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

Burrows and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4210 (20 December 2023)
Division:GENERAL DIVISION
File Number: 2023/7702
Re:Blair Kenneth Burrows
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:20 December 2023
Place:Sydney

The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision dated 19 May 2023 be revoked.
....................[sgd]....................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant's visa – applicant has substantial criminal record including family violence – applicant has lived in Australia since he was nine years and for the majority of his life – whether there is 'another reason' to revoke mandatory cancellation decision – the countervailing considerations of ties to Australia and best interests of minor children outweigh the primary considerations of protection and expectations of the Australian community and family violence – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
20 December 2023
INTRODUCTION

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) (Temporary) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 19 May 2023 the applicant was notified that his visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 15 June 2023 the applicant sought revocation of the cancellation decision and made representations in support of revocation.
On 18 October 2023 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).
The applicant has applied for a review of the non-revocation decision and the Tribunal heard the matter on 12 and 13 December 2023 in Sydney.
LEGISLATIVE FRAMEWORK
Under s 501(3A), 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 the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Section 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
The issue for the Tribunal to determine is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 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 measureable 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.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(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 measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must, where relevant, be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[4]
[4] Direction 99 at 7.
BACKGROUND
The applicant was born in New Zealand in 1999. He came to Australia in 2008 with his mother and stepfather. He was nine years old. They settled in the Gold Coast where the applicant attended primary school and the high school up to the age of 16. The applicant was violently assaulted when he was ‘king hit’ at school. This traumatic event caused significant physical and psychological injuries. Another event that had a significant impact on the applicant was when his father committed suicide in New Zealand. The applicant became disengaged with school in about year 12 but had no problem finding work. In November 2017, the applicant’s daughter was born. The mother and child lived with the applicant and his parents for a short time. After the mother moved out, she and the applicant (together with his parents) have shared the caring arrangements of the daughter.
The applicant has no criminal history as a juvenile and he did not engage in any criminal offending until there were a series of offences from April to June 2020 for which he was convicted in November 2020 in the Beenleigh Magistrates Court. He was 21 years old and by this stage he was seriously abusing marijuana and ice. The applicant commenced another relationship which resulted in an incident of domestic violence and further disruption in his life. The abuse of drugs continued. In January 2022 he was involved in a drug or alcohol induced incident for which he was charged with obstructing a police officer and contravening a direction. That resulted in a further conviction and fine from the Southport Magistrates Court on 3 March 2022. His most serious offending was on 26 July 2022 in New South Wales. He pleaded guilty to sexually touching another person without consent and to common assault. On 18 May 2023 he was sentenced to 20 months imprisonment with a non-parole period of 10 months. He had been in prison since the offending occurred on 26 July 2022. He was then released from prison and put into detention in late May 2023.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 99, I give consideration below 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 non-citizen’s conduct – 8.1.1 of Direction 99
The applicant’s criminal offending began with the series of offences from April to June 2020 when he was 20 years old. Three of the charges which were dealt with by the courts in November 2020 involved stealing petrol by driving away without paying. The more serious offences involved assaulting and obstructing a police officer. The applicant explained that he was abusing Xanax at the time and that he lashed out a police officer who had approached him and would not give him a few minutes to say goodbye to his daughter. There were other offences of burglary, drug possession and wilful damage to property. The applicant was put on 2 years probation and sentenced to 10 months imprisonment but immediately released on parole which had the effect of suspending his sentence.
In July and August 2020, the applicant attended eight sessions of the Pathways Program with the Salvation Army. He said in evidence that he realised by that time that he had a drug problem which needed to be addressed. Prior to being sentenced, the applicant saw a clinical psychologist who assessed him in the severe range for depression and the extremely severe range for anxiety and stress. In October 2020 it was noted in a medical certificate that he had been seeking help for his mental health condition ‘in the background of history of substance use’ and was compliant with a mental health care plan. There is little doubt that his offending in the first half of 2020 was contributed to by his mental health and drug issues.
The only conviction in 2021 was for contravening a police banning notice on 2 May 2021. There was also an incident of domestic violence on around 23 June 2021 which I will consider under paragraph 8.2 of Direction 99.
The next incident occurred on 2 January 2022 when the applicant claimed he was in a state of psychosis when he obstructed a police officer and contravened a direction. He has little memory of the incident because he was under the influence of drugs. He was convicted and fined in the Southport Magistrates Court.
The most serious offending took place on 26 July 2022 after a trip to the beach with friends where drugs were taken during the day. The applicant went back to a room with a woman who, after an argument, later alleged that he raped her. The applicant said that there were consensual acts between them but, on the basis that the rape charge was dropped, he agreed to plead guilty to an assault (for a slap to the face and hands around the throat) and to sexually touch another person without consent. The sentencing Magistrate described the offending as serious and ‘around the mid-range or just below’. It was noted that the applicant had expressed remorse but the Magistrate considered that a term of imprisonment was appropriate. This reflects the seriousness of the offending. On 18 May 2023, the applicant was sentenced to an overall term of 20 months with a non-parole period of 10 months. The effect of the sentence was that he was eligible to be released on 25 May 2023 which was less than a week after his visa was cancelled. Instead of being released into the community, the applicant was taken straight into detention which caused him great distress because he had been looking forward to being with his daughter and his family in the community.
The applicant accepts that he behaved poorly for the first few months in the Villawood detention centre where he had access to and consumed drugs very regularly. He had a psychotic episode contributed to by drugs and a lack of sleep when he climbed on the roof in detention in his first week and caused damage to property. The applicant said that he continued abusing drugs in Villawood until a moment of realisation in about mid October when he decided to ask to be transferred to Brisbane so he could get out of Villawood and be closer to his daughter and family. Once he was transferred to Brisbane he began to seriously address his issues.
In conclusion with respect to the nature and seriousness of the applicant’s conduct, I consider that his offending has been very serious because it involved some violence and sexual crimes against a woman. There was a trend of increasing seriousness culminating with the assault and sexual touching on 26 July 2022 which resulted in his first and only period in prison. His offending in April to June 2020 was less serious and he managed to mostly stay out of trouble for a significant period after those first offences. For that reason, I do not consider the cumulative effect of repeated offending to be significant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[5] As required by paragraph 8.1.2(2) of Direction 99, I also 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; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[5] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[6] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[6] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99

If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it involved some violence and sexual offending. The sentencing Magistrate noted that the victim of the assault and sexual touching was distraught. There was also the domestic violence which results in serious harm.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The parties did not engage an expert as to the risk of re-offending but it was noted in the Magistrate’s sentencing remarks of 18 May 2023 that the applicant had expressed remorse. The applicant’s offending was contributed to by his drug abuse and his mental health issues both of which he has recently taken steps to address. The applicant’s mother has noted a marked improvement in the applicant in recent times. He has attended counselling in November and engaged in very significant rehabilitative programs addressing his anger management, family violence, drugs and alcohol and mental illness. He is receiving treatment for his drug addiction by a program of depot injections of buvidal.
In his oral evidence to the Tribunal I was impressed with his insight into his drug and mental health issues. He accepted that in the past he had relapsed into drug use but now he understands that drugs are not the answer and he is taking constructive steps to avoid them in the future. If released, he will have the benefit of family support and the incentive of staying drug and crime free because he wants to be with his daughter and his younger sisters. This family environment in Queensland will be beneficial to his prospect of not re-offending. I also note that if released the applicant will remain on parole for a period during which there would be some supervision of his conduct. I believe that he has shown in recent times a commitment towards addressing those factors that have led to his past offending. With the stable environment and support provided by his family, I believe that the applicant is a low risk of further offending.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[7] The applicant has committed serious crimes, but most of his offending did not involve actual physical violence, and was related to property, dishonesty and some limited episodes of violence and unacceptable behaviour towards women. His daughter provides a significant incentive to not relapse into drug use and to not re-offend. He has the added benefit of supportive parents and family and likely employment. He has taken steps to address his drug addiction for which he is receiving treatment. There remains a risk of re-offending, albeit low, and therefore, the protection of the Australian community is a factor that weighs only moderately against the applicant.
[7] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
The applicant has engaged in family violence which is defined as including violent or threatening behaviour against a member of the person’s family. A member of the person’s family is defined to include a person who has, or has had, an intimate personal relationship with the relevant person. In this case, the family violence offending did not relate to the mother of his child, but rather another later relationship. The applicant explained that when this relationship broke down, he went to his ex-partner’s house to collect his gear but she locked the door so he kicked it in. He said he was on ice at the time. The incident resulted in a domestic violence order in June 2021 which he then breached on 17 December 2021 but the circumstances of that breach were not serious (although a conviction for contravention was recorded on 4 January 2022). In August 2022 the applicant’s ex-partner applied to vary the domestic violence order to allow contact. She said in a statement to the court that since the order was made in June 2021 there had been no incidents of domestic violence and that she was not fearful for her safety. She explained that the breach in December 2021 did not involve domestic violence but rather that the applicant had kindly invited her camping with his family. On 14 March 2023 the domestic violence order was varied to allow contact if there was prior written consent.
In considering the seriousness of the family violence engaged in by the applicant, the following factors in paragraph 8.2(3) are 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 act of kicking in the door and forcing his entry whilst in a drug induced state would have caused significant fear but the conduct caused no physical injuries and would be considered in the lower range of seriousness of family violence. The victim’s statement to the Court in August 2022 suggests it was a once-off incident with no long lasting impact. This one episode of family violence was at the low end of the range of seriousness and there was no repeated offending. The applicant has expressed appropriate remorse before the Tribunal. He has recently engaged in a formal rehabilitative program directed towards family violence.
Having heard the oral evidence from the applicant, it is my view that he is a low risk of further family violence.
The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of 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, so in this case the government’s concerns would be at the lower end of the possible range. It would appear from the evidence that the family violence engaged by the applicant was an isolated incident and did not result in any physical injuries. The respondent accepted that it was not the most serious incident. However, his conduct caused the victim to be fearful and would no doubt have had a psychological impact on her. I note that the applicant has expressed appropriate remorse. In August 2022, the victim of the family violence wrote that she was not fearful of the applicant and requested the domestic violence order be varied so she could make contact with him. She described the applicant as her core support person in relation to her mental health and wellbeing. Nevertheless, an order does remain in place. The respondent submitted that not much weight should be put on the domestic violence factor in considering whether there is another reason to set aside the non-revocation order. In all of these circumstances, I find that the applicant’s family violence is a factor that weighs against the applicant but I do not give it significant weight.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
Paragraph 8.3(4)(a)(i) of Direction 99 requires me to have regard to the length of time the applicant has resided in the Australian community noting that considerable weight should be given to the fact that he has resided in Australia during and since his formative years, regardless of when his offending commenced and the level of that offending. Accordingly, I give considerable weight to the applicant being in Australia since he was 9 years old including his formative years. The applicant has been educated in Australia and has been here for about 15 years. His ties to Australia through his daughter and his younger sisters are very significant. Further, he has his mother, stepfather, maternal grandparents, aunts, uncles and cousins who all live in Queensland. This decision will have a very significant impact on them.
In contrast, his ties to New Zealand are almost non-existent.
I take into account that since leaving school the applicant has had no trouble obtaining employment; more recently in the construction industry as a bricklayer. This represents a significant positive contribution to the Australian community.
In conclusion with respect to ties to Australia, I place significant weight on the fact that the applicant has spent the majority of his life in Australia including his formative years. The respondent accepts that this consideration weighs strongly in favour of revocation. I conclude that this is a factor that weighs very heavily in favour of revocation of the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child affected by the decision. The following factors that I must consider where relevant to this application include:[8]
(a) 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);
(b) 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;
(c) 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;
(d) 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;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) 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;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[8] Direction 99 at 8.4(4).
The applicant has a six year old who he helped bring up for significant periods until he was imprisoned in July 2022. Since then the daughter has been cared for by his parents and the child’s mother who together play a parental role in relation to the child. The child’s mother provided a letter of support saying that she could not fault the applicant as a father who was very loving, caring and dedicated. I have no doubt that the applicant would play a positive parental role if released. Revocation of the cancellation decision is in the best interests of his daughter.
The applicant has two younger sisters who are 13 and 15 years old. They provided very strong letters of support. He is not just an older brother, but like a second father to them. They want him to return home and would be devastated if he had to go back to New Zealand.
In a letter of support from the applicant’s aunty she refers to the impact on her family if he were not returned to the community. She has two daughters who are three and six years old. The applicant and his daughter have spent time camping and on adventures together with the aunt and her children. It would be in the best interests for these two children to have their uncle with them but I give this less weight.
The best interests of the applicant’s daughter and younger sisters is a most significant factor in favour of revoking the cancellation decision and I give it very significant weight when determining whether there is another reason to set aside the cancellation decision.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[9]
[9] Direction 99 at 8.5(1).
Paragraph 8.5(4) of Direction 99 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. It is not for me, as a decision maker, to make my own assessment of community expectations. However, in the weighing up exercise by which I evaluate whether there is another reason to set aside the cancellation decision, I am still entitled, and indeed should where appropriate, give weight to the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[10] remain apposite to the expectations of the Australian community under Direction 99:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[10] (2019) 272 FCR 454; [2019] FCAFC 185.
In considering the weight to be attached to the expectations of the Australian community as part of the evaluative exercise in determining whether there is another reason to revoke the cancellation decision, I take into account that the applicant as a teenager suffered the trauma of losing his father to suicide and being ‘king hit’ at school. This trauma impacted him significantly and was a contributing factor to his later drug and criminal activities. Nevertheless, the applicant engaged in a period of criminal activity for which he is responsible. His conduct was serious and therefore the expectation of the Australian community is that he not remain in Australia.
Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. In this case, the applicant would be afforded a high level of tolerance.
In conclusion with respect to the expectations of the Australian community, whilst I find that this is a factor that weighs against revocation, I would not give it significant weight in my final determination as to whether there is another reason to revoke the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, where relevant, but these are not exhaustive.[11]
[11] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
The applicant is not a non-citizen covered by a protection finding for the purposes of paragraph 9.1.1 of Direction 99. He does not raise any claims which may give rise to non-refoulement obligations for the purposes of paragraph 9.1.2 of Direction 99. I find that this consideration is not relevant to my decision and give it neutral weight.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.

The applicant is 24 years old and has some mental health issues. He is currently on a program of treatment for his drug addiction.
His mental health issues and drug addiction could be treated if he was removed to New Zealand. There would be no substantial language or cultural barriers and he would have medical and economic supports available to him. He would face a period of adjustment if he were removed to New Zealand made worse because he left there at the age of nine and has no known family there. However, I do not consider that period of adjustment to be a significant impediment to the applicant establishing himself and maintaining basic living standards. I give this consideration no material weight.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The three primary considerations of the protection and expectations of the Australian community and family violence weigh against revoking the cancellation decision. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. The countervailing considerations are his strong ties to Australia and the best interests of minor children. I have reached the view that the countervailing considerations outweigh the three primary considerations.
This is not a case where there is an unacceptable risk of harm to the Australian community if the applicant is released. His most serious offending was on the night of 26 July 2022 and for a period of less than three months in the first half of 2020. His act of family violence was an isolated incident at the lower end of the spectrum of seriousness and the risk of further offending of this nature is low. The applicant’s offending in 2020 was often drug induced and I do take into account that there is a risk that, if released, he will relapse. However, he has taken steps to address his drug problems by medical treatment and by attending counselling and rehabilitative programs. He has expressed remorse and his recent conduct shows that his remorse is genuine. The most significant countervailing factor is the interests of his daughter, who is only six years old and needs her father to play a parental role while she grows up. The applicant has expressed a genuine intention to play a significant parental role with his daughter and I have no doubt that he will. The applicant will be supported by a very significant family network in south east Queensland where he has lived during his formative years and for the majority of his life. The length of time that the applicant has been in Australia and his significant positive contribution to the Australian community are very important factors in this matter. The applicant has shown in the past that through hard work and dedication to family he can make a positive contribution to the Australian community. I expect that he will do so in the future if he is reunited with his daughter and family. He has a strong incentive to not re-offend.
I am satisfied that there is another reason to revoke the cancellation decision so that the applicant can be reunited with his children and his community.
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision be revoked.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.........................[sgd]...............................................
Associate
Dated: 20 December 2023

Dates of hearing: 12 & 13 December 2023

Advocate for the Applicant: Wendy Milojkovic

Solicitors for the Applicant: South West Migration & Legal Services

Advocate for the Respondent: Jessica Xiao

Solicitors for the Respondent: Clayton Utz

[2023] AATA 4210

20 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Dates of hearing:	12 & 13 December 2023
Advocate for the Applicant:	Wendy Milojkovic
Solicitors for the Applicant:	South West Migration & Legal Services
Advocate for the Respondent:	Jessica Xiao
Solicitors for the Respondent:	Clayton Utz