Bridgman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Bridgman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 133 (3 February 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2020/7561
GENERAL DIVISION  )
Re: Bradley John Bridgman
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Member O’Loughlin
DATE OF CORRIGENDUM:            5 February 2021
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
1.correcting “a true copy of the reasons for the decision herein of Member Thompson” to read “a true copy of the reasons for the decision herein of Member O’Loughlin”; and
2.correcting “Mr A Booth of counsel, instructed by Clayton Utz” to read “Mr A Booth, Lawyer, Clayton Utz”.

..............[sgnd].................
MEMBER O’LOUGHLIN
Division:GENERAL DIVISION
File Number(s): 2020/7561
Re:Bradley John Bridgman
APPLICANT

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

DECISION
Tribunal:Member O'Loughlin
Date:3 February 2021
Place:Adelaide

The Tribunal affirms the decision under review.
..........................[sgnd]......................................
Member O'Loughlin
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending against women – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – risk of re-offending – other considerations– strength, nature and duration of ties – risk of harm if returned –decision under review affirmed
LEGISLATION
Migration Act 1958(Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQI v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Member O'Loughlin

The applicant, Bradley John Bridgman, was born on 26 November 1981 and is a citizen of New Zealand. He came to Australia on 31 January 2012 and was granted a TY Subclass 444 Special Category (Temporary) Visa.
Mr Bridgman has over 65 convictions in Australia, the first being for offending behaviour that occurred in August 2014 and the most recent being for offences committed in January 2020 while he was on parole.
The applicant has convictions for offences in relation to assault, contravention of a domestic violence order, breaches of bail, unlawful possession of a weapon, unlawful use of a motor vehicle and a range of offences related to possession and supply of drugs, generally methamphetamine.
The Tribunal is not satisfied that the Applicant has accepted responsibility for his crimes or that he has demonstrated that he will be a positive influence for his children.
BACKGROUND
On 12 March 2020 a delegate of the Minister for Home Affairs cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 11 November 2020 a delegate of the Minister administering the Act decided not to revoke the cancellation of the applicant’s visa.
The applicant has requested that the Administrative Appeals Tribunal review the decision not to revoke the cancellation of his visa.
STATUTORY FRAMEWORK
The cancellation of the applicant’s visa on 12 March 2020 was mandatory because the Minister was satisfied that the applicant does not pass the character test, as defined for the purposes of s 501(3A)(i) of the Act, and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory as contemplated by s 501(3A)(b).[1]
[1] The Tribunal observes that the delegate’s decision refers to ‘an offence or offences against Australian law’.
Section 501CA(4) of the Act invests the Minister (or the Tribunal standing in the place of the Minister on review) with a discretion to revoke the decision to cancel the applicant’s visa under certain circumstances.
Section 501CA(4)(a) may be summarised as providing that the discretion to revoke the decision to cancel the applicant’s visa can only be exercised if ‘the person’ (being the person whose visa has been cancelled) has made relevant representations.
It is not disputed that the applicant satisfies this prerequisite and the Tribunal finds that the applicant has complied with s 501CA(4)(a).
The second prerequisite for the exercise of the discretion is contained in s 501CA(4)(b).
Section 501CA(4)(b)(i) prescribes that the Minister may revoke the decision to cancel if the Minister is satisfied that the person passes the character test as defined by s 501.
Section 501(6)(a) relevantly provides that a person does not pass the character test if they have a ‘substantial criminal record’ which is defined in subsection (7) as including cases in which:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; …
For the purposes of this provision, the expressions ‘sentenced’ and ‘imprisonment’ are defined in in subsection (12).
There is further guidance to interpretation contained in subsections 7A, 8, 9 and 10.
The Tribunal has regard to the documents tendered as a bundle as ‘G documents’[2] and relies on the six-page document starting at page 34 thereof entitled ‘Check Results Report’.
[2] Exhibit R1, G documents.
The Tribunal notes that the applicant was sentenced to the following terms of imprisonment:
·two terms of three months each on 13 October 2014;
·to two months on 18 May 2017;
·286 days on 14 June 2018;
·six months on 16 April 2019;
·18 months on 16 April 2019;
·183 days on 16 May 2019;
·six months of 16 May 2019;
·two months on 16 May 2019;
·nine months on 16 May 2019;
·three months on 16 May 2019; and
·nine months on 10 June 2020.
Without further analysis of these sentences, the Tribunal finds that the applicant has a ‘substantial criminal record’ for the purposes of s 501CA(6)(a) and therefore does not pass the character test.
For the applicant to be successful in this application, he will therefore need to meet the requirements in s 501CA(4)(b)(ii).
To do so, the Tribunal will need to be satisfied that there is another reason why the original decision should be revoked.
‘Another Reason’ why the Decision to Cancel the Applicant’s Visa should be Revoked
Section 499(1) of the Migration Act relevantly provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
Section 499(2A) compels the Tribunal to comply with such a direction.
In this case, Ministerial Direction No 79 is such a direction and applies to this matter.
Ministerial Direction No. 79
Paragraph 6.3 of Ministerial Direction No. 79 (the Direction) sets out principles that, according to the preamble at paragraph 5, ‘provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’.
Those principles are:
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.
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) provides directions in exercising the discretion, relevantly that this Tribunal:
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen's visa will be revoked.
Paragraph 7(1)(b) therefore directs the Tribunal in this matter to take into account the considerations in Part C of the direction, as this decision relates to the revocation of the mandatory cancellation of a non-citizen’s visa.
Paragraph 8 of the Direction provides:
1Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to … revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
2In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
3Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.
4Primary considerations should generally be given greater weight than the other considerations.
5One of more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations that the Tribunal must take into account are set out in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Primary Consideration a) – Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the provides matters that the Tribunal should consider:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
2Decision-makers should also give consideration to:
(a)The nature and the 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.
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention… Is serious.
APPLICANT’S EVIDENCE
The applicant, who was not represented before the Tribunal, did not provide his Evidence in Chief in the form of a statement. Various statements and other documents were tendered, including: the Request for Revocation of a Mandatory Visa Cancellation Under Section 501 (3A) (and supporting documents including personal circumstances form);[3] various letters and emails from the applicant;[4] notes of an interview with the applicant;[5] and further emails from the applicant dated 8 November 2020 and 12 November 2020.[6]
[3] Exhibit R1, G-documents, pp 73–91.
[4] Exhibit R1, G-documents, pp 102–113.
[5] Exhibit R1, G-documents, pp 115–117.
[6] Exhibit R1, G-documents, pp 223–230.
The applicant also provided submissions in the nature of evidence with his application to the Tribunal for review.[7]
[7] Exhibit R1, G-documents, pp 7, 10.
The applicant was cross examined about some of these documents and might fairly be regarded as having adopted them under oath. The other documents could not be said to have been adopted by the applicant under oath and it would not be fair to treat them as sworn testimony.
Having said that, the general tenor of the various submissions is consistent with the applicant’s sworn testimony.
To aid understanding of the timing of some aspects of the applicant’s history, the Tribunal notes that the applicant’s longest term of imprisonment, a term of 18 months, was imposed on 16 April 2019.
On 16 May 2019 the applicant was released on parole.
The applicant committed further drug and motor vehicle offences in December 2019 and January 2020. On 30 January 2020 the parole order was suspended and the applicant was taken into custody. The applicant was imprisoned to serve the remainder of the sentence that had been imposed on 16 April 2019.
He was granted parole again on 10 June 2020 and released on 29 June 2020. He says, and the Tribunal accepts, that he was taken into immigration detention on that day as he was leaving prison.
The request for revocation[8] is undated but was apparently prepared before 11 November 2020. The Tribunal notes that in the Delegate’s decision[9] there is reference to representations made on 26 March 2020. It therefore appears that the request for revocation may have been completed on about 26 March 2020.
[8] Exhibit R1, G-documents, p 73.
[9] Exhibit R1, G-documents, p 15.
The applicant indicates that the cancellation of his visa should be revoked in the interests of his children.[10] He also asks for his involvement in Rugby League and recreational pub poker to be considered.
[10] Exhibit R1, G-documents, p 75.
Finally, he indicates that his partner will suffer and that his deportation will affect their business plans and future plans together.
The applicant indicated that he and his current partner, to whom the Tribunal will refer as “TM”, started their relationship on 15 January 2019. He described the relationship as ‘very tight’ and indicates that they plan to set up a small business apparently related to clothing. He indicates that he and his partner will run this business and support each other.
There is no evidence about the potential of such business.
He gives evidence of being a father to four children, one of whom was born in 2002. There is no evidence of a relationship with his eldest daughter. She has turned 18.
The second child, a boy to whom the Tribunal will refer as ‘B’, was born on 14 April 2014 and lives with his mother and sister in Australia. The sister is the applicant’s third child, ‘C’. She lives with her mother and brother. The applicant does not give a date of birth for her.
The fourth child, ‘D’ was born in January 2020 and has been living in foster care for some months.
In the applicant’s oral evidence, he said that the mother of the youngest child is currently in immigration detention.
The applicant has indicated that D will live with him if he is returned to the community.
The applicant indicates that he has regular contact with B and C who are in Australia, in that he video calls them weekly and visits them fortnightly.
He says that he has picked his son up from school and has attended Father’s Day gatherings. He goes on to describe himself as playing a big part in the lives of the two children who are not in foster care.
In relation to the applicant’s criminal history, he indicates that as a Kiwi it was hard to adjust to driving laws in Australia which led to a lot of his offending. He says that this resulted in his car being impounded and him losing his license for two years.
He said he started using and dealing methamphetamine, which led to constant court matters. He says, ‘with no government support and lack of education many of us Kiwis become trapped into limited ways of surviving the day-to-day struggles of Australian life’.
In relation to the risk of reoffending, the applicant refers to the lack of support from the Australian government and asks how anyone can live off nothing?
He says that he does have support from his partner this time around as well as from child services, and he is grateful for that.

He says that at the time of completing the form he was 38 years old and both independent and distant from his family in New Zealand. He says he would have no official place to reside if he had to return. He also said that he would be concerned about missing his children and being able to help to raise them.
The bundle of letters and emails starting at page 102 of exhibit R1 are not in chronological order.
There is a letter of Friday, 1 May (presumably 2020) generally addressed to Australian Border Force.[11] The applicant submits that his daily experiences are comparable to the coronavirus pandemic.
[11] Exhibit R1, G-documents, pp 112–113.
He indicates that Australia does not support Kiwis and that he moved to Australia with a vision to work and raise a family.
He says that unfortunately, due to his misunderstanding of the driving laws, his car was impounded which lead to a downward spiral of job loss, loss of income, and relationship breakdown leading to substance abuse due to stress and anxiety.
He says that that he lost his dream job at Brisbane International Airport and that he wants his release to be fast-tracked so that he can meet his youngest daughter.
He goes on to say that he plans to withdraw his superannuation so he can invest in printing T-shirts and that he has already generated a large following. He does not provide evidence of that.
He says that his Australian partner has offered him full support as have child services. He says that he has been referred to rehabilitation and cultural support networks which had not been offered to him in the past.
He said that he has a good relationship with his kids and his ex-partner, and his substance abuse has reduced. He regards that as the first step in rehabilitating himself.
He hopes he can regain his visa to support his youngest daughter who was in foster care.
He is also looking forward to returning to his career as a Rugby League referee.
There is a letter dated 25 August 2020 from the applicant to the Minister of Home Affairs.[12] He indicated he is seeking support documentation from the Rugby League community and also from the music entertainment industry.
[12] Exhibit R1, G-documents, p 111.
He expresses concern for his youngest daughter.
He also expresses concern for his partner who suffers from epilepsy and from stress and depression by reason of his incarceration. He says that she has been having a higher number of seizures and has been admitted to hospital numerous times over the previous two months.
There is a copy of an email from the applicant to the Department dated 25 August 2020[13] indicating that he fears that he is missing out on opportunities, as he has done a construction course while in prison and had been offered work by the Port of Brisbane which he could not pursue while in detention.
[13] Exhibit R1, G-documents, p 110.
The email says that the applicant is now rehabilitated, and he is hoping to start fresh when he gets out.
There is a copy of an email from the applicant dated 26 of August 2020[14] submitting that his daughter is in desperate need of his presence and expressing concern about her mental health. The applicant says that he has done everything he can to rehabilitate himself and asking how long it takes to process ‘a simple revocation’. The applicant goes on to threaten legal action if these issues are not resolved instantly.
[14] Exhibit R1, G-documents, p 109.
There is also text of an email of 29 August 2020[15] from the applicant again expressing concern and frustration with the perceived delay in his application. It appears that the applicant may have provided further information[16] comprising commentary relating to mental and physical health risks arising from immigration detention.
[15] Exhibit R1, G-documents, p 106.
[16] Exhibit R1, G-documents, pp 107–108.
There is a copy of an email from the applicant of 9 September 2020[17] seeking community detention or a bridging visa and indicating that his mental health is deteriorating in detention.
[17] Exhibit R1, G-documents, p 105.
The applicant says that he has been doing research and believes that he is a good candidate for release into the community on a bridging visa or into residential detention.
There is the text of an email from the applicant dated 22 September 2020.[18] The email is directed to the Minister. The applicant complains about the effect of having been transferred from Christmas Island. He repeats his concern for his partner who he says suffers from health problems and for whom his removal has been a source of stress and anxiety.
[18] Exhibit R1, G-documents, p 104.
He says that her stress and anxiety are contributed to by his absence as he is her sole carer.
He also expresses concern for his 8-month-old daughter D who is in foster care and whose mother has not been involved with her care. He says that he has been committing himself to working with child safety to get his daughter back and doing courses to show his remorsefulness. He complains that this has been interrupted by his transfer to Christmas Island.
He says that he has decided to create a documentary on immigration detention and says that the longer he is there, the more footage he will have to make the documentary better. He then expresses the hope that he can get his visa back soon to save ‘the corruption’ getting exposed.
He asks to be released soon or put on home community detention so that he can work to pay off his fines and reunite with his partner and children.
There is a copy of an email from the applicant to the Minister dated 9 October 2020.[19]
[19] Exhibit R1, G-documents, p 103.
The applicant asserts that he is remorseful for his actions and is prepared to put 100% in to turning his life around and focussing on his family.
He seeks to explain the circumstances of some of the offences for which he was convicted in June 2020 and claims to have been ‘hard done by’.
He repeats his regret for his offences and says that his children’s mother is ‘struggling and burnt out’ and he hopes he can be released so he can help her. He says that, as he is on parole, he will be closely monitored if he is released and the monitoring will last until June 2021. He says that he will also be able to complete the construction course that he started through TAFE when he was in prison.
The final email in this group is dated 10 October 2020.[20] In this email the applicant says that getting parole should mean he has passed the character test and he repeats that he will be monitored and supervised in the community. He says that he is struggling to cope and makes submissions about the meaning and effect of parole.
[20] Exhibit R1, G-documents, p 102.
In his application to this Tribunal there is a statement dated 16 November 2020[21] in which the applicant expresses concern about the effect of the decision not to revoke the cancellation of his visa on his children. He says that he has not been around B or C and that he understands that their mother is struggling without his financial support.
[21] Exhibit R1, G-documents, p 7.
He also refers to D who he says is in foster care, and in relation to whom he is expecting the results of a DNA test to determine whether he is her biological father. The Tribunal notes that this statement is dated 16 November 2020 and that the applicant gave evidence on 19 January 2021 that the results of that DNA test are not yet available. The applicant says that since being in immigration detention he has grown into a different person and believes he can improve his living standards if given the chance to re-enter the community in Australia, where he has lived for the last 10 years.
He indicates that he has completed certificates in drug and alcohol abuse and domestic violence.
He says that he now has support that has never been available to him in the past in the form of child safety and employment opportunities.
He also says that when released from immigration detention he will be on parole and subject to drug testing and possibly be wearing an ankle bracelet.
He says he would do anything to improve himself for his kids and work towards being a better father.
He understands that any chance he is given will be his last.
He says that it is still possible that he will return to New Zealand in the near future but would like to return on his own terms so that he can come back and visit his children.
He says that he is effectively the only parent for his daughter D (should he prove to be her father) who will be able to care for her, although he understands that he will be heavily monitored in that regard.
The applicant also refers to his difficulties while in detention with the death of his auntie and the apparent breakdown of his relationship with his partner (the Tribunal notes that the relationship has now been resumed). The separate statement[22] is in broadly the same terms.
[22] Exhibit R1, G-documents, p 10.
APPLICANT’S TESTIMONY
In evidence the applicant repeated that his time in detention had been a good learning opportunity.
He said that he had not wasted his time and had tried to do courses. He said that the transfer to Christmas Island interrupted a 21-day course he had started. He said that he had certificates that showed that he had put in a lot of work towards rehabilitation and has studied life skills, woodworking, construction and cooking.
He said that it was important to be able to cook for his children and that being in detention had motivated him to return to the community.
He said that he talks to his children two or three times a week and that his attitude to drugs has changed. He said that he now sees drugs as a waste of opportunity.
The applicant said on other occasions that he had been detained (presumably in the criminal system) he had not been released with any support from family or any entitlements in the nature of Centrelink benefits, and that his reoffending had been related to that lack of support and his own lack of knowledge.
He also said that he was keen to continue pursuing his interest in NRL refereeing.
In cross-examination, the applicant confirmed that he was born in Dunedin, New Zealand on 26 November 1991 and was aged 39 at the time of the hearing.
He lived in Dunedin for 23 years, then in Wellington for 7 years before returning to Dunedin for a few months and then moving to Australia.
He said that in New Zealand he worked a few jobs in hospitality, warehousing and aviation.
He said that most of his family are still in New Zealand and that he has about six aunties and uncles there, his mother, brother and some cousins.
He said that he speaks to his mother and brother about once a month and has occasional contact with other family members.
He agreed that he first came to Australia in January 2010 and moved permanently in 2011.
He said that when he first moved to Australia, he was involved in the music industry, initially with a festival and later in smaller venues like bars and clubs.
He said he is no longer involved with the music industry as much.
He said that he met his former partner, the mother of B and C, in 2011. He said that they were in a relationship for about one year but had been on and off since their son was born.
He said that they now have an amicable relationship but that before they separated it had been rocky due to cheating on both sides.
He was asked whether the relationship was rocky because he had been violent and controlling. The applicant said that he had been violent but not controlling. He said that he became violent when he found out that she had cheated on him with one of his friends.
The applicant acknowledged signing a domestic violence order in October 2013[23] but said that he did not remember the details of the incident that was set out.[24]
[23] Exhibit R2, Material produced under summons, p 511.
[24] Exhibit R2, Material produced under summons, pp 524–525.
The applicant was also asked about a conviction in New Zealand for an offence described as ‘male assaults female (manually)’.[25] That offence took place in 2005. The applicant did not remember the incident.
[25] Exhibit R1, G-documents, p 40.
The applicant agreed that the list of offences set out at pages 34 to 39 of exhibit R1 is accurate, as is the list at pages 54 to 55.
The applicant further agreed that a file note sent by the Department of Home Affairs to him under cover of a letter of 12 March 2020[26] appears to accurately reflect allegations made against him. He said that he did not have an accurate recollection of the incidents referred to.
[26] Exhibit R1, G-documents, pp 58–63.
The applicant agreed that on 15 August 2014 he broke into his former partner’s house, grabbed her, bit her lip and threatened her with a knife. He did not remember choking her but thought he grabbed her by the collar.
It was put to the applicant that he was very angry at the time and he claimed that he was a bit upset and said that she cheated with his friend.
He denied intending to kill her despite his threats to do so, said that he had been angry and that he is not actually crazy, just stupid.
His son had been born about four months earlier, but the applicant did not remember him being there at the time.
The applicant was asked about his use of alcohol, methamphetamine and cannabis. He denied that alcohol abuse has been a significant feature of his history.
He said that he started using cannabis in New Zealand when he was 12 but did not believe he had ever become addicted to it.
He said he had tried methamphetamine in New Zealand. He said there were lots of drugs around and he tried a number of different ones.
He said that he continued to use methamphetamine after he came to Australia and believes that by about 2015 he was addicted to it.
He explained that he moved into a house and his housemate was a heavy user, which meant he was lured in.
He said that his children were not living with him after the relationship breakdown and they did not see him use methamphetamine. He also said that they were not present when he was under the influence. He said he would abstain for three or four days if he was going to see the children, but otherwise he used daily.
He said that he started dealing methamphetamine in around 2015 or 2016 because he had no drivers licence or car and was having trouble paying for his living costs and supporting his habit.
He said that he generally dealt in drugs when he had bills to pay. He said that he sold to his own friends at first and later he sold to their friends as well.
He said that he regrets his involvement with methamphetamine both as a user and a dealer.
He agreed that his first conviction for drug offences was on 11 May 2016.[27]
[27] Exhibit R1, G-documents, p 38.
He agreed that this conviction was a wake-up call but said that he was unable to stop because he did not have any personal support, nor was he entitled to Centrelink and he was having trouble finding work.
He acknowledged that his inability to give up was partly due to his bad attitude.
The applicant agreed that he kept dealing drugs because he couldn’t get support and couldn’t get a job. He said that Centrelink would not make him a crisis payment. He said he was homeless for some time. He complained that there are not many support networks for New Zealanders in Australia and that they get put into ‘that state of mind where they have to offend’.
He said he believed that he deserved more help from the Australian government than he received and in particular said that financial support would have helped.
The applicant agreed that in the past he continued to deal in methamphetamine while on parole. He said that he tried to get away from drugs but that his former partner was a heavy user and he was supporting that. He acknowledged that the responsibility for drug use in dealing was entirely his own.
He said that if the cancellation of his visa is revoked and he returns to the community on parole he is confident that he will be able to avoid drugs because his new partner is not a user and he has employment opportunities which he did not previously have.
He said that he believes he is better equipped to deal with life stresses such as a cheating partner or job loss. He does not believe that these events would cause him to relapse.
He also said that at 39 years of age he believes prison is no longer the place for him.
It was put to the applicant that he was previously convicted of unlawful use of a motor vehicle and possession of drugs while he was on parole. He said that he had borrowed a Ute from a friend to collect some gear, not realising that the car has been stolen or that a bag he had been asked to hold onto had drugs in it.
He was asked about offences in relation to unauthorised and prohibited explosives.[28] He believes that this related to some bullets, but they were not his and it was a matter of him being in the wrong place at the wrong time.
[28] Exhibit R1, G-documents, p 38.
He denied having carried weapons but agreed there was conviction in relation to unlawful possession of weapons.[29]
[29] Exhibit R1, G-documents, p 36.
The applicant said that a gun had been brought into the house by his partner and he did not know it was there. He said that he was advised by a lawyer that the charges were not serious because the offence did not take place in a public place. He therefore pleaded guilty despite being blameless.
The applicant was asked about an offence of attempted fraud in January 2018 involving stolen credit cards.[30]
[30] Exhibit R2, Material produced under summons, pp 21–22.
The applicant insisted that he did not realise at the outset that the cards had been stolen. The applicant could not explain some of the detail of the allegations in this regard the Tribunal does not accept that the applicant did not know that the relevant credit cards were stolen.
The applicant agreed that he was proposing to provide methamphetamine in exchange for the credit card details if they proved usable.
The applicant said that he has not used drugs since January or February 2020.
He said that if he is released from detention, he would see some of his old friends but would avoid others. He conceded that some of the people he would want to see do use drugs but generally he would avoid drug users.
He said that he is confident that he could see some of his old friends without reverting to the use of drugs. He also said that drugs have become much more expensive and many people have given up.
The applicant said that he had used drugs a couple of times when in prison, but he did not like the feeling.
The applicant was asked about certificates he had earned in relation to drug and alcohol abuse. He said that he learnt things from these courses, particularly in relation to remaining positive.
He said the courses were about five hours each and he agreed that he had not yet had the chance to use his newly acquired skills in real life.
The applicant said that he wants to continue his rehabilitation with further courses and that he has also had an offer of courses from Child Safety.
The applicant said that he believes he will be able to avoid reoffending because he has three job offers and further is entitled to six months Centrelink because he has been in Australia for more than 10 years.
The applicant was asked whether he was still a risk of committing domestic violence. He said that he has learned his lesson. He agreed that he has a violent temper but said he now realises that is a poor excuse.
The applicant was asked about his relationship with the children B and C. He said that they live with their mother and that he last saw them in early 2020. He said he keeps in touch with a video call every fortnight and that his relationship with the children’s mother is amicable and is all about the children.
The applicant was asked why he had not provided any statement from the children or from his former partner. He said that his former partner has been influenced by her mother.
He said that he had asked her if his son could prepare a statement, but no statement was completed.

The applicant was asked whether his ex-partner would allow him to have a fuller relationship with the children if he was released and he said that she would and that his son is upset that the applicant has not been available to provide more support. He believes that his former partner would like an occasional break from having the children and that he could provide that opportunity.
The applicant was asked whether his children had ever witnessed his involvement in criminal activities. He said that they had not.
He was asked whether they had ever seen the impact of his drug dealing or violence and he said they had not.
The applicant was referred to a document within the material produced under summons where the applicant advised that ‘… he was the victim of a ‘run-in’ where he was stabbed five times’.[31] The document further records that the applicant said that the assault occurred in front of his son which heavily impacted his relationship with him and his ex-partner.
[31] Exhibit R2, Material produced under summons, p 316.
The applicant agreed that this incident would have had an impact on his son, B.
The applicant was asked about the youngest child ‘D’.
He said that he proposes to be involved with her even if he proves not to be her biological father. He is not sure if that would be possible but says that if he is released, he expects to be able to care for her eventually when he gets set up.
The applicant says that he expects to help in the care of the two middle children by paying child support and care for the youngest child and pay his fines.
In relation to his new partner, he said that they had been together for two years on and off and that recently she had another man, but she and the applicant are currently reconciled.
He believes that she is probably aware of his previous convictions for domestic violence and he says that she is aware of his other criminal history.
He said that they have not planned for his return to New Zealand and he does not know whether she would visit him there.
The applicant said that she has children which would make that difficult although they are teenagers and not in her care.
The applicant completed his evidence by saying that although he is considering returning to New Zealand, he wants to do it on his own terms and that having his visa cancelled would be devastating for him.
The Tribunal observes that, despite the applicant’s assertions that he holds himself accountable for his past crimes, his evidence about his crimes almost invariably took the form of blaming others for his offending behaviour.
He referred to himself as “hard done by” and as having been “in the wrong place at the wrong time”. He suggested that he was effectively blameless in relation to offences of possession of drugs and of a firearm. In respect of other offences he said that the lack of available welfare payments left him with no choice but to sell illegal drugs. He also suggested that the difficulty in understanding Australian law as opposed to the law of New Zealand was such that he fell into criminal behaviour.
The Tribunal finds that the applicant’s evidence tended to be unreliable and self-serving and is reluctant to accept it where it is not supported by objective evidence.
The Applicant’s Partner, TM
TM gave evidence by telephone on the second day of the hearing. Her evidence in chief was effectively contained in exhibit A4.
Although it is in the form of an email sent to the Tribunal by the applicant on 14 January 2021, TM believed that it represented something she had prepared herself. It is essentially a character reference which refers to her relationship with the applicant, to her own health problems, to her assessment of the applicant’s potential for positive influence on his children and her assessment of his remorse.
She says that she believes he has grown and is ready to care for his children and for her.
TM was cross-examined.
She said that she met the applicant through a mutual friend in 2018. She said that they started a relationship almost immediately.
She said that they have generally been in a relationship ever since, although they did break up for about two months a couple of months before she gave her evidence.
She said that she was ‘completely caught off guard’ where the applicant was arrested. She said she knew that he had been in trouble with the law but not for anything major.
She was asked what he had told her about his past and she said that they did not go into it. She said she had heard from a friend that he had been imprisoned but she did not believe that he was a drug user when she met him.
She said that she believed she had heard in passing that he had previously used drugs but that she was concentrating on the future and did not enquire further.
She did not know that he had been violent in past relationships.
She gave evidence that she had never seen him use drugs or be violent.
She said that she believes his attitude has changed since 2018 since he’s been working on documentaries and music.
She said that she has moved closer to his children so that if he is released, he will be able to live with her and be close to them.
She said she has not yet met his children but has spoken to them on video chats. She knows their mother.
She also said that she is aware of the child D and understands that that child will live with them. She said that she is happy to care for that child.
TM’s evidence is of limited assistance to the Tribunal. The Tribunal accepts that she believes that the applicant’s attitude has changed, but her unsupported belief is of little assistance to the Tribunal in deciding this matter.
Samantha Lacey
Ms Lacey’s evidence is contained in letters dated 27 August 2020[32] and 12 January 2021.[33] She also gave evidence to the Tribunal by telephone.
[32] Exhibit R1, G-documents, p 127.
[33] Exhibit A5, Character reference of Samantha Frances Jean Lacey dated 12 January 2021.
She adopted the contents of those letters as her evidence.
She has known the applicant since late 2019 and says that she was shocked when he was arrested. She says that she had hoped that the applicant would be able to come and work for her in lawn maintenance and cleaning.
She says that if it goes as well as she expects it to, she will put the applicant through a pest management course.
She says that she believes that the applicant’s children are missing him and that his partners’ health and mental health has declined without him.
In cross examination, Ms Lacey said that she is TM’s cousin and that she met the applicant after the applicant and TM started their relationship.
She did not know that he had had trouble with the law in the past.
She said that TM did not tell her that she and the applicant had formed a relationship and the applicant had then been imprisoned.
She said that she first met him about one and a half years earlier and that she had used their house to store her baby things.
She estimated that she had met him seven or eight times.
She confirmed that there is still a role for him in the business.
She said that if he reverted to drug use his employment will be terminated and that for the purposes of their insurance there is regular drug testing.
Gareth Helliwell
Mr Helliwell had provided a letter dated 23 December 2020 which he adopted on oath and which was marked exhibit A2.
He says that he was shocked and confused when the applicant was arrested and that he had known the applicant since they were children in New Zealand.
He said that there was no history of trouble with the law in New Zealand and that the two went their separate ways in their early twenties, only to later reunite in Australia.
Mr Helliwell operates a business related to the construction industry and indicates that the applicant will have a full-time job in the business when he is ready.
In cross examination, Mr Helliwell said that he moved to Australia in 1996 when he was 14 years old but that he kept in touch with the applicant on Facebook.
He described the applicant as a ‘champion with a heart of gold’.
He was not aware of the convictions in New Zealand from 2006 and was surprised when they were put to him.
Mr Helliwell said that he was shocked when he heard the applicant had been arrested because he did not know that the applicant was headed down that path.
He said that he and the applicant had not discussed the applicant’s drug addiction.
He understood that the applicant had dealt drugs but that this was in the context of trying to feed his family.
He said that if the applicant became involved in drugs while working for Mr Helliwell’s business, he would be dismissed instantly.
He said that if the applicant did work for him it would be full-time work and pay between $28 – $32 an hour.
Christine Blyton
Ms Blyton provided a reference which she adopted as her evidence and which was marked exhibit A1. She said that that statement was prepared on 7 January 2021.
The applicant was a previous tenant of hers. She said that he was prompt in paying the rent and that she had observed him helping the neighbourhood children by fixing their bikes.
She expresses the belief that he is an asset to the community and recommends him.
She said that she had known him for about five years.
In cross examination, she said that they first met through a mutual friend.
She said that she had seen the police at his house a couple of times but that in that neighbourhood that was not unusual to see.
She said she did not really realise that he was in trouble until afterwards and she did not know that he used to deal drugs.
OTHER EVIDENCE
The applicant tendered some statements without being required to call the deponents to give evidence.
There is a letter of support from Jarrod Alexander dated 10 January 2021.[34] Mr Alexander says that he had worked with the applicant in the music industry and that he hopes to continue to work with the applicant in the future. He says that he was shocked to hear of the applicant’s arrest.
[34] Exhibit A6, Support letter of Jarrod Alexander dated 10 January 2021.
There is a letter from Sylvia Honan dated 13 January 2021.[35] She says that she has known the applicant for five years and that he has worked in the music industry working with bands from New Zealand. She expresses the view that it will be unfortunate for his children and close friends if he receives a negative outcome.
[35] Exhibit A7, Support letter of Sylvia Honan, dated 13 January 2021.
There is an email from Chontal Oliver dated 4 January 2021.[36] She says that she has known the applicant since 2010 and that he has been ‘a huge role model’ to her children, who look up to him as an uncle.
[36] Exhibit A8, Support letter of Chontal Oliver dated 4 January 2021.
She says that she believes that the applicant has given himself the time he needed whilst incarcerated to sort himself out and get back on track.
There is a letter of support from Jodi Anne Jeffress dated 15 January 2021.[37] Ms Jeffress says that she is a registered nurse and has been associated with him on a personal and professional basis for numerous years. She says that she has found the applicant to be well-mannered, creative, humorous, courteous and empathetic. She is happy to provide a character reference for him.
[37] Exhibit A9, Support letter of Jodi Jeffress dated 15 January 2021.
There is also a letter from the applicant’s GP, Dr Inglis Chern, dated 20 March 2014.[38] The letter says that the applicant is suffering from depression and anger issues and that he is soon to be a father with relationship conflict.
Ministerial Direction 79
[38] Exhibit A10, Letter from Dr Inglis Chern to Strathpine GP Super clinic dated 20 March 2014.
Primary Consideration A: Protection of the Australian community
The direction notes that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding. It further contemplates that the privilege is conferred in the expectation that they will not cause or threaten harm to individuals or the Australian community. The Tribunal is directed to consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The first relevant consideration is that violent and/or sexual crimes are viewed seriously. There is no suggestion of any sexual crime, but the applicant does have a history of having been convicted for violent acts towards others in the past. These include grabbing and choking a partner and threatening her with a knife. The Tribunal observes that the most recent offences of this nature occurred about five years ago.
The applicant agrees that he has a bad temper and a tendency towards violence, although he insists that he is now in a better position to control himself.
He believes that he is in a better position because he has matured as he grows older and because of the positive impact of courses done while in prison and immigration detention.
Although the applicant does not have recent convictions for offences of violence, he has spent a significant proportion of the last five years in prison or in immigration detention.
The respondent has urged the Tribunal to have regard to allegations of assaults and fighting while in prison, but the evidence provided in relation to those allegations is untested and has been disputed by the applicant.
The Tribunal finds that the element of violence in the applicant’s criminal history warrants the conclusion that his conduct to date should be viewed as serious.
The second consideration is that crimes relating to a violent nature against women or children are viewed very seriously.
The crimes of violence for which the applicant has been convicted and the nature of domestic violence that has been perpetrated was against women with whom he was in a relationship. They must therefore be viewed very seriously.
There is no suggestion of relevant crimes against vulnerable members of the community and this consideration does not suggest that the applicant’s criminal offending should be viewed as serious.
The Tribunal is directed to consider the sentence imposed for the applicant’s crime or crimes.
The Tribunal has access regard to sentencing remarks of Judge Muir of the District Court of Queensland dated 16 April 2019.[39] Her honour was sentencing the applicant in relation to eight counts of supplying a dangerous drug, two counts of attempted fraud and two summary possession offences.
[39] Exhibit R4, Bundle of respondent’s documents.
Her honour accepted that, overall, the offences of supplying dangerous drugs were low-level street offending but noted that they were committed while the applicant was subject to a suspended sentence for other drug offences. Her honour observed that supplying dangerous drugs is causing ‘havoc and harm in our society’ and noted that the applicant had actively engaged by his offending in spreading ‘this dreadful drug’.
All but one of the counts against the applicant involved methamphetamine.
It was submitted on behalf of the applicant that he had the promise of employment on his release. The Tribunal observes that the applicant either did not avail himself of that opportunity or it did not prevent him from continuing to offend.
Her honour imposed a head sentence of 18 months imprisonment.
Her honour did not view herself as having any other options than a period of imprisonment in relation to the applicant.
The Tribunal has also been provided with the sentencing remarks of Magistrate Kelly of the Beenleigh Magistrates Court dated 10 June 2020.[40] That related to some further offences committed by the applicant while on parole.
[40] Exhibit R4, Bundle of respondent’s documents.
These are the offences relating to the applicant being found in possession of drugs while in a stolen car. In evidence before the Tribunal the applicant described himself as having been simply in the wrong place at the wrong time.
Magistrate Kelly took into account the quantity of drug which is described as ‘significant’. Magistrate Kelly also described the charges as aggravated in a sense because of the number of serious drug convictions that the applicant already had.
The Tribunal finds that the applicant’s history of offences and his failure to restrain himself from further offences even while on parole, together with the fact that sentences of imprisonment are generally regarded by criminal courts as a last resort, all combine to suggest that the nature of the applicant’s criminal offending should be regarded as serious.
The Tribunal is unable to discern a pattern in the applicant’s offending and it does not appear that there is a trend of increasing seriousness.
The cumulative effect of repeated offending has been described as ‘aggravating’ by Magistrate Kelly.
There is no evidence that the applicant has been given a formal warning about the consequences of further offending in terms of his migration status.
There is no evidence of any crime committed while in immigration detention.
The Tribunal has balanced the various considerations set out above. The Tribunal views the offences of violence in the applicant’s criminal history as serious, particularly given that they appear to have been directed to persons who were, at the time, his partners. The Tribunal accepts that such offences have not been a recent feature of the applicant’s offending but notes that they are nonetheless to be viewed as serious.
The applicant’s offending in relation to possession of and sale of drugs appears to have generally been quite regular and the Tribunal finds that it is serious. The applicant has been sentenced to terms of imprisonment in relation to these offences which supports that finding.
The Risk to the Australian Community should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Although the violent offending in which the applicant has engaged must be regarded as serious, the Tribunal is inclined to accept that violent offending is no longer a substantial feature of the applicant’s offending behaviour.
The nature of harm to individuals in the Australian community arising from violent behaviour is quite clear.
The likelihood of the applicant engaging in further violent behaviour is probably relatively low.
In relation to the offences of supply of and use of illegal drugs, the applicant has given evidence that he is no longer addicted to methamphetamine and does not believe he is likely to resume use.
The Tribunal accepts that the applicant has participated in some courses.
The applicant has said that he did not previously have job opportunities open to him on his release from incarceration and that that was a significant factor in him returning to offending.
Having regard to the sentencing remarks of Judge Muir, the Tribunal notes that the applicant expressed keenness to be involved in the life of his son who he had not yet met and who was, at that time, six months of age. The applicant had also advised the court that he had an offer of employment on his release.
The Tribunal is concerned that it has been presented with very similar submissions in support of this application and cannot ignore that, when those submissions were made in April 2019, the applicant reoffended within a year of being released on parole.
The applicant has submitted some of his offending was related to mental illness and he refers to the report from his general practitioner of 20 March 2014.
The Tribunal is not satisfied the applicant has demonstrated a long-standing psychiatric condition or effective treatment for such condition. It is not suggested that he is having psychiatric or psychological assessment.
The applicant submits that he has undergone a change of attitude.
The Tribunal finds that any such change has not been tested. The suggestion that such change has been effected is speculative and the Tribunal finds that the risk of reoffending must be regarded as significant.
Primary Consideration B: The Best Interests of Minor Children in Australia

The applicant submits that there are three relevant minor children in Australia.
The applicant’s eldest child is no longer a minor.
The applicant’s second and third children, B and C, live with their mother who has declined to provide a statement.
The youngest child to whom the applicant has referred, D, was born when the applicant was in custody and he has not met her.
The applicant now advises that although he has always believed this child to be his, he has now been advised by the child’s mother that he is not her biological father.
He has sought a DNA test to resolve the question, but the results are not available to the Tribunal.
The Tribunal observes that it is unlikely that the applicant would be allowed to have significant input into this child’s upbringing if he is not her biological father.
Given this, the Tribunal is not satisfied that the cancellation, or the revocation of the cancellation of the applicant’s visa, will have a bearing on that child. The Tribunal therefore does not consider the best interests of this child to be relevant to this matter.
The remaining two children are both under 18 years of age and the Tribunal accepts that they are both young, the eldest being about six years old.
The evidence from the applicant is that he wishes to be involved in the lives of both children and he is particularly concerned about the development of the boy. It is implicit in the applicant’s evidence that he believes B wants him to be involved in his life, and that the applicant regards his son as requiring his guidance.
In most other regards it appears that the interests of children B and C do not differ as regards to revocation of the cancellation of the applicant’s visa.
In relation to the nature and duration of the relationship between the applicant and the two relevant children, the Tribunal notes that there have been long periods of absence on the part of the applicant. On the applicant’s evidence there were times that he would only see them if he was given three or four days so that he could cut his drug intake.
The applicant’s contact with children while in detention has been limited to fortnightly video calls.
The Tribunal is also concerned that, despite the applicant’s evidence that his relationship with the children is warm and his relationship with their mother is amicable, the children’s mother refused to provide a statement or obtain a statement from the boy.
That is in the context of the applicant admitting that the boy was traumatised when he witnessed the applicant being stabbed five times and that this incident was a source of tension between himself and the children’s mother.
The Tribunal is not satisfied that the nature and duration of the relationship between the children and the applicant is such that it suggests that the applicant’s continued residence in Australia serves their best interests.
The Tribunal accepts that there is some time before B or C turns 18 and it is possible that he will have the opportunity to play a positive parental role in their future.
The Tribunal has no information in relation to parental access and care arrangements.
The Tribunal is not satisfied that the applicant’s prior conduct has not had a negative impact on the children and particularly the applicant’s son. The applicant denied that the stabbing incident, which he admitted probably traumatised the boy, was related to his own offending but there is no doubt that the applicant’s choice of living arrangements and his exposure to a criminal element exposed the child to that incident.
The Tribunal is not satisfied that the applicant will be successful in avoiding drug-related crime in the future and is not therefore satisfied that the applicant’s future conduct will not have a negative impact on the children.
To the extent that the applicant may be a positive influence on the children, there is no question that his removal to New Zealand will have a negative effect on the children. The Tribunal acknowledges that it will be possible for the applicant to maintain some sort of contact with the children using electronic means but accepts that this is no substitute for personal contact.
The Tribunal accepts the applicant’s evidence that his ex-partner, the children’s mother, plays a parental role in relation to the children. However, the Tribunal also accepts his evidence that the demands of being a single parent are significant and it may be advantageous for her if he could take care of them from time to time.
For this consideration to be granted much weight it would be necessary for the views of the woman in question to be known to the Tribunal.
There are no known views from the children although given their young age this does not have much weight in the Tribunal’s consideration.
There is no evidence that the applicant abused or neglected the children in any way.
The evidence that one of the children has suffered or experienced emotional trauma arising from the non-citizen’s conduct has been discussed above and must count against the revocation of the cancellation being in the best interests of the child.
The Tribunal notes that reference has also been made to the children of the applicant’s current partner, but they are not minors and are not relevant to this consideration.
There is also a statement of Chontal Oliver who says that the applicant has played a huge supportive role in her life, as well as having been a huge role model to her children who look up to him as an uncle.
No further information was provided in relation to these children and the applicant gave no evidence about his relationship with them. The Tribunal notes that less weight should be given where the relationship is non-parental. The Tribunal finds that there is inadequate evidence to suggest that the best interests of these children are supported by the presence of the applicant in Australia.
The Tribunal’s conclusion in relation to Primary Consideration B is that it weighs generally in favour of revocation of the cancellation of the applicant’s visa. Although the applicant’s capacity to be a positive role model in the lives of his children is somewhat speculative, the Tribunal accepts that the applicant currently intends to try to offer the children financial support and to be a positive influence in their lives.
The Tribunal accords this consideration limited weight in favour of revocation of the cancellation of the applicant’s visa.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 (1) of Direction No. 65 provides:
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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal has already observed that the applicant’s offending must be regarded as serious and the Tribunal cannot be confident that the applicant will not offend in the future.
The respondent has submitted that the effect of the decision in FYBR v Minister for Home Affairs[41] is to affirm the decision in YNQI v Minister for Immigration and Border Protection[42] in relation to a substantially identical provision in an earlier ministerial direction and in particular the comments of Mortimer J, who said:
The Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[41] [2019] FCAFC 185.
[42] [2017] FCA 1466.
The Tribunal finds that the nature and seriousness of the crimes of which the applicant has been convicted are such as to give rise to the ‘expectation’ referred to by Mortimer J.
The Tribunal finds that this consideration weighs heavily against the application.
Other considerations – International non-refoulement obligations
There is no evidence of any such international non-refoulement obligations that are relevant to this matter.
Strength, nature and duration of ties
This consideration is dealt with at paragraph 14.2(1) of the direction.
The first part directs the Tribunal to the length of time the applicant has resided in Australia, including whether he arrived as a young child. It notes that the consideration should be given less weight where the non-citizen began offending soon after arriving in Australia.
The applicant did not arrive in Australia as a young child.
The respondent observes that the first suggestion of violent offending by the applicant after he arrived in Australia was the behaviour that gave rise to a domestic violence order which was imposed in about October 2013. This is within two years of the applicant arriving in Australia.
The Tribunal does not find this offending history commenced so soon after the applicants’ arrival in Australia that this consideration should be given less weight.
The applicant has asked the Tribunal to have regard to his contribution to sport by reason of his interest in refereeing Rugby League. He has also asked the Tribunal to have regard to his promotion of pub poker.
The Tribunal finds that there is some evidence of positive contribution by the applicant to the Australian community and accords this a little weight in favour of the application.
The Tribunal has also directed to the strength, duration and nature of family or social links with Australian citizens and permanent residents.
The applicant’s relationship with his own children have been considered in relation to Primary Consideration B.
The Tribunal has regard to the evidence from TM. The Tribunal accepts she will be upset, perhaps even distressed, if the cancellation of the applicant’s visa is not revoked.
The Tribunal is not satisfied that the applicant’s presence will have the effect of easing TM’s epilepsy and notes that no medical evidence in support of that proposition has been provided.
The Tribunal does accept that, to the extent that TM suffers from psychiatric incapacity, it may be eased by revocation of the cancellation of the applicant’s visa, but as there is no medical evidence of any such disability the Tribunal accords this consideration little weight.
The Tribunal acknowledges that the persons who provided letters of support are Australian citizens or permanent residents and will be upset if the applicant is obliged to return to New Zealand and accords this consideration limited weight.
On balance, the Tribunal finds that the applicant has been a resident in Australia for over 10 years and that the evidence before the Tribunal tends to suggest that there are some relevant ties that warrant the Tribunal according this consideration a little weight in favour of the application.
Impact on Australian Business Interests
The applicant has given evidence about his plans to open a business producing T-shirts and has provided various statements from persons expressing an intention to employ or work with the applicant.
The Tribunal regards this evidence as speculative. In any event, the direction provides that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or of an important service in Australia.
These have not been established and there is insufficient evidence for the Tribunal to find that this consideration should be accorded any weight.
The Tribunal is directed to consider whether a decision not to revoke will have an impact on members of the Australian community, including victims of the applicant’s criminal behaviour. There is no evidence in relation to this consideration and as such the Tribunal accords no weight.
Extent of impediments if removed
The applicant gave evidence that he does not have strong connections with those members of his family who are still in New Zealand.
With regard to the specific factors that the direction requires the Tribunal to consider, the Tribunal notes that the applicant’s age and health do not suggest that they are an impediment to his removal to New Zealand.
Further there is no evidence of any substantial language or cultural barriers facing the applicant should he return to New Zealand.
There is no evidence of what social, medical or economic support would be available to the applicant in New Zealand, although presumably as a citizen of that country he would have access to the type of support that he complains is absent in Australia.
Although the Tribunal accepts that the applicant may be inconvenienced if he is obliged to return to New Zealand, the Tribunal observes that the applicant himself gave evidence that he is contemplating returning to New Zealand voluntarily in any case. The applicant did not suggest in that context that there would be any particular difficulty in doing so.
The Tribunal does not find that the extent of impediments to the applicant if he is removed are such as to weigh in favour of the application.
Further considerations
In written submissions provided after the closing of the hearing, the applicant sought to present further evidence being evidence suggesting that he has Aboriginal heritage. The Tribunal regards itself as precluded from considering such information by reason of section 500(6J) of the Act.
The Tribunal further notes that the applicant expressed concern in final submissions that the Minister was seeking to portray the applicant as a promoter of illegal poker which is not true. The Tribunal has regard to the applicant’s evidence in which he stated that when he started promoting poker some of it was illegal but that due to a change in law it is now not illegal.
In any event, the Tribunal has accorded no weight to the suggestion that the applicant promoted illegal poker and there is little evidence to support it.
CONCLUSION
The Tribunal has found that the applicant does not pass the character test.
For the application to succeed, the applicant must therefore satisfy section 501CA(4)(b)(ii) by demonstrating that there is another reason why the original decision should be revoked.
The Tribunal finds that Primary Consideration A weighs heavily against revocation of the cancellation of the applicant’s visa.
The Tribunal finds that Primary Consideration B weighs somewhat in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal finds that Primary Consideration C weighs against revocation of the cancellation of the applicant’s visa.
The Tribunal finds that the Primary Considerations weigh against revocation of the cancellation of the applicant’s visa.
The Tribunal has given consideration to the other considerations and finds that they do not outweigh the weight attributed to the primary considerations.
Having balanced all relevant considerations, the Tribunal finds that they do not weigh in favour of revocation of the cancellation the applicant’s visa.
In other words, they do not weigh in favour of the application.
Consequently, the Tribunal does not exercise the discretion to revoke the cancellation of the applicant’s visa.
DECISION
For the reasons set out above, the decision under review is affirmed.

I certify that the preceding three hundred and forty-three [343] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

.................[sgnd].......................
Administrative Assistant Legal
Dated:   3 February 2021
Dates of hearing:  19 - 20 January 2021
Applicant’s Representative:  Self-represented
Respondent’s Representative:                   Mr A Booth of counsel, instructed by Clayton Utz

[2021] AATA 133

3 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies