Burns and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 2114

Burns and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2114 (2 July 2021)
Division:GENERAL DIVISION
File Number: 2021/2671
Re:Stephen Burns
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:2 July 2021
Place:Adelaide

The decision under review is affirmed.
..........................[Sgnd]...............................
Senior Member J Rau SC

Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee visa – where Applicant does not pass the character test – serious criminal record – history of domestic violence - whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – Discretion exercised – Decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1623
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
2 July 2021
JURISDICTION

At a directions hearing on 9 June 2021, the Respondent submitted that the Tribunal does not have jurisdiction in this matter, as the application filed on 27 April 2021 did not comply with section 29 (1) (c) of the Administrative Appeals Tribunal act 1975 (Cth) (“AAT Act”).
The Respondent advised the Tribunal that it had no objection to this argument being dealt with at the conclusion of the substantive hearing on 24 June 2021.
The Respondent’s argument is essentially that the form used by the Applicant to initiate these proceedings was incorrect and that this error was such that the jurisdiction of the Tribunal was not invoked.
The Respondent contends as follows:
“17. The respondent contends that the applicant has not made a valid application for review of the delegate’s decision, and the Tribunal does not have jurisdiction in relation to this matter.
18. Section 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)
provides:
(1) An application to the Tribunal for a review of a decision:
(a) must be made:
(i) in writing; or
(ii) if the decision is reviewable in the Social Services and Child Support Division – in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and
Note: For oral applications, see also section 29AA.
(b) must be accompanied by any prescribed fee; and
(c) unless paragraph (ca) or (cb) applies or the application was oral—must contain a statement of the reasons for the application; and
(ca) in respect of an application made under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment—must be accompanied by:
(i) a copy of the assessment as given to the applicant; and
(ii) a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb) in respect of an application under subsection 54(2) of the Australian Security Intelligence
Organisation Act 1979—must be accompanied by a statement setting out the grounds
on which the application is made;
(d) if the terms of the decision were recorded in writing and set out in a document that was
given to the applicant or the decision is deemed to be made by reason of the operation
of subsection 25(5) or (5A)—shall be lodged with the Tribunal within the prescribed
time.
19. Section 29(1)(c) of the AAT Act requires that the application ‘must’ contain a
statement of the reasons for the application.14 The Minister submits that it is a
mandatory requirement that an application of the type sought to be made in this case contain a statement of reasons for the application.
20. The applicant’s failure to include a statement of reasons for the application in the application for review renders the application invalid.
21. This defect in the applicant’s application cannot now be remedied, given the time for doing so has expired pursuant to s 500(6B) of the Act, which (in accordance with s 25(6) of the AAT Act) excludes the operation of s 29(1)(d) of the AAT Act.
22. While s 29AB of the AAT Act provides that ‘if the Tribunal considers an applicant’s statement under paragraph 29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision’, the Tribunal may require the applicant to amend their statement, that section assumes the existence of a statement of reasons (albeit one considered deficient). The respondent contends that s 29AB cannot be relied upon to remedy the invalidity of an application that has been rendered invalid by reason of the absence of a statement of reasons.
23. The Minister acknowledges the recent decision in Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1623 to the contrary, and contends that this Tribunal is not bound by that decision.”
In summary, the Respondent submits that the documents filed by the Applicant did not constitute a valid application because of non-compliance with the requirements of paragraph 29 (1) (c) of the AAT Act. Non-compliance is said to arise because the application did not “contain a statement of the reasons for the application”[1].
[1] Respondent’s Statement of Facts, Issues and Contentions at [19].
Subsection 500 (6B) of the Migration Act (“the Act”) provides that an application for review must be lodged within nine days of the Applicant’s receipt of the decision. It is argued that in this matter, no application for review containing “a statement of the reasons for the application”[2], was received within the statutory time limit. It is submitted that this failure is incurable and that the Tribunal therefore has no jurisdiction to entertain the application.
[2] Ibid at [20].
The Respondent quite properly drew attention to the Tribunal’s decision in the matter of Miller v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[3] (“Miller”). This decision was handed down on 8 June 2021 by a Tribunal constituted by the Honourable Dennis Cowdrey AO QC, Deputy President and Mr Chris Puplick AM, Senior Member.
[3] [2021] AATA 1623.
At paragraphs 55 to 58 of that decision, the Tribunal makes the following determination:
“55. Construing the whole of such Act, it is plain that it could not have been intended that a technical issue of the kind which has been raised by the Respondent could defeat an application which is otherwise valid, or to facilitate use of a technicality to deny an applicant an opportunity for independent review of a decision, especially one which might compromise his very right to liberty. The construction of the relevant statute will provide a guide to its interpretation: see Tasker v Fullwood (1978) 1 NSWLR 20 at 23-24.
56. In summary, the Tribunal finds that the intention of the Parliament was to permit an application for review to made and that such application will be deemed to be valid provided the information demonstrates that the Applicant is challenging a decision and the decision is identified. In addition, in the facts of this application, the Applicant has substantially complied with the requirements.
Conclusion as to jurisdiction
57. The Applicant has provided an application which is valid.
58. The Tribunal determines that it has jurisdiction to hear the substantive appeal.”
In final submissions, the Respondent conceded that there was no material difference between the circumstances of the Applicant’s case and Miller.
Having regard to the facts in this matter and to the decision of the Tribunal in the matter of Miller, the Tribunal is persuaded that it does have a valid application before it and that it does have jurisdiction to hear the Applicants’ application for review.
INTRODUCTION AND BACKGROUND
The Applicant is a 61-year-old citizen of United Kingdom (DOB: 20^th of February 1960).
The Applicant came to Australia in 1965 as a five-year-old child, together with his parents and his four older brothers.
The Applicant has an extensive criminal history which commenced in 1982, full particulars of which are set out in paragraph 36 below.
By letter dated 15 June 2004 from the Department of Immigration and Multicultural Affairs (“the Department”). the Applicant was warned specifically in the following terms:
“…. A fresh assessment will be made with a view to considering cancellation of your Visa if you are convicted of any further offences.”
On 22 June 2004, the Applicant signed a written acknowledgement of receipt of the warning.
On 22 May 2015, the Applicant was sentenced for the crime of recklessly causing serious harm (aggravated).
On 11 March 2020, the Applicant was sentenced in relation to the following offences:
(1) Aggravated dishonestly dealing with property without consent and aggravated dishonestly taking property without consent (two offences). On three occasions, the Applicant dishonestly took all used money belonging to an intellectually disabled man.
(2) The Applicant committed the offences of assault and aggravated assault upon his then domestic partner Ms Webster on 20 August 2018.
(3) The Applicant breached bail and two intervention orders on 4 September 2018.
(4) The Applicant breached intervention orders on seven occasions between 20 September 2018 and 23 November 2018 whilst on bail for the offending above.
On 7 August 2020, the Applicant’s visa was cancelled under section 501 (3A) of the Act. This section provides that the Minister must cancel a visa if the Minister is satisfied that the visa holder does not pass the character test under section 501 (6) (a) due to the Visa holder having a “substantial criminal record” as defined in section 501 (7) (a). The Applicant had been sentenced to imprisonment for a period of 15 months, four weeks and 18 days with a non-parole period of nine months commencing on 29 January 2020.
On 13 August 2020, the Applicant made representations seeking a revocation of his visa cancellation pursuant to section 501CA (3A) (a) of the Act.
On 12 April 2021, a delegate of the Department refused to revoke the cancellation of the applicant’s visa.
On 20 April 2021, the Applicant was notified of the non-revocation decision.
On 27 April 2021, the Applicant sought a review of the decision not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa in the Tribunal. It is this application which is the subject of the preliminary jurisdictional point taken by the Respondent.
At the hearing, the Applicant tendered a written statement[4] and gave oral evidence. The Applicant’s brothers David and Gordon Burns provided letters of support and gave oral evidence[5]. The Applicant’s former partner, Marie Webster, also wrote a brief email in support of the revocation of the Applicant’s visa cancellation[6] and gave oral evidence.
[4] Exhibit 11.
[5] Exhibits 9 and 10.
[6] G4, page 99.
LEGISTLATIVE FRAMEWORK
Section 501 (3A) of the Act provides that:
“The Minister must cancel a Visa that has been granted to a person if…...(a) the Minister is satisfied that the person does not pass the character test… Because of …… a substantial criminal record”.
There are two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not;
(b)whether the Tribunal considers that the discretion in section 501CA (4) of the Act should be exercised to revoke the original decision on the basis “that there is another reason why the original decision should be revoked.” (Section 500CA (4) (b) (ii)).
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 11^th of March 2020, the Applicant was sentenced to an aggregate term of imprisonment of 15 months, four weeks and 18 days, with a non-parole period of nine months. This constitutes a “substantial criminal record” pursuant to section 501 (7) (d) of the Act.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must therefore consider whether the discretion in section 501CA of the Act should be exercised
Should the Decision be Exercised? (s 501CA(4)(b)(ii))
In considering whether to exercise the discretion in s 501CA of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[7]
[7] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-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.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[9]
BACKGROUND AND OFFENDING
[8] [2018] FCA 594.
[9] Ibid, [23].
The Applicant’s criminal offending is summarised in the table below[10]:
Disclosable History
[10] Exhibit 5, G documents, pages 24-26.

Source

Court

Date

Offence

Result

SA

Christies Beach MC

11/03/2020

Commit assault - basic offence
Commit assault aggravated other by
use of offensive weapon
Aggravated: dishonestly deal with property without consent
Aggravated: dishonestly take property
without consent (2)
Fail to comply with bail agreement
Other than programs-contravene term
of intervention order (9)

Convicted 15 months 4 weeks 18 days
imprisonment
Non parole period 9 months

SA

Christies Beach MC

07/08/2018

Fail to comply with bail agreement
Damage building or motor vehicle (not graffiti or unknown)

Convicted Fined $100
Compensation $236.64

SA

Christies Beach MC

28/11/2016

Drive a vehicle with combination of drugs in fluid or blood

Convicted Fined $1100
Drivers licence disqualification 6 months

SA

Christies Beach MC

28/11/2016

Drive vehicle with drug type unknown in fluid or blood

Convicted Fined $1100
Drivers licence disqualification 6 months from 28/5/17

SA

District Court of SA

22/05/2015

Recklessly cause serious harm aggravated offence -other

Sentenced 1 year 11 months
imprisonment Non parole period 8 months

SA

Christies Beach MC

18/03/2015

Fail to comply with bail agreement

Convicted Fined $300

SA

Christies Beach MC

15/09/2014

Damage building or motor vehicle (not
graffiti or unknown)
Trespass in residence (aggravated offence)

Convicted 4 months imprisonment
Compensation $333.56

SA

Christies Beach MC

15/09/2014

Intervention programs-contravene term
of intervention order
Fail to comply with bail agreement (10

Convicted 1 month imprisonment

SA

Christies Beach MC

07/06/2013

Drive a vehicle with combination of
drugs in fluid or blood

Convicted Fined $900
Drivers licence disqualification 3 months

SA

Christies Beach MC

25/10/2012

Basic offence: dishonestly take
property without consent

Convicted Good behaviour bond $100 3 months

SA

Christies Beach MC

02/08/2012

Drive unregistered motor vehicle on a
road
Drive uninsured motor vehicle on road
Duty to hold licence or learner`s permit
Fail to comply with bail agreement

Convicted Fined $800

SA

Christies Beach MC

19/11/2008

Drive a motor vehicle while licence is
suspended
Drive unregistered motor vehicle on a
road

Convicted Fined $320
Drivers licence disqualification 4 days

SA

Christies Beach MC

19/11/2008

Drive unregistered motor vehicle on a
road
Drive uninsured motor vehicle on road

Convicted Fined $200
Drivers licence disqualification 4 days

SA

Christies Beach MC

19/11/2008

Drive a motor vehicle while licence is suspended

Convicted
Drivers licence disqualification 5
months

SA

Christies Beach MC

15/06/2006

Carry offensive weapon

Convicted Good behaviour bond $500 3 years

SA

Christies Beach MC

17/01/2006

Estreatment of bail

Found proved Estreatment $1000

SA

Christies Beach MC

17/01/2006

Estreatment of bail

Found proved Estreatment $500

SA

Christies Beach MC

03/10/2003

Drive vehicle without licence
Fail to transfer registration
Drive unregistered motor vehicle on a
road (2)

Convicted Fined $350

SA

Christies Beach MC

05/05/2003

Larceny

Convicted Fined $100

SA

Christies Beach MC

05/03/2003

Estreatment of bail

Found proved Estreatment $1000

SA

Christies Beach MC

19/02/2003

Unlawful possession

Convicted Fined $275

SA

Christies Beach MC

19/02/2003

Fail to comply with domestic violence
restraining order (5)

Convicted Fined $300

SA

Christies Beach MC

19/02/2003

Common assault on person other than family member

Convicted 2 months imprisonment
Suspended sentence bond $300 12 months

SA

Christies Beach MC

19/02/2003

Fail to comply with domestic violence restraining order (2)

Convicted 14 days imprisonment
Suspended sentence bond $200 12 months

SA

Christies Beach MC

19/02/2003

Common assault on person other than family member

Convicted 3 months imprisonment
Suspended sentence bond $300 18 months

SA

Christies Beach MC

25/03/1996

Break and enter building and commit offence (2)

Convicted 12 months imprisonment

SA

Christies Beach MC

25/03/1996

Larceny
Building breaking and felony (2)

Convicted 14 months imprisonment

SA

Christies Beach MC

25/03/1996

Fail to comply with bail agreement

Convicted Fined $250

SA

Christies Beach MC

27/04/1995

Receiving

Convicted 100 hours community service within 3 months
Compensation $120

SA

Christies Beach MC

01/09/1993

Possessing Cannabis

Convicted Fined $150

SA

Christies Beach MC

26/10/1992

Drive unregistered

Convicted Discharged without penalty
SA Christies Beach MC 26/10/1992 Drive uninsured

SA

Christies Beach MC

26/10/1992

Drive uninsured

Convicted Fined $100
Drivers licence disqualification until
further order

SA

Christies Beach MC

08/10/1982

Larceny

Convicted Fined $40

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community (My emphasis).
The Applicant has an extensive criminal record commencing in 1982. (See table above at para 36).
Family violence is defined in Direction 90 in the following terms:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of that behaviour include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial
autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the
reasonable living expenses of the family member, or his or her
child, at a time when the family member is entirely or
predominantly dependent on the person for financial support; or
i) preventing the family member from making or keeping
connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty. (my emphasis)
43. The Applicant has had a succession of domestic partners over many years going back at least to the 1990s. There are numerous reports to police from these various individuals contained in SAPOL records produced to the Tribunal. Some of these were the subject of Court proceedings, some were not. The tribunal is mindful of the untested nature of some of these allegations. They are nevertheless independent sources of evidence of the fact of complaints having been made against the Applicant by past domestic partners.
A former domestic partner of the Applicant, Marie Webster, provided a short statement by way of an Email dated 10 November 2020[11]. At the request of the Respondent, she attended the hearing and gave oral evidence. Ms Webster was described by the Applicant in his evidence as a person who also abused drugs or alcohol. Ms. Webster had a poor memory of events. She often seemed keen to say what she thought might assist the Applicant, rather than listening to and answering questions put to her.
[11] Exhibit 5, G4, page 99.
Ms Webster said that she had met the Applicant 28 years ago and had first commenced a relationship with him 24 years ago. This relationship had been “on and off” since then. She confirmed that the Applicant had at times been violent towards her. Her Email of 10 November 2020 states that they were in an ongoing relationship “for 25 plus years and not always violent”.
Ms Webster confirmed that she was the complainant/victim in a number of the SAPOL records. These include the incident on 4 July 2002 in which the Applicant was arguing with Ms Webster and produced a machete, threatening to throw it at her and cut off her ponytail with it.[12] Ms Webster noted that the police notes of this incident were exaggerated. It further includes an incident where the Applicant had stayed overnight at Ms Webster’s house, and during an argument the Applicant had called her a ‘slut’ and pinned her to the bed and punched her 3-4 times to the head, pulling out a steak knife and saying to her “do you want me to use it, cunt?”.[13] Ms Webster also recalled the Applicant punching her a couple of days after her sister’s funeral and that police were involved in this incident.
[12] Exhibit 12, Supplementary G Documents, G7, page 207.
[13] Ibid, page 399.
Ms Webster stated that she would continue to have contact with the Applicant “as friends” if he were returned to the community. This suggests two things. Firstly, Ms Webster is not frightened of the Applicant, and his continued presence in the community would not worry her. Indeed, she wants him to remain in Australia. Secondly, however, it is possible that the Applicant would have ongoing contact with a former substance-abusing, domestic partner. The Applicant, by way of subtle contrast, suggested that they would each get on with their own lives. This relationship, if it were to continue in any form, may be a risk factor for him returning to his former lifestyle.
The Applicant has an extensive history of domestic violence related offences and/or complaints to police. These include the following:
1. A former domestic partner of the Applicant reported to police on 28 October 1998 that since her relationship with the Applicant had ended, he has constantly harassed her by coming to her home and continually telephoning her. She stated that he had raped her on two occasions (this was not the subject of a prosecution). She stated that she felt scared that the Applicant would harm her or her children and made a request that a restraining order be made against the Applicant[14].
[14] Ibid, page 456.
2. On 11 January 1999, another complaint was made to police against the Applicant by a former domestic partner regarding ongoing threats and assaults even though the relationship had ended in May 1998. The most recent incident had involved threats to “finish” the victim and possibly use his own four-year-old son as a shield should police become involved[15].
[15] Ibid.
3. A complaint was made to police by the Applicant’s ex-partner that on 3 June 1999 the Applicant attended at her home, was yelling at her from outside her bedroom window and punched a window causing it to break resulting in her receiving numerous cuts to her face and hands (this allegation was not the subject of a prosecution)[16].
[16] G4, page 119.
4. An ex-partner of the Applicant reported to police that in March 2002 the Applicant had an argument with her while she was driving a vehicle in Morphett Vale. During the argument, the Applicant “hit the victim several times in the head with the back of his closed fist, and pulled her hair hard enough to remove hair from her head.” She also reported to police that in April 2002 she was driving a vehicle along Dyson Road with the Applicant sitting in the passenger seat. The Applicant was trying to stab her fingers with a large knife. She also reported that on 1 June 2002 she had an argument with the Applicant during which he hit her several times around the face and head. She also reported that on 4 July 2002 she had an argument with the Applicant, during which time he threatened her with a knife[17].
[17] G7, page 203.
5. The same ex-partner of the Applicant, (confirmed in evidence to have been Ms Webster) who had a baby at the time, reported to police that on Thursday, 4 July 2002 she was arguing with the Applicant. She reported that matters then developed as follows[18]:
“During the argument the accused produced a large machete the accused threatened the victim by stating that he would “cut her fingers off”. At one point of the argument the accused held the machete in both hands above the head of the victim and when the victim moved to the accused stated he would throw the machete at her. The victim felt frightened and threatened by the accused actions and words. The accused then grabbed the victim by her hair which was in a ponytail and attempted to cut the ponytail off with the machete.”
In evidence, Ms Webster denied having told this to the police and stressed on a number of occasions that she “didn’t proceed with charges”. This is of course not uncommon in family violence cases.
6. On 20 July 2002, the Applicant was served with a domestic violence restraining order. The Applicant is reported to have breached this order on at least two occasions[19]. This again concerned Ms Webster, but she said this order was taken out by the police, not her and she didn’t know it had been done.
7. It was reported to police also that late in the evening on the 12 May 2012, the Applicant attended at the home of a former domestic partner. He started banging on the bedroom window yelling that he wanted to talk to her. She went outside to speak to him, realised he was drunk and returned to her house, despite his attempts to stop her, and called the police. The Applicant left by the time the police arrived, but then returned shortly after the police had left. He broke through her front screen door and wooden door damaging the locks on both doors. She ran towards the back of the house and the Applicant grabbed her around the shoulders dragging her into the lounge where he pushed her around and held her on the floor on her hands and knees by pushing on her back. After she was released, she yelled for her son to come, and they both ran from the house down the street yelling for help. Her son was 14 years old at the time[20].
8. The Applicant’s former domestic partner reported to police that on 25 May 2012 when she was out walking, the Applicant pulled up alongside her in his vehicle. He got out of his vehicle, approached her, pushed her with both hands to the chest causing her to fall backwards, pointed at her and said, “I’m going to murder you”. She also reported several unsolicited letters from the Applicant[21].
9. A different former domestic partner of the Applicant reported to police that on 27 May 2018, she was at her home when the Applicant attended and kicked her back door open damaging the door handle and lock mechanism[22].
10. The same former domestic partner mentioned above also reported an incident to police on 26 June 2018 when the Applicant had damaged her laundry door by kicking it. This resulted in the Applicant being arrested and given police bail on conditions that he did not attend that address. On 28 June 2018, the Applicant breached this bail condition, and again on 22 July 2018. On 18 August 2018, a report was made to the effect that the Applicant had again been in her home, had called her “slut”, threatened to burn the house down and pinned her to the bed and punched her three or four times in the head. She also reported that the Applicant held a steak knife in his hand and said to her “do you want me to use it, cunt?”. On 20 August 2018, she reported to police that she had two black eyes as a result of the assault that occurred on 18 August 2018[23].
[18] Ibid, page 207.
[19] G7, page 213.
[20] Ibid, page 295.
[21] Ibid, page 313.
[22] Ibid, page 379.
[23] Ibid, page 399.
The Applicant’s criminal history additionally includes assaults, breach of restraining orders, breach of a domestic violence intervention orders, multiple driving offences including driving under the influence, driving unregistered and uninsured vehicles, driving without a license, breaking and entering, larceny, bail offences, carrying an offensive weapon and dishonesty offences (see paragraph 36 above).
The Applicants’ most recent convictions were on 11 March 2020. The victim was again Ms Webster. The Sentencing Magistrate described charges involving violence in these terms:
“the next file relates to assault and aggravated assault charges. The complainant here was a Ms Webster, a person with whom you had an on/off relationship for about 10 years. Your account of whether or not the relationship was ongoing is slightly different from hers and that is not a factor that I need to determine. In essence, her allegation is that on 20 August 2018, he had stayed overnight at her house. There was then an argument in which you are calling her a slut making some threats towards her and her family. Count 1 arises because you pinned her to the bed and punched her 3 to 4 times in the head. Count 2 arises because you armed yourself with a blue steak knife and said to her “Do you want me to use it, cunt?” This placed her in fear, which is what constitutes the element of the assault. You left the house shortly after that and when she was sure that you are no longer in the area, she phoned the police.”
In relation to that matter, you completely deny having assaulted her and so you do not get credit for being honest with police. You were apprehended on 20 August in relation to that matter and the matter relating to Mr Rosser and thereafter you are on bail conditions ultimately and you also had two Interim Intervention Orders issued in relation both to the female and the male.”
The Applicant was also convicted of offences related to breach of bail conditions at this time.
On 22 May 2015, the Applicant pleaded guilty to the offence of aggravated recklessly causing serious harm in the District Court of South Australia. This offence involved the Applicant stabbing his victim in the context of what was essentially a domestic altercation at the home of his then partner. The victim was a former partner of the Applicant’s then partner. The Sentencing Judge made the following remarks:
“The offence before me occurred at a Housing Trust unit occupied by a woman that you have known for about 25 years. At that time you believed you were in a relationship with her. That woman had a prior relationship with the victim and had two children with him. At this stage; that is, at this stage of the offending, the victim lived close by to the house and on the day he had received some information that caused him to go around that woman’s unit with another one of his children and they witnessed the incident. At that stage you were in a relationship with that woman and you have been living at the premises on-and-off again basis.
At the time of the incident the woman says that she had “booted you out”, to use the vernacular, you say that you were unaware that that was so. Apparently, the woman put some of your clothing outside of the house, but at that time you were away from the scene and you were, therefore, unaware that she was apparently finally moving about of the premises.
…
“The victim suffered serious injury; two stab wounds to the abdomen. One was a 4 cm wound in the right upper quadrant and the other a smaller 2 cm wound to the left side. He required surgery to deal with the bleeding. A 3 cm laceration to the liver was discovered and sutured. Obviously during that surgery a very large incision was made into the victim’s abdomen in order to deal with the bleeding.
You and the victim are very fortunate that the injuries were not much more serious. The victim has said that the injuries exacerbated other pre-existing physical conditions that he suffers from.
…
I note the victim impact statement material. That victim impact material reminds me that this traumatic incident was witnessed by children who should never have been exposed to this sort of conduct.”
The Sentencing Judge gave the Applicant a very explicit warning about his chronic abuse of drugs in the following terms:
“In the past you used cannabis and you have also had ongoing use of amphetamine or methylamphetamine. You admit that you have mixed in circles with others that use drugs. Of significance is that whilst you were on home detention bail in respect of this matter, you continued to use methylamphetamine and returned positive sample readings when tested for the presence of that drug.”
“You are now 55. To be blunt, you must stop using cannabis and amphetamines in any form and you must get a job. I also make this observation: you must stop putting your parents through the hell of the concern that they have clearly suffered as a result of your conduct.”
It is apparent from the evidence, including his subsequent criminal convictions, that the Applicant failed to pay any attention to Sentencing Judges’ warnings, and continued to both abuse substances and to offend.
The Applicant was sentenced to one year and 11 months imprisonment with a non-parole period of eight months for this offending.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; (my emphasis)
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
On 11 March 2020, the Applicant was convicted of a crime against a vulnerable member of the community. The Magistrate described this offending in the following terms:
“The first file relates to dishonesty offences relating to a Mr Rosser. He is a person with a permanent intellectual disability because of frontal lobe damage caused by a fall at the age of 15 and is also schizophrenic. He is somebody who, according to his brother, has been taken advantage of most of his life because of his vulnerability.
As I understand it, you were at some stage residing in the house in which he resided and on three occasions effectively you dishonestly took or used his money and used for your own purposes. Count 1 relates to a some of $100 dollars that he gave to you because you were going to buy him some cannabis. He never got the cannabis and you kept the money for yourself. Count 2 relates to $100 you took from his wallet without permission and Count 3 relates to money that he had hidden in a tissue box to keep it away from you, which she also took without his permission.
When you were interviewed about those offences on 20 August, he denied allegations of theft in that you said that you were not acting dishonestly, and you suggested effectively that you had obtained his permission and intended to repay him.”
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.

The Applicant has been sentenced to terms of imprisonment on multiple occasions reflecting the severity of his offending. (See paragraph 36 above) these include two convictions in 1996 (12 months and 14 months respectively), three offences in 2003 (two months, 14 days, three months, all suspended), two offences in 2014 (each resulting in a conviction attracting one month of imprisonment), further conviction in 2014 attracting four months’ imprisonment, a conviction in 2015 of one year 11 months imprisonment (non-parole period eight months), and a conviction on 11 March 2020 resulting in a sentence of 15 months, four weeks and 18 days imprisonment with a non-parole period of nine months.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As already observed, the Applicant has been a serial offender since 1992. He was convicted of his most serious offence on 22 May 2015, but then went on to commit another serious offence. He was convicted on 11 March 2020.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s repeated offending on the Australian community has been serious. His offending has involved crimes of violence, including acts of family violence, and crimes against a vulnerable person.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence relevant to subparagraph (f).
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
By letter dated 15 June 2004, the then Department of Immigration and Multicultural and Indigenous Affairs wrote to Mr Burns relevantly in the following terms:
“You have not satisfied the delegate of the Minister of Immigration and Multicultural and Indigenous Affairs that you pass the character test, but the delegate has decided NOT to exercise his discretion under subsection 501 (2) of the migration act 1958 to cancel your Visa. Instead you are to be WARNED that a fresh assessment will be made with a view to considering cancellation of your Visa if you are convicted of any further offences.
Receipt of this warning was acknowledged in writing by the Applicant on 22 June 2004. Initially, the Applicant denied that he had been warned, but when confronted with a copy of his acknowledgement, accepted that this was so. I accept the Applicant’s explanation that this was due to his poor memory, not in an attempt to mislead the Tribunal
I do not consider that subparagraph (f) of paragraph 8.1.1(1) of the Direction is relevant to the Applicant’s offending or circumstances. The rest of the sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Having regard to the Applicant’s extensive criminal record, his numerous sentences to periods of imprisonment, the violent or family related nature of much of his offending, and offending against a vulnerable person, any continuation of his offending pattern would be extremely serious and may include crimes of violence and crimes against women and vulnerable people.
Likelihood of engaging in further criminal or other serious conduct
I accept that the Applicant genuinely regrets his past criminal behaviour. I note his expressions of contrition and his stated commitment to not return to the patterns of behaviour that have previously brought him into conflict with the law. The Applicant says that recent concerns about his health have influenced his opinion about drug abuse. The Applicant says that concerns for his health are a significant motivator for him not to return to his former lifestyle.
I also note that the Applicant has been a long-time substance abuser and that he has continued in his substance abuse notwithstanding multiple criminal convictions associated with such abuse. He also continued to offend in the face of an explicit warning from the Department on 15 June 2004 as to the potential consequences of reoffending and in the face of a further explicit warning by the Sentencing Judge on 22 May 2015. (Referred to above).
The evidence in this case suggests that in the event of the Applicant continuing with his lifelong abuse of substances, he will continue to offend, possibly committing very serious offences such as those that he has committed in the past.
The evidence also suggests that in the absence of the Applicant being incarcerated in a structured and controlled environment, there is little to inspire confidence that he will not return to his consistent pattern of substance abuse.
Records produced by the Department of correctional services (DCS) contained numerous relevant entries:
1. Notes recorded on 13 March 2014 state as follows:
“Mr Burns was released on bail HD on 10 December 2013 on two orders. Within two weeks of being released he applied for and was granted a variation to reside at a new address… Mr Burns was breached for positive drug test to amphetamines x2. Mr Burns was breached for leaving nominated address. Mr Burns has proven drug use and alleged alcohol issues. Although Mr Burns was polite to staff further HD not recommended as he does not appear to have the motivation to change his drug use or stable accommodation the community to be able to comply with conditions”
2. DCS notes recorded on 17 February 2016 amongst other things recorded the following:
“CCO also asked Stephen about his positive test results to methamphetamine, Stephen strongly denied this and asked CCO if they could test him right now, CCO explained he was not able to do this…CCO explained that Stephen should contact OARS (offenders aid and rehabilitations services) also and get a MHCP (mental health care plan). CCO explained she would seek referrals for DV counselling and financial counselling.”
3. DCS notes for 15 February 2016 note the following:
“Stephen returned a positive result to methamphetamine test from intensive February 2016”
4. DCS notes from 2 March 2016 note the following:
“positive test from 26^th of February 2016 to methylamphetamine, amphetamine and cannabis”.
5. DCS notes for 16 June 2016 record amongst other things the following[24]:
“Stephen reported that his parole breach is for having a positive U T and he had been using amphetamines approximately twice per month”.
[24] G8, page 969.
This statement was almost certainly a serious understatement of the truth at the time.
6. DCS notes for 15 July 2016 record the following[25]:
“The SMU, parole board and Mr Burns case manager have been updated via email. It is recommended that the following intervention as per his OR NI-R dated 21^st of October 2015 is now considered if possible: referral DASSA (Drug and Alcohol Services SA) or other community-based drug and alcohol service.
[25] Ibid, page 966.
7. DCS notes for 20 July 2016 include the following passage[26]:
“Stephen explained that he had stage III liver sclerosis and they had explained him he had 18 months to live.” (This report by the Applicant of his’ medical condition was not accurate)
[26] Ibid, page 965.
8. DCS notes for 5 August 2016 include the following passage[27]:
“Mr Burns reported that he was supported by his parents and although he did not have their number he intended to get that number from another source today. He would like to be released back to his parents house and desire to engage in drug rehabilitation services. He reported that he felt that if this did not occur that he was “being set up to fail” given his long drug history. He noted that while on parole he had attempted to access services through DASSA and they had reported that they were unable to assist him. He indicated that his main goal was to “get healthy again”, engaging hep C treatment and stay off drugs.” (Page 963) (my emphasis)
[27] Ibid, page 963.
9. DCS notes for 31 August 2018 include the following passage[28]:
“Stephen informed CCO he had no drug or alcohol issues, declined all referrals.”
[28] Ibid, page 949.
10. DCS notes for 17 July 2017 record amongst other things the following[29]:
“Mr Burns breached his parole conditions by returning a positive urine analysis results to methamphetamines, amphetamines and cannabis on 10 February 2016 and 26 February 2016………. During the parole. Mr Burns was an erratic and infrequent reporter, he continued to use illicit drugs and did not attend any AOD or DV counselling as per parole conditions.”
[29] Ibid, page 952.
11. DCS notes for 29 January 2020 record as follows:
“Stephen admitted to a RC with SS = two. Nil concern raised during admission however did state he is suffering from stage III bowel cancer.”
This report by the Applicant about his health was again, not accurate.
In summary, the DCS notes indicate that the Applicant has continued to be a drug user unless he was in custody. The Applicant made false reports about the extent of his drug use. The Applicant made false statements about health issues. The Applicant denied that he had drug or alcohol issues and declined referrals. Most significantly perhaps, in the entry recorded on 5 August 2016, the Applicant made statements to correctional services staff almost identical to those that he has made to the Tribunal in the context of this application, namely that his main goal was to “get healthy again”, and “stay off drugs”.
The Tribunal has no doubt that the Applicant would genuinely like to put a lifetime of substance abuse behind him and to rehabilitate himself. He has had the opportunity, should he have wished to take the initiative, to undertake rehabilitation programs in the past but has not done so. He accepts that he would have a significant need of rehabilitation and counselling if he were to have any hope of living a drug-free life in the community. His brothers have made enquiries about potential residential programs that may assist him and have identified a South Australian Government program at “the Woolshed” as possibly being suitable. I gained the impression that this was an idea that had been planted in the Applicant’s mind by his family rather than any concrete plan of his. The Applicant would need to be interviewed and be accepted in order to be qualified to undertake this program. It does not appear that there is any specific fallback position should the Applicant not be accepted. His brothers also indicated that they would see to it that he had employment, if needs be, in a family owned business. It seems that the threat of the Applicant’s removal from Australia has galvanised family support for him, which is positive.
The real question is whether there is any evidence to suggest that the Applicant can achieve a drug-free outcome in an uncontrolled environment, such as living in the community. In assessing the probability of the Applicant being successful, his history weighs heavily against him. There is no evidence of him ever having made a serious attempt to cease substance abuse in the past even when it has been a condition of bail, or when he has reported serious health concerns. His present drug-free status for 17 months, is a product of his incarceration. It is not persuasive evidence of any commitment or self-discipline on his part.
Based on all of the evidence, despite the support being extended to the Applicant by his family, the Tribunal is of the view that there is a significant risk that the Applicant will not be able to maintain a drug-free status in the community. This in turn would suggest a significant probability of reoffending, given the historical connection between his substance abuse and offending.
Conclusion: Primary Consideration 1
Having regard to all of the above, the Tribunal is of the view that primary consideration 1 weighs heavily against exercising the discretion to revoke the original decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The evidence (set out above) establishes a significant history of family violence.
The Applicant has been warned at least in general terms, about the potential consequences of reoffending both by judicial officers and in correspondence from the Department.
Conclusion: Primary Consideration 2
All of the circumstances, the evidence leads the Tribunal to the view that primary consideration 2 weighs heavily against the exercise of discretion to revoke the original decision.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Burns has six adult biological children who are Australian citizens to four different mothers [30]. Two of his children Stephen Thomas Burns and Makayla Burns have provided statements which are in evidence. Both of these children have had limited contact with their father largely due to their desire not to be exposed to his criminal behaviour. Not only have his adult children kept their distance from him, but they have taken care to minimise any contact that he might have with his grandchildren for the same reason. The Applicant’s written statements in this matter indicated that he has four grandchildren, all of whom are minors and Australian citizens. No further evidence regarding these minor children was provided by the Applicant.
[30] G4, page 88.

In oral evidence on 21 June 2021, when the Applicant was asked how many grandchildren he had, he replied “five, I believe”. He indicated that the most recent grandchild had been born a few months ago.
The Applicant’s brother David Burns provided much more information about the Applicant’s grandchildren than the Applicant was able to provide. He indicated that the Applicant in fact had 10 grandchildren, nine of whom he thought were under 18 years of age. Although Mr Burns was able to identify which of the Applicant’s children had produced grandchildren and how many they had produced, he was not certain about ages and with the exception of one of the grandchildren, was unable to name them. He did go on to indicate that three of the grandchildren, including the one who is over 18 years of age, reside in Queensland. Three more reside in Mildura, and another three reside in the Seaford area but they have no contact with the Applicant.
Based on the evidence such as it is, only one of the Applicant’s grandchildren would have any regular contact with him if he were to be returned to the community. This child is aged approximately three months and is the child of his daughter Talia. The Applicant indicated that were he to be released into the community, he would probably live with Talia and her infant at O’Sullivan’s Beach.
In summary, the situation is as follows:
·Children A, B and C reside in Seaford and, according to the Applicant’s brother, have no contact with the Applicant. I note that their mother did not provide a statement to the Tribunal.
·Children D, E and F reside in Qld and have no contact with the Applicant. Child D is 18 years of age, Children E and F are minors. I note that their mother did not provide a statement to the Tribunal.
·Child G, H and I reside in Mildura and have had very limited contact with the Applicant.
·Child J is a newborn and resides with his mother at O’Sullivan’s Beach. If the Applicant were to be released into the community, he plans to reside with them.
Given the evidence, it is difficult to identify the current circumstances particular to each of the children independently. It seems that the Applicant has essentially no relationship with children A, B, C, D, E and F. He has had very limited contact with children G, H and I. He would have regular contact with child J if he were released into the community. It is very telling that the Applicant did not know how many grandchildren that he had and could only name one or two. There has been virtually no relationship with these children in the past. In general terms, however, the Tribunal accepts that it is in the best interest of the Applicant’s grandchildren, particularly Child J, that he be permitted to remain in Australia. This interest of course would be dependent on him remaining drug free. If the Applicant were to be deported, it would be extremely difficult for him to play any role other than by electronic communication.
Conclusion: Primary Consideration 3
In spite of the evidence of a very limited relationship between the Applicant and his grandchildren, the Tribunal is of the view that it would be in their best interests if the decision to cancel the Applicant’s visa was revoked. Given his lack of any present significant connection with any of them, however, this consideration weighs only moderately in favour of revocation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[31]
[31] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
The Tribunal refers to earlier paragraphs discussing the Applicant’s history of offending (above).
Significantly, from the perspective of consideration 4, the Applicant has engaged in:
(a) Acts of family violence,
(b) Serious crime against women, and
(c) Serious crimes against vulnerable persons in the form of fraud and financial abuse.
Subparagraph 8.4 (3) states that the “expectations of the Australian community apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.”
Conclusion: Primary Consideration 4
The Tribunal is of the view that primary consideration 4 weighs heavily against the exercise of discretion to revoke the original decision.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not enlivened.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a British citizen who is 61 years of age. He has resided in Australia since he was five years old. He has limited work skills. The evidence suggests that he has some significant health problems. He suffers from breathing difficulties, possibly as a result of smoking, and requires daily medication to avoid distressing discomfort. He has high cholesterol and blood pressure issues. He has Hepatitis C, although this has now been treated.
The Applicant did raise the issue of having bowel cancer. Medical records do not support any such diagnosis. The Applicant has, however, had surgery to remove polyps.
The evidence suggests that the Applicant is not in good health and does require ongoing medical attention.
If the Applicant were returned to the United Kingdom, there is no reason to believe that he would not be able to access appropriate ongoing medical care.
If the Applicant were to be returned to the United Kingdom, there would be no substantial language or cultural barriers given the great similarities between the two countries.
The most serious concern for the Applicant is that he has no family or other support in the United Kingdom. He does not have any meaningful contacts there, nor does he have any immediate prospect of employment. There is no doubt that the Applicant would suffer significant hardship at least initially if he were returned to the United Kingdom. Given that the Applicant has not lived in the United Kingdom since he was a child, he would face considerable difficulties in establishing himself, without family support, at his age. That said, the United Kingdom does have a high-quality system providing medical care to its citizens as well as other social services.
The Tribunal finds that this consideration weighs heavily in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The only material available to the Tribunal regarding the issue of impact on victims is in the form of a statement and evidence from Marie Webster who was the Applicant’s partner at the time of committing the offence for which he was convicted and sentenced in May 2015. Her statement[32] relevantly states:
“I would like to apply for grounds to stop Stephen Burns getting deported his Family mainly his Mum is in Australia and would probably not handle the situation as he lost his dad a couple of years ago we currently not in a relationship but were in an ongoing relationship for 25+ years and not always violent but after the Death of his Father and my Twin Sister Ann Marie Webster things just got out of hand. Please don’t take Stephen away too.” (sic) (My emphasis).
[32] G4, page 99.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore given neutral weight, weighing neither in favour of the Applicant nor the Respondent.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has an elderly mother and four older brothers all of whom are either Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely. In addition to this, he has six biological children who are Australian citizens. He has 10 grandchildren all of whom are Australian citizens.
Statements have been provided by his brothers Gordon Burns, David Burns and Jack Burns which are supportive of the Applicant remaining in Australia[33]. As previously noted, two of his biological children, Stephen Burns and Mikayla Burns have also provided statements in support[34].
[33] G4, pages 102-15.
[34] Ibid, pages 106-107.
The evidence suggests that the Applicant’s return to the United Kingdom would distress the family members who provided statements of support and would be deeply distressing to his elderly mother.
The Applicant has been in Australia continuously since he was a small child and understandably considers himself to be a member of the Australian community. The duration of his residency and the extent of his ties to the Australian community are significant. On the other hand, he has an extensive criminal record and has essentially been unemployed for most of the last 20 years, therefore making little positive contribution to the Australian community.
For the reasons set out already, the Applicant has extensive and deep family and social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia (paragraph 9.4.1 of the Direction).
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs in favour of revocation.
CONCLUSION
The application of the primary considerations in the present matter can be summarised as follows:
Primary consideration number 1 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa;
Primary consideration number 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa;
Primary consideration number 3 weighs moderately in favour of the Applicant and the revocation of the mandatory cancellation visa cancellation and
Primary consideration number 4 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations are not enlivened;
(b)extent of impediments if removed weighs heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa;
(c)impact on victims is given neutral weight; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa and the impact on Australian business interests is neutral.
In summary, primary consideration number 3, and other considerations (b) and (d) (i) are substantially outweighed by primary considerations 1, 2, 4. The tribunal considers that the circumstances weigh in favour of upholding the decision under review.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

........................[Sgnd]..............................
Legal Administrative Assistant
Dated: 2 July 2021

Dates of hearing: 21 & 24 June 2021

Advocate for the Applicant:
Naomi Kereru, Jeffcott Chambers

Advocate for the Respondent: Tom Ellison, Australian Government Solicitor

Source	Court	Date	Offence	Result
SA	Christies Beach MC	11/03/2020	Commit assault - basic offence Commit assault aggravated other by use of offensive weapon Aggravated: dishonestly deal with property without consent Aggravated: dishonestly take property without consent (2) Fail to comply with bail agreement Other than programs-contravene term of intervention order (9)	Convicted 15 months 4 weeks 18 days imprisonment Non parole period 9 months
SA	Christies Beach MC	07/08/2018	Fail to comply with bail agreement Damage building or motor vehicle (not graffiti or unknown)	Convicted Fined $100 Compensation $236.64
SA	Christies Beach MC	28/11/2016	Drive a vehicle with combination of drugs in fluid or blood	Convicted Fined $1100 Drivers licence disqualification 6 months
SA	Christies Beach MC	28/11/2016	Drive vehicle with drug type unknown in fluid or blood	Convicted Fined $1100 Drivers licence disqualification 6 months from 28/5/17
SA	District Court of SA	22/05/2015	Recklessly cause serious harm aggravated offence -other	Sentenced 1 year 11 months imprisonment Non parole period 8 months
SA	Christies Beach MC	18/03/2015	Fail to comply with bail agreement	Convicted Fined $300
SA	Christies Beach MC	15/09/2014	Damage building or motor vehicle (not graffiti or unknown) Trespass in residence (aggravated offence)	Convicted 4 months imprisonment Compensation $333.56
SA	Christies Beach MC	15/09/2014	Intervention programs-contravene term of intervention order Fail to comply with bail agreement (10	Convicted 1 month imprisonment
SA	Christies Beach MC	07/06/2013	Drive a vehicle with combination of drugs in fluid or blood	Convicted Fined $900 Drivers licence disqualification 3 months
SA	Christies Beach MC	25/10/2012	Basic offence: dishonestly take property without consent	Convicted Good behaviour bond $100 3 months
SA	Christies Beach MC	02/08/2012	Drive unregistered motor vehicle on a road Drive uninsured motor vehicle on road Duty to hold licence or learner`s permit Fail to comply with bail agreement	Convicted Fined $800
SA	Christies Beach MC	19/11/2008	Drive a motor vehicle while licence is suspended Drive unregistered motor vehicle on a road	Convicted Fined $320 Drivers licence disqualification 4 days
SA	Christies Beach MC	19/11/2008	Drive unregistered motor vehicle on a road Drive uninsured motor vehicle on road	Convicted Fined $200 Drivers licence disqualification 4 days
SA	Christies Beach MC	19/11/2008	Drive a motor vehicle while licence is suspended	Convicted Drivers licence disqualification 5 months
SA	Christies Beach MC	15/06/2006	Carry offensive weapon	Convicted Good behaviour bond $500 3 years
SA	Christies Beach MC	17/01/2006	Estreatment of bail	Found proved Estreatment $1000
SA	Christies Beach MC	17/01/2006	Estreatment of bail	Found proved Estreatment $500
SA	Christies Beach MC	03/10/2003	Drive vehicle without licence Fail to transfer registration Drive unregistered motor vehicle on a road (2)	Convicted Fined $350
SA	Christies Beach MC	05/05/2003	Larceny	Convicted Fined $100
SA	Christies Beach MC	05/03/2003	Estreatment of bail	Found proved Estreatment $1000
SA	Christies Beach MC	19/02/2003	Unlawful possession	Convicted Fined $275
SA	Christies Beach MC	19/02/2003	Fail to comply with domestic violence restraining order (5)	Convicted Fined $300
SA	Christies Beach MC	19/02/2003	Common assault on person other than family member	Convicted 2 months imprisonment Suspended sentence bond $300 12 months
SA	Christies Beach MC	19/02/2003	Fail to comply with domestic violence restraining order (2)	Convicted 14 days imprisonment Suspended sentence bond $200 12 months
SA	Christies Beach MC	19/02/2003	Common assault on person other than family member	Convicted 3 months imprisonment Suspended sentence bond $300 18 months
SA	Christies Beach MC	25/03/1996	Break and enter building and commit offence (2)	Convicted 12 months imprisonment
SA	Christies Beach MC	25/03/1996	Larceny Building breaking and felony (2)	Convicted 14 months imprisonment
SA	Christies Beach MC	25/03/1996	Fail to comply with bail agreement	Convicted Fined $250
SA	Christies Beach MC	27/04/1995	Receiving	Convicted 100 hours community service within 3 months Compensation $120
SA	Christies Beach MC	01/09/1993	Possessing Cannabis	Convicted Fined $150
SA	Christies Beach MC	26/10/1992	Drive unregistered	Convicted Discharged without penalty SA Christies Beach MC 26/10/1992 Drive uninsured
SA	Christies Beach MC	26/10/1992	Drive uninsured	Convicted Fined $100 Drivers licence disqualification until further order
SA	Christies Beach MC	08/10/1982	Larceny	Convicted Fined $40

Dates of hearing:	21 & 24 June 2021
Advocate for the Applicant:	Naomi Kereru, Jeffcott Chambers
Advocate for the Respondent:	Tom Ellison, Australian Government Solicitor