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

Bishop and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4446 (23 December 2022)
Date: 23 December 2022
Division:GENERAL DIVISION
File Number(s): 2022/8612
Re:Cory Rewi Randall Bishop
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:19 and 20 December 2022
Date of Decision: 23 December 2022
Place:Sydney

The correct and preferable decision is to set aside the delegate’s decision on 11 October 2022 not to revoke the cancellation of the Applicant’s visa, and in substitution it is decided that the cancellation of the Applicant’s Special Category (Subclass 444) visa is revoked.
...............................[Sgd].........................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MIGRATION - visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 90 – protection of the Australian community – expectations of the Australian community – impediments to removal – links to the Australian community – decision set aside and substituted
Legislation
Migration Act 1958 (Cth) s 499, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
23 December 2022

This is an application seeking review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent or the Minister) made on 11 October 2022 not to revoke, under subsection 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation under subsection 501(3A) of the Act of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa).
Background
Mr Cory Rewi Randall Bishop (the Applicant) is a born in 2 June 1976 and is a 46-year old citizen of New Zealand. He first travelled to Australia on 26 May 1977 at the age of one, and subsequently returned to Australia on 30 April 1978 at the age of two. Except for a short period of travel to New Zealand on holiday in May 1987, the Applicant has settled permanently in Australia.[1]
[1] G-Documents (Exhibit G1), 80-82
The Applicant attended school in Australia, and completed his school certificate in 1992. He subsequently worked variously as a chef, in building and construction, as well as in various mining and resource projects on a ‘fly-in-fly-out’ (FIFO) basis. He has qualifications and experience in construction, rigging, crane and hoist operations and scaffolding, as well as health and safety and experience leading work teams.[2]
[2] Applicant’s Statement of Facts, Issued and Contentions (Exhibit A1), 6-11; Exhibit G1, 113, 122
On 29 March 2021, the Applicant was sentenced for the offences that resulted in the cancellation of his visa, namely three counts of contravene prohibition/restriction in AVO (domestic) and one count each of common assault, resist officer in execution of duty and stalk/intimidate intend fear/physical harm et cetera. For these offences, the Applicant received a total term of imprisonment of 2 years.[3]
[3] Exhibit G1, 35-37
On 26 May 2021, the Applicant’s appeal against the sentences imposed on 29 March 2021 was dismissed.[4]
[4] Exhibit G1, 47
On 22 June 2021 the Applicant was given notice that his visa was mandatorily cancelled pursuant to subsection 501(3A) of the Act (cancellation decision). The visa was cancelled on the basis that the Applicant has a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis pursuant to subsections 501(6)(a) and 501(7)(c).[5]
[5] Exhibit G1, 83
On 2 July 2021, the Applicant made representations seeking revocation of the cancellation decision.[6] He subsequently provided further submissions and evidence in support of his application.
[6] Exhibit G1, 99
On 11 October 2022 a delegate of the Minister decided not to revoke the cancellation decision.[7] The Applicant sought review of the delegate decision with the Tribunal on 14 October 2022.[8]
[7] Exhibit G1, 9-32
[8] Exhibit G1, 5
The issue
It is not disputed by the parties that the Applicant does not pass the character test as defined in subsection 501(6) of the Act. As such, the sole issue for determination by the Tribunal is whether there is another reason why the cancellation decision should be revoked under subsection 501CA(4) of the Act.
Law and Direction 90
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(4) 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.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 90 or the Direction). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-biding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
evidence
Evidence of the Applicant
The Applicant affirmed his statement dated 16 November 2022.[9]
[9] Applicant’s Tender Bundle (Exhibit A4), 1
During the hearing, the Applicant have evidence that he came to Australia in the age of one, and have not returned to New Zealand except for a short two-week holiday in 1987. The Applicant said that he always regarded himself as an Australian, and did not know that he was in Australia under a visa. The Applicant was “shocked” when he received the letter notifying him of the cancellation decision.
The Applicant did not have the best of childhoods. His father was often away at work and was emotionally distant and often physically unavailable. He had an abrasive relationship with his mother, who abused alcohol and was described by the Applicant as harsh and unloving. She subjected him to physical and emotional abuse, and would beat him with “anything she could get her hands on”.
The Applicant described himself as a “troubled kid”. He ran away from home when he’s 13 because he’s “had enough” of his mother’s abuse. He tried to find a job, but ultimately returned home after a few months.
Outside of the family, the Applicant has a close relationship with a neighbour, MC. MC has played an important role in the Applicant’s life as a child. He often stayed in her home, which he considers to be a safe environment, and she has two sons of a similar age to the Applicant with whom he was very involved with in the local rugby club. The Applicant’s parents were also friends with MC and her husband.
Both of the Applicant’s parents have now passed away. His mother died of cervical cancer in 2020, and his father also died of cancer shortly after the Applicant was transferred into immigration detention. The Applicant has expressed great sadness in his oral evidence of not being able to be with his father in his final moments, or support his family at the time of his father’s death.
The Applicant states that having mended his relationship with his parents in his twenties, he had a good relationship with his parents in the years leading up to their deaths. He has always supported his parents financially, and was responsible for both his and his parents’ mortgages, despite this causing some financial hardship on the Applicant.
The Applicant stated that he began drinking in excess following the cancer diagnosis of his father, and stated that he had not handled his emotions well and was “self-medicating with alcohol”.
In the course of his cross examination, the Applicant was taken through his long and significant history of offending. It was acknowledged by the Applicant that his first offence occurred when he was 14, and that most of the Applicant’s early offending involved substance use. The Applicant had used a variety of substances in his youth, including speed, cocaine, and marijuana but states that he had not used these substances for more than 25 years. It is accepted that most of his problems can be attributed to alcohol abuse.
In his more recent offending, it was noted that they involve domestic violence, and in an August 2019 incident the Applicant also assaulted a taxi driver. In response, the Applicant stated that he was sorry for his offending, and understood why domestic violence offences were regarded as serious due to the physical and emotional effects such offences have on the victims and their families.
The Applicant explained the domestic violence offences was caused by suspicions on his part that his partners cheated on him. He accepted that the suspicions did not justify his offending, and that he should have “walked away every time”. He also stated that alcohol have been involved on many of these occasions.
The Applicant has had a number of relationships in Australia. His first significant relationship was with TI. They were in a relationship for several years and they were in business running a restaurant together. His next relationship was with MS, with whom he had an on-off relationship until 2016. MS is also the mother of the Applicant’s children. He met JR in 2018, with whom he was engaged to for 4-5 months prior to his first offense against her. The Applicant lived with JR for a period of time and financially supported her.
Much of the Applicant’s recent offending involved breaches of Apprehended Violence Orders (AVO) put in place to protect JR, a former partner of the Applicant. The Applicant states that he had cut off all contact with JR. The Applicant states that JR has sought to contact him several times while he was in prison, but he had refused to have her placed on the contact list.
In relation to the domestic violence offences against MS, the Applicant accepts that his children had been exposed to the domestic violence he committed against MS, including at least one occasion where his eldest daughter was exposed physical violence being visited on MS by the Applicant.
The Applicant has three children, LA aged 13 (born on 13 January 2009), MY aged 11 (born on 4 December 2012) and EL aged 8 (born on 2014).[10]
[10] Exhibit G1, 111
The Applicant gave evidence that the two older children suffer from a degenerative neurological disease called Charcot-Marie-Tooth Disease (CMT). LA has in particular suffered from serious physical disabilities which affected her ability to walk. She required periodic leg braces and foot castings, as well as ongoing medical treatment and monitoring. She currently receives support through the National Disability Insurance Scheme (NDIS). MY also suffers from the same condition, and is likely to require medical intervention and ongoing treatment in the future.
LA has recently dislocated her knee during Sports Day shortly before the Applicant was on the phone with her, and both were devastated by the fact that the Applicant was unable to be there physically to help her when she was injured.
The Applicant continues to talk with his children everyday via the telephone and social media while in immigration detention, and he states he often apologises to them for not being able to be physically there for them. He states that his children will be “devastated” should he be removed from Australia.
When questioned as to family members in New Zealand, the Applicant gave evidence that he has no immediate family in New Zealand, and as for extended family, he has limited contact with them, stating that some of them “may still live in New Zealand”. He said that he does not know where they live and what they do, and that should he be returned to New Zealand he would find contacting them for help to be like “asking a stranger for help”.
The Applicant found that his time in prison has changed his outlook, particularly as he was not able to support his children or be with his father in his final moments due to being in prison and subsequently immigration detention. He states that he now has strong motivation to never go back to prison.
The Applicant has engaged in courses for domestic violence while detained, and has expressed an intention to continue to engage in courses and counselling to deal with the underlying issues and alcohol abuse which led to his offending.
The Applicant states that he has good prospects for work in Australia, and that he still receives regular emails notifying him of work opportunities in mining and energy projects across Australia.
Evidence of DO – Forensic Psychologist
DO affirmed her psychological report dated 5 December 2022.[11] In the course of giving her evidence she also confirmed her qualifications and extensive experience as a forensic psychologist.
[11] Exhibit A4, 21
DO assessed the Applicant’s risk of reoffending through the Applicant’s completion of a Self-Appraisal Questionnaire (SAQ) in conjunction with a review of collateral information relating to the Applicant.[12] The results show that the Applicant’s responses produced a total score of 23, which placed him at a “high-moderate” risk of reoffending within 5 years of his release.
[12] Exhibit A4, 31
However, it was noted by DO that the Applicant lies within the lower end of high-moderate scale, being only one point away from falling within “low-moderate” which has a point range of 11 – 22. It was also emphasised by DO that the majority of the factors that contributed to the Applicant’s score are static risk factors, which are factors relating to his past experiences and criminal history, and cannot be changed by rehabilitation.
In assessing the Applicant, DO noted the Applicant’s difficulty in making eye-contact, and exhibited a “gruffness” that she believes could easily be misinterpreted as anger or aggression. DO attributes these characteristics to his experiences as a child, which led to the Applicant having an unstable personality and also an insecure attachment style.[13] As a result, the Applicant has difficulty forming healthy relationships and struggles to manage inter-personal conflict.
[13] Exhibit A4, 33
In DO’s opinion, the Applicant has displayed some insight into the cause of his alcohol abuse, and that his use of alcohol was an attempt to self-medicate and to manager his negative thoughts and feelings.[14]
[14] Exhibit A4, 33
DO does not believe the Applicant requires any intervention targeted towards antisociality and anger on his SAQ test, having scored a zero out of five for his anger management and two out of five for antisociality, which indicates a low propensity for an individual to engage in aggression or reckless and impulsive behaviour.
DO states that going forward, the Applicant needs further assistance in relation to interpersonal skills, and target his understanding of how his childhood experiences of physical abuse and emotional neglect may have informed his behaviour.[15] These factors will also be important factors in allowing him to control his alcohol use.
[15] Exhibit A4, 34
When questioned by the Respondent as to whether she would change her opinion if the Applicant has not fully disclosed his drug use and criminal offending in the course of the assessment, DO states that as such possibilities have been taken into account they would not affect her assessment of risk of reoffending, but it may change the way she would approach the Applicant’s treatment.
Evidence of MS – Applicant’s former partner
MS confirmed the contents of her statement dated 12 December 2022,[16] and also gave oral evidence at the hearing.
[16] Exhibit A4, 10
When asked about her current relationship with the Applicant, she states that their relationship is now one of close friendship, and they stay in contact everyday where they talk about “anything and everything”, including their children and family issues.
MS notes that “95% of the time, [the Applicant] is a really nice person”, and while she acknowledges the domestic violence committed against her and agree that it was unacceptable. She also states that while their children had been exposed to arguments between MS and the Applicant, there had only been one incident of physical violence occuring in front of their eldest child LA when she was around three or four, and resulted in LA calling the police.

MS has forgiven the Applicant and states that since having gone to prison she had noticed significant changes in him, including a willingness to take responsibility for his actions and an improvement in his anger issues.
MS confirmed that the Applicant has a very strong relationship with his children, and never drinks around his them. Before he was incarcerated the Applicant would spend most weekends with the children, including helping their youngest child EL with her reading and assisting LA with the exercises and stretches she needed to alleviate her condition. Prior to accessing NDIS, the Applicant also financially supported LA’s medical treatment and orthopaedics.
MS states that it is very hard without the Applicant being physically present, and that it would “ruin the children’s lives” if he were to be removed from Australia, as they would be left without his emotional and financial support. She noted that since the Applicant’s incarceration her second daughter MY has also been diagnosed with CMT and EL has begun exhibiting behavioural and learning problems.
MS states that in addition to being a single mother to three children, she is also the sole caretaker of her elderly grandmother. Should the Applicant be released he would be able to assist her in her grandmother’s care, take LA and MY to their medical appointments and relieve some of El’s behavioural and learning issues, which MS believes have been exacerbated by the Applicant’s absence.
When asked about the possibility of MS and the children travelling to New Zealand to visit the Applicant should he be removed, MS gave evidence that she herself suffers from CMT and a genetic blood-clotting disorder which prevents her from travelling by air. LA and MY’s condition also affects their mobility and would make travelling to New Zealand difficult.
Evidence of MC – Applicant’s friend
MC confirmed her statement dated 12 December 2022,[17] and also gave oral evidence at the hearing.
[17] Exhibit A4, 17
MC states that she had known the Applicant since 1986, and that they have a very close relationship which had only gotten closer since the Applicant’s incarceration. She speaks to the Applicant at least once a week on the phone, where they talk about their family, the Applicant’s late parents and common interests such as cooking.
MC states that since his incarceration she had observed the Applicant developed much more insight into his behaviour, and that he has become more reflective. She observed the Applicant seems to have a newfound understanding of how his actions affect not only him, but also his family and others around him.
She confirms that the Applicant has a very close relationship with his children, and he now has a good relationship with MS. She noted that in recent years both the Applicant and MS have matured and have endeavoured to place the interests of their children first.
When questioned, MC indicated she had some knowledge of the Applicant’s criminal history, in particular the domestic violence offences and his breach of bail conditions.
MC confirmed that should the Applicant be released back into the community; he will be able to live with her. She will also support the Applicant’s integration into the community and will help foster his relationship with MS and their children.
PRIMARY CONSIDERATIONs
Primary Consideration 1 – Protection of the Australian Community
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
Nature and seriousness of the Applicant’s conduct
The Applicant has a long history of offending, with his first offence occuring when he was 14.[18] His early offences were primarily related to driving and drug offences and were generally dealt with by fines, good behaviour bonds and driving suspensions. However, when viewed on conjunction with his later offences there is a clear repeated pattern of offending which became more serious as time went on, eventually graduating to domestic violence offences, assault and multiple contravention of AVOs, while his driving and substance use offences also continued.
[18] Exhibit G1, 33-39
As noted above, on 29 March 2021 the Applicant was convicted of assault, resisting a police officer in the execution of duty and three counts of contraventions of an AVO. These convictions were in relation to two incidents.
The first incident, which took place on 24 August 2019, the Applicant was travelling by taxi with a friend when the Applicant got into an argument with the taxi driver and upon arriving at the destination initially refused to pay the taxi fare and threatened to call the taxi driver’s boss. The argument continued after his friend paid the taxi fare, upon which the Applicant exited the vehicle, opened the driver’s door and punched the taxi driver.[19]
[19] Respondent’s Tender Bundle (Exhibit R2), 14-15; Exhibit G1, 53
The second incident, which took place on 29 December 2020, the Applicant attended his ex-partner JR’s home while intoxicated in contravention of an AVO and bail conditions being imposed against him for a previous breach of an AVO against JR. As the result, police were called and in the course of being arrested the Applicant pushed over a police officer.[20] The Applicant committed a further breach of an AVO on 6 January 2021.[21]
[20] Exhibit R2, 6-7, 207
[21] Exhibit G1, 55
The Applicant’s offences must be regarded as very serious, particularly his offences of domestic violence. I am cognisant that subparagraph 8.1.1(1)(a) of the Direction requires the Tribunal to treat violent offences against women and family violence as serious regardless of the sentence imposed. However, considering the number of domestic violence offences and breaches of AVOs in the Applicant’s criminal history, and the fact that at least one of the domestic violence offences occurred in front of a minor child, in my view the offences must be regarded as extremely serious even in the absence of such a direction.
It is also of concern that the Applicant had been convicted of a number of violent crimes including assaults on his former partners and taxi driver, and that a number of the Applicant’s offences occurred while he was under an AVO or in breach of bail conditions.
In summary, having had regard to the Applicant’s domestic violence offences, his breach of bail conditions, multiple offending while on various community orders and his offences of common assault and resisting a police officer, I can only regard his offending as being very serious.
Risk to the community should the Applicant reoffend
In assessing this consideration, I take into account the comments of Justice Gartelmann SC in relation to the Applicant’s appeal against the sentence meted out against him on 29 March 2021, where he states the following in relation to the possibility of allowing the Applicant to serve his sentence in the community:
Finally, the observations of the Community Corrections Officer recorded in the Sentencing Assessment Report as to the appellant’s attitude to his offending do not increase confidence as to the risk of re-offence. In all of these circumstances it is simply impossible to conclude that the paramount consideration of community safety would be met…In any event no lesser non-parole period could be justified. In all of these circumstances, no basis for intervention exists.[22]
[22] Exhibit G1, 47
The above should be viewed together with more recent evidence regarding the Applicant’s risk of offending. I place particular emphasis on the evidence of DO, who states that using the SAQ method and when viewed in the context of the Applicant’s childhood experiences, history of substance use, antisociality and peer associations she assessed the Applicant’s risk of reoffending within 5 years as high-moderate. It is particularly striking that the Applicant have very low scores for anger and antisociality in relation to his offending.
DO emphasized the Applicant’s childhood experiences in his offending, and noted that the Applicant has displayed some insight into his conduct. This is corroborated by the evidence of MS and MC, who has observed the Applicant had become a calmer, more reflective person and had developed a greater understanding of the consequences of his actions.
DO also pointed to some protective factors in relation to the Applicant, including his support networks composed of his family, his employment prospects and the fact that he would have stable accommodation should he be released back into the community.
However, DO also acknowledged that for the Applicant to further reduce his risk of reoffending it is important for him to receive ongoing help in relation to his mental health by moderating his personality pathology and developing greater social cognition and communication skills. She also notes that the Applicant needs to develop deeper insight into the causes of his offending, and that while the Applicant has already begun this process by attending some courses such as the ENGAGE domestic violence program and a Men’s Behaviour Change program at the Yacaaba Centre, they are insufficient to promote long-term behavioural change. [23]
[23] Exhibit A4, 34
In light of all the evidence, I am satisfied with the assessment that the Applicant is on the lower end of high-moderate risk of reoffending, and that many of the adverse risk factors arose from the effects of his childhood experience and can be alleviated through appropriate and sustained psychological intervention. However, when viewed in the context of the seriousness of his past offending the level of risk to the Australian community remains unacceptable. Therefore, I give this primary consideration very heavy weight in favour of non-revocation.
Primary Consideration 2 – Family Violence
In regard to this primary consideration, I note paragraph 8.2 of Direction 90.
The Applicant has been found guilty of a number of family violence offences and it is unnecessary to recount them here. This was accepted by the Applicant upon cross examination. He acknowledges committing family violence against multiple partners, including multiple breaches of AVOs. He also acknowledged choking one of his former partners and violence on at least one occasion in the presence of one of his children, which led to the child calling the police.
Much has been written about the corrosive effects of family violence which it is not necessary for me to repeat. Its long-term adverse effects on victims including children are both profound and unacceptable.
I take into account the fact that MS, one of his victims has forgiven the Applicant for the family violence committed against her, but nonetheless, she did not try to minimise the Applicant’s behaviour. I also accept that alcohol played a part in many of the Applicant’s family violence offences. However, this does not excuse or minimise the serious nature nor the effects of his offending, particularly on his children, at least one of whom MS acknowledged has been witness to arguments between her and the Applicant and physical violence on at least one occasion.
In light of the above, I give this consideration heavy weight in favour of non-revocation.
Primary Consideration 3 – Interests of minor children
In regard to this primary consideration, I take into account paragraph 8.3 of Direction 90.
The Applicant has three minor children, LA who is 13, MY who is 11, and EL who is 8 at the time of the hearing.
As explained above, MS has highlighted the importance of the Applicant to their children, and the fact that the removal of the Applicant from Australia, and thus from being physically present in the children’s lives daily will have a devastating impact on them.
I note the evidence of MS that prior to his incarceration the Applicant played a major ongoing role in the children’s lives, having them during the weekends and engaging in activities including outings as well as preparing meals for them. I also note MS’s evidence that the children have on numerous occasions stated that they miss their father and would like him to return home.
MS emphasised the important role that he plays in the treatment and management of LA’s health condition and EL’s behavioural and learning issues. With the recent diagnosis of MY with the same condition as LA [A7/35], the role of the Applicant in the children’s lives and in particular the management of their health should he be released would only increase. The Applicant’s ongoing financial support will also be important to the children, in particular LA and MY, given the ongoing costs of their treatment, limited levels of support from the NDIS and the fact that MS is currently unable to work and does not have access to the assistance of a support worker.
Although the children speak regularly with the Applicant through social media and telephone, I agree with the evidence of MS that it cannot be the same as having the Applicant physically present in the lives of their children, particularly when the Applicant has a demonstrable ability to assist with the health conditions of LA and MY and the behavioural learning issues of EL.
I also accept MS’s evidence that due to her blood clotting disorder and her and the children’s CMT their capacity for physical movement is affected, which makes it impossible for them to be able to visit the Applicant should he be removed to New Zealand.
I acknowledge that the Applicant also gave evidence that he had a number of minor nieces and nephews in Australia. However, the evidence regarding any relationships he has with them is limited and thus cannot be given any weight.
Overall, I consider that it is in the interests of his three children for the Applicant to be allowed to remain in Australia. Therefore, I give this consideration very heavy weight in favour of revocation.
Primary Consideration 4 – Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
However, in assessing the weight to be given to this consideration, I find it highly relevant that at 46 years old, Applicant has lived in Australia all his life, having first arrived in Australia at the age of one and had not returned to the country of his birth, New Zealand with the exception of a brief holiday in 1987.
Further, I am of the opinion that the expectation of the Australian community that an offender should not remain in Australia is tempered by the positive role that the Applicant is able to play in physically, emotionally and financially supporting and managing on a day-to-day basis the serious disabilities suffered by his children.
Overall, I give this consideration moderate weight in favour of non-revocation.
Other considerations
International non-refoulement obligations
There is nothing before the Tribunal to indicate that this consideration is relevant to the matter, and I find it has neutral weight.
Extent of impediments if removed
In regard to this consideration, I take into account paragraph 9.2(1) of Direction 90.
At the outset, it is important to note that I agree with the Respondent’s contention that the Applicant will have access to similar levels of healthcare, services and social welfare as he would have had in Australia should he be removed to New Zealand.
However, in my view there are substantial impediments should the Applicant be returned to New Zealand. The Applicant has a diagnosis of anxiety [A6/26], and has indicated that should he be released he wishes to receive counselling in relation to his childhood trauma and alcohol abuse. Although mental health treatment is available in New Zealand, it is likely that it will take some time to access and will likely contribute to a relapse in his alcohol use. His removal to New Zealand will also separate him from his family, which as DO has said would exacerbate his anxiety and other mental health issues.
Additionally, while I accept that the Applicant will likely be able to find work in New Zealand, that work may not be as well paid or readily available as the opportunities in Australia. As his work is cited by DO as an important protective factor for the Applicant, the inability or decreased ability to find work is likely to increase the risk of the Applicant falling back into alcohol use and committing offences. It may also diminish his capacity to financially support his children, which would add an additional stressor on the Applicant.
I accept the Applicant’s evidence that having been away from New Zealand since the 1980s, he will be a stranger in his country of citizenship upon his return, and his distant relationship with his extended family there also means that any family support he would receive would be minimal at best.
Considering the evidence overall, I give this consideration heavy weight in favour of revocation.
Impact on victims
In regard to this consideration, I take into account paragraph 9.3 of Direction 90.
There was limited evidence before the Tribunal as to the impact of the Applicant’s offending on the victims, with the exception of the evidence of MS.
As had been noted above, although MS has not minimised the seriousness nor impact of his offending on her, she has forgiven the Applicant and they have remained close. I also note that while JR and TI have not provided any statements to the Tribunal, JR repeatedly tried to contact the Applicant while he was in prison, which he had ignored. This may indicate a desire to have an ongoing relationship with the Applicant.
In the absence of further evidence on this consideration, I find it has neutral wight.
Links to the Australian community
In regard to this consideration, I take into account paragraph 9.4 of Direction 90.
The Applicant has been in Australia since the age of one and is now 46 years old. He has a strong support network in Australia, consisting of both his children and friends such as MC and MS, who described her relationship with the Applicant not as partners, but as the “closest of friends”. I also note that a substantive portion of the Applicant’s extended family resides in Australia.
The Applicant has in particular played an important role in financially and emotionally supporting his three children, particularly as MS is unable to work due to her health condition and her ongoing caretaker responsibilities for the children and her grandmother.
I find that the Applicant has a long history of employment in Australia, and has qualifications which are beneficial to the Australian community. The Applicant continues to receive regular emails about employment opportunities in projects across Australia despite having been in prison and immigration detention for the past several years. However, I acknowledge that although the fact that the Applicant has the capacity to work in these industries which are important to Australia, his individual absence is unlikely to be detrimental to Australian business interests.
I also note that should he be released the Applicant has the promise of secure accommodation with MC. She has known him and his family since he was a child, and her children have been close friends with the Applicant through their mutual interest in Rugby League. MC is aware of his criminal history and his family background, but nonetheless has given evidence that she will support him in his rehabilitation and is ongoing responsibilities with MS and their children. This confirms that the Applicant has strong links with supportive friends in the Australian community beyond his immediate family.

Overall, I give this consideration heavy weight in favour of revocation.
CONSIDERATION
In this matter, although the Applicant’s offending, in particular his family violence offences and the risk of harm to the Australian community weighs very heavily against him, I find that on balance the interests of his three children in particular, together with those other considerations which weigh heavily in favour of revocation lead me to conclude that the overall weight is in favour of revocation of the delegate’s decision.
decision
The correct and preferable decision is to set aside the delegate’s decision on 11 October 2022 not to revoke the cancellation of the Applicant’s visa, and in substitution it is decided that the cancellation of the Applicant’s Special Category (Subclass 444) visa is revoked.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..............................[Sgd]..........................................
Associate
Dated: 23 December 2022

Date(s) of hearing: 19 and 20 December 2022

Solicitors for the Applicant: Mr. G Rohan, Legal Aid NSW

Solicitors for the Respondent: Mr. C West, Sparke Helmore

[2022] AATA 4446

23 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	19 and 20 December 2022
Solicitors for the Applicant:	Mr. G Rohan, Legal Aid NSW
Solicitors for the Respondent:	Mr. C West, Sparke Helmore