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

Cowley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3814 (30 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4144
Re:Robert Warren Cowley
APPLICANT

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

DECISION
Tribunal:Senior Member M Griffin QC
Date:30 September 2020
Place:Sydney

The decision under review is affirmed.
...........................................................[sgd]……................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – Applicant is a citizen of New Zealand – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
30 September 2020
BACKGROUND

The Applicant in these proceedings is a citizen of New Zealand, aged 35 years. He first arrived in Australia in 1992, aged six years, for a period of approximately five months. In August 1994, the Applicant returned to Australia, aged nine years, with his mother and other family members in circumstances addressed below. Since then, he has resided in Australia continuously, apart from a brief visit to New Zealand in December 2005.
On 27 September 2019 the Applicant was re-sentenced in the Parramatta Drug Court for a number of offences for which he had previously received suspended sentences from the Drug Court in October 2018. These offences were: two counts of drive motor vehicle during disqualification period; one count of contravene prohibition/restriction in AVO (Domestic); one count of break and enter house etc steal value -< $60,000; and one count of Larceny value <- $2000. In addition, he was also convicted of two new offences: one count of drive motor vehicle during disqualification period; and one count of break and enter house etc steal value -< $60,000. The sentences on this occasion were an aggregate term of 22 months, of which he was required to serve 13 months.
The Applicant was a holder of a Class TY, Subclass 444 Special Category (Temporary) visa (the visa) which was mandatorily cancelled on 7 January 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he had a substantial criminal record and failed to pass the character test as defined in s 501(7) of the Act. The Applicant seeks review of that decision in respect of the visa which was granted on 13 December 2005.
On 24 January 2020, the Applicant made representations seeking revocation of the mandatory cancellation. On 8 July 2020 by a delegate of the Minister decided not to revoke the cancellation decision under subsection 501CA(4) of the Act (the reviewable decision).
On 12 July 2020 the Applicant lodged an application for review of the reviewable decision.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501CA of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by s 501(6) of the Act; or
(b)
that there is another reason why the original decision should be revoked

(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4The 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.
Subsection 501(6)(a) provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: s 501(7)(c).
Subsection 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 s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 79) which commenced on 28 February 2019. The relevant paragraphs of Direction No. 79 are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction No. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)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 forfeit the privilege of staying in Australia;
(d)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;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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; and
(f)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.
Part C of Direction No. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction No. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction No. 79 provides:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
2Decision-makers should also give consideration to:
a) The nature and 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 two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below
The nature and seriousness of the conduct
Paragraph 13.1.1 of Direction No. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
a)the principle that 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)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
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)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction No. 79 states that decision-makers must have regard, cumulatively, to the following:
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.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.
Paragraph 13.2(4) of Direction No.79 provides that, in considering the best interests of the child, the following factors must be considered where relevant:
(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 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.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction No. 79 provides:
(1) 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 principles to be applied, as set out in paragraph 6.3 of Direction No. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties to Australia;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction No. 79 include (but are not limited to):
(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 of Direction No. 79 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 notes 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.
Impact on victims
Paragraph 14.4 of Direction No. 79 provides:
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.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 79 provides that the extent of impediments if removed requires consideration of 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: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
In accordance with s 501(6)(a) of the Act, the Applicant has a ”substantial criminal record” and accordingly, he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
Protection of the Australian community (past conduct and future risk)
It is necessary to analyse the Applicant’s criminal history in some detail to expose his behaviour and other aspects relevant to assessing the seriousness of his past conduct and whether there is a relevant future risk in terms of this consideration.
I do not regard the Applicant as a determined “criminal” in the everyday sense. The Applicant has been a user of drugs of various types, including heroin, from quite a young age. This drug-taking has, no doubt, informed both his criminal conduct and his serious antisocial behaviour, including domestic violence to former partners.
On a scale of seriousness, the Applicant’s criminal behaviour has increased somewhat over time, including breaking and entering offences committed in the first half of 2018. Prior to 2018, the property offences for which he was convicted were relatively petty. He has been convicted of a large number of unlicenced driving offences.
It appears he has been immune and unaffected by various Court Orders punishing him for this behaviour. In fact, during the course of this hearing, his explanation as to why he continued to drive, to go to work in an effort to support his children had, on the one hand, a ring of truth to it but nonetheless displayed an absolutely appalling lack of appreciation of his responsibilities as a driver on the roads.

The Applicant’s continued persistence in driving unlicenced is worrying in the extreme for it displays a person who is entirely incapable of obeying road rules and regulations. Furthermore, such a failure is likely to have consequences for other road users and other persons.
In one instance, in March 2012, the Applicant was apprehended while driving, unlicenced with his two daughters, at that time aged three years and 18 months respectively, who were unrestrained in the back of the vehicle.
This may well be a factual example of the variety of personality disorders and mental health issues from which I accept, on expert evidence, the Applicant suffers. This will be further discussed below.
The Applicant’s drug offending has also been relentless. It goes a long way to explaining much of his other conduct, including conduct in his personal relationships. There is evidence that I am prepared to accept that he has gone for periods drug-free and this is evidenced to some extent by periods where he has not been convicted of any offence. Furthermore, the Applicant seems to spiral into drug-taking with the onset of relationship difficulties.
The Applicant has three ex-partners and presently someone, Ms R, who he has claimed in evidence to be in a relationship with. Although the term of his imprisonment may well have affected that relationship, the Tribunal accepts that the relationship with Ms R is continuing. Ms R has three children who are relevant to issues in Primary Consideration 2, the best interests of minor children in Australia affected by the decision.
The Applicant has been involved in domestically violent relationships. He has been convicted in relation to domestic violence in respect of three ex-partners. On 26 August 2010, the Applicant was convicted of one count of common assault on Ms T, the mother of his four children. The Applicant denied the most serious aspects of that assault, claiming that he merely pushed the victim away. The allegations were that he further pushed her on to the bonnet of a car with one hand around her throat while carrying his young child in the other arm. This he denied. I do not accept his explanation or denial regarding the circumstances of the offence.
The Applicant was convicted of two further counts of common assault on 26 August 2019, in relation to a second former partner, Ms P, and her three-year-old child. The Applicant gave evidence that this incident did not occur at all but that Ms P made the story up so that she could obtain some financial benefit from social services or the like. The Applicant did not complain when charged that the incident did not occur at all nor did he attempt, at any time, to challenge the assertions of assault either before or after conviction. I find that his version is inherently incredible.
A third incident, which took place on 6 May 2017, involved a third ex-partner, Ms H, whose car the Applicant drove away after an argument. After the police were called, he used threatening words in the presence of police and said, in effect, that she had likely caused him to be deported. Following this incident, the police successfully applied for an Apprehended Domestic Violence Order (ADVO) for the protection of Ms H. The Applicant was later convicted of contravening the ADVO.
The evidence clearly supports the view that his relationships are fraught and tumultuous and likely to continue to be so.
As to his drug-taking, he has given evidence that he has not taken drugs whilst in immigration detention at all. In custody he gave evidence of one incident of using marijuana when he was informed that his application not to be deported had been refused.
It is clear enough, therefore, that circumstances and pressures will often dictate his behaviour in relation to violence and drug offending.
All of this, it seems to me, is explicable, based upon a history of medical reports and assessments, including a recent report by a psychologist, Mr Cinar, who references the various disorders from which the Applicant suffers.
The Applicant submits that letters of support from his former partners concerning domestic violence and assault should be taken into account. The Tribunal considers the seriousness of the domestic violent offences is in no way diminished by the letters of support from previous partners.
Overall, the Tribunal considers that the Applicant’s criminal history, although lengthy, is of moderate seriousness, although the commission of the domestic violence offences are regarded by the Tribunal as particularly serious.
Mr Cinar summarised his diagnoses, risk assessment and opinions for the Applicant’s future risk of offending as follows:
(8.1). It has been asserted that under the nomenclature of the DSM-5, Mr. Cowley continues to meet the criteria for PTSD, Major depressive disorder with anxious distress, and presents symptoms congruent to ADHD. It has been noted that experiencing childhood sexual abuse may have formed the background for the emergence of this problem.
(8.2). Victims of sexual violence are vulnerable to a constellation of outcomes including depression, substance abuse and trauma. Furthermore, experiencing difficulty with impulsivity combined with perpetuating substance abuse may have influenced Mr. Cowley to engage in offending behaviour. This can be supported by the effect of PTSD on executive functioning.
(8.3). Assessing the risk for future offending, Mr. Cowley presents with moderate-high risk of reoffending as presented in the LSI-R (moderate) and the SAQ (moderate-high) scores. Furthermore, he has protective factors that may subjugate the likelihood of re-offending. In the event that Mr. Cowley should remain in Australia, it is advised that he consider a tailored treatment for his PTSD symptoms such as EMDR.
(8.4). It is further noted that in the event that Mr. Cowley should return to New Zealand, his symptoms would be further exacerbated given that there would be a risk given the origin of the trauma and the lack of reported support he would have.
Dr Jacmon, in his report dated 26 May 2011, opined:
His impulsivity, irritability, restlessness and lack of organisation in his life have often acted against his best interests and have brought him into conflict with the law.
The Tribunal is of the view that although the Applicant has made attempts to reform, including resort to courses within prison and attempts to pursue counselling, there is, overall, very little evidence, apart from the Applicant’s assertions, that there has been any appreciable change in him. The Tribunal duly recognises and takes into account the early childhood trauma and abuse which the Applicant has suffered, the effects of which continue to this day.
As referred to above, the Applicant has been the subject of a number of psychological and psychiatric assessments. It appears upon a reading of all the reports, including the most recent of Mr Cinar, that the Applicant suffers from post-traumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), anxiety, and depression. Some of this behaviour is said to have its foundation in sexual assault conduct by his male parent when the Applicant was a child.
Other factors are involved as well, but the Tribunal accepts that his criminal responsibility, viewed in terms of seriousness, should be diminished, to some extent, by virtue of those conditions from which he suffers. There is credible opinion from Mr Cinar that there is a contextual correlation between the Applicant’s behaviour and his condition which makes him less capable of clear cognitive functioning and decision-making. This consideration is relevant, overall, to both limbs of Primary Consideration 1 and Primary Consideration 3 (Expectations of the Australian Community), and the ultimate disposition of this application.
In summary, the Tribunal considers the conduct of the Applicant, particularly having regard to domestic violence which the Tribunal views as serious and the relentless unlicenced driving by the Applicant, together with property offences, leads to a conclusion that the Applicant’s offending is serious.
As to the question of future offending and risk to the Australian community, the Tribunal notes the following:
(i) Although the Applicant speaks genuinely of his reform, he has not yet been in the community to test that resolve.
(ii) Although the Applicant has undertaken various courses recently, including the “Equips” course, and is in the process of obtaining an unrestricted driver's licence, other than his stated resolve, there is little credible objective evidence demonstrating reform.
(iii) The Applicant has been the subject of a variety of beneficial orders in the past including supervision by the Drug Court in an attempt to assist him in changing his behaviour. That intervention has been spectacularly unsuccessful, demonstrated as it is by reference to his continual offending history.
(iv) The protective factors referred to by Mr Cinar have been present for many years. His family, both close and extended, his biological children and those other relevant children, have not operated in the past to halt the Applicant’s conduct.
(v) The Tribunal accepts that the Applicant, by the time of hearing, has a greater appreciation of his need to be law-abiding because of the consequences. The Tribunal also notes that in the past, the Applicant was given a salutary warning about revocation of his visa.
(vi) Although there have been predictions concerning the Applicant’s future risk of offending, including that of Mr Cinar most recently, nonetheless, it is the Tribunal‘s view that the most satisfactory assessment of risk is to consider the Applicant’s behaviour in the past.
(vii) Despite the so-called protective factors of family, the Applicant’s newly discovered awareness of his predicament and its consequences and the courses undertaken, the Tribunal is of the view that the Applicant will almost certainly re-offend in the variety of ways that he has offended in the past. In taking this view, the Tribunal takes into account the opportunities which have largely not been taken by the Applicant in the past for assistance by way of various forms of psychological and psychiatric treatment.
The Tribunal is firmly of the view that the Applicant’s past offending is serious and that he will almost certainly re-offend in the future. This consideration, therefore, weighs particularly heavily against the Applicant and his application.
Best interests of minor children in Australia
The Applicant has four biological children, three stepchildren, and five nephews and nieces.
The four biological children are Child A, aged 12, Child D, aged 10, Child F, aged eight, and Child H, aged seven years. The Applicant is separated from the children’s mother, Ms T, and although the Applicant does not expect to live with the children, nonetheless, he says that he would like to continue to have a strong relationship with all four daughters. The evidence is clear to the Tribunal that the Applicant has had, has presently, and will most likely continue to pursue, a strong relationship with his children. Although he has been in custody and immigration detention, nonetheless, he has had contact with his children on a daily basis. Effectively, that sort of contact portends strongly for a strong future relationship. The evidence that the Tribunal accepts is that he has supported his children and, in fact, one of the reasons he wishes to remain in Australia is not only to be present in their lives in a physical sense but to continue to support them financially and emotionally.
This is a strong feature in the Applicant’s favour.
Not only does the Applicant have a relationship with those children but he has been, for some reasonable time, a male figure in the lives of three stepdaughters, that is to say, three children who are the daughters of his present partner, Ms R. They are aged three, five and 10 years old. He does not live with them and says that the relationship is enduring. The Tribunal accepts this as fact and the mutual importance of each stepchild having a continuing relationship with the Applicant and vice-versa.
In the revocation request form made on 9 January 2020, the Applicant refers to the presence, in Australia, of his mother, three brothers and a sister, together with a grandmother and grandfather, aunt, and five nieces and nephews who are aged between three and 10 years. As will be seen below, it is relevant to take into account the presence of the Applicant’s family members in Australia of whom all of those mentioned, are considered by the Tribunal to be close family members. This is indeed a matter which impacts on the Applicant and those family members should he be removed to New Zealand and is a matter appropriately take it into account in the Applicant’s favour.
The five nephews and nieces are described in the Applicant’s Statement of Facts, Issues and Contentions as being “two nephews and three nieces”. Little evidence was given specifically about each of these children. The general effect of the evidence is that the Applicant has a good relationship with those children. In the outline it is stated “he has a good relationship with his biological children and his stepchildren as well as those of his siblings”. The Applicant contends that his removal from Australia will have a negative impact upon all these minor children.
The Tribunal accepts that removal would have a negative impact upon all the children, although obviously in differing degrees depending upon the level of relationship with the children. The Tribunal recognises that the Applicant has been convicted of assaulting a child in the past and, on occasions, failing to meet his obligations for contact with his biological children.
Although it is possible for the Applicant and all the minor children to have some form of electronic/digital contact if removed to New Zealand, the Tribunal considers this to be a poor substitute for real face-to-face contact.
Nonetheless all of the matters mentioned above lead to a conclusion that this consideration weighs very heavily in favour of the Applicant remaining in Australia.
Expectations of the Australian Community
This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not up to the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 79 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
In this case, the Tribunal has considered the seriousness of the Applicant’s offending history together with the risk of his re-offending. The Applicant’s offending should be regarded as being less culpable because of his mental health issues. The length of time the Applicant has spent in Australia affords him a higher level of tolerance. Nonetheless, the seriousness of the domestic violence offences and persistence of his offending, overall, lead to the conclusion that the Australian community, in conformity with Direction No. 79, would expect that the Applicant should not continue to hold a visa.
This consideration weighs against revocation of the mandatory cancellation decision.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
In his Personal Circumstances Form dated 9 January 2020, submitted in support of his request for revocation of the mandatory visa cancellation, the Applicant stated: “I firmly believe my life was and still is in danger due to my mother being on witness protection when we fled New Zealand… She gave evidence against a then still quite lively black power gang. These people are extremely dangerous”.
This evidence was supported by the mother of the Applicant who described coming to Australia for protection. Although these matters occurred 26 years ago, the Applicant’s mother seemed genuinely concerned for the welfare of her son although the concern seems generally related only to the fact that he is liable to be in danger because he is her son, and the son of a member of a dangerous rival gang.
There was no specific evidence given that the Tribunal found credible concerning the existence of present danger should the Applicant be returned to New Zealand apart from the mother’s assertions and those of the Applicant.
The Applicant returned to New Zealand for two weeks in the past and stayed with a relative. More curiously, within the last 18 months, the Applicant’s mother herself returned to New Zealand. Her explanation for the return was lacking in any credible detail that suggested she could possibly have been frightened to return. Her evidence was that she stayed a few days and was concerned for her welfare during that whole time. Whether this was actually true or not, taking all the evidence into account, the Tribunal simply does not accept that after 26 years the Applicant is likely to be in danger from a gang.
The facts as they were put before the Tribunal do not, in the Tribunal’s view, give rise to or engage the requisite elements which are an essential part of a non-refoulement claim.
The Tribunal accepts that such a concern, were it to be credible is, however, a matter which the Tribunal should take into account either as a separate consideration or one which forms part of the impediments in returning someone to their country of origin.
To be clear, apart from those factual matters referred to, the Tribunal also accepts that, in the past, the Applicant has expressed a desire to return to New Zealand. Even though drug-affected, as the Applicant says he was when this occurred, the Tribunal, nonetheless, accepts that this was a genuinely stated desire.
The Tribunal does not accept the Applicant’s claim that he is genuinely in fear of returning to New Zealand for the reasons which he stated. The non-refoulement obligations are, therefore, not engaged.
Accordingly, the Tribunal does not consider that those obligations, should they be regarded as existing, carry any weight in the circumstances. Furthermore, because the Tribunal does not accept the factual basis of these allegations, the Tribunal does not take them into account in any other consideration, including the consideration relating to impediments to returning a citizen to country of origin.
In the event, this consideration has no role in the Tribunal‘s overall assessment of the Applicant’s case.
Strength, nature and duration of ties
The Applicant has resided in Australia continuously since 1994 and spent his entire life here, apart from a period of less than two weeks in December 2005 when he returned to New Zealand.
The Applicant has gained various blue-collar skills and has spent a large part of his adult life in work driven, in the Tribunal‘s opinion in the latter years, by a desire to contribute to the welfare of his children. Apart from the Applicant’s children who reside in Australia with their mother, the Applicant has almost his entire family, who are Australian citizens, living in Australia. The Applicant’s present partner resides in Australia. The Tribunal accepts that the Applicant’s lived experience, for most of his life, has been in Australia. The Tribunal further recognises that the treatment which the Applicant has received for his mental health, sporadic though it has been, has been given in Australia.
As to the Applicant’s ties to Australia, it is also relevant to point out that the Applicant has been, and proposes to continue to be, a carer for his grandmother. This is another feature which weighs in favour in the consideration of his ties to Australia.
The Applicant has worked during his time in Australia and the Tribunal regards this as a contribution to the community. This consideration, overall, is not diminished as the Respondent suggests and weighs strongly in favour of the Applicant.
Impact on Australian business interests

There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There are letters of support by previous partners of the Applicant. That evidence carries some weight in the Applicant’s favour. Other than that material, there is nothing in the evidence which suggests that this consideration is, otherwise, relevant to the Applicant’s case. This consideration carries limited weight in the Applicant’s favour.
Extent of impediments if removed
It is to be accepted that the Applicant will face difficulties in re-establishing himself should he be returned to New Zealand. He has resided in Australia from a young age and all of his family live here.
In the Tribunal‘s opinion, were he to return to New Zealand, there would not be any cultural or language barriers of any significance. With respect to his medical/mental health issues, no doubt he will be affected should he be returned to New Zealand in a mental health sense because of the diagnoses accepted by the Tribunal.
The Tribunal notes and takes into account, particularly in reference to impediments of returning the Applicant, that it is the psychologist’s opinion that should the Applicant be returned to New Zealand, his symptoms would be further exacerbated given the origin of the trauma and the lack of support he would have.
In the Tribunal’s opinion and experience, the New Zealand health system has sufficient capability to assist in treatment of the Applicant’s mental health issues.
A witness at the hearing, TLC, expressed a real concern of the Applicant indulging in self-harm.
Contrary to TLC’s opinion, Mr Cinar’s report states that, at the time of assessment, the Applicant denied suicidality or intent to self-harm.
Were the Applicant to behave in this way, it does not seem that it would be a return to New Zealand that would necessarily trigger this behaviour. In fact, the Applicant has returned to New Zealand on one occasion in the past and the Tribunal accepts that he has expressed a genuine interest in returning to New Zealand on at least one other occasion.
Furthermore, the Tribunal recognises that an impediment to the Applicant’s return to New Zealand would be the fact of his recollection of that early childhood abuse that occurred in New Zealand.
The Applicant’s set of skills would enable him to find work. The Tribunal further recognises that there would likely be an initial unsettled period where the Applicant would need to find accommodation and work. The loss of his children and most of his family connections would also impact on his return.
Overall, this consideration weighs very strongly in the Applicant’s favour.
CONCLUSION
In this matter, there are a variety of factors referred to above which weigh strongly in the Applicant’s favour. Not only, of course, are there the presence of his biological children and other relevant children who live in Australia, there are his family members as well as the fact that he has no relatives living in New Zealand.
These are powerful considerations in the Applicant’s favour, as well as the difficulties of his returning to New Zealand discussed under the consideration of impediments to return.
In the Tribunal‘s view, the Applicant has a newly arrived awareness of the consequences of further behaviour which is criminal or at least socially inappropriate. The Tribunal accepts that this may act as a form of deterrent. These are not meant to be a complete catalogue of all matters in favour of the Applicant.
However, the Tribunal is also of the view, expressed above, that there is a real likelihood of the Applicant behaving in a way similar to the way he has behaved in the past, particularly taking into account the various psychiatric and psychological reports which assess the likelihood of the Applicant reoffending, including the most recent of Mr Cinar.
Although the Applicant has family members and others who are willing to assist him and protect him against future offending, he has had those factors present in the past and he has been unable to be controlled. The Tribunal accepts that his family and friends are genuinely and reasonably concerned about him returning to New Zealand and about his welfare there. In New Zealand, there will be the opportunity, the Tribunal considers, for him to receive commensurate treatment for his various mental health issues and conditions.
Above all, even although this application presents ultimately very finely balanced issues concerning the revocation or otherwise of his visa, nonetheless, the Tribunal considers the past behaviour of the Applicant so worryingly serious and of more concern, the real likelihood of future offending of the type he has indulged in in the past, that these factors relative to Primary Consideration 1 together with Primary Consideration 3 ultimately outweigh all positive factors in the Applicant’s favour.
The decision under review is affirmed.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.........................................[sgd]..........................
Associate
Dated: 30 September 2020

Date(s) of hearing: 14 September 2020

Solicitors for the Applicant: Nikjoo Lawyers

Solicitors for the Respondent: Sparke Helmore

[2020] AATA 3814

30 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	14 September 2020
Solicitors for the Applicant:	Nikjoo Lawyers
Solicitors for the Respondent:	Sparke Helmore