Bouyer and Minister for Home Affairs (Migration)

Bouyer and Minister for Home Affairs (Migration) [2018] AATA 2926 (16 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3018
Re:Jean-Luc BOUYER
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:M Kennedy, Member (Presiding)
B Illingworth, Senior Member
Date:16 August 2018
Place:Adelaide

The decision under review is affirmed.
..............................[Sgd]..................................
Member M Kennedy
CATCHWORDS
VISA CANCELLATION – Character – Aggravated assault – Domestic violence – Multiple breach of intervention orders – Best interest of children affected by decision – Unacceptable risk to the community – Decision affirmed
LEGISLATION
Migration Act 1958
CASES
None
SECONDARY MATERIALS
Ministerial Direction No.65 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA, 22 December 2014
REASONS FOR DECISION
M Kennedy, Member (Presiding)
B Illingworth, Senior Member
16 August 2018
BACKGROUND

Mr Bouyer has convictions for an aggravated assault against his partner and has also persistently contravened intervention orders. The Department has cancelled his visa. Mr Bouyer has been convicted of a further assault on his partner and a further breach of an intervention order after receiving the Notice of intention to consider cancelling his visa, but before being notified of the decision to cancel his visa. He asks the Tribunal to review the decision to cancel his visa. We have decided that the visa will remain cancelled.
Background
After arriving in Australia from New Zealand and being granted a Special Category (Temporary) Class TY (subclass 444) visa on 17 June 2012, Mr Bouyer was, on 15 October 2015, convicted of two counts of aggravated assault against his own spouse and was sentenced to four months imprisonment suspended. The incident leading to the conviction had taken place on 19 January 2015, and at that time an intervention order was imposed to protect Mr Bouyer’s former partner Ms P. The first assault occurred when Mr Bouyer woke Ms P from her sleep, punching her to the arm and knee causing bruising. The second assault occurred later in the evening. Mr Bouyer slapped Ms P to the head while she was holding an infant child causing her head to hit the wall.
Prior to these incidents, Mr Bouyer had been before the Magistrates Court in 2013 in relation to driving while unlicensed, unregistered and uninsured.
Before being dealt with in relation to the January 2015 offences, Mr Bouyer breached his bail and the intervention order on two occasions, and committed a further aggravated assault on his partner on 7 April 2015 when he attempted to obtain a motor vehicle from Ms P’s residence. Ms P refused to let him take the vehicle. Mr Bouyer slapped her across the face and dragged her by her hair across the floor. Mr Bouyer was imprisoned in relation to the offending on 7 April 2015. The Court imposed a sentence of 12 weeks imprisonment suspended after 6 weeks.
Over the subsequent two years, Mr Bouyer was convicted of a further seven offences of either contravening the intervention order or breaching bond. Mr Bouyer was also convicted of an offence of damaging property by burning his partner’s clothing that had been hanging on a line.
From 2013 to 2017 Mr Bouyer was convicted of a number of offences. He was sentenced to 5 terms of imprisonment totalling a period of approximately 565 days, or 12 months and 14 weeks. Mr Bouyer was sentenced to a further term of imprisonment in May 2018 of four months and seven days.
On 22 November 2017, Mr Bouyer was notified that the Department intended to consider cancelling his visa on character grounds. On 13 December 2017 Mr Bouyer responded to the Department’s invitation to comment.
On 2 March 2018 the Department’s delegate decided to exercise the discretion pursuant to s 501(2) of the Migration Act 1958 (“the Act”) and cancelled the Applicant’s visa due to the Applicant’s substantial criminal record.
Mr Bouyer was not notified of that decision until 25 May 2018, by which time he was incarcerated in the Yatala Labour Prison on the basis of an incident that ultimately led to a further conviction for assault and breach of the intervention order. With respect to that further offending, Mr Bouyer has been sentenced to imprisonment for four months and seven days. In this regard, the Tribunal does not have an updated criminal history documents or sentencing remarks, and relies on Mr Bouyer’s evidence of the most recent conviction and sentence.
Documentary evidence and procedure
The Tribunal has before it the documents produced by the Minister pursuant to s 500(6F) of the Act, hereafter referred to as the ‘G Documents’, and particular folios referred to as ‘G1’ etc. The Tribunal also has before it supplementary documents lodged by the Minister on 6 July 2018, hereafter referred to as the ‘S Documents’, and particular folios referred to as ‘S1’ etc.
Mr Bouyer has not provided any documentary evidence to the Tribunal, and nor has he called any witnesses.
At a directions hearing Mr Bouyer was informed of the tight timeframes and limitations binding on the Tribunal, including the limitation on having regard to evidence not provided to the Minister at least two business days before the commencement of the hearing. Mr Bouyer was encouraged to obtain legal advice and representation promptly if he wished to do so.
The hearing commenced on Monday 23 July 2018. On that occasion Mr Bouyer told the Tribunal that he had learned over the weekend that a public law centre would not be representing him as he had expected, and he asked the Tribunal to adjourn to give him an opportunity to obtain legal representation. Despite the difficulties for the Tribunal presented by such a request, the Tribunal did adjourn the hearing to 8 August 2018, just over one week before it must make a decision on the review pursuant to s 500(6L) of the Act. Mr Bouyer was not represented at the hearing when it resumed on 8 August 2018.
Legislative framework
Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if he or she has a substantial criminal record. Pursuant to s 501(7)(d) a person has a substantial criminal record if the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Mr Bouyer has been sentenced to 5 periods of imprisonment totalling a period of 12 months and 14 weeks. On the basis of the records relating to Mr Bouyer’s criminal history, we suspect that Mr Bouyer does not pass the character test. Mr Bouyer did not contend that he passed the character test, and so has not satisfied us that he does pass the character test. We find therefore that he does not pass the character test pursuant to ss 501(6)(a) and 501(7)(d) of the Act.
Therefore, the issue before the Tribunal is whether the Tribunal should exercise the discretion available in s 501(2) of the Act to cancel the Applicant’s visa.
Ministerial Direction 65 (the Direction)
Section 499 of the Migration Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of powers. We must comply with directions issued under this provision.
Ministerial Direction 65 (“the Direction”), at Part A, engages directly with the performance of our functions. We are to treat:
·The protection of the Australian community from criminal or other serious conduct;
·The best interests of minor children in Australia; and
·The expectations of the Australian community
as primary considerations. Each of these terms is elaborated upon in the Direction.
Other considerations must also be taken into account; namely, international non-refoulement obligations, the strength, nature and duration of ties, impact on Australia’s business interests, impact on victims and the extent of impediments Mr Bouyer is removed.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to us in terms of the objectives of the Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which we are to approach the exercise of our powers in this matter are that:
·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;
·sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.
With compliance with these principles in mind, we turn to consider the particular circumstances in this review. We find it convenient to do so within the framework of the Direction.
Primary consideration: The protection of the Australian community.
We have regard to the Government’s commitment to protect the community from harm as a result of criminal activity by non-citizens, and acknowledge the Government’s view that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community: Item 9.1 of the Direction.
We are to give consideration to the nature and seriousness of Mr Bouyer’s conduct to date; and the risk to the Australian community should Mr Bouyer commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Bouyer’s conduct
The Direction calls on us to consider the nature and seriousness of Mr Bouyer’s conduct, expressed to be criminal offending or other conduct. In response to questions posed to Mr Bouyer by the Minister’s counsel, Mr Bouyer explained that he had come to Australia for the first time when he was 21 years of age to start work as a shearer. Mr Bouyer accepts that since that time he has accrued 22 convictions.
Mr Bouyer’s offending primarily relates to his relationship with his former partner Ms P. In this regard, we note that in his application for review to the Tribunal, Mr Bouyer had indicated that he believed the Department’s decision was wrong because he had been unable to provide a support letter from Ms P. We note however that we have no evidence from Ms P, either in person or in writing. Mr Bouyer explained that the relationship was now over, although later in the hearing he expressed his wish to someday be friends with Ms P.
In his evidence, Mr Bouyer described the relationship with Ms P as toxic. He said that both he and Ms P used drugs, including cannabis and ‘Ice’ (crystalline methamphetamine). Ms P’s children from other relationships, and the child she and Mr Bouyer have together have been removed from her and Mr Bouyer’s care by the state. In the case of Mr Bouyer’s child, the child is under the guardianship of the Minister until 18.
Within that relationship, Mr Bouyer was convicted of multiple assaults on Ms P.
When invited to comment on the circumstances of those offences, Mr Bouyer said in relation to the assault dealt with on 15 October 2015 he had nudged Ms P in order to wake her up to attend to the baby. Mr Bouyer disputed that Ms P had been punched, although acknowledged those were the facts he had pleaded guilty to and been sentenced on. We note in this regard that the sentencing remarks comment on observations by Police that Ms P was bruised. We note that in relation to the second count, which occurred later the same day, Mr Bouyer had slapped Ms P to the head, causing her to strike her head against a wall, and this was while she had their baby in her arms. In his evidence, Mr Bouyer described this as a nudge to the head.
Mr Bouyer said that he was on drugs at the time, and agreed with a proposition from the Tribunal that he was quick to temper and violent when on drugs.
We prefer the account of the circumstance of this offending contained within the sentencing remarks of Ms Anderson SM. We are concerned to note that in his evidence Mr Bouyer appeared to choose language tending to minimise the nature of the assault and to dispute acts, such as having punched Ms P, in a manner inconsistent with his plea and inconsistent with the observations of Police.
In relation to the offending dealt with in April 2015, in which Mr Bouyer assaulted Ms P by slapping her face and dragging her across the floor by her hair, and breached the intervention order and bail conditions imposed as a result of the offending described above, Mr Bouyer said that it was his practice to stay with Ms P regardless of the intervention order. He said that Ms P did not want the order in place, and it had been imposed by police. He said that on that occasion he had become angry and smashed windows. He said he doesn’t recall slapping Ms P or dragging her across the floor. In response to the Minister’s counsel’s question as to why he pleaded guilty if he did not agree to those facts, Mr Bouyer said he was aware of the 12 month rule for deportation and was worried pleading not guilty may result in a higher term of imprisonment.
We are again concerned to note Mr Bouyer’s minimisation of the circumstances of the offending, and rely on the description of the offences contained in Mr Foley SM’s sentencing remarks.
In relation to the property damage offence dealt with on 6 July 2016, Mr Bouyer explained that every time he went to prison, Ms P would cheat on him. He said that therefore on Valentine’s Day he went to Ms P’s home and burned her clothes that were then hanging on the washing line. In relation to a breach of the intervention order taking place on 3 June 2016, Mr Bouyer described living with Ms P and her mother at the time. He said he had been in to town and when he returned Ms P’s mother had informed him that Ms P had gone to look for him. It appears the exchange degenerated into an argument and Mr Bouyer was told to leave, and head-butted a window in the process of leaving. We found it difficult to follow Mr Bouyer’s explanation that he lived at the premises with Ms P and her mother, yet was also being told to leave in these circumstances. Despite asking for an explanation about why he was being asked to leave, this issue was not addressed in Mr Bouyer’s responses. Mr Bouyer was asked if there had been a dispute about where he was living at the time, and his answer was that there “might have been”.
In relation to breach of intervention orders generally, Mr Bouyer confirmed that both Police and magistrates warned him about the consequences of failing to comply with the intervention order, yet he had made a conscious decision to keep seeing Ms P despite the order. In response to queries about why he did not secure alternative accommodation, Mr Bouyer said he was obsessed with Ms P, and they put their relationship before compliance with the Court order. Mr Bouyer believed they would have been fine but for being on drugs.
We are conscious that we have not heard from Ms P, and the events of 10 April 2016 in which Mr Bouyer was convicted for breaching the intervention order in circumstances where he was being asked to leave by Ms P’s mother does not sit comfortably with Mr Bouyer’s evidence that he and Ms P were mutually choosing to live together despite the intervention order. Furthermore, Mr Bouyer’s evidence was that in relation to further breaches of the intervention order in 2017, he was living with Ms P’s mother while Ms P was living in a women’s shelter. Mr Bouyer’s explanation for these arrangements were that Ms P was both cheating on him at the time, but also not wanting Families SA to find out that she was seeing him again as she believed this would be adverse to her attempts to have her children returned to her care. Mr Bouyer however confirmed that when he breached the intervention order in February of 2017 when observed by Police to be walking in the street with Ms P, he was also living with her at the time.
In relation to the final conviction for assault in May of 2018, Mr Bouyer said that following his release from prison in January 2018, he was again living with Ms P. He said she had thought he was texting other girls, and he had enough of her being on his phone. He had followed her outside and pulled her handbag to get the phone, and Ms P had fallen to the ground.
Mr Bouyer was also questioned about breach of bail, and acknowledged he had failed to report to his probation officer because he had been on drugs, but had told the corrections officer that he could not get in to Mount Gambier. Mr Bouyer conceded that he knew he was breaching bail conditions at all times.
The Minister submits that we should view Mr Bouyer’s offending as serious, pointing to offences of violence and the clear harm to the community presented by domestic violence. It is submitted that the sentencing remarks of the various magistrates who dealt with Mr Bouyer demonstrate the seriousness of the offending.
Mr Bouyer did not make any submissions at the conclusion of the hearing, but in the course of his evidence he asked to be given a further chance to act as a parent to his daughter.
Having regard to all relevant factors provided for at item 9.1.1 of the Direction, we agree the offending by Mr Bouyer is to be characterised as serious. We note that the offending involves violent offences in a domestic context, and contemptuous disregard for orders intended to protect Ms P from the offending Mr Bouyer inflicted upon her. We note that the assaults were described in the sentencing remarks as serious, and we take into account that multiple sentences of imprisonment have been imposed on Mr Bouyer. We consider the victim of Mr Bouyer’s violent conduct, his then domestic partner, was a vulnerable member of the community and indeed was a person protected by intervention orders on this basis.
Mr Bouyer’s criminal history reveals frequent, if not perpetual breaches of the intervention order with a regularity of accompanying violent assaults, including as recently as May of 2018. In this regard, while the nature of the assaults have not escalated in terms of severity or injury we consider the fact that they are repeated after sentences of imprisonment are imposed and served, and despite the existence of the intervention order, tends to characterise the pattern as demonstrating increasing seriousness.

We note that Mr Bouyer has not previously been formally warned that further offending will affect his migration status, but observe that from his evidence he appears to have been well aware that his offending may result in removal from Australia.
In all the circumstances, we view the nature of Mr Bouyer’s offending as grave, primarily because of its violent nature and because the assaults occurred in the context of repeated disregard of the intervention order.
The risk should further offences be committed
In accordance with the Direction, our consideration of the risk should further offences be committed incorporates cumulatively an assessment as to the nature of the harm to the Australian community should further offences or serious conduct be repeated, and also the likelihood of Mr Bouyer engaging in further criminal or other serious conduct.
As to the first limb, and as mentioned above, we have found that Mr Bouyer’s conduct is essentially of the nature of perpetuating assaults on his domestic partner, Ms P, and ongoing breaches of an intervention order designed to protect her from him. Ms P appears to be the only victim of Mr Bouyer’s offending
Mr Bouyer argued that his relationship with Ms P had ended. He was of that view because she has not contacted him since he had most recently been in custody. He intends to move to Melbourne following his release from prison and impliedly therefore he should be considered to be no risk of reoffending because he is no longer under Ms P’s influence. That argument is without merit.
In the course of his evidence Mr Bouyer explained that he hoped to have contact with Ms P in the future, and we note that Mr Bouyer and Ms P have a child together. Having regard to the nature of the relationship between Mr Bouyer and Ms P, and the regularity with which Mr Bouyer had breached the intervention order in the past, we have no particular confidence that Mr Bouyer will cease to have contact with Ms P such that the violent nature of the harm inflicted on her may be disregarded.
Mr Bouyer is a recidivist offender, committing offences of domestic violence, knowingly and deliberately in contempt of intervention orders, undeterred by risk of imprisonment and often in circumstances involving consumption of illicit drugs. In the Applicant’s statutory declaration dated 18 December 2017 he said “I cant see my future without my precious children and my loving partner” [sic]…” i pray it is not too late to give me my final warning and give me one more chance to show the citizens of Australia that I can overcome all wrong doings”…” I sincerely apologise”...”I understand the seriousness of my offending and ill take all steps necessary to receive counselling and doing Domestic violence intervention programme”[sic]…” I have given up drugs” (G5 pages 71-71). Upon his release from custody Mr Bouyer consumed drugs, breached the intervention order, and was violent to his partner resulting in a further period of imprisonment. As a consequence he appeared before us ex-custody.
By his recidivist behaviour and failure to demonstrate any or adequate effort to reform, Mr Bouyer remains a risk to Ms P with who he would like to renew a friendship in the future, and also other members of the Australian community, and in particular such person with whom he may have a relationship. Further there is no evidence upon which the Tribunal can be satisfied that Mr Bouyer will not, upon release, return to consumption of illicit drugs.
Furthermore, the nature of Mr Bouyer’s offending is such that we consider Mr Bouyer has a clear tendency towards violence and an unacceptable perception of power in domestic relationships. In this regard, we note the remarks of Mr Anderson SM in terms of Mr Bouyer needing to address his perception of power in domestic relationships. In light of the conviction this year, there is nothing to suggest this has been addressed. When considering the nature of the harm to individuals and the Australian community, we have also considered the nature of harm that may be perpetrated on future domestic partners of Mr Bouyer, and therefore the wider Australian community.
As to the likelihood of Mr Bouyer engaging in further criminal or other serious conduct, we have examined the evidence in the Tribunal papers and Mr Bouyer’s own evidence regarding the motivations for his offending and the steps he has taken to address it.
In this regard, we note that Mr Bouyer has acknowledged that the offending has taken place in the context of his use of ‘ice’. This feature of Mr Bouyer’s lifestyle was also remarked upon by the sentencing magistrates.
We have noted that Mr Bouyer has failed drug screens after release from prison in 2015 on multiple occasions. In his evidence, Mr Bouyer confirmed that he was a regular cannabis user and would also use ice approximately 2 times per week, although it would depend on availability. Mr Bouyer told us that he had used these drugs before coming to Australia.
Mr Bouyer explained that he was not using drugs when last released from prison in January 2018, but after a week or so he started using again. Mr Bouyer says he is not addicted at the moment; however we note that this may be due to his current incarceration.
In terms of addressing this problem in the past, Mr Bouyer said that he intended to move away from South Australia to Melbourne, where he has an aunt who had offered him assistance some time previously. He has not spoken to her recently however.
Noting that Mr Bouyer had described using ‘ice’ with Ms P, the Tribunal asked Mr Bouyer why it should be satisfied that he would no longer have physical contact with her and not start using ‘ice’ again. Mr Bouyer said that previously he had contact with her while in prison, but he has had no contact with her during this period of incarceration so felt he was stronger and would move to Melbourne to avoid contact with Ms P upon his release.
Mr Bouyer confirmed that he had not completed any formal drug rehabilitation education or counselling. We note that Mr Bouyer was exited from a drug rehabilitation program shortly after its commencement in March of 2016 because of his reoffending. Notations made by an officer at the Department of Corrections refer to Mr Bouyer being irregular in his response to supervision, and ‘passive aggressive’ in his attitude. This observation (SG3, page 33) is not further particularised, and Mr Bouyer could not elaborate on what was being referred to when it was brought to his attention. Nonetheless, we place adverse weight on the absence of any positive engagement with drug rehabilitation courses and reports of engagement with supervision being less than positive. We acknowledge however that reports of Mr Bouyer’s conduct in prison in 2018 are generally positive.
Mr Bouyer stated in his evidence that he needed a chance to rehabilitate, and he considered it unlikely he would commence using drugs again because he would not return to live in Mount Gambier. Mr Bouyer also explained that he intended to do an anger management course upon release, although he has made no specific enquiries in this regard.
We consider that the absence of formal counselling, an inability to remain abstinent from drug use and recidivist conduct makes it clear that Mr Bouyer has not learned from his past, and we can have no confidence that he will not return to his previous ways. We further consider that Mr Bouyer has demonstrated that he lacks respect for judicial authority and the orders made to protect the safety of Ms P. We are unable to accept Mr Bouyer’s contentions as to why he will not return to illicit drug use or repeat offending of the nature he has committed previously because his past behaviour tends to demonstrate that he will return to illicit drug use and reoffend.
We consider that Mr Bouyer presents a very high risk of returning to illicit drug use, and a very high risk of committing further offences of violence against Ms P or other members of the Australian community who may form a domestic relationship with him. We consider the risk to be an unacceptable one.
Having regard to the nature of the harm to the Australian community should Mr Bouyer engage in further criminal conduct of the nature of assaults on his domestic partner and our concern that the risk of him reoffending is very high, we have formed the view that the risk posed by the offending and the likelihood of the conduct being repeated cumulatively poses an unacceptable risk to the Australian community.
We place great weight on this consideration.
Primary consideration: The best interests of minor children affected by the decision
Mr Bouyer has one daughter with Ms P whose interests are affected by our decision. Mr Bouyer’s daughter is aged four years old. As mentioned above, she has been removed from Mr Bouyer’s and Ms P’s care by the state and is under the guardianship of the Minister until she is 18 years old. Mr Bouyer confirmed that his daughter was taken from his and Ms P’s care when she was four months old.
Mr Bouyer said when he is not imprisoned he has visitation rights for an hour every month. We note Mr Bouyer said it used to be one hour every fortnight. The last time Mr Bouyer has seen his daughter was in March this year when he saw her under the supervision of Families SA for one hour.
Mr Bouyer confirmed that he had missed a couple of visits with his daughter because he had been on drugs, but he would not see his daughter after consuming drugs. Mr Bouyer has no communication with his daughter’s foster parents, and could not say where his daughter goes to preschool.
We presume that ordinarily, it is in a child’s best interest to have a non-citizen parent remain in Australia. The circumstances of Mr Bouyer’s aggravated assaults on his daughter’s mother, Mr Bouyer’s drug use, the intervention of child protection authorities and the minimal role Mr Bouyer has had in being a parent to his daughter all weigh against this presumption in the circumstances of this case.
The Minister recognises, as do we, that Mr Bouyer’s child is still young and there is a possibility at least that Mr Bouyer may play a positive role in his daughter’s life in the future. The Minister contends that we should find that it is not in the child’s best interest that the visa be cancelled because of the potential for a positive parental relationship in the future. While on the evidence before us we consider the prospect of a positive relationship is remote, we agree that declining to cancel the visa so as to improve those prospects is in Mr Bouyer’s daughter’s best interests, particularly as she is so young.
We have taken into account the minimal duration of the relationship between Mr Bouyer and his daughter before she was removed from his care and the limited meaningful contact since that time, caused by the concerns of the Department of Child Protection, Mr Bouyer’s incarceration from time to time and also, as conceded by Mr Bouyer, missed contact sessions because of his drug use.
We think it unlikely that Mr Bouyer will play a positive role in his daughter’s life on the basis of what we know, but recognise that circumstances change and Mr Bouyer’s daughter is very young.
We have considered the impact of Mr Bouyer’s prior conduct, noting that an aggravating feature of one assault on Ms P was that she was holding Mr Bouyer’s daughter at the time (implicitly, when she was less than four months old). We note also that at no time have the state authorities considered it appropriate to return Mr Bouyer’s daughter to his or Ms P’s care, and do not exclude the likelihood that Mr Bouyer’s repeated violent conduct towards Ms P and his illicit drug use is part of the rationale for removing her from her parent’s care. We consider therefore that Mr Bouyer’s conduct has had a highly adverse impact on the interests of his daughter.
We have considered the likely effect of any separation on Mr Bouyer’s daughter. We have no specific information in this regard. We note that Mr Bouyer would be removed to New Zealand, and consider that as his daughter grows older, she will be able to initiate and maintain contact with Mr Bouyer through electronic means and travel if she wishes without any particular difficulty.
We have no particular information about the living circumstances of Mr Bouyer’s daughter. We understand she is in the day to day care of foster parents who now fulfil a parental role in relation to her.
As Mr Bouyer’s daughter is so young, the consideration of her views are unknown and would be given little weight in any event.
Other than the circumstances already mentioned regarding the assault on Ms P dealt with on 6 October 2015, we have no direct evidence that Mr Bouyer has abused or neglected the child in any way, nor that she has suffered any physical or emotional trauma arising from Mr Bouyer’s conduct. We are conscious however that there are circumstances in place that motivated the state authorities and ultimately the Court to award guardianship to the state until Mr Bouyer’s daughter is 18, but have no further particulars as to what those circumstances were. We note with concern Mr Bouyer’s evidence that in 2017 Ms P lived in a women’s shelter so as to conceal her relationship with him from Families SA. We infer from this that the child protection authorities viewed Mr Bouyer’s presence as a circumstance that had justified intervention.
Having taken into account all the matters we must consider pursuant to item 9.2(4) of the Direction, we are of the view that where the potential for a meaningful and positive relationship with Mr Bouyer will be lessened by the cancellation of the visa, it is in his daughter’s best interest that the visa not be cancelled. However, in light of all the other observations we have made about the effect of Mr Bouyer’s offending on his daughter, the limited contact, the circumstances giving rise to the intervention of child protection authorities and what we consider to be the remote likelihood that Mr Bouyer will have a positive role in his daughter’s life given what has happened to date, we place very little weight on this consideration.
Mr Bouyer has also mentioned that he believed Ms P’s other children’s best interests will be served by not cancelling the visa. We note that it was clarified in Mr Bouyer’s evidence that one of these children was once believed to be Mr Bouyer’s child but this is now known not to be the case. The children in question are aged 12, 11, 9 and 7.
In giving evidence about these children, Mr Bouyer confirmed that he has no legal access to these children. They have also been removed from Ms P’s care by the state. He saw the oldest child (a boy) about a month before he was incarcerated on the last occasion.
In response to further questions about these children, Mr Bouyer says that he “would not worry about these children”, in the sense of being relevant to this matter, as he has no right to see them and no means to contact them.
We consider that in all the circumstances known to us, and in particular the absence of any parental bond or role between Mr Bouyer and these children and the impediments facing Mr Bouyer in having any contact with these children in the future, they are not children who are affected by our decision. However, the specific considerations set out in the Direction appear to include consideration of children with whom a non-citizen does not have meaningful contact, and so we have turned our mind to each of those matters:
·We consider that Mr Bouyer has had a very limited relationship with these children, and the relationship is non-parental in circumstances where the children were removed from Ms P’s care in 2014 and 2015. We consider there have been long periods of absence and limited meaningful contact.
·Given the restrictions on Mr Bouyer making contact with these children, there is little prospect that Mr Bouyer is likely to play a positive parental role in the future.
·We have no specific information about the impact of Mr Bouyer’s conduct on any of these children.
·We do not consider there will be any effect of the separation from Mr Bouyer on these children, and they are unlikely to maintain contact with Mr Bouyer, and in light of his evidence vice-versa.
·We note that the children are also in the care of foster parents.
·We have no information about the views of the children concerned.
·We have no evidence that Mr Bouyer has abused or neglected these children or that the children have suffered physical or emotional trauma arising from Mr Bouyer’s conduct. Having said that however, we are conscious that child protection authorities have seen it fit to remove the children from the house they shared with Mr Bouyer and Ms P in 2014 and 2015.
For the reasons explained above, we place only limited weight on the best interests of children affected by our decision.
Primary consideration: Expectations of the Australian community.
Paragraph 9.3(1) of Direction No 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Minister submits that having regard to the seriousness and risk posed by Mr Bouyer’s offending, the clear disregard Mr Bouyer has shown for Australia’s laws, the serious impact of domestic violence on the community, and repetitive non-compliance with court orders, we should conclude that the community would expect his visa to be cancelled.
Considering the guidance in the Direction as to the Government’s view of the expectations of the community, the evidence before us in this matter and the cogent submissions of the Minister’s representative in this regard, we agree that the Australian community would expect that Mr Bouyer’s visa be cancelled. Indeed, other than improving what we consider to be a remote potential for Mr Bouyer to play a positive role in his daughter’s life in the future, we are able to identify little in the evidence to support an alternative conclusion as to the expectation of the community.
We have taken into account that the Australian community may have greater tolerance for a person who has lived in Australia from a young age, but in Mr Bouyer’s case he has been in Australia for only a limited time, and arrived as a young adult and commenced offending shortly thereafter. A significant proportion of Mr Bouyer’s time in Australian has been spent in prison.
We consider, having regard to the objectives of the Directions, the principles set out in the Direction and the explanation of the meaning of the concept of the “expectations of the Australian community” set out in the Direction that this is a case where the community would expect the visa to be cancelled. We place great weight on this consideration.
Other considerations: Strength, nature and duration of ties
We take into account that Mr Bouyer arrived in Australia at the age of 21 and has resided here since that time. We consider his ties to Australia are limited to his daughter and some relatives who live in Melbourne and in respect of whom Mr Bouyer has limited contact. Mr Bouyer has made only a limited positive contribution to Australia through work.
We consider that Mr Bouyer’s ties to Australia are limited. We do not consider that on balance Mr Bouyer has made a positive contribution to the community. We place weight on this consideration and consider that it weighs in favour of cancelling the visa.
Other considerations: Extent of impediments if removed.

We are able to identify little impediment to Mr Bouyer’s return to New Zealand. Mr Bouyer confirmed during the hearing that he is only a citizen of New Zealand. He explained he has family in New Zealand, including his mother, foster parents and siblings. His family lives throughout New Zealand. His mother lives in Auckland and he has a sister in Dunedin.
Mr Bouyer confirmed that he has worked as a shearer and accepts that he would find work in this industry in New Zealand. Mr Bouyer told us that he believes he would be supported by his family should he return to New Zealand.
We consider that there are no particular impediments to Mr Bouyer returning to New Zealand, and this consideration therefore does not weigh against cancelling the visa.
Other considerations: international non-refoulement obligations, impact on Australian business interests, impact on victims
No evidence or argument was advanced in relation to Australia’s non-refoulement obligations.
No evidence was given in relation to the impact on Australian business interests.
As mentioned above, we have no direct evidence from the victim of Mr Bouyer’s offending, but note that the intervention order remains in place.
Assessment
We are to decide if Mr Bouyer’s visa should be cancelled, with our consideration of this issue exercised in accordance with the Direction.
In this regard, we find that the primary consideration of the protection of the Australian community, including the nature and seriousness of Mr Bouyer’s offending and the risk to the community should Mr Bouyer reoffend is such that the risk posed by Mr Bouyer is unacceptable.
In respect of another primary consideration; namely, the expectations of the Australian community, we consider that, guided by the Direction as to what the expectations of the community are, Mr Bouyer’s case is one where the community would expect the visa to be cancelled.
As to the third primary consideration, we find in considering the best interests of Mr Bouyer’s daughter the visa should not be cancelled, but in light of all the circumstances of Mr Bouyer’s relationship with his daughter and the remote likelihood that he will play a positive parental role in the future, we attach little weight to this consideration in the circumstances of this case.
We do not consider Mr Bouyer will face any particular impediments upon removal from Australia, and otherwise find nothing in the other considerations that weigh against the cancellation of the visa.
Ultimately, having considered all the evidence before us in accordance with the Direction, we have reached the view with confidence that the visa should be cancelled.
DECISION
The decision under review is affirmed.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of M Kennedy, Member (Presiding), B Illingworth, Senior Member

..........................[Sgd]..........................................
Administrative Assistant - Legal
Dated: 16 August 2018

Date(s) of hearing: 8 August 2018

Applicant: In person

Advocate for the Respondent: Laura Butler

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 2926

16 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Date(s) of hearing:	8 August 2018
Applicant:	In person
Advocate for the Respondent:	Laura Butler
Solicitors for the Respondent:	Australian Government Solicitor