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

CLKK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 75 (4 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6488
Re:CLKK
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:4 January 2021
Date of written reasons: 1 February 2021
Place:Sydney

The Reviewable Decision dated 8 October 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
..............................[sgd]..........................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – domestic violence offences – whether there is another reason to revoke the visa cancellation – Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 90
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
1 February 2021

CLKK (‘the Applicant’), a citizen of New Zealand, was born in 1987.[1] He arrived in Australia in February 2004 when he was 17 years old.[2] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa.[3]
[1] G1, 2.
[2] G9, 50.
[3] G10, 65.
On 25 May 2018, the Applicant was convicted of Common Assault (DV) (two counts), Armed w/i commit indictable offence, Contravene prohibition/restriction in AVO, and Possess article w/i destroy/damage others property, and was sentenced to 12 months’ imprisonment for each offence.[4] On the same date, he was convicted of Destroy or damage property <=$2000 (DV)-T2, for which he was sentenced to one month’s imprisonment, and was called up for one count of contravene prohibition/restriction in AVO (Domestic), for which he was sentenced to two months’ imprisonment.
[4] G5, 24.
On 25 July 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date, the Applicant was serving a sentence of full-time imprisonment at Bathurst Correctional Centre in New South Wales. The Applicant was invited to make representations about revoking the decision to cancel his visa.
[5] G10, 65-71.
On 12 August 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[6]
[6] G9, 48–64.
On 8 October 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[7] The Applicant was notified of this decision on 12 October 2020.[8]
[7] G3, 13; G4, 14–23.
[8] G10, 71.
On 19 October 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[9]
[9] G1, 1–5.
The matter was heard at a hearing of the Tribunal on 17 December 2020. The Applicant attended the hearing via videoconference from Christmas Island Immigration Detention Centre. He was self-represented and gave oral evidence at the hearing.
The material before the Tribunal consists of:
- Respondent’s Statement of Facts, Issues and Contentions dated 11 December 2020 (‘Respondent’s SFIC’);
- Section 501 G Documents filed 6 November 2020 (G1-G11, 107 pages) (‘Exhibit R1’);
- Respondent’s Supplementary Documents filed 11 December 2020 (S1-S5, 201 pages) (‘Exhibit R2’);
- Email statement from the Applicant dated 30 November 2020 (‘Exhibit A1’);
- Letter of support from CM, a friend of the Applicant, dated 30 November 2020 (‘Exhibit A2’);
- Letter of support from TE, a cousin of the Applicant, dated 23 October 2020 (‘Exhibit A3’); and
- Undated letter from Life Without Barriers regarding the Applicant’s daughter’s care arrangements (“Exhibit A4’).
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties [to Australia];
(c)       Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[10] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and employment
The Applicant was born in New Zealand in 1987 and migrated to Australia in February 2004.[12] He resided with an aunt until his family came here in 2005.[13] He left school at the beginning of year 10. After he left school, he worked picking apples in an orchard.[14] He was employed as a Production Manager for a company for approximately eight years from 2004 to 2012.[15] He was self-employed in the construction industry as a scaffolder and labourer from 2012 to 2018.[16]
[12] S4, 154; Transcript, 6.
[13] S4, 154.
[14] Transcript, 44.
[15] S4, 154; G9, 57.
[16] S4, 154; G9, 57; Transcript, 45.
Drug and alcohol use
The Applicant commenced drinking alcohol and using cannabis when he was 13 years old and was ‘binge drinking’ on weekends from the age of 15 to 20 years.[17] He started using methamphetamines (ice) when he was 24 years old and used for approximately 12 months.[18] He ceased drug use when he went into rehab in 2009 and was clean for a period of three years and three months.[19] He started using again in 2016 when he met his former partner, JT, and was injecting heroin and using ice.[20] He has not taken drugs for two years, other than a joint he smoked in gaol in 2019.[21]
[17] S4, 155.
[18] S4, 155; Transcript, 16-17, 21.
[19] Transcript, 14-15.
[20] Transcript, 14-15.
[21] Transcript, 15.
Mental health
The Applicant was diagnosed with Bi-Polar Disorder in 2015 and underwent therapy, including counselling and programs, and was prescribed medication.[22]
[22] S4, 155.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 28 June 2019 records his criminal history in Australia.[23]
Early offending
[23] G5, 24-25.
The Applicant has a criminal history commencing in 2005, when he was aged 18 years. Between 2005 and 2010 the Applicant was convicted of five driving offences as well as two public order offences and a dishonesty offence, for which he received fines and a bond.
His first convictions in 2005 were for traffic offences, including driving while unlicensed.[24] He told the Tribunal that he would often drive to the shops as they were just down the road from where he lived.[25] He had a learner’s permit in New Zealand and also in New South Wales, but he never held an unrestricted driver’s licence.[26]
[24] G5, 25.
[25] Transcript, 7.
[26] Transcript, 9.
In November 2008 the Applicant was convicted in the Penrith Local Court for offences related to his use of offensive language.[27] The Police event narrative records that the Applicant was asked to leave a RSL Club because of his behaviour.[28] The Applicant told the Tribunal that he and another man got into a fight and they were escorted from the premises and then they continued to fight in the carpark. He said they had both been drinking and the other man threw the first punch at him when they were in the club. The police were called, and capsicum spray was used on the Applicant.[29]
[27] G5, 25.
[28] Supplementary documents, 81; Transcript, 7.
[29] Transcript, 8.
In January 2010 the Applicant was convicted in the Blacktown Local Court of two traffic offences and the offence of being in possession of suspected stolen property.[30]
2017 offences
[30] G5, 25.
On 28 August 2017 the Applicant was convicted in the Local Court of New South Wales of the following offences: Common Assault (DV), for which he was fined; Destroy or damage property <=$2000 for which he received a s10A conviction with no other penalty; and Contravene prohibition/restriction in AVO (domestic) for which he was placed on a 12 months’ bond.[31] The Applicant’s victim was his then partner, JT, who was eight months’ pregnant.[32] The Applicant was unemployed at the time of the offences as he had ceased working to take care of his partner who was dependent on drugs.[33] On 9 August 2017 they were both at home and the Applicant became abusive towards JT. She left the house and he followed her and continued to yell and abuse her. He threw a piece of toast at her which hit her on the right arm. She climbed through a window to collect personal belongings, and the Applicant had a further argument with her, and she said she would have to call the police. She left the house leaving the Applicant alone. She then heard glass smashing and saw that her kitchen window had been broken. He then exited the unit and made his way downstairs to where the victim was standing. The police arrived and spoke with the Applicant and the victim and he was arrested.[34]
[31] G5, 25.
[32] S4, 148.
[33] Transcript, 9.
[34] S4, 148-149.
The Applicant told the Tribunal that he and JT were both under the influence of drugs when he committed these offences. He was also depressed and was ‘stuck in a hole, not knowing how to get out.’[35] He had no intention to hit the victim, and he takes ‘full responsibility’ for everything he did to her.[36]
[35] Transcript, 12.
[36] Transcript, 12.

On 17 August 2017 the Applicant breached an Apprehended Violence Order (‘AVO’) issued following his offending on 9 August 2017. He attended JT’s home to collect some property and they became engaged in a heated argument which resulted in him yelling at the victim ‘You’re a whore’ as well as other insults. He ran to the screen door and continued to yell at the victim and abuse her. He threw items at the screen door in an attempt to hit her and continued to yell abuse. She told him to go away and leave her alone.[37]
[37] S4, 151.
The Applicant told the Tribunal that he and JT ‘argued a lot’ but ‘it was never physical’ and he has ‘never physically hurt her’.[38] He said that ‘she was a lot to handle’ and ‘has been using heroin for 30 years.’ At the time of the offence, he was affected by drugs.[39] They had a ‘really intense relationship’ and everyone they spent time with were ‘either drug addicts or alcoholics.’ She introduced him to injecting heroin and methamphetamines. It took everything from him, and he couldn’t do anything about it.[40] He was using drugs to numb the pain and his frustration at her and how they were living. He did not have ‘the mentality to get up and do something about it’.[41]
2018 offences
[38] Transcript, 13.
[39] Transcript, 13.
[40] Transcript, 13.
[41] Transcript, 14.
On 25 May 2018 the Applicant was convicted in the Local Court of New South Wales, of two counts of Common Assault (DV), Armed w/i commit indictable offence, Contravene prohibition/restriction in AVO and Possess article w/i destroy/damage others property, and was sentenced to 12 months’ imprisonment for each conviction. He was also convicted of Destroy or Damage property <=$2000 (DV) for which he was sentenced to one month’s imprisonment. On the same date, he was called up for the Contravene prohibition/restriction in AVO (Domestic) conviction from August 2017, for which he was sentenced to two months’ imprisonment. All of the sentences were to be served concurrently.
The NSW Police Fact Sheet records that the offences occurred in the morning of 28 February 2018 when the Applicant breached an AVO by going to premises occupied by JT, his six month old daughter, and his mother. Upon arrival he became angry, picking up his daughter and threatening to take her away and kill his partner. He then pointed a pair of garden shears at his mother and said, ‘I’m going to cut your throat’. After throwing a speaker at his mother, he stated that he was going to burn the house down and proceeded to pour petrol over his head and the floor around him, with some of the petrol splashing on his mother. When the police arrived, he told them ‘I am pissed at my missus for making me a junkie. I want to kill them, both her and the baby, I’m going to strangle them and watch the life drain out of them’.[42] In his sentencing remarks, Magistrate Van Zuylen noted the ‘extreme seriousness’ of the Applicant’s offending.[43]
[42] S4, 164-166.
[43] G7, 40.
The Applicant told the Tribunal that he was homeless at the time of the offending and had been trying to get into rehab. He could not go to his parents’ house because of the state he was in. On the morning of the offence, he was on the way to Nepean Detox Hospital and stopped off to see JT and the baby on the way. They argued on the phone and he ‘snapped’. He did not have any intention of hurting anyone, including himself. He just did not want to be around JT anymore.[44] He pleaded guilty to the offences because he ‘did wrong’.[45]
[44] Transcript, 23-24.
[45] Transcript, 24.
Incidents in gaol
The Applicant told the Tribunal that when he was at Bathurst Correctional Centre he stole a bar of soap from the workshop and sprayed graffiti on a wall with spray paint, which caused him to lose his job.[46]
[46] Transcript, 21-22.
Offence in immigration detention
On 23 May 2019 the Applicant was convicted in the Local Court of New South Wales, of Assault occasioning actual bodily harm in company of others and sentenced to two years’ imprisonment, which was later varied to 18 months' imprisonment.[47] This offence occurred while the Applicant was on parole and being detained at Villawood Immigration Detention Centre (‘VIDC’).[48]
[47] S5, 201.
[48] G6, 29-31; S5, 171-200.
The Applicant, and several other detainees, saw a broadcast which indicated that another detainee (‘the victim’) had been charged with an alleged rape. The Applicant told the victim, ‘Hey you, come with us’ and led the victim down a corridor with several other detainees, and the Applicant and other detainees assaulted the victim. The victim was kicked at least 10 times and punched at least 15 times. In his sentencing remarks, Magistrate Degnan remarked that the Applicant and his co-offenders ‘decided to hand out their own summary justice’.[49] His Honour noted that it was fortunate the injuries sustained by the victim were not more serious, but they were extensive. He found that the Applicant was the ‘the ringleader and instigator of the offence’ which he said was in the ‘midrange of objective seriousness’.[50]
[49] G6, 36.
[50] G6, 38.
Remorse and responsibility for offending
The Applicant told the Tribunal that he regrets his offending and he ‘faced up to it’ and ‘accept(s) responsibility for it.’ He ‘made a really big mistake’ and was unaware of the seriousness of his offending.[51] He would never do such an act ‘outside’.[52] He is not going to put himself in a position where he could ‘use violence or physical force against anyone’ and is ‘not going to ever hurt anyone ever again.’[53]
[51] Transcript, 25.
[52] Transcript, 27.
[53] Transcript, 28.
Rehabilitation
In his statement dated 30 November 2020, the Applicant wrote:
I’ve made some mistakes and I have done my time in gaol. I have learnt my lesson and grown so much in this time to know that I won’t ever offend again. I suffer from depression and instead of getting help I chose to hide it from those that loved me, using drugs to battle depression was a sure way to fall even further down. Not knowing who to turn to I decided that gaol was my only option. To be away from the sick environment was a start, but taking the time to learn about myself, finding strategies on how to cope with depression and anxiety without the use of drugs, and now I’m mentally and emotionally stable I monitor my behaviour emotionally/mentally everyday through self-observation and drugs does [sic] not control my life anymore. I want the chance to get back out into the community and work towards goals I have set for myself. To be involved in my daughter’s life to provide protect and care for her, as well has support the mother of my other children with whatever she may need help with. This country is my home and it is worth fighting for. I see now that this country is a blessing to live in and I’m going to do whatever it takes to make the most of it. I want to become a nurse and be with my family, please give me one more chance and I won’t let you down. I took things for granted and abused myself because I was too stubborn to get help. Now that I’m clean and sober I can see just how much people care and love me, and I can’t wait to be there for them. This past couple [sic] years has been rough but learning the life skills I have through courses and personal study. I’m proud of who I am today. I’m grateful for everyday and what life may bring I will face head on.[54]
[54] Exhibit A1.
The Applicant told the Tribunal he has not taken drugs for two years, with the exception of the joint he smoked in gaol in late 2019.[55] He has not touched heroin or ice and does ‘not wish to use drugs ever again.’[56]
[55] Transcript, 15-16.
[56] Transcript, 16.
The Applicant agreed that he has an ‘anger issue’ and said that he did a short course in Mannus Correctional Centre to address it.[57] He also has reconnected with his religious faith (Christianity) since he went to gaol.[58]
[57] Transcript, 29.
[58] Transcript, 29, 50.
Treatment for mental health
The Applicant told the Tribunal he was prescribed Avanza for his mental health condition, but he ceased taking it in about January 2020.[59] He did not like how it made him feel and he did not like ‘depending on the drug.’ He ‘wanted to be able to see what it was like to be free of all drugs and be clear-minded for once.’[60] He now self-monitors his condition and he seeks help or advice when he does not ‘feel right’.[61] He confirmed that in March 2020 he sought assistance for his mental health when he was in Mannus Correctional Centre,[62] and also saw the mental health nurse at VIDC in June 2020.[63] If he needs further help he will go and see his GP and ask for a referral to see a psychologist.[64]
[59] S1, 46; Transcript, 31.
[60] Transcript, 31.
[61] Transcript, 32-33.
[62] Transcript, 31; S3, 135.
[63] Transcript, 32; S1, 21.
[64] Transcript, 49, 52.
Risk of re-offending
The Applicant contends that he is not at risk of engaging in further criminal conduct because he does not want to be away from his family, especially his daughter for whom he wants to be ‘a responsible and positive role model.’[65]
[65] G9, 56.
Children
The Applicant has three minor children: two sons, ZP born in 2005 and RP born in 2014; and a daughter KP born in 2017, all of whom are living in Australia. ZP and RP are in the care of their mother and live in Sydney.[66] He has not been in contact with his sons since September 2020 and has not seen them since May 2018.[67] He writes letters to them and is writing a children’s book and sends them a chapter every month. They know he is in detention and has been in gaol and that he has been affected by drugs.[68] His mother and sister see the boys and they are ‘very close’ to the Applicant’s brother, who has ‘stepped in’ during his incarceration.[69]
[66] Transcript, 41.
[67] Transcript, 42.
[68] Transcript, 42.
[69] Transcript, 43.
KP is under the care of the Minister and is currently residing in Wollongong with the Applicant’s sister, who is a registered Life Without Barriers carer.[70] He has monthly video calls with his daughter and also is able to speak to her a couple of times a week by phone.[71] He has not seen his daughter since she was six months’ old.[72] In his request for revocation, the Applicant wrote that he was wants to do whatever Family and Community Services (now the NSW Department of Communities and Justice) requires ‘to get (his) daughter back in (his) life, (to) be a responsible father’.[73] The Applicant told the Tribunal that he intends to take steps to apply for restoration of his daughter to his care. He will attend parenting courses and do all that is necessary for her to be returned to him.[74]
[70] G9, 53; Transcript, 37.
[71] Exhibit A4; Transcript, 36-37.
[72] Transcript, 37.
[73] G9, 53.
[74] Transcript, 46.
In his Personal Circumstances Form, the Applicant stated he has 20 nieces and nephews who reside in Australia however he did not provide any information in relation to their ages or his involvement in their lives.[75] He told the Tribunal that his sister has two daughters. The eldest is aged six years and he speaks to her on the phone, and the other is one year old. His brother has a son who is aged eight years.[76]
[75] G9, 55.
[76] Transcript, 40.
Relationship with former partner, JT
The Applicant told the Tribunal that he commenced a relationship with JT at the end of 2016. Their daughter KP was born approximately a year later. Their relationship ended in August 2018 when KP was removed from her care.[77] He remains in contact with JT because she is the mother of his daughter. JT was sentenced to nine months’ imprisonment and was released in August 2020. She has a daughter who is three or four months old who lives with her.[78]
[77] Transcript, 10.
[78] Transcript, 53.
Family and friends in Australia
The Applicant’s parents live in Wollongong and he is in daily contact with his mother. He has a strained relationship with his father.[79] He has a good relationship with his sister and brother. He has a cousin who lives in Perth with whom he was very close when they were growing up. He lived with her for 18 months and they remain in contact.[80]
[79] Transcript, 38.
[80] Transcript, 55-56.
Family in New Zealand
The Applicant told the Tribunal that his grandmother lives in New Zealand. She is aged approximately 75 years and has advanced dementia. The Applicant maintains monthly contact with her via video calls.[81]
[81] Transcript, 50-51
Plans for the future
The Applicant told the Tribunal that if he returns to the community he will live with his mother and father in Wollongong. He also has a friend, CM, who he met six months ago on Facebook. She lives in Sydney, and she is happy for him to live with her.[82]
[82] Transcript, 46
He plans to work in either construction or in a warehouse/factory job in Sydney or Wollongong and will commute to work if necessary.[83] CM’s former husband is involved in the construction industry, and the Applicant’s cousin, TE, is involved in a recruitment agency for the mining industry.[84] The Applicant’s ‘dream’ is to study to become a nurse.[85]
[83] Transcript, 48
[84] Transcript, 47.
[85] Transcript, 47.
The Applicant is willing to undertake counselling or group therapy and also to attend Narcotics Anonymous meetings which are held in Wollongong.[86]
[86] Transcript, 49.
Impediments on return
The Applicant claims he would have problems finding a place to live and securing employment if he was returned to New Zealand.[87]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[87] G9, 59.
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 28 June 2019 regarding his criminal convictions and sentences.
The evidence before the Tribunal is that on 25 May 2018, the Applicant was convicted of two counts of Common Assault (DV), Armed w/i commit indictable offence, Contravene prohibition/restriction in AVO, Possess article w/i destroy/damage others property and Destroy or damage property <=$2000 (DV)-T2. He was sentenced to one month’s imprisonment for the destroy or damage property offence, and 12 months’ imprisonment for each of the other offences. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also 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.
(a)      Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c) …;
(d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f) The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h) …
(i) Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
In accordance with paragraph 13.1.1(1)(a) and (b) of the Direction, the Tribunal is required to view very seriously the Applicant’s violent offending, which consists of common assault, destroy or damage property and assault occasioning actual bodily harm, and which includes offences committed against his former partner and his mother. The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant committed a violent assault while in immigration detention, despite previously being sentenced by the courts to a term of imprisonment for his domestic violent offending.
Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The Tribunal finds that while the sentences imposed on the Applicant are not at the higher end of the sentencing range, he has been sentenced to multiple concurrent terms of imprisonment, and his offending should therefore be regarded as serious.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending has been frequent and repetitive. The Applicant has engaged in violent and intimidating conduct against his victims, which included physical assaults and verbal abuse against his partner and mother in a domestic context and in breach of AVOs. The Applicant's criminal record demonstrates that his offending has displayed a trend of increasing seriousness. His early offending between the period 2005 and 2010 resulted in convictions for five driving offences, two public order offences and a dishonesty offence, for which he received fines and a bond. The seriousness of his offending escalated in 2017 when he committed the offences of common assault, destroy or damage property, and contravention of AVO, and continued in 2018 when he committed the same offences in a domestic context for which he was sentenced to terms of imprisonment. His serious offending continued following his incarceration when he committed an assault occasioning actual bodily harm, for which he was convicted and sentenced by the courts to 18 months’ imprisonment.

Having regard to paragraphs 13.1.1(1)(g) of the Direction, the Tribunal has noted the evidence before it that the Applicant provided false information to the Department by not declaring that he had been convicted of criminal offences on the incoming passenger cards he completed on arrival into Australia in 2014 and 2015.[88] The Tribunal also, in accordance with paragraph 13.1.1(1)(i), has had regard to the fact that the Applicant committed his most recent offence, assault occasioning actual bodily harm, while he was in immigration detention at VIDC following the mandatory cancellation of his visa.
[88] G8, 44-46.
Based on the evidence before it, and for the reasons above, the Tribunal finds that the Applicant’s criminal offending is serious, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk 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; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend in accordance with paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community and damage to property. The Applicant’s criminal offending has included actual and threatened physical violence committed against his victims, which include his former partner and his mother. The potential harm to individuals and the Australian community should he continue to engage in such conduct is very serious. His violent behaviour has caused, and has the potential to cause in the future, substantial harm to victims, being both the psychological and physical impacts of his offending, and significant financial cost to the community associated with emergency services and law enforcement activities.
The Tribunal has previously recognised the physical and psychological harm that is inflicted as a result of violence directed towards women in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385, the Tribunal observed (at [45]):
… in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex- based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 13.1.2(1)(b) of the Direction, the Tribunal notes that the Applicant claims that he is not at risk of re-offending for reason that he has been drug free for a period of two years and he is committed to engaging in further rehabilitation and courses upon his release. However, he admitted that smoked a joint while he was incarcerated in late 2019, and information from the NSW Department of Communities and Justice records that he failed a urinalysis test on 24 January 2020 when he tested positive for cannabis metabolite.[89]
[89] S3, 139-143.
The pre-sentence report dated 22 May 2018, completed by a NSW Community Corrections Officer, and the sentencing remarks of Magistrate Van Zuylen in May 2018, both noted that the Applicant will require considerable support to deal with his drug addiction.[90] However, there is no evidence before the Tribunal from the Applicant's immediate family members as to the support they will be able to provide him to assist him in his rehabilitation efforts following his release.
[90] G7, 40; S4, 157.
The Tribunal notes that the Applicant has previously engaged in rehabilitation programs and courses, and there have been periods in his life when he has not abused drugs and alcohol. In addition, he has held long-term employment in a factory and was self-employed for six years in the construction industry as a scaffolder and labourer. However, his attempts at rehabilitation and holding regular employment did not prevent him from abusing drugs and committing violent offences. The Tribunal notes that Applicant claims he will be able to arrange work in the construction or mining industry upon his release, however it cannot be satisfied based on the evidence before it that such employment will be a protective factor against the Applicant resuming drug-taking and engaging in criminal offending.
In relation to the Applicant’s stated intention to engage in further rehabilitation programs and seek counselling and undertake courses if he remains in Australia, the Tribunal notes that the Applicant has not identified the specific counselling or rehabilitation programs he will undertake nor the particular courses in which he will enrol. It cannot therefore be satisfied that the Applicant will undertake the rehabilitation he requires in order to cease drug-taking and not continue to commit violent offences, including in a domestic context.
The Applicant has identified his mental health condition as a contributing factor to his history of violent offending. In his sentencing remarks in May 2018, Magistrate Van Zuylen noted that the Applicant’s mother had expressed her concern that he would not continue with his prescribed medication. The evidence before the Tribunal is that the Applicant ceased taking his medication in January 2020 and he is now self-monitoring his condition and seeking professional assistance only when he believes it is required.
The Tribunal has given considerable weight to the pre-sentence report which assessed the Applicant as at a ‘high risk of reoffending’.[91] Consistent with this finding, less than six months following this report and following the cancellation of his visa, the Applicant was identified as the ‘ringleader’ of the violent assault occasioning actual bodily harm offence against a fellow detainee that occurred at VIDC in October 2018 for which he was sentenced to a term of 18 months’ imprisonment. Although he claims otherwise, the Applicant should have been well aware of the consequences of this violent offending following the mandatory visa cancellation decision, but he nevertheless proceeded to instigate a serious assault against a fellow detainee.
[91] Supplementary documents, 156
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate to high, and that this level of risk is unacceptable, particularly given the nature of the harm he may cause if he does re-offend.
For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs heavily against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
In considering the best interests of the child, paragraph 13.2(4) provides:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) nature and the 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 the 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three minor children who reside in Australia. His two sons, ZP and RP are aged 15 and six years respectively, and his daughter KP is aged three years.
Having regard to paragraph 13.2(4)(a) of the Direction, the evidence before the Tribunal is that the Applicant has had a very limited parental role in his children’s lives, particularly since being incarcerated in gaol and immigration detention. The Applicant has not been in contact with his sons since September 2020, and he has not seen them since May 2018 being a period of two and a half years, which is nearly half of RP’s life. While the Applicant was present in ZP’s life when he was young and the Applicant was living with ZP’s mother, he has been effectively separated from his father during his teenage years. The Applicant has not seen his daughter, KP, since she was six months old and he has therefore been physically absent for the vast majority of her life.
The evidence is that the Applicant’s sons reside with their mother and his daughter is under the guardianship of the Minister and in a long-term placement with his sister, who is a registered carer. The Applicant has limited meaningful contact with his daughter other than regular telephone calls and a monthly supervised video call, and his contact with his sons is currently limited to writing them letters. While the Applicant clearly has a strong emotional bond with his children, there is very limited evidence that he is a significant figure in their lives. This extended period of physical absence of the Applicant from his children’s lives and the limited contact he has otherwise had with them is such that his involvement in their daily care and upbringing is not significant.
Having regard to paragraph 13.2(4)(b) of the Direction, the evidence demonstrates that the Applicant is unlikely to play a significant parental role in his children’s lives in the foreseeable future. His sons reside with their mother and parental responsibility for the Applicant’s daughter is allocated to the Minister for Families, Communities and Disability Services until she reaches adulthood, which is a period of 15 years. Although parental responsibility has been allocated to the Minister, the Applicant’s daughter currently lives with his sister in Wollongong. Accordingly, there are other people who fulfil a parental role in relation to all three of the Applicant's children.
The Applicant’s evidence is that he wishes to take the steps necessary to have his daughter returned to his care. Whereas the Applicant may apply for recission or variation of the Orders with respect to his daughter under section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Care and Protection Act’), such an application may only be made with the leave of the Children's Court,[92] and the Court may only vary or rescind the Orders if it is satisfied that it is appropriate to do so, after considering the matters listed in subsection 90(6) of the Care and Protection Act.[93] There is insufficient evidence before the Tribunal for it to find that the Applicant is likely to, in the foreseeable future, be in a position to make an application that would result in the recission or variation of the Orders. In particular, there is no evidence of what application may be made or the basis for that application, nor is there any evidence relating to any of the matters the Court would be required to consider in deciding such an application.
[92] subsection 90(1).
[93] subsection 90(7).
The Tribunal has had regard to the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the children, as required by paragraph 13.2(4)(c) of the Direction. The evidence before the Tribunal is that KP was present during the Applicant’s offending which resulted in him being incarcerated in May 2018. In his sentencing remarks, Magistrate Van Zuylen noted that the Applicant had picked up his daughter, who was then aged six months, and ‘threw her over his shoulder’ after threatening to take her away. He threatened to kill both his daughter and her mother, stating he planned to ‘strangle them and watch the life drain out of them’. Whereas his daughter was very young at the time of this violent offence, should the Applicant offend in a similar manner towards her in the future, she could suffer considerable physical and/or psychological harm.
For the purposes of paragraph 13.2(4)(d) of the Direction, the Tribunal has had regard to the Applicant’s evidence that his removal from Australia will take him away from his children and he will be unable ‘to be the role model and father [his] children deserve.’[94] The Tribunal accepts that the Applicant’s separation from his children as a result of his removal to New Zealand will likely have a negative impact on them as he will necessarily be physically absent from their lives, and they will not have the opportunity to see their father, unless and until they are able to travel to New Zealand to visit him. They will however be able to continue to maintain contact with him via letter, phone and other electronic means as they have done while he has been incarcerated or in immigration detention.
[94] Exhibit A1.
Considering the factors in paragraph 13.2(4)(e), the evidence before the Tribunal is that the Applicant’s sons are receiving their primary care from their mother and his daughter is being cared for by his sister. Accordingly, the Tribunal is satisfied that there are other persons who currently fulfil a parental role in relation to the children, and there are adequate and stable care arrangements in place for them which will not be affected by the Applicant’s removal from Australia.
There is limited evidence before the Tribunal of the views of the children in relation to the Applicant or how they would be impacted if he were not to hold a visa, other than the evidence provided by the Applicant himself. Accordingly, the Tribunal has not placed weight on the factors in paragraph 13.2(4)(f).
Having regard to paragraphs 13.2(4)(g) and (h) of the Direction, there is no evidence before the Tribunal to indicate that the Applicant has abused or neglected his sons, or that they have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. As noted above, the Applicant’s daughter was present during his violent assault against her mother and grandmother in February 2018.
The Tribunal has also considered the interests of the Applicant’s nieces and nephews, particularly his sister’s two daughters and his brother’s son, who reside in Australia. There is very limited evidence before the Tribunal as to the nature of the Applicant’s relationship with these children, and whether they may be adversely affected by his removal. The evidence is that these children have parents who are their primary carers and that their relationship with the Applicant is not significant. The Tribunal has therefore given the impact on these children of the Applicant’s removal from Australia only limited weight.
Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that, on balance, this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s three children and his nieces and nephews (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[95] 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.[96]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[97] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[98]
[95] Charlesworth J at [66]; Stewart J at [91].
[96] Charlesworth J at [67]; Stewart J at [104].
[97] Charlesworth J at [76].
[98] Stewart J at [97].
The effect of paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.

Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of violent offences in Australia. The Applicant’s offending includes serious offences involving domestic violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of the non-citizen’s visa. The Australian community would have a very low tolerance for the Applicant's criminal offending, which has involved a series of violent offences, including against his former partner and his mother. Of considerable concern in this context is the fact that, despite being detained at VIDC because his visa had been mandatorily cancelled, and him claiming to have ceased using drugs, the Applicant continued to commit acts of violence by instigating a serious assault on another detainee. In light of the seriousness of the Applicant's offending, the Tribunal finds that the Applicant will have exhausted the trust of the Australian community, and it would expect that he should no longer hold a visa.
The Applicant arrived in Australia at the age of 17 years and is now aged 34 years. Having regard to the factors in Principle 5 of paragraph 6.3 of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Tribunal finds that the length of time the Applicant has been living in Australia, is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having regard to the factors in Principle 7 in paragraph 6.3 of the Direction, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory visa cancellation on the Applicant’s children, mother, father, sister, brother, uncles, aunts, cousins, nieces and nephews and other family members who are Australian citizens or permanent residents and reside in Australia.
There is limited evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s immediate family members, none of whom provided a statement in support of the Applicant’s application for review of the Mandatory Visa Cancellation Decision. The Applicant’s cousin provided a letter of support for the Applicant however it is evident that they have had limited contact in recent years. The Tribunal however accepts that the Applicant’s removal from Australia will limit his family and friends from reconnecting face-to-face with the Applicant and will require them to maintain their relationship with him by phone, letters, email and visits to New Zealand. The impact on the Applicant’s family and friends in Australia are factors which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.
The Tribunal also has had regard to the contribution the Applicant has made to the Australian community during his 17 year residency in Australia. The evidence is that the Applicant has held regular paid employment since he left school and has therefore contributed to the economy and paid taxes. The Applicant’s contribution to the Australian economy is a factor which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal offending.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending and the other factors relevant to his circumstances, the Tribunal finds that Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] 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.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Considering the factors in paragraph 14.2(1)(a)(ii) of the Direction, the Applicant first arrived in Australia in February 2004 when he was 17 years old and he has resided here for almost 17 years. He completed his schooling in Australia and has been steadily employed as a factory worker, scaffolder and labourer since leaving school and he has therefore contributed his work skills to the community and economy. In addition, the Applicant has made a positive contribution to his local community by his volunteer work assisting with after school sports activities and counselling young teens about drugs and alcohol.[99]
[99] G9, 57.
Having regard to the factors in paragraph 14.2(1)(a)(i) of the Direction the Tribunal notes that the Applicant started to offend soon after arriving in Australia, with his first convictions being recorded in 2005, when he was 18 years old.
The Applicant has strong family ties in Australia, particularly his children, mother, father, sister and brother. However, there is no evidence before the Tribunal to indicate that his family members or friends have any particular reliance on the Applicant or would suffer any financial or practical hardship if he were removed from Australia. Insofar as this consideration weighs in favour of revocation, the Tribunal has given it limited weight.
Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was employed as a factory worker, scaffolder and labourer prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1)Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal on the impact on the Applicant’s victims of the non-revocation of the Mandatory Visa Cancellation Decision. Accordingly, the Tribunal has given this consideration neutral weight in determining whether the visa cancellation decision should be revoked.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
(1)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 substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
Having regard to paragraph 14.5(1)(a) of the Direction, the evidence before the Tribunal is that the Applicant is 34 years old and suffers from mental health issues. There is unlikely to be any substantial change to the social, medical and economic support available to the Applicant in New Zealand compared to Australia, and the Applicant would have access to those services and supports available to citizens of New Zealand. The Applicant has a history of drug abuse and he has stated his intention to continue his rehabilitation in the community. Services and treatment for substance abuse and mental health conditions are available in New Zealand, and the Applicant will have the same access to these as other New Zealand citizens should he seek such assistance on his return.
Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on return to New Zealand especially given its broad social, political and economic similarity to Australia. New Zealand is culturally and linguistically similar to Australia and has comparable standards of social welfare support and the Applicant will have access to these services as a New Zealand citizen. Noting paragraph 14.5(1)(c) of the Direction, the Tribunal is satisfied that the Applicant will have access to social, medical and economic supports available to all New Zealand citizens, which is likely to be of a similar quality to that available in Australia.
The Applicant claims he would have problems finding ‘a place to live, a job (and) to bring in an income’ if he was returned to New Zealand.[100] The Applicant’s evidence is that although his grandmother resides in New Zealand, she is suffering from advanced dementia and will not be able to provide him with financial or practical support on his return. The absence of family and social support will pose a degree of hardship for the Applicant upon his return to New Zealand. The Applicant has work skills he developed during eight years as a factory worker and as a scaffolder and labourer for six years. His experience and skills will be regarded similarly in New Zealand as in Australia, and therefore his employment prospects in New Zealand are comparable to those in Australia. Once he secures ongoing employment, the Applicant will be able to establish himself and maintain a standard of living commensurate with what is generally available to other citizens of New Zealand.
[100] G9, 59.
On the basis of the evidence before it, the Tribunal finds that, on his return to New Zealand, the Applicant will face hardship, particularly financial and emotional stress, while he finds suitable accommodation, accesses available rehabilitation and mental health services, and looks for a job. This hardship will be exacerbated due to his separation from his children and other immediate family members in Australia.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature, frequency and seriousness of the Applicant’s violent offending, and the moderate to high likelihood of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs in favour of the revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s children and his nieces and nephews (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious and violent offending should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant other considerations, only the strength, nature and duration of ties, and the extent of impediments on return to New Zealand weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
DECISION
The Reviewable Decision dated 8 October 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

....................................[sgd]....................................
Associate
Dated: 1 February 2021

Date(s) of hearing: 17 December 2020

Applicant: In person

Solicitors for the Respondent: Ms S Prasad, Minter Ellison

[2021] AATA 75

4 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	17 December 2020
Applicant:	In person
Solicitors for the Respondent:	Ms S Prasad, Minter Ellison