offending that came before Her Honour on that day  

   
   

   (i.e September 2021):

   ‘…is very serious offending. This is – there are now five separate incidents where you have breached domestic violence orders and have committed violence against your partner or ex-partner. There are a number of circumstances that might explain some of that offending, and there is no doubt that some of the behaviour of the aggrieved in some of that offending was also very poor. Nevertheless, you were the respondent with respect to the domestic violence order and it was your responsibility to ensure that you did not breach that order. With respect to the violence that was perpetrated against the aggrieved, that violence also took place in front of your children. That is reprehensible behaviour.’ [11]

   [11] Exhibit 1, p 31, lines 13-23.

6. The chapeau to this sub-paragraph stipulates that such conduct is viewed ‘very seriously’ by the Australian Government and the Australian community. We consider (and find) that the Applicant’s domestically violent conduct against female victims to be very serious.

7. Sub-paragraph 8.1.1(1)(b): of the Direction refers to the types of crimes that may be considered serious by the Australian Government and its community. The Applicant has not committed any offence in the realm of causing another person to become a party to a forced marriage,[12] or being responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion;[13] or in relation to any crime committed during the Applicant’s time in immigration detention.[14]

   [12] Paragraph 8.1.1(1)(b)(i) of the Direction.

   [13] Paragraph 8.1.1(1)(b)(iii) of the Direction.

   [14] Paragraph 8.1.1(1)(b)(iv) of the Direction.

8. In October 2018, the Applicant was convicted of one count of ‘obstruct police officer’.[15] The circumstances of that offending appear in the material thus:

   ‘Due to operational constraints for Riverfire, multiple road closures resulted in a delay of approximately 20 minutes for a police vehicle to arrive to transport the defendant. During this time the crowd of onlookers were subjected to the defendant screaming an abusive offensive rant at police. The defendant repeatedly struggled with police after he was placed under arrest struggling against being placed in handcuffs, and continually trying to pull away from police. The defendant continued to abuse and threaten police saying, “I will remember you and fuck your mother” and “if you do not take your hand off my shoulder I will fuck you up, you cunt.”

   When a police vehicle arrived, the defendant continued to struggle against police and had to eventually be forcibly placed into the vehicle. While transporting the defendant to the watch house the defendant stated, ‘I will piss myself and shit myself in here so you fucking cunts will have to clean it up.’ The defendant was transported to Brisbane City Watch House where he was charged and set to appear in Brisbane Magistrate Court on the [day redacted] of October 2018 at 8:30am.’[16]

   [15] Exhibit 1, p 28.

   [16] Exhibit 6, p 148.

1. The chapeau to this sub-paragraph 8.1.1(1)(b) stipulates that unlawful conduct against those in lawful authority in the performance of their duties must be viewed seriously. The Applicant’s above-recorded conduct represents a direct challenge to the lawful authority of police officer charged with responsibility for public order and safety at a significant community event. The Applicant’s reprehensible conduct towards those police officers must be viewed (at the very least) as serious.

2. Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

   (a)any violent offending he may have committed against women;[17]

   (b)acts of family violence;[18] and

   (c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[19]

   [17] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [18] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [19] Paragraph 8.1.1(1)(b)(i) of the Direction.

3. I am therefore precluded from taking to account the custodial terms imposed on this Applicant in September 2021 (three months), and again in September 2021 (12 months) and again in June 2020 (65 days). These custodial terms – in terms of the Applicant’s sequence of the commission of 21 offences – appear from offence 17 to offence 21. The previous 16 offences were almost exclusively punished by fines ranging from $5 to $1000.

4. It is both difficult and unsafe to allocate any measure of quantifiable weight against the Applicant when one has regard to the exclusively non-custodial nature of the sentences imposed for this non-precluded offending. It suffices to say that while the sentences imposed on the Applicant for his precluded offending are significant, the sentences for the non-precluded offending are of a comparatively much milder level.

5. The penalties imposed on the Applicant for his traffic offending should also be considered here. Of course, none of those offences involved the imposition of custodial time. That said, the sentences imposed over a barely eight month period of offending are significant insofar as traffic offending is concerned. This is because (1) the offending during that eight month period is remarkable for its consistency and repeated nature; and (2) it culminated in the cancellation of the Applicant’s driving privileges for six months.

6. Overall, we are satisfied that this sub-paragraph 8.1.1(1)(c) militates in favour of a finding that the sentences imposed by the courts for his offending do point to the (at least) serious nature of his offending and, more likely, to its very serious nature.

7. Sub-paragraph 8.1.1(1)(d): two questions arise for consideration. The first involves an assessment of the frequency of the Applicant’s offending. As mentioned earlier, he has been before the courts for sentencing during the period November 2015-September 2021. Those sentencing episodes saw him punished for the commission of 21 offences. Expressed as an average, this equates to convictions for between 3 and 4 offences for each year of the criminal history. The frequency of the traffic history is even more stark. In barely an eight month driving history he committed some 26 traffic infringements, culminating in the cancellation of his driving privileges for six months. We are satisfied that the totality of his offending has been frequent.

8. The second question is whether the offending betrays any trend of increasing seriousness. We think his criminal history certainly does. We refer again to the 21-offence sequence and note that the first 16 offences do not involve the commission of actual violence. They are, predominately, offences in the realm of failure to follow lawful regulation of (1) the possession and consumption of illicit drugs; (2) conduct amounting to public nuisance; and (3) a refusal to comply with lawful authority be it in the form of either meeting the requirements of an undertaking or following the direction of a police officer or in the course of riding a bicycle on public roads.

9. However, the nature of the seriousness of offences from offence 17 onwards is starkly more serious involving, as it did, very serious domestically violent conduct against a female victim including the commission of some of that conduct in the presence of infant children. We have already referred to Her Honour Magistrate Crawford’s observations of the nature of the Applicant’s domestically violent offending that came before Her Honour for sentencing in September 2021. The Applicant’s traffic history is so densely packed with offences across its barely eight month period such as to almost preclude any assessment of an increasing level of seriousness. It seems serious from the outset and culminates in the suspension of his driving privileges. We are satisfied that his traffic offending is, at the very least, frequent and of a sufficiently serious nature to attract the auspices of this sub-paragraph 8.1.1(1)(d).

10. We are satisfied that the Applicant’s offending has been frequent and most certainly betrays a trend of increasing seriousness. We are further satisfied that his traffic history has been serious from its outset and that it has most certainly been of a very frequent nature. Overall, we are satisfied that the totality of the Applicant’s offending satisfies the elements of frequency and increasing seriousness such as to attract the operative effect of this  

    
    

    sub-paragraph in favour of a finding that his offending has been of an, at least serious, more likely very serious.

11. Sub-paragraph 8.1.1(1)(e): to our minds, there are four cumulative effects referrable to the Applicant’s repeated offending. First, even a cursory review of his criminal and traffic histories demonstrates he has abjectly failed to develop any modicum of respect for the lawful authority governing and or regulating (1) possession of illicit drugs; (2) the use of a bicycle on public roads; (3) a requirement that he meet the terms of a lawfully provided undertaking; (4) the direction of a law enforcement officer; (5) the terms, conditions and prohibitions of a duly made domestic violence order; (6) the conditions and requirements of a duly made probation order; and (7) the laws and regulations governing the ownership, management and operation of a motor vehicle on Australian motorways.

12. Second, the Applicant’s offending is demonstrative of a person who has failed to respect the rights of others in the community to enjoy both public and private spaces. This can be seen by his several convictions for public nuisance type offending. Third, he seems to be a person who has also abjectly failed to appreciate and respect the role and position of a spouse in a domestic relationship in which he may find himself. His domestically violent conduct against female victims is, quite simply, beyond the pale and not to be tolerated.

13. Finally

    , the Applicant’s criminal and traffic offending has been so intensely committed over relatively short offending periods such as to have attracted and consumed much more than its fair share of the community’s law enforcement and judicial sentencing apparatuses. There is no other way to view a criminal history that has seen the commission of 21 offences across an offending period of less than six years and a traffic history that has seen him commit 26 infringements over an eight month period. We are satisfied that this  

    
    

    sub-paragraph 8.1.1(1)(e) strongly militates in favour of a finding that the totality of the Applicant’s offending has been of a ‘very serious’ nature.

14. Sub-paragraph 8.1.1(1)(f): the material contains reference to an incoming passenger card duly signed by the Applicant and dated 7 January 2019.[20] He responded in the negative to the question posed in that card about whether he had any criminal convictions. By January 2019, the Applicant had convictions for 14 separate offences in Australia. His answer to the question posed in the card is therefore incorrect. The next question is whether he intended to mislead anyone by responding in the negative. In its Statement of Facts, Issues and Contentions (‘SFIC’), the Respondent refers to this incorrectly completed card and cites the Applicant’s explanation put on the basis that he ‘didn’t look at the card properly’ and asserts that this explanation is unsatisfactory.[21]

    [20] Exhibit 1, p 85.

    [21] Exhibit 7, pp 8-9; [32].

15. In a written statement, the Applicant says that in relation to his incorrect completion of the card ‘…I didn’t look at the card properly and I had kidz [sic] and partner plus job, as well for I never meant to do it, and sorry to have so…’.[22] This written explanation is put in the context of (1) the Applicant being otherwise-occupied with responsibilities attaching to children and his then spouse when going through customs following a flight from New Zealand; (2) that he was going through ‘…a rough time when I lost my job in Karratha and found myself on the streets of Perth which lead to addiction yousing [sic] drugs and drink…’.[23]

    [22] Exhibit 1, p 52.

    [23] Ibid.

16. During his oral evidence, the Applicant said:

    ‘…I actually didn’t read the card properly and I did do it but I do take full ownership of that and I didn’t do it to my intent to deceive Australian public.  I know it does look like that now.

    …There was really no excuse for that incoming passenger card.  And by all means, from the bottom of my heart, it wasn’t to deceive you guys.  I did mess up on that passenger card.‘[24]

    [24] Transcript, p 34, lines 46-47; p 35, line 1; p 70, line 46; p 71, lines 1-2.

17. We accept that the Applicant’s incorrect completion of the subject card rendered it false in terms of his response to the specific question about prior convictions. In terms of him providing that false answer to intentionally mislead someone, our position is more circumspect. It seems clear from the material that he had little or nothing to gain by providing a false answer. The more likely reality is that his organisational capacity and thinking was so significantly muddled by whatever calamity he thought he was experiencing at the time he completed the subject card. We therefore moderate the level of adverse weight applicable to this particular sub-paragraph 8.1.1(1)(f). At best, it moderately weighs in favour of a finding that the Applicant’s conduct has been of a serious nature.

18. Sub-paragraph 8.1.1(1)(g): to the best of our understanding of the material, there is no reference to any written formal warning (or similar admonition) about the consequences of the Applicant committing further offences in terms of his Visa status to remain here.

19. Sub-paragraph 8.1.1(1)(h) As we have previously mentioned, we are not aware from the material that the Applicant has actual convictions for offending in New Zealand. He confirmed that during his time in Ireland, he did not have any trouble with the police there.[25] In terms of his history in New Zealand he said the following:

    ‘SENIOR MEMBER PENNELL:  What about in New Zealand?

    MR BELMONT:  No.  I’ve only got one incident in New Zealand and that wouldn’t - maybe two.  Speeding fine and a juvie, it wasn’t in juvie.  It was a scuffle on the street back there, so I was underage.

    SENIOR MEMBER PENNELL:  How old were you then?

    MR BELMONT:  About 14.

    SENIOR MEMBER PENNELL:  Fourteen.  Did you get a caution did you?

    MR BELMONT:  Yes, that’s it.  Yes back in those days a caution and they send you off to the boot camp so I went into the army boot camp for six weeks, yes and then they sort of toughened me up and setting me on straight and narrow.  (Indistinct).’[26]

    [25] Transcript, p 37, lines 8-14.

    [26] Ibid, lines 16-31.

20. There is no formal record in the material about any conviction(s) arising from this conduct which the Applicant freely volunteered as having occurred in New Zealand. In the absence of any such written record of conviction(s) we will only afford a slight level of weight to this sub-paragraph 8.1.1(1)(h) such that it militates in favour of a finding that the Applicant’s offending has been of a serious nature.

    Conclusion about the nature and seriousness of the Applicant’s conduct

21. We have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. Those relevant paragraphs lead us to the conclusion (and finding) that the totality of the Applicant’s unlawful conduct in this country does reach a threshold of being ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

22. Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

23. Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (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 the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

24. We again refer to the 21-offence sequence of the Applicant’s offending between November 2015 and September 2021. The first 15 of those convicted offences involve him failing to observe lawful requirements around illicit drugs, the use of a bicycle in public places, the commission of acts of public nuisance, the requirement to observe and respect lawful authority and a failure to meet the terms of a duly provided undertaking. It suffices to say that re-commission of such offences will not necessarily result in any significant level of harm to individuals or the Australian community. Such offending would consume the community’s policing and/or judicial sentencing resources but would occasion little further harm than that.

25. The position is, however, starkly different when one has regard to the nature of the Applicant’s very serious domestic violence-type offending that form the basis of his convictions from offence 16 to offence 21 recorded in his history. There is no other way to characterize conduct involving him (1) pushing a female victim to the floor and holding his hands around her neck; (2) punching a female victim multiple times in the face and then having his hands around her throat; (3) repeatedly striking a female victim in the chest and stomach; (4) verbally abusing a female victim and threatening her by saying words to the effect of ‘I’ll burn the house down with you and the kids in it’; and (5) making direct physical threats to a female victim and occasioning physical damage to the structure of a dwelling in the presence of minor children.

26. Were the Applicant to re-commit such very serious and violent conduct, particularly against a female victim, it is not a stretch of the evidence to suggest (and find) that such conduct could very well result in physical, psychological and, quite conceivably, catastrophic harm to a victim. His offending in this regard has already crossed the threshold from ‘words only’ behaviour to ‘hands on’ conduct involving the administration of direct physical blows upon a female victim. We are all only too well aware of (1) how threatening words can turn into catastrophic conduct in a domestic context; and (2) how physically violent contact with a victim can graduate from relatively mild into very serious and even catastrophic outcomes.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

27. The Applicant’s written evidence purports to explain the circumstances in which his substance abuse issues became a very significant predispositive element behind his offending conduct. In his Personal Circumstances Form (‘PCF’), he is specifically asked to outline any factors he believes explain his offending. In the PCF he said:

    “Please take into Account i did what i did in WA Perth due to losing my Job and was on the streets in North Bridge, at the time me and my Partner came over to Brisbane we got away from Drugs and crimne my Violent side happened here, but no Drug Relations have cause We lost our home, Mother inlaw and Job, die to covid 19 plus nowhere to go and homeless with two kidz at the time.”[27]

    [Errors in Original]

    [27] Exhibit 1, p 48.

28. There is evidence that the Applicant has engaged with the Lives Lived Well organisation and a report from a Ms Melanie Groves ‘counsellor/case manager’ appears in the material.[28] Ms Groves reports that the Applicant first engaged with this service in February 2022 and subsequently attended three further counselling appointments by telephone on  

    
    

    18 February, 2, 16 and 30 March 2022. Ms Groves reports that the Applicant told her that at the time of her report (April 2022) he had been abstinent from alcohol ‘for over 18 months’.[29] Ms Groves also made the further following observations:

    ‘[The Applicant] has taken initiative in accessing additional supports for his mental health and wellbeing and has undertaken to complete and participate with any resources made available to him, whilst in detention. [The Applicant] has created a relapse prevention plan and has established daily routines which support his maintaining his positive change. [The Applicant] demonstrates insight into his past patterns and the resulting negative impacts associated with alcohol use. [The Applicant] shows motivation and willingness to learn and adopt different strategies suggested and has achieved all goals set in appointments.’[30]

    [28] Ibid, pp 58-59.

    [29] Ibid, p 58.

    [30] Ibid.

29. The is also evidence of the Applicant completing a number of courses during his time in immigration detention. The relevant courses for present purposes comprise:

    ·Family Violence Foundations (completed on 9 May 2022);[31]

    [31] Ibid, p 61.

    ·Participation in the Respectful Man Program on various dates between 23 May – 7 September 2022;[32]

    [32] Ibid, pp 63-70.

    ·Building Self Esteem (certificate issued 17 January 2023);[33]

    [33] Exhibit 2.

    ·Confidence Building (certificate issued 15 March 2023);[34]

    ·Counselling Psychology (certificate issued 7 February 2023)’[35]

    ·Depression Management (certificate issued 11 January 2023);[36]

    ·Drug and Alcohol Abuse 101 (certificate issued 24 March 2023);[37]

    ·Emotional Healing 101 (certificate issued 1 April 2023);[38]

    ·Stress Management (certificate issued 9 January 2023);[39]

    ·Anger Management 101 (certificate issued 8 January 2023);[40]

    ·Domestic Violence 101 (certificate issued 8 January 2023);[41]

    ·How to improve your concentration (certificate issued 14 March 2023);[42]

    ·Understanding Additions (certificate issued 26 March 2023);[43]

    [34] Ibid.

    [35] Ibid.

    [36] Ibid.

    [37] Ibid.

    [38] Ibid.

    [39] Ibid.

    [40] Ibid.

    [41] Ibid.

    [42] Ibid.

    [43] Ibid.

30. The Applicant’s most recent statement is dated 27 April 2023 and appears in the material.[44] In that statement he says this:

    “Rehabilitation:is key here,and not just to have done, you need show and do ,but to further treatment on with the recovery process,if i am released you will see in my paper work that i have ongoing zoom meetings, once a month with respectful man,that i done a ten week course with,to see how we are managing our behaviour and relationships with others,also i have resent check in's, with Sane for peer support and with lives lived well.”[45]

    [Errors in original]

    [44] Exhibit 18.

    [45] Exhibit 18.

1. With particular reference to the ‘SANE Guided Service’ reference appearing in the Applicant’s above-quoted statement, the material contains references to the Applicant having completed an online survey for that organisation telling them about the state of his mental health, the state of his general well-being and whatever supports he may have in the community.[46] There is also evidence of the Applicant having an already-booked appointment with the SANE organisation for this month of May.[47] The Applicant also appears to have undertaken some relatively recent treatment sessions with the ‘Lives Lived Well’ organisation. He appears to have completed a six week period of treatment towards the end of 2022 and that a booking was made for him to attend a further appointment with them on 11 January 2023.[48]

   [46] Exhibit 14.

   [47] Exhibits 15 and 16.

   [48] Exhibit 17.

2. There is a relatively small bundle of International Health and Medical Service (‘IHMS’) records in the material. Relevantly, those records say these things:

   ·IHMS record dated 24 July 2022 states:

   “Given positive reinforcement for all the work he has done on Counselling and Educating himself while in Detention

   Sessions with Psychologist commencing tomorrow

   [The Applicant] continues to be proactive in attending courses and developing more support networks.”[49]

   [49] Exhibit 8.

   ·IHMS record dated 20 August 2022 states:

   “….[The Applicant] continues to be proactive in attending courses and developing more support networks. ;Is ;doing some ;Anger Management ;w!th Chris form Activities Sessions with Psychologist going well..”[50]

   [50] Ibid.

   [Errors in original]

   ·IHMS record dated 16 April 2022 states:

   “Aware that his previous substance use took him away form leading a Values directed life and lead to anger and domestic violence

   Able to identify possible barriers and how he is willing to manage these barriers

   Discussed maintaining motivation.”[51]

   [51] Ibid.

   ·IHMS record dated 30 April 2022 states:

   “[The Applicant] has done a lot of courses, has learnt a lot and reflected on past events. He is now learning about himself and accepting help from others. Aware that the lack of resources/assistance after losing his job was a causative factor. [The Applicant] feels he has more skills to manage difficult times. Is participating in Anger management course and has signed up for another domestic violence course with Family Violence Foundations.“[52]

   ·IHMS record dated 22 May 2022 states:

   “[The Applicant] continues to be proactive in attending courses and developing more support networks. He has finished the DV course with Family Violence·Foundations and is looking at completing another one with Respectful men.” [53]

   ·IHMS record dated 18 June 2022 states:

   Continues to spend his time either attending activities of one of his courses

   Given homework on Managing Anger which has a different approach to other anger management courses for [The Applicant] to complete and discuss next appointment.”[54]

   ·IHMS record dated 9 July 2022 states:

   “This weeks session focused on Anger management. ; [The Applicant]is able to recognize hi previous typical signs of anger, the triggers and previous poor management of how he coped with his anger.

   Now he is aware that he needs to be open and to acknowledge painful emotions such as hurt and disappointment. he can now "let go" and commit to developing patience with self and others. He can notice the fusion traps. he can now hold his judgments and blame lightly and practices acceptance. he can work in ;a win-win solutions.”[55]

   [52] Ibid.

   [53] Ibid.

   [54] Ibid.

   [55] Ibid.

3. The material also contains a document from Queensland Corrective Services which dates from November 2021.[56] That report seeks to address the Applicant’s level of risk in terms of committing like or similar offences together with the likely impact of those offences on the community:

   ‘c) The risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community:

   You have been assessed as having a Risk of Reoffending Prison Version (RoR-PPV) score of 5, which indicates you fall into the category of prisoners who pose a low risk of further general offending, however I note that this score does not indicate your risk of violent re-offending. You were assessed via a Benchmark Assessment, which determined that you have high intervention needs in the areas of employment, substance abuse, domestic violence (perpetrator) and domestic violence (victim). You were recommended to undertake programs to address your substance abuse and domestic violence.’[57]

   [56] Exhibit 1, pp 73-77.

   [57] Ibid, p 73.

4. The Applicant also gave oral evidence at the Hearing. At the Hearing, the Tribunal posed certain questions to the Applicant centred around his level of recidivist risk. He readily accepted that the abuse of alcohol and illicit drugs have been the primary causative factors behind his offending.[58] He also accepted that his profile of substance abuse has been primarily conditioned by the cost of purchasing illicit drugs such that the comparatively cheaper cost of alcohol led to him more regularly abusing that substance as opposed to methylamphetamine.[59]

   [58] Transcript, p 37, lines 40-47; p 38, line 1.

   [59] Ibid, p 38, lines 4-22.

5. He accepted a pattern in his past offending history that saw him dealt with for offending as a result of substance abuse issues, being returned to the community and then returning to abusing substances, primarily alcohol.[60] He was specifically asked about whether, upon a return to the community he would be able to self-regulate his consumption of alcohol so as to avoid a further relapse and he said the following:

   ‘In my case, yes.  But I would like to say that I would like to give some form of surety to you guys about that and if I am to be given a visa to go back out into the community and stuff, well as you all know that I’ve done a lot of courses and (indistinct) by the support network that I do have out there now and that’s ongoing.’[61]

   [60] Ibid, lines 24-40.

   [61] Ibid, p 39, lines 7-11.

6. He spoke of going to live with his parents in Perth and of returning to working in the mining industry in Western Australia. He feels confident about being able to source such work because his sister is in a prominent position in the BHP corporate structure.[62] He was specifically asked about the state of his rehabilitation from his past addictions and agreed that this issue remained a work in progress for him:

   ‘SENIOR MEMBER TAVOULARIS: Yes and you’re in the process of overcoming your addictions, aren’t you?

   THE APPLICANT:  Yes.  Yes.

   SENIOR MEMBER TAVOULARIS:  It’s still a work in progress for you?

   THE APPLICANT:  Still a work in progress, that’s right Member.

   SENIOR MEMBER TAVOULARIS:  Still working at it.  Not there yet?

   THE APPLICANT:  Still working at it, not there yet.

   SENIOR MEMBER TAVOULARIS:  You’d agree with that?

   THE APPLICANT:  I’d agree with that 100 per cent.’[63]

   [62] Transcript, p 39, lines 25-47; p 40, lines 1-19.

   [63] Ibid, p 40, lines 21-36.

7. The Applicant was also asked to assume that upon a return to the community certain difficult or bad times were to confront him and how the Tribunal could be confident that if such difficulties emerged, whether he would be able to address and confront them without resorting to alcohol and illicit substance abuse. This is what he said:

   ‘SENIOR MEMBER TAVOULARIS:  Because life’s like that a lot.  A lot.  Everybody’s got problems and really sometimes dealing with life is being able to deal with those problems.  Not just the good times.  The bad times?

   THE APPLICANT:  Yes.

   …

   SENIOR MEMBER TAVOULARIS:  So there’s two tricky incidents in your life.  Getting work.  Getting your kids back and dealing with your substance issues which you’re still working on.  What if all those things become really difficult for you?  Can you handle those things without giving up again and going back to the alcohol or the drugs?

   THE APPLICANT: :  I believe so.  I can as you will see with what I’ll present.

   SENIOR MEMBER TAVOULARIS:  I know you’re marked the survey before but knowing what we know now about your offending, what are your chances of doing that do you reckon, out of 10.  So mark one out of 10.  All those problems come back up in your life.  None of them are going well.  No work.  No kids and you’re struggling to keep away from the alcohol.  You’re starting to touch it again.  You know that’s bad.  So those three things are going badly for you?

   THE APPLICANT:  Yes.

   SENIOR MEMBER TAVOULARIS:  What are the chances of you not getting up that slope again of severe alcohol and drug use?  What are your chances out of 10?

   THE APPLICANT:  I will rate my chances, I’d like to be honest with you and fair.

   SENIOR MEMBER TAVOULARIS:  Fair?

   THE APPLICANT:  Be fair, you know fair on myself.

   SENIOR MEMBER TAVOULARIS:  Yes?

   THE APPLICANT:  I give myself around about a seven on this one okay.

   SENIOR MEMBER TAVOULARIS:  Seven?

   THE APPLICANT:  Yes seven to eight because there’s still progress to work and Dad and Mum are there and they are going to support me on this one, yes.  All these ones before I’ve just let it go.’[64]

   [64] Transcript, p 40, line 44-47; p 41, line 1; lines 19-46, p 42, lines 1-9.

8. The Applicant was asked whether he accepted that he most certainly had a problem with substance abuse, be it in the realm of either illicit drugs or alcohol. He responded with ‘Yes. I agree 100 percent.’[65] He further agreed that those types of issues require the intervention of an outside clinical expert.[66] He specifically agreed that the extent of his past difficulties with illicit drugs and alcohol have been severe enough such as to now give rise to a requirement that he be under the care of a suitably clinical expert.[67]

   [65] Ibid, p 42, line 16.

   [66] Transcript, p 42, lines 17-33.

   [67] Ibid, p 42, lines 35-45; p 43, lines 1-10.

   Assessment of recidivist risk

9. To our minds, the evidence points to the following four factors being informative about the Applicant’s current level of recidivist risk. First, the Applicant has accepted that a predisposition to abuse either or both alcohol and methylamphetamine has been primarily causative of his past offending. At the Hearing before us, he is to be commended for being forthright enough to now accept that his past difficulties with substance abuse have been of such a magnitude that management and control of that symptomatology should be in the hands of a suitably qualified clinical expert who can (1) diagnose relevant predispositive symptoms; (2) suggest and implement a treatment plan such that; (3) the Applicant’s prognostic outlook can be known with some measure of certainty;

10. Second, the significant difficulty for this Applicant is that this Tribunal cannot be certain that he will undertake and adhere to the required level of rehabilitative care and management for his substance abuse issues upon his return to the community. He is to be again commended for what appears to be a willingness to engage in some type of rehabilitative courses and appointments. But this evidence goes no further than the Applicant demonstrating a desire to undertake courses and to talk to others about his substance abuse issues. It is not evidence of a demonstrated and ongoing pattern of rehabilitative care, management and control of the predispositive symptoms around substance abuse that have led to his very serious past offending;

11. Third, while there is a ‘low’ risk of re-offending finding by the Department of Corrective Services, it should be noted that this assessment was made 18 months ago and the department’s findings are tempered (1) this low risk assessment related to the Applicant’s risk of committing further general offending; (2) ‘..that this score does not indicate your risk of violent re-offending’; and (3) ‘…you have high intervention needs in the areas of employment, substance abuse, domestic violence (perpetrator) and domestic violence (victim)’. These observations are consistent with the Applicant’s own evidence that his rehabilitation remains a work in progress and that and that, in his own words, he would return to the community on the basis of being ‘seven out of 10’ rehabilitated. This evidence is concerning in circumstances where illicit drugs and/or alcohol will be more readily available to him than was the case in both prison and immigration detention.

12. Fourth, at first blush it might appear that the Applicant has protective factors working in his favour in terms of (1) somewhere to reside upon a return to the community; and (2) the possibility of obtaining work in the mining industry. As against that however, there is the reality that he previously had the benefit of these protective elements and when things went awry for him, he sought refuge in the abuse of illicit drugs and/or alcohol. As will be recalled from his oral evidence, he was specifically asked about his capacity to deal with adverse outcomes in his life in relation to these sorts of factors. It did not appear to us that his level of resilience towards such of life difficulties will be all that different if they were to recur in the short to medium term future than it was in the past.

13. In terms of an actual finding about the level of his recidivist risk, it should be noted that he has a long history of persistent substance abuse allied to repeated offending. He has reoffended while supervisory and other intervention-based orders have been in place. While his capacity to be resilient towards life’s difficulties may have marginally improved, it is difficult for this Tribunal to have confidence that such resilience can be successfully maintained in circumstances where the Applicant acknowledges an on-going difficulty with substance abuse and that his journey towards overcoming such issues is a significant distance away from completion. The nature, extent and sheer violence of his offending against women in a domestic context is conduct that, if repeated, would be so serious that any risk of its re-commission would be unacceptable to the Australian community.[68]

    [68] Paragraph 8.1.2(1) of the Direction.

14. We will accept the Department of Corrective Services’ assessment of a low recidivist risk but do so on the conditional basis that this assessment was for the Applicant’s risk of further general offending and that it was not indicative of his risk of violent reoffending.

    Sub-paragraph 8.1.2(2)(c)

15. The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.

    Conclusion: Primary Consideration 1

16. With reference to the weight attributable to this Primary Consideration 1:

    (a)we have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been, ‘very serious’;

    (b)we have found that if this Applicant were to re-commit any of his very serious and violent conduct, particularly against a female victim, it is not a stretch of the evidence to suggest (and find) that such conduct could very well result in physical, psychological and even catastrophic harm to a victim.

    (c)in terms of recidivist risk, we adopt the most recent low risk assessment of Queensland Corrective Services subject to the caveats expressed in that finding and repeated by us in these Reasons.[69]

    [69] See [64] and [67] of these Reasons.

17. Our analysis of the material leads us to a finding that this Primary Consideration 1 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s Visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

18. Paragraph 8.2 of the Direction provides: 

    1The 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).

    2This 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.

    3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    (a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    (b)the cumulative effect of repeated acts of family violence;

    (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

    (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.

19. There is little or nothing to cavil with the proposition (and finding) that the Applicant’s conduct that came before Her Honour Magistrate Crawford for sentencing in September 2021 does constitute family violence such as to attract the operative effect of this Primary Consideration 2.

20. This paragraph 8.2(2) of the Direction compels decision-makers to look for either (1) actual convictions of an offence(s) involving family violence[70] and/or (2) information or evidence from ‘independent and authoritative’ sources pointing to the applicant’s commission of family violence. On the instant facts, there is no need for the second inquiry. This is because the Applicant’s convictions punished at the sentencing hearing in September 2021 were for offences involving family violence. It is plain from the criminal history that his offending involved repeated and aggravated breaches of previously-imposed domestic violence orders. paragraph 8.2(2)(a) of the Direction is thus satisfied.

    [70] Paragraph 8.2(2)(a) of the Direction.

21. Prior to any application of this paragraph 8.2 to the material, it is necessary to address the two questions it poses. I must determine:

    (a)who was a member of the Applicant’s family; and

    (b)whether any of the Applicant’s conduct against those family member(s) amounts to family violence. I will now address each question in turn.

    Who are members of the Applicant’s family?

22. The Applicant’s very serious domestic violence conduct that was punished in September 2021 was perpetrated against a victim who is variously stated in the material as ‘his defacto partner’ and elsewhere as ‘the aggrieved’. It is plain from the material that both of these descriptors relate to the same victim. For the purposes of this Primary Consideration 2’s relevance to the instant facts, it makes no difference about whether the subject victim was a current or past spouse of the Applicant at the time he committed the offences against her. If she was a current spouse, s 5G of the Act makes it clear that a de facto spouse of the Applicant does constitute a member of his family.

1. To whatever extent it may now be said that some of his very serious conduct perpetrated against that victim occurred at a time when she was his former de facto spouse, Primary Consideration 2 still has application to that offending. The definition of family violence at paragraph 4(1) of the Direction makes specific reference to ‘a member of the person’s family’. The Direction does not provide a definition for either ‘family’ or ‘family member’. However, there are definitions of these terms which assist in determining the meaning of those terms as they appear in the Direction.

2. The Acts Interpretation Act 1901 (Cth) (‘AIA’) is of relevance to the interpretation of the Direction. Section 46 of the AIA provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[71] As mentioned, s 5G of the Act relevantly provides that the member of a person’s family is, ‘…taken to include […] (a) de facto partner of the person; …’.

   [71]    See also Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR461 at para [22].

3. Section 4(AB) of the Family Law Act 1975 (Cth) (‘FLA’) provides as follows:

   ‘Definition of family violence etc.

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’[72]

   [Bold in original]

   [72]    Note: this definition is verbatim the definition of ‘family violence’ appearing in Direction 99 at para [4(1)].

4. Section 4(1AB) of the FLA provides as follows:

   ‘For the purposes of:

   …

   (aa) section 4AB;

   …

   a person (the first person) is a member of the family of another person (the second person) if:

   …

   the first person is or has been married to, or in a de facto relationship with, the second person;…’

   [Bold in original]

5. It is surely not coincidental that the definition of ‘family violence’ in the FLA is stated in identical terms to the definition of that term appearing at paragraph 4(1) of the Direction. While the Direction does not contain a definition of the term ‘family member’, the FLA certainly does. Applying the foregoing FLA provisions to the instant facts, we are of the view that for the purposes of the definition of ‘domestic violence’ in the FLA, the ‘first person’ (i.e., the victim of the Applicant’s conduct resulting in the September 2021 convictions) can be found to be a member of the family of the ‘second person’ (i.e. this Applicant) if the victim of conduct resulting in the September 2021 convictions, ‘is or has been… in a de facto relationship with’ this Applicant. [Our underlining]

6. Given the commonality of terminology in terms of how the FLA and Direction deal with the question of family violence, we are of the view (and we find) that the subject victim of the Applicant’s conduct resulting in the September 2021 convictions can be safely found to be a member of his family for present purposes.

   Did any of the Applicant’s conduct constitute family violence?

7. ‘Family violence’ is defined in the Direction. It is defined as, ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.’[73] To our minds, therefore, the definition poses two separate questions:

   ·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?

   ·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?

   [73] Paragraph 4 of the Direction.

8. There is surely nothing to cavil with the findings and observations of Her Honour Magistrate Crawford when she described the nature and extent of the Applicant’s very serious conduct that came before her for sentencing in September 2021 as ‘very serious offending’ that was ‘also very poor’ and that it ‘took place in front of your children.’ Her Honour also thought the Applicant’s conduct represented ‘reprehensible behaviour’.  The Police QP9 documents refer to the following conduct culminating in his convictions and sentences in September 2021:

   ‘[in June 2021] Immediately thereafter the defendant has repeatedly struck the aggrieved in the ribs and stomach while continuing to yell “Give me the fucking keys”.

   The defendant has ceased striking the aggrieved and moved to the back door of the dwelling and kicking the locked screen door open. The defendant has then decamped the address.

   …

   At this time the aggrieved has admitted to the defendant that following the incident which occurred on the [day redacted] day of June 2021 she had called police regarding same. Following this admission, the defendant has become angry and begun to verbally abuse the aggrieved, calling her a “dog”, “slut” and “bitch”. As part of this tirade the defendant has threatened to immolate the aggrieved and their three children, stating words similar to “I’ll burn the house down with you and the kids in it.

   …

   The aggrieved and respondent have begun to argue in relation to relationship and household issues. During this argument the respondent has threatened to physically strike the aggrieved and damage the dwelling and property within. As a result the aggrieved has called triple zero and requested police attend the address to remove the defendant.’[74]

   [74] Exhibit 6, pp 166-167.

9. We therefore find that the Applicant’s conduct was indeed violent, threatening and behaviour that coerced or controlled a member of his family. We further find that the Applicant’s above-described conduct was threatening and violent behaviour that caused its victim to be fearful.

   Assessment of the seriousness of the Applicant’s family violence

10. We will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.

11. Sub-paragraph 8.2(3)(a): we are satisfied that the Applicant’s family violence conduct has been of a frequent nature from mid-2020 onwards. During this period he has convictions for five breaches of a domestic violence order together with two breaches of a probation order imposed upon him as a result of past contraventions of a domestic violence order. Seven domestic violence-type offences across a 12-15 month period is surely frequent family violence offending. As for any trend of increasing seriousness, it can be safely found that the nature of the Applicant’s family violence conduct has been of a consistently sustained level of high seriousness. Accordingly, there is no requirement to look for ‘trend of increasing seriousness’. The nature, scope and extent of this offending has been serious from its outset in mid-2020. This sub-paragraph directs the Tribunal towards an assessment of the Applicant’s family violence conduct as being ‘very serious’.

12. Sub-paragraph 8.2(3)(b): the Applicant can be safely found to have committed ‘repeated acts of family violence’. Those repeated acts can be safely found to have traumatized its victim – both physically and psychologically. It is difficult to avoid a finding that the Applicant’s very serious family violence conduct would not have significantly impacted its victim in circumstances where the police QP9 documents tell us that the Applicant’s conduct was of such a magnitude that it caused the victim to, variously, (1) ‘decamp the address’; (2) endure being told by the Applicant that he would ‘…burn the house down with you and the kids in it…’; and (3) ‘called triple zero’ to seek urgent police intervention into the Applicant’s conduct. This paragraph directs the Tribunal towards an assessment of the Applicant’s family violence conduct as being ‘very serious’.

13. Sub-paragraph 8.2(3)(c): we have earlier outlined the nature and extent of rehabilitative courses undertaken by the Applicant in immigration detention. He accepts that his ‘…my past actions have been regrettable and I am deeply sorry for the mistakes I have made.’[75] He appears to have developed an understanding about the extent to which his very serious family violence conduct has impacted upon his capacity to parent his children and to otherwise conduct a future life in Australia.[76]

    [75] Exhibit 18.

    [76] Paragraph 8.2(3)(c)(i) of the Direction.

14. The Applicant also appears to have understood the impact of his behaviour on its victim and his unfortunate minor children who were exposed to at least some of it. He said ‘I realise now that my actions have brought shame and dishonour to many, and more to the fact Australia but my family, friends, and country…I have three children…my children are of a young age…I have let them down, foster care has taken them, because of me…’[77] We again refer to the Applicant’s courses he has completed together with face-to-face consultations he has done in relation to addressing the substance abuse issues that were causative of his very serious conduct. As we have also found, the extent to which those factors have been addressed remains a work in progress and, on his own evidence, the Applicant is by no means the finished rehabilitated article in terms of any return to the community.[78] This sub-paragraph should be put to one side and rendered neutral for the purposes of this Tribunal’s consideration about the seriousness of the Applicant’s family violence conduct.

    [77] Exhibit 18; Paragraph 8.2(3)(c)(ii).

    [78] Paragraph 8.2(3)(c)(iii) of the Direction.

15. Sub-paragraph 8.2(3)(d): there is a plethora of domestic violence material before the Tribunal.[79] One need not look far into the material to find the usual explanatory memorandum that accompanies the making of such orders. For example, there is a Protection Order in the material dating form August 2019.[80] The accompanying explanatory memorandum follows that order.[81] This explanatory memorandum contains the following warning to the Applicant (who is the Respondent in the Protection Order):

    ‘CONTRAVENTION OF ORDER: If you contravene any conditions of this order, you commit an offence against the Act, and you may receive a penalty of up to 3 years imprisonment for the first offence in a 5 year period and 5 years imprisonment for subsequent offences within a 5 year period.’[82]

    [79] Exhibit 6, pp 169-192.

    [80] Ibid, p 176.

    [81] Ibid, pp 177-179.

    [82] Ibid, p 179.

16. We are satisfied that the Applicant was thus formally warned and otherwise made aware by a court, law enforcement or other authority about the consequences of further acts of family violence. He very seriously committed those acts after the date on which this protection order was made. This sub-paragraph directs the Tribunal towards an assessment of the Applicant’s family violence conduct as being ‘very serious’.

    Conclusion: Primary Consideration 2

17. We have had regard to each of the various components of paragraph 8.2(3)(a)–(d) (inclusive). Sub-paragraphs (a), (b) and (d) direct the Tribunal towards a finding that the Applicant’s family violence conduct has indeed been of a very serious nature. In terms of sub-paragraph (c), we are satisfied that the Applicant has accepted responsibility for that conduct and that he has come to realise and understand its impact on the victim and his minor children who witnessed at least part of it. His efforts to address the causative factors behind his family violence offending remain a work in progress.

18. Overall, we are of the view (and we find) that this Primary Consideration 2 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s Visa.

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

19. The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. We will address each in turn.

    Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members

20. It is first necessary to identity the Applicant’s immediate family in Australia who are citizens, permanent residents or people who have a right to remain in Australia indefinitely. As best as we have understood the material the Applicant has three immediate family members residing in Australia. We will refer to each of those immediate family members and summarise the evidence around (1) the nature and extent of the Applicant’s ties to each of those people; and (2) the extent to which those people would be impacted in the event of his removal to New Zealand.

21. The Applicant’s father: Mr Alvy Wynray Hilton Belmont’s most recent written statement is dated 20 April 2023 and it appears in the material.[83] He also gave oral evidence to the Hearing. His written statement urges the Tribunal that ‘…my son deserves a chance to redeem himself and prove that he can be a productive member of society.’ The material also contains an earlier statement from the Applicant’s father which is actually a joint statement between him and the Applicant’s mother. This earlier statement is dated 17 July 2022.[84] In that statement the Applicant’s parents say the following:

    ‘Last year we moved to Australia to help our daughter Ramona with starting a family, but unfortunately this is not the case and we are assisting her with overcoming a separation instead The other factor to us moving was to be close to [The Applicant] and [mother of the children] and their children to assist them with raising the 3 children (Child T, Child M and Child TE). We have applied to be kinship family to the children should this be an option, we have obtained our bluecards and are awaiting assessments.

    We understand that the laws are different in each state, we love our son and will be here to support him in whatever decision and outcome of this unjustified situation he finds himself, and that he can defend himself in order to stay in Australia for the sake of the children. He has been here in Australia for more than 10 years, and has contributed tax and to the economy of this country. We hope his superannuation funds will go to his children's future upbringing.’[85]

    [83] Exhibit 10.

    [84] Exhibit 1, pp 55-56.

    [85] Exhibit 1, pp 55-56.

22. In his oral evidence, the Applicant’s father spoke of his previous career in New Zealand which, with respect, sounded quite impressive:

    “SENIOR MEMBER TAVOULARIS: And so prior to that you were - you’d been living in New Zealand. Is that right?

    MR BELMONT (SENIOR): Yes, all our lives, yes, we lived in New Zealand. I owned a - we owned a bar in Huntly. Prior to that, I had - we had clubs and bars - I was a bar manager, a bar owner - in Auckland, Auckland, New Zealand. While in Auckland, New Zealand, I worked as a lay advocate for the Justice Department looking after young Māori youth and trying to keep them out of jail. Yes, so I had those roles in New Zealand. Before that we lived in Napier, Hawke’s Bay. There I had a job with the Department of Internal Affairs helping with community development in one of the lower social areas in Napier. The area was Maraenui. So I was involved with, yes, community building of the marae there - a community in marae. Helping, escorting club get back on its feet. Yes, so that’s some of the things I did in Hawke’s Bay. Previous to that I was a manger of a centre, education centre. And previous to that I did 15 years in the banking industry when I left school.”[86]

    [86] Transcript, p 51 lines 41-47; p 52 lines 1-7.

23. Mr Belmont (senior) moved to Australia (with his wife) approximately two years ago during the middle of the COVID–19 pandemic in or about June 2021. He and his wife initially came to Brisbane and then instead settled in Perth on the understanding that their other adult child, a daughter, was going to start a family and have children in Perth and that he and his wife wanted to live close to proposed grandchildren. [87]

    [87] See generally, Transcript, p 51, lines 27-39.

24. Mr Belmont (senior) told the Tribunal of an intention held by him and his wife to have the Applicant come and live with in Perth were this Tribunal to restore the Applicant’s visa status to remain here. He was asked about what his and his wife’s attitude would be if the Applicant did come to live with them and resumed a pattern of abusing illicit drugs. He was particularly asked whether he and his wife would allow the Applicant to live with them in such circumstances. He responded with this: ‘Well definitely not because my wife and I, we don’t partake in any of the illegal drugs… And yes, one of the conditions would be that there’s not drugs to be allowed in the house.’[88]

    [88] Ibid, p 49, lines 41-42; lines 46-47.

25. The Applicant’s mother: is not a well lady. Quite understandably, she was not in a sufficiently fit state to endure the rigours of giving oral evidence and, in particular, of being cross-examined. However, she has provided a written statement which appears in the material.[89] She speaks of being ‘… deeply concerned about [the Applicant’s] future and the well-being of his three young children who are living in Australia…’.[90]  She acknowledges the Applicant’s past offending history in Australia but implores the Tribunal to ‘… take into consideration his efforts to rehabilitate himself and his circumstances’. [91]

    [89] Exhibit 11.

    [90] Ibid.

    [91] Ibid.

26. The Applicant’s sister and brother: as best as we understood the material, the Applicant’s sister (Ramona) has not provided a written statement and she did not provide any oral evidence at the Hearing before us. That said, it is clear from the evidence of Mr Belmont (senior) that Ramona would play some type of role in the Applicant’s life were he to return to live in Perth. The role would most probably involve in her assisting with the care of the Applicant’s three children on the assumption that (1) this Tribunal gives him a visa to stay here and (2) the relevant department dealing with the welfare of the children eventually agrees to take the children out of foster care in Brisbane and to re-locate them to Perth. Mr Belmont (senior) also told the Hearing that Ramona ‘… is in one of these high-powered jobs in the mines…’ in Western Australia.[92]

    [92] Transcript, p 50, line 10; see also, p, 50 line 2.

27. The Applicant spoke of his brother currently in New Zealand. He speaks of his brother ‘… actually planning to come over here…’.[93] In his PCF, the Applicant spoke of ‘… my brother coming over next year…’. [94] During the Hearing, there seemed to be a consensus between the parties that, for the purposes of this decision, the Applicant’s immediate family members in Australia comprise (1) his mother, (2) his father and (3) his sister. [95]

    [93] Ibid, p.11, line 30.

    [94] Exhibit 1, p 38.

    [95] Transcript, p 61, lines 46-47; p 62 lines 1-5.

28. With reference to the Applicant’s immediate family members in Australia who would be impacted by an adverse outcome for the Applicant, we are satisfied that his ties with immediate family members in Australia safely leads us to a finding that a certain, but not determinative, measure of weight should be allocated to the totality of the strength, nature and duration Applicant’s ties to Australia on that basis. We so find. We make this finding subject to the proviso that the people representing those immediate family ties are either Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely

29. We interpret this component of Primary Consideration 3 to require us to determine whether more weight should be allocated to the Applicant’s ties to Australia in circumstances where his biological children are Australian citizens. All three of those children were born in Australia and they are clearly Australian citizens by birth.[96]  Later in these reasons, we will review the evidence about the nature and extent of the Applicant’s parental involvement in the lives of his three biological children.

    [96] See the respective Birth Certificates for the Applicant’s three biological children appearing at Exhibit 1, pp 79-84.

1. During his cross-examination, the Applicant was taken to his PCF and asked to clarify and explain words appearing in that document to this effect ‘… I am currently working towards Rights to see my children again…’.[110] This is what transpired between the Respondent’s representative and the Applicant:

   [110] Ibid, p 45.

   “MR WEST: You mentioned there that you were - words to the effect you were working towards rights to see your children again. Is that?

   THE APPLICANT: Yes.

   MR WEST: So is it the case that you’re currently not allowed to see your children?

   THE APPLICANT: It’s actually I can see my children.

   MR WEST: You can?

   THE APPLICANT: Yes, I can see my children. On the 28^th - which was the 27^th of this month - I actually had a meeting with the Department of Child Protection and they actually bring the children to me to visit. What I have stated in there as in to the rights was actually, as you could see, with my writing there that I didn’t actually word it properly or write. But what I meant by that is the rights to see my children again to see them. You know? And I know I’ve got a little description there, parenting course and the lives and the (indistinct) for me it’s a very emotional time to see my children again. And I got to see them again. So that’s what I mean by that, Members.

   SENIOR MEMBER TAVOULARIS: On the 27 and the 28^th is that when they were brought to you?

   THE APPLICANT: Yes. So on that (indistinct) brought to see me but I had talked with DCP. I did see them over Christmas.

   SENIOR MEMBER TAVOULARIS: Oh, right?

   THE APPLICANT: Okay. My parents brought them into me. The child protection dude sent me photographs and that and what I mean by the 27^th and the 28^th is the 27^th was the last day for the submissions to come in. But I had a meeting with them on the Friday on the Teams video link about my children. And we actually went over a plan, over what was going to happen and to see how I was travelling with them and the rehabilitation. Thank you, Senior Members.”[111]

   [111] Transcript p 13, lines 30-47; p 14 lines 1-13.

2. Having regard to the culminative nature of the evidence of the Applicant’s father and that of himself, we are safely led to the conclusion that although the Applicant does have some capacity to facilitate visitation time with the three subject biological children, there is little or nothing to suggest that those arrangements are likely to be the subject of any change by the relevant child safety department any time soon. It seems that both the Applicant and the children’s biological mother are some distance away from securing primary parental care for these three children. We will apply the factors appearing at 8.4(4) of the Direction on this basis.

   Application of factors at 8.4(4) of the Direction to the biological children

3. Sub-paragraph (a):

   it is difficult to ascertain any durable or lengthy nature in the Applicant’s relationship with the three biological children. The relationship is clearly  

   
   

   non-parental. There have clearly been long periods of absence by him from their lives. Whatever contact he may have with them is subject to and conditional upon receipt of approval to do so from the department of child safety. Accordingly, it can safely be found that there is limited meaningful contact between him and them. There are obviously existing court orders restricting the Applicant’s contact which have been obtained by the relevant department governing the welfare of the children. The sub-paragraph (a) only slightly militates in favour of the Applicant’s visa status being restored to him.

4. Sub-paragraph (b): it is not at all clear about the extent to which this Applicant is likely to play a positive parental role in the future of the children. Their welfare is presently governed by the state. There is no reliable indication about when those arrangements will end. The Applicant is likely to play the role of a visiting parent but the parental responsibilities for the children are borne by their foster carers. Given the young ages of the children who are respectively aged five, three and two years, the Applicant does have a considerable length of time until the children turn 18 to re-establish some kind of parental role in their lives. The sub-paragraph (b) only slightly militates in favour of the Applicant’s visa status being restored to him.

5. Sub-paragraph (c): during cross-examination, the Applicant accepted that he had in the past exposed the children to domestic violence conduct ‘… which is unacceptable and shouldn’t be tolerated’.[112] What is not known – most probably because of the children’s quite young ages – is the extent of any impact this conduct may have had on them. Given the absence of independent and external reporting, we do not know whether that conduct will have any future negative impact on them. This sub-paragraph does not assist the Applicant.

   [112] Transcript, p 14, lines 25-26.

6. Sub-paragraph (d): the Applicant (and, indeed, their biological mother) have been separated from the children for a significant portion of the children’s lives. Harsh though it may sound, one could reasonably argue that the children would likely be more adversely affected if separated from their foster carers than from the Applicant and their biological mother. We simply do not know whatever impact any on-going separation of the Applicant from the lives of the three infant children would have on them. There is reference in the evidence that the department governing the welfare of the children has recently been trying to arrange for video calls between the children and the Applicant.[113] Thus, it can be safely found that if removed, the Applicant would be able to maintain contact with the children in other non-in-person ways. This sub-paragraph (d) does not assist the Applicant.

   [113] Transcript p 45, lines 15-17.

7. Sub-paragraph (e): not only are there other persons who already fulfill a parental role in relation to the children, but those other persons are foster parents who are legally mandated by the state to care for the children in place of the Applicant and the biological mother of the children. Therefore, not only does the Applicant not fulfill a parental role, he does not even know when he is likely to commence doing so. This sub-paragraph (e) does not assist him.

8. Sub-paragraph (f): there is an affecting photograph of the three biological children in the material.[114] They are clearly too young to provide this Tribunal with their reliably – stated views about their continued separation from the Applicant and their biological mother. We at least take some measure of comfort that these no doubt delightful children feel safe and well in the care of their foster carers and that, subject to approval from the department governing their welfare, they will at least have some visitation time with the Applicant. This sub-paragraph (f) does not assist him.

   [114] Exhibit 19.

9. Sub-paragraph (g): as stated earlier, the Applicant has perpetrated family violence conduct in the presence of the children. Given the unresolved nature of the Applicant’s difficulties with alcohol and /or illicit substance abuse and its capacity to be causative of very serious offending by him, we are not confident that the children are not at risk of being exposed to similar domestic violence perpetrated in their presence by the Applicant. This sub-paragraph (g) does not assist him and, if anything, it militates against the Applicant’s visa status to remain here being restored to him.

10. Sub-paragraph (h): there is no evidence that any of the three biological children have been subjected to any of the traumatic circumstances contemplated by this sub-paragraph. It is not relevant to the to the instant determination.

    The evidence around Child N

11. We have earlier summarised the Applicant’s reference to Child N in his PCF.[115] Child N is the son of the sister of the biological mother of the applicant’s three abovementioned biological children. During cross-examination, the Applicant confirmed that he does not see much of Child N:

    “MR WEST: And I would assume that you’re not having a relationship with [mother of the three children] anymore. You wouldn’t see much of that child. Is that right?

    
    
    

    THE APPLICANT: [Child N]. I wouldn’t see my children. No. No. [Child N] is a cousin to my own children. They used to play together. I used to take them to McDonald’s and do family outings and parks. Yes. “[116]

    [115] See para [115] of these Reasons.

    [116] Transcript, p 15, lines 1-5.

    Application of factors at 8.4(4) of the Direction to Child N

12. There is no parental relationship between the Applicant and Child N, nor has there ever been one. [117] The prospects of the Applicant playing any positive parental role in Child N’s future are not known and not capable of being ascertained in the absence of, for example, evidence from those who primarily parent Child N.[118] None of the Applicant’s prior conduct occurred in the presence of Child N. We do not know anything about the extent to which any future unlawful conduct by the Applicant will affect Child N. [119] There is no evidence around how, if at all, Child N has been impacted by his separation from the Applicant. Nor is there any evidence about the Applicant having any non-in-person contact with Child N.[120]

    [117] Direction, para 8.4(4)(a).

    [118] Direction, para 8.4(4)(b).

    [119] Direction, para 8.4(4)(c).

    [120] Direction, para 8.4(4)(d).

13. There is clearly at least one other person who already fills a parental role in relation to Child N and nothing to suggest the Applicant would assume anything remotely resembling a parental role for this child in the future.[121] Child N’s views about any on-going separation from the Applicant are not known.[122] There is no evidence that Child N has been or will be exposed to family violence conduct by this Applicant. Nor is there any evidence that Child N has been adversely dealt with by the Applicant in any way, whether physically, sexually or mentally. [123] There is no evidence Child N has experienced or suffered any physical or emotional trauma resulting from the Applicant’s unlawful conduct.

    [121] Direction, para 8.4(4)(d).

    [122] Direction, para 8.4(4)(f).

    [123] Direction, para 8.4(4)(g).

    Findings about the four relevant minor children

14. First, with reference to the Applicant’s three biological children, the respective slight weightings we have allocated to sub-paragraphs 8.4(4)(a) and (b) is outweighed by the adverse weight we have allocated to sub-paragraph 8.4.4(g) involving his perpetration of domestic violence in the presence of these children. A holistic application of the paragraph 8.4(4) factors to the three biological children means that this Primary Consideration 4 is of neutral weight.  Second, with reference to Child N, we are of the view that none of the factors at paragraph 8.4(4) of the Direction assist the Applicant.

    Conclusion: Primary Consideration 4

15. Overall, the cumulative best interests of the four relevant minor children we have identified, when viewed through the lens of the relevant sub-paragraphs of 8.4(4) of the Direction, leads us to a finding that this Primary Consideration 4 must be found to be of neutral weight in the determination of this application. 

    PRIMARY CONSIDERATION 5:  EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[124] The Direction further explains:

    ‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[125]

    [124] Paragraph 8.5(3) of the Direction.

    [125] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

17. With reference to the propositions in paragraph 8.5(1) of the Direction, this  

    
    

    sub-paragraph is expressed thus:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

18. This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

19. The Direction also states that visa cancellation or refusal, or non-revocation of a 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.

    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:[126]

    (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.

    [126] Paragraph 8.5(2) of the Direction.

20. We have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraphs (a) by virtue of his commission of acts of family violence; [127]  and (c) by virtue of the victim of his domestically violent offending being a woman; [128] and (d) by virtue of his conviction for ‘obstruct police officer’.[129] This means the Australian community expects that the Australian government can and should cancel this Applicant’s Visa.

    [127] Paragraph 8.5(2)(a) of the Direction.

    [128] Paragraph 8.5(2)(c) of the Direction.

    [129] Paragraph 8.5(2)(d) of the Direction.

21. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[130]

    (c)Australia will generally 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;[131]

    (d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;

    (e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[132] and

    (f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    [130] Paragraph 5.2(4) of the Direction.

    [131] Ibid.

    [132] Paragraph 5.2(5) of the Direction.

22. In relation to sub-paragraph (a) of the immediately preceding paragraph [140] the term, ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled on 9 November 2021.[133] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[134] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[135] Therefore this  sub-paragraph (a) is not applicable to the Applicant.

    [133] Exhibit 1, p 15.

    [134] Regulation 444.511 of the Migration Regulation 1994 (Cth).

    [135] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

23. In relation to sub-paragraph (b) of the abovementioned paragraph [140], the Applicant has resided in Australia on a more or less permanent basis since May 2011 when he was 33 years old. He is currently aged 45 years. He has a demonstrated work history in Australia. He has fathered three biological children in Australia who are respectably five, three and two years old. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act

24. In relation to sub-paragraph (c) of the abovementioned paragraph [140], we repeat that the Applicant resided in Australia from the age of 33. He is currently 45 years of age. He has resided in Australia on a more or less permanent basis since May 2011. He has spent just over a quarter of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.

25. In relation to sub-paragraph (d) of the abovementioned paragraph [140] we are of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. The contrarian element to this finding is that, as we have found earlier, he has not spent his formative years in this country.  

26. In relation to sub-paragraph (e) of the abovementioned paragraph [140], we are not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his very serious offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because we are of the view that the Applicant’s very serious domestically violent conduct and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.

27. In relation to sub-paragraph (f) of the abovementioned paragraph [140], we have found that the Applicant’s offending is inherently of the type captured by, specifically, sub-paragraphs 8.5(2)(a),(c) and (d). Given that finding, even strong countervailing considerations in his favour may not assist him. This is especially the case having regard to his recidivist risk of re-offending with resulting harm to the Australian community. Therefore, our finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.

1. Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [140], we are of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of his offending history, we are of the view (and we find) that the community expects the Government can and should cancel his Visa.[136]

   Conclusion: Primary Consideration 5

   [136] Paragraph 5.2(3) of the Direction.

2. Primary Consideration 5 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.

   OTHER CONSIDERATIONS

   Other Consideration (a): Legal consequence of the decision

3. We are of the view (and we find) that the material before the Tribunal is not suggestive of any claim or finding that Australia’s non-refoulement obligations are enlivened in respect of this Applicant. We are mindful of the legal consequences of the within Decision as enumerated in this Other Consideration (a). Our ultimate determination of this matter does not impact upon or otherwise engage any of the legal consequences appearing at 9.1(1) of the Direction. This Other Consideration (a) is of neutral weight.

   Other Consideration (b): Extent of impediments if removed

4. Paragraph 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:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

5. In his PCF, the Applicant was asked ‘Do you have any diagnosed medical or psychological conditions?’ He ticked the ‘Yes’ box and refers to him as ‘… going threw a hard time dealing with depression which im addressing now since ive been inside…’. [137]

   [Errors in original].

   [137] Exhibit 1, p 50.

6. There is also reference to the Applicant previously having ‘… suffered with rhythmic stutering [sic] which lowered his learning capacity over time.’[138] Apart from these symptoms, the Applicant appears to be in the prime of his life. It can be safely found that to whatever extent the Applicant may require treatment or assistance with these symptoms, he will, as a citizen of New Zealand, be able to access such support from New Zealand’s public health care system which would not be starkly different to what would be available to him in Australia. We do not consider the Applicant’s age and state of health are not factors constituting any impediments upon a removal to New Zealand.

   [138] Ibid, p 55.

7. Paragraph 9.2(1)(b) Although not strictly binding for present purposes, this Tribunal (differently constituted) has previously found: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…]’[139]. As mentioned, the Applicant has spent just over a quarter of his life in this country and a not insignificant part of his life in New Zealand. We are therefore of the view that the Applicant will not face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.

   [139] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].

8. Sub-paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support that would be available to the Applicant in New Zealand were he returned to that country. The Applicant has specific work experience in the area of warehousing and logistics. While it may be said that he lacks connections to that industry in New Zealand compared to Australia, this does not preclude him from finding similar work in New Zealand.

9. To the extent the Applicant may require governmental assistance in the form of publicly available health care and/or social security or welfare benefits to assist with his  

   
   

   re-settlement in New Zealand, he will have access to those types of supports to the same extent as is generally available to other citizens of that country. In terms of social support, we have misgivings about the recurring theme in the Applicant’s evidence where, on the assumption of a removal to New Zealand, he says he has ‘… no where [sic] to go (Homeless) No job place to go and so on.’[140] The basis of our misgivings derives from the oral evidence of the Applicant’s father. In his oral evidence, the Applicant’s father referred to a number of relatives in New Zealand and he specifically said that if removed to that country, he would endeavour to arrange for those relatives to assist with social support for the Applicant to resettle there:

   “SENIOR MEMBER TAVOULARIS: And so I’m assuming having spent so much time in New Zealand, Mr Belmont [Senior], you’ve probably got some family that still live over there. Is that right?

   MR BELMONT (SENIOR): Yes. I’ve got adopted brothers, half-brothers and sister, adopted brothers and sisters. Yes. My father is still alive. He’s almost 90 years of age. He’s still in Napier. My son is in Hastings at the moment, but he’s looking at moving to Australia as well. Selling up and changing jobs. He’s currently a prison officer or prison guard at the Mangaroa Prison in Hastings. And his wife, our daughter-in-law, is a legal executive for one of the solicitor’s firms. She’s a - yes, senior conveyancing officer there. And they’re all looking at - with our two granddaughters - they’re looking at moving to Perth as well. Because they were here about a week ago or two weeks ago for about three weeks and they just thoroughly enjoyed it over here. So they thought well, yes, it’s going to be great coming over to this part of the world.

   SENIOR MEMBER TAVOULARIS: And I assume if [The Applicant] had to go back to New Zealand, you would contact some of those family members so that they can try and get him on his feet over there. Is that right?

   MR BELMONT (SENIOR): Yes. Well, I haven’t had contact with a lot of our family for some time. But I mean, you know, he’d - if he went back, we’d have to try and do something. But you know, he’d - ideally we’d like him to be sort of here with us. And having him here, you know and with my son’s come over - my other son coming over, my whole family would be here in New Zealand - in Australia.”[141]

   [Our emphasis]

   [140] Exhibit 1, p 51.

   [141] Transcript, p 52, lines 9-31.

10. The Applicant is thus not devoid of social support in New Zealand. We have found that he will be entitled to the same level of publicly available level of health care as is available to other citizens of New Zealand. To the extent he may require governmental assistance, he will likewise be able to access such payments in the same way and to the same extent as other citizens of New Zealand. Thus, the factors identified at paragraph 9.2(1)(c) cannot be safely found to constitute any significant impediments to the Applicant’s return and resettlement in New Zealand.

11. We have found that the Applicant’s age and health[142] will not act as impediments upon a return to New Zealand. We have also found that he will not face any substantial language or cultural barriers[143] if returned to that country. We have also found that the Applicant will have a measure of social support via extended family members together with publicly available medical and government assistance in New Zealand, as a citizen of that country. We are of the view that this Other Consideration (b) confers a slight, but not determinative, level of weight in favour of this Tribunal restoring his visa status to remain here.

    [142] Paragraph 9.2(1)(a) of the Direction.

    [143] Paragraph 9.2(1)(b) of the Direction.

    Other Consideration (c): Impact on victims

12. The Respondent contends[144] there is no evidence from any of the victims of the Applicant’s offending as to the impact the decision would have on them. We agree and, on that basis, allocate neutral weight to this Other Consideration (c).

    [144] Exhibit 7, p 18, para [62].

    Other Consideration (d): Impact Australian business interests

13. Paragraph 9.4(1) compels an assessment of the impact on Australian business interests as a consequence of the Applicant’s removal. This is not an issue propounded by either party. The Respondent contends this consideration is not relevant. We agree and allocate neutral weight to this Other Consideration (d).

    Findings: Other Considerations

14. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)Legal consequences of the decision: is of neutral weight;

    (b)extent of impediments if removed: is of slight, but not determinative weight in favour of revocation;

    (c)impact on victims: is of neutral weight; and

    (d)Impact on Australian business interests: is of neutral weight.

    CONCLUSION

15. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or We must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

16. In considering whether we are satisfied if there is another reason to revoke the mandatory visa cancellation decision, We have had regard to the considerations referred to in the Direction. We find as follows:

    ·Primary Consideration 1: confers a heavy level of weight against revocation;

    ·Primary Consideration 2: confers a heavy level of weight against revocation;

    ·Primary Consideration 3: confers a certain, but not determinative, level of weight in favour of revocation;

    ·Primary Consideration 4: is of neutral weight;

    ·Primary Consideration 5: confers a heavy level of weight against revocation.

17. We have found that the combined weights we have allocated to Primary Considerations 1, 2 and 5 respectively, are sufficient to outweigh the combined weights we have allocated to Primary Consideration 3 and Other Consideration (b).

18. A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 27 February 2023.

    DECISION

19. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 February 2023 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member Wayne Pennell.

...........[SGD]...........

Associate

Dated: 22 May 2023

Dates of Hearing:	3 May 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr Christopher West (Lawyer)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501G documents (G1-G23; paged 1- 151)	Various	10 March 2023
2	Bundle of course completion certificates from Applicant (1-24 pages)	Various	12 April 2023
3	Individual Management Plan Review from Applicant (6 pages)	Various	13 April 2023
4	Triple P Online Positive Parenting Program certificate from Applicant	20 November 2022	17 April 2023
5	DoFoodSafely course completion certificate from Applicant	30 January 2023	17 April 2023
6	Respondent’s Tender Bundle (R1-R8; paged 1 -339)	Various	20 April 2023
7	Respondent’s Statement of Facts Issues and Contentions (paged 1-19)	20 April 2023	20 April 2023
8	IHMS records (No 1) from Applicant	Various	21 April 2023
9	IHMS records (No 2) from Applicant	Various	24 April 2023
10	Letter of support for Applicant from Mr Alvy W H Belmont (Applicant’s father)	20 April 2023	24 April 2023
11	Letter of support for Applicant from Ms Maku R M Belmont (Applicant’s mother)	20 April 2023	24 April 2023
12	Combined submissions from Applicant: ·   Letter from QLD Department of Children, Youth Justice and Multicultural Affairs; ·   Letter from Australian Department of Home Affairs in reply to Applicant’s letter to the Prime Minister of Australia; and ·   Serco Individual Management Plan Review.	Various	25 April 2023
13	Email RE Interrelate Mate’s Group correspondence	31 October 2023	26 April 2023
14	Correspondence RE SANE Guided Service – On boarding Survey	9 September 2022	26 April 2023
15	Email RE SANE Guided Service – Appointment Confirmation	21 April 2023	26 April 2023
16	Email RE SANE Guided Service – Future Appointment Confirmation	21 April 2023	26 April 2023
17	Email from NewAccess RE course completion, with attachment: -    Completion letter	2 December 2022	27 April 2023
18	Applicant’s Written Submission	27 April 2023	27 April 2023
19	Photo of Applicant’s children	Undated	27 April 2023