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

CRFF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2750 (19 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4474
Re:CRFF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:19 August 2022
Place:Sydney

The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).
...................................[SGD].....................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (temporary) visa – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – Applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence committed by the Applicant – best interests of minor children – other considerations – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – decision under set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Dr L Bygrave, Member
19 August 2022
INTRODUCTION

The Applicant, CRFF, is a 40-year-old male who was born in Western Samoa and is a citizen of New Zealand. The Applicant first came to Australia on 19 November 1999; most recently, he arrived in Australia on 27 September 2015 and was granted a Class TY Subclass 444 Special Category (temporary) visa (visa).
On [redacted] August 2017, the Applicant was convicted in the New South Wales (NSW) District Court of the offence, ‘robbery in company cause wounding/ GBH [grievous bodily harm]-SI’, and sentenced to a term of imprisonment of eight years and one month with a non-parole period of five years and seven months.[1]
[1] Exhibit G-G3, pages 35-36.
On 1 April 2019, the Department of Home Affairs (the Department) notified the Applicant in writing that his visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in subsection 501(7) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Exhibit G-G16, pages 293-297.
The Applicant completed a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form dated 9 April 2019. He also lodged a Personal Circumstances Form dated 10 April 2019 and subsequently filed supporting documents.
On 26 May 2022, a delegate of the Minister[3] decided not to revoke the decision to cancel the Applicant’s visa.[4] The Applicant was notified of this decision on 30 May 2022.[5]
[3] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
[4] Exhibit G-G2, pages 13-33.
[5] Exhibit G-G1, page 9.
On 3 June 2022, the Applicant made an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).[6]
[6] Exhibit G-G1, page 3.
The matter was heard by the Tribunal by videoconference on 8 and 9 August 2022. The Applicant was represented and attended the hearing from Villawood Immigration Detention Centre. He provided oral evidence assisted by an interpreter of the Samoan language.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of subsections 501(6) and 501(7).
Subsection 501(6) of the Act defines the character test. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Subsection 501(7) of the Act includes the provision that, for the purposes of the character test, a person has a ‘substantial criminal record’ if ‘the person has been sentenced to a term of imprisonment of 12 months or more’.
In accordance with subsection 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the person makes representations and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. This is a discretionary power.
I am satisfied the Applicant does not pass the character test in subsection 501(6) of the Act because his criminal record, which includes a sentence of imprisonment for eight years and one month, meets the statutory definition of a ‘substantial criminal record’ in subsection 501(7) of the Act. The Applicant does not dispute this finding.
Consequently, pursuant to subparagraph 501CA(4)(b)(ii) of the Act, I consider whether there is another reason to revoke the decision to cancel the Applicant’s visa.
The power of the Tribunal to review the decision to cancel the Applicant’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.
The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.
Direction No. 90
Direction No. 90 provides the following guidance on how the discretion is to be exercised:
6. Exercising the discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Primary considerations are listed in section 8 of Direction No. 90 as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Other considerations are set out at section 9 of Direction No. 90. These include (but are not limited to):
(1)international non-refoulement obligations;
(2)extent of impediments if removed;
(3)impact on victims;
(4)links to the Australian community, including:
(a)strength, nature and duration of ties to Australia; and
(b)impact on Australian business interests.
Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 requires that I consider the nature and seriousness of the Applicant’s ‘criminal offending or other conduct to date’.
The Applicant was born in Western Samoa in 1982. He was raised by his grandmother and attended school in Samoa until he was 16 years old. He was then adopted by his uncle and aunt who were living in New Zealand and completed high school to the equivalent of year 11.
The Applicant arrived in Australia in December 1999 when he was aged 17 years with one of his cousins (adopted brother), ‘TA’, and uncle (adopted father). Subsequently, his aunt (adopted mother) and cousins (adopted siblings) also came to Australia. The Applicant’s travel records indicate he has departed Australia on six occasions since 1999 for short periods of several weeks.[7] Incoming passenger cards show that the Applicant’s most recent overseas travel (in 2011, 2012 and 2015) was to Samoa.[8]
[7] Exhibit G-G15.
[8] Exhibit G-G14.
In September 2000, the Applicant met his now wife, Mrs ‘A’, who is an Australian citizen. The Applicant and Mrs ‘A’ married in 2008 and have four children together: a son, ‘CA’, who is 21 years old; a daughter, ‘SA’, who is aged 19 years; a son, ‘KA’, who is aged 12 years; and a son, ‘MA’, who is 11 years old.
The Applicant also has extended (adopted) family members living in Australia including his parents, three younger sisters and two younger brothers, and nieces and nephews who are the children of his sisters and brothers. The Applicant’s family members following his marriage to his wife also include his mothers-in-law, two brothers-in-law, nieces and nephews who are the children of one brother-in-law, three aunts and one uncle. All these family members currently reside in Australia and – except for his father, one sister and one brother – all are Australian citizens.[9]
[9] Exhibit G-G8, page 66.
In the period from his arrival in Australia in 1999 to his incarceration in 2015, the Applicant maintained full time employment in occupations including machine operator, distributor, forklift driver, and owner/manager of a restaurant.
The Applicant’s criminal history
The Applicant’s criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 15 May 2019 and includes convictions for the following offences:
·[redacted] Local Court, [redacted] August 2004.
oOffence: ‘Drive while under the influence of alcohol or drugs’. Result: Community service order 150 hours, disqualification 12 months.
oOffence: ‘Drive vehicle recklessly/furiously or speed/manner dangerous’. Result: Community service order 150 hours, disqualification three years.
oOffence: ‘Never licensed person drive vehicle on road – 1^st offence’. Result: Community service order 150 hours, disqualification three years.
·[redacted] Local Court, [redacted] November 2004.
oOffence: ‘Common assault-T2’. Result: Fine $600; section 9 bond 12 months. The applicant is to ‘undertake and attend to completion in a satisfactorily manner anger management and domestic violence programs and to obey all reasonable directions for counselling, educational development and drug or alcohol rehabilitation and to report to [redacted] within 5 days. Not to assault, molest, harass or otherwise interfere with victim or incite a third person to do so.’
·[redacted] District Court, [redacted] August 2017.
oOffence: ‘Robbery in company cause wounding/GBH-SI’. Result: Imprisonment eight years and one month, non-parole period with conditions of five years and seven months.[10]
[10] Exhibit G-G3, pages 35-36.
The Applicant has also provided a document from the Ministry of Justice in New Zealand, which stated he has ‘no convictions’ recorded in New Zealand as of 18 June 2020.[11]
[11] Exhibit G-G4, page 37.
There are no written records before the Tribunal that provide details about the Applicant’s convictions in the Local Court on [redacted] August 2004. At the Tribunal hearing, the Applicant explained the circumstances of his convictions as follows:
·his cousin was visiting and they were drinking alcohol;
·his cousin needed to top-up his mobile phone in order to use it and so the Applicant drove him to a service station; and
·as the Applicant was driving his cousin back to his house from the service station, the car was seen by an unmarked police car and the police followed the car to his house where he was arrested.
He acknowledged that his behaviour was ‘immature’ and due to being ‘under the influence’ of alcohol.[12]
[12] Oral evidence of the Applicant, transcript of proceedings, 8 August 2022, page 18.
In relation to the offence of common assault dealt with in the Local Court on [redacted] November 2004, a New South Wales (NSW) Police Facts Sheet set out details of an incident between the Applicant and Mrs ‘A’ in October 2004. The NSW Police Facts Sheet stated that the Applicant and Mrs ‘A’ were at their house and began arguing about their children (‘CA’ was then aged three years and ‘SA’ was 17 months old). Mrs ‘A’ went to their bedroom and, ‘[d]ue to being upset, the accused [sic] has knocked several bottles of perfume off a dresser in the room causing [‘SA’] to start crying’.[13] A short time later, the ‘accused has entered the bedroom and an argument has started’ and, ‘at this time the accused has used his right fist and started to hit the accused [sic] in her upper arms and shoulder areas to the front’, which ‘caused the victim pain and discomfort’.[14] The ‘accused [sic] started to crawl up in a ball to protect herself and the accused has stopped punching’ her.[15] The Applicant left the room and Mrs ‘A’ contacted her mother, who in turn contacted the police. Police attended and ‘noticed several bruises’ to Mrs ‘A’’s upper arms and wrists, which were photographed by police.[16]
[13] Exhibit SG-SG3, page 606.
[14] Exhibit SG-SG3, page 606.
[15] Exhibit SG-SG3, page 606.
[16] Exhibit SG-SG3, page 606.
Court Orders dated 22 November 2004 recorded the Applicant pled guilty, was convicted of the offence and received a section 9 bond for 12 months with the following conditions:
Accept Probation Service supervision for as long as considered necessary, and… undertake and attend to completion in a satisfactorily manner anger management and domestic violence programs [and] obey all reasonable directions for counselling, educational development and drug or alcohol rehabilitation.
Not to Assault, molest, harass or otherwise interfere with [Mrs ‘A’] or incite a third person to do so.[17]
[17] Exhibit SG-SG3, page 617.
In a statement by Mrs ‘A’ dated 18 August 2021, she wrote that she ‘could not remember all the small details’ of this incident as she and the Applicant used to argue over small things and, at that time, did not know how to communicate with each other very well.[18] She wrote that she and the Applicant began a verbal argument, which became ‘heated’ as the Applicant ‘found it hard to express the way he felt because English was his second language’.[19] Mrs ‘A’ wrote that, in her ‘anger’, she ‘pushed everything off [her] dresser not realising that [‘SA’] was beside’ her, the Applicant saw this and ‘pushed’ her onto their bed. He then ‘held’ her arms above her head while they continued to yell at each other and then he took ‘SA’ outside.[20]
[18] Exhibit G-G13, page 204.
[19] Exhibit G-G13, page 204.
[20] Exhibit G-G13, page 204.
I note this statement of Mrs ‘A’ was consistent with a written statement by the Applicant dated 16 August 2021 and his oral evidence at the hearing. I further note that, as I have indicated by the use of ‘[sic]’ in paragraph 30 above, the NSW Police Facts Sheet appears to incorrectly attribute some of the offending behaviours between Mrs ‘A’ and the Applicant.
I accept the evidence of the Applicant and Mrs ‘A’ that, following this incident, they separated for several months to work on their relationship and communication, and this behaviour has not since occurred. This is also verified in contemporaneous case note reports from the NSW Department of Corrective Services that show, amongst other tasks completed by the Applicant, he also attended Alcoholics Anonymous (AA) meetings.[21]
[21] Exhibit SG-SG1, pages 88-93.
The Applicant’s conviction for the offence of ‘robbery in company cause wounding/GBH-SI’ heard by the NSW District Court on [redacted] August 2017 related to an incident in August 2015 when the Applicant was in the company of two other males, including his (then) 24-year-old brother, ‘BA’, and their cousin, ‘PA’.
The sentencing remarks of the District Court Judge delivered on [redacted] August 2017 in relation to the Applicant and ‘BA’ stated:
·the Applicant and ‘BA’ were appearing for sentencing following their conviction at trial where:
o‘BA’ was ‘found not guilty of robbery, inflict grievous bodily harm but guilty of the alternative count of robbery in company’; and
othe Applicant was ‘convicted of the principal charge of robbery in company inflict grievous bodily’ harm;
·the Applicant had entered a ‘plea of guilty to an alternative offence of recklessly cause grievous bodily harm in company’ at the commencement of the trial that was ‘not accepted by the Crown Prosecutor’; and
·consistent with the Applicant’s plea, there was ‘no issue taken in the trial that [the Applicant] was involved in the events’ or that ‘he inflicted the injuries to the victim or he participated in inflicting injuries to the victim or that there were injuries that amounted to grievous bodily harm’.[22]
[22] Exhibit G-G6, pages 39-40.

The sentencing remarks of the District Court Judge outlined the background facts of the matter including that the victim played a poker machine at a hotel on the evening of 15 August 2015 and won over $3,000. This was seen by ‘BA’, ‘PA’ and the Applicant; although ‘BA’ ‘primarily orchestrated the robbery that was to take place’.[23] The District Court Judge described the incident as follows:
The offenders left [the hotel] with the victim in his utility. [‘BA’] and [‘PA’] sat in the rear tray, [the Applicant] sat in the passenger seat and directed…the victim, as he was driving. Rather than going to [‘BA’’s] home they drove into an industrial area to an area where it was dark, he was alone, isolated and outnumbered. [The Applicant] informed the victim that they lived just around the corner.
The victim lost control of his vehicle coming off a bend. He has no recollection as to how this happened and no inference can be drawn against the offenders as to the cause of the collision. Following the collision [the victim] was isolated in an industrial area in the early hours of the morning. He had some damage to his car. From closed-circuit television footage at the site of the collision they were in the area for some 21 minutes and it was only after [the victim] completed his telephone call requesting a taxi that he was attacked by [the Applicant].
The assault itself was savage. [The Applicant] hit the victim with a piece of wood. Once he fell to the ground [the Applicant] hit him with a wooden stool, breaking the stool. He then stomped on the victim’s head two to three times.
[‘BA’] and [‘PA’] were in close proximity at the time. The injuries to the victim are life changing and will have ongoing impact upon him.
The assault involved the use of weapons which were improvised. The force of the blows was significant as indicated by the stool which shattered with a single blow, and the resultant injuries. The blows were repeated and involved kicking and stomping and striking the victim when he was not physically capable of resisting. There was no dispute at the trial that the injuries sustained amount to grievous bodily harm.
The verdict of the jury is consistent with their finding that [‘BA’] did not reasonably foresee the likelihood of such serious injuries being inflicted upon an extended joint criminal enterprise basis. All the injuries inflicted were inflicted by [the Applicant]. [‘BA’] was able to see the violence that was inflicted upon the victim. It is clear that [‘BA’], after seeing the violence that had been inflicted, stole the victim’s money consistent with a plan in place from the [hotel]. [‘BA’] was aware of the level of violence and that the victim appeared to be injured. On the version that [‘BA’] provided and the evidence of [‘PA’] he attempted to place the victim in the recovery position.
When walking away from the scene coming back and then leaving again it is clear that all three are together. The offenders made no attempt to get medical treatment for [the victim]. He was left lying in the gutter in an isolated industrial area in the early hours of the morning on a weekend. They left together walking along the roadway and then into a stormwater canal.[24] [emphasis added]
[23] Exhibit G-G6, page 41.
[24] Exhibit G-G6, pages 41-43.
In assessing the ‘objective seriousness of the offence’ for the Applicant, the District Court Judge stated in her sentencing remarks:
Grievous bodily harm is an element of the offence but the Court can consider where the level of harm falls within the spectrum of grievous bodily harm. The extent and nature of the injuries sustained by the victim are extremely serious and well above that required to constitute grievous bodily harm. The report of Dr [‘R’] provides a list of some of the ongoing issues which include permanent deafness in one ear. The neural hearing loss results in a man in his thirties needing to wear hearing aids. His vision is such that he must now wear glasses and he has, in medical terms, a moderate brain injury.
The offender [the Applicant] used weapons to strike the victim, the first blow to the head with a piece of timber which caused the victim to fall to the ground. When he tried to get up he was hit with a timber stool with enough force to break the stool. The use of a weapon is not an element of the offence and it is an aggravating factor for this offence. I accept that the offender was not armed and did not bring weapons with him but used items available at the scene. Having struck the victim with weapons the offender then stomped on the victim’s head at least two times. The degree and manner in which the grievous bodily harm was inflicted are both indicative of a serious offence. The offence was opportunistic and was motivated by having seen the amount of money that the victim had won that evening.[25] [emphasis added]
[25] Exhibit G-G6, pages 44-45.
At the Tribunal hearing, the Applicant disagreed with the version of the incident as outlined in the sentencing remarks. He said he began drinking alcohol with ‘BA’ and ‘PA’ after they attended his son’s Saturday morning sport on 15 August 2015. Later in the evening, they all went to a pub where they met the victim who gave them a lift home. He said he had ‘no idea’ that his brother and cousin planned to rob the victim.[26]
[26] Oral evidence of the Applicant, transcript of proceedings, 8 August 2022, page 30.
Consistent with comments attributed to the Applicant in a NSW Department of Corrective Services case note report dated 16 February 2021,[27] the Applicant told the Tribunal the victim crashed his car which then led to an argument. The Applicant said he could ‘not recall hitting the victim with a piece of wood or hitting him with a wooden stool’ and remembered it as ‘more of a fist fight’.[28] He further confirmed:
because I was highly intoxicated, yes I do remember the fighting – the fist fights – but the fact that I hit him with the piece of wood and with the wooden stool is what I don’t recall.[29]
[27] Exhibit SG-SG1, page 82.
[28] Oral evidence of the Applicant, transcript of proceedings, 8 August 2022, page 33.
[29] Oral evidence of the Applicant, transcript of proceedings, 8 August 2022, page 34.
The Applicant said that, in October 2015, he told the police his version of what occurred on 15 August 2015 but the police and the jury at the two-week trial only relied on the version of the incident and offending behaviour that was provided by ‘PA’.
I accept the Applicant has acknowledged the extent of the victim’s injuries and expressed remorse for his behaviour. I also accept his evidence that his offending behaviour:
wasn’t premeditated that I was going to go do robbery or inflict wounds upon another person. That wasn’t my intentions on the night.[30]
[30] Oral evidence of the Applicant, transcript of proceedings, 9 August 2022, page 4.
However, for the following reasons, I have significant difficulty accepting the Applicant’s version of what occurred, and his offending behaviour as told to the Tribunal and set out in the NSW Department of Corrective Services case note report on 16 February 2021.
First, the Applicant’s oral evidence about his level of intoxication and ability to recall the events of the evening of 15 August 2015 was inconsistent. The Applicant gave evidence to the Tribunal that his brother, ‘TA’, had passed away in 2014; this was a very distressing period and he used alcohol to manage his feelings of grief and loss. He said that, during this period, he would binge drink on weekends to the extent that he would do ‘stupid’ things that he could not recall afterwards.[31] The Applicant’s capacity to accurately recall his offending behaviour on the evening of 15 August 2015 is also outlined in the sentencing remarks of the District Court Judge, which stated the Applicant had told a consultant psychiatrist ‘that he was heavily intoxicated at the time of the offending, that he has limited memory of the offence’.[32]
[31] Oral evidence of the Applicant, transcript of proceedings, 9 August 2022, page 20.
[32] Exhibit G-G3, page 50.
Second, the version of the incident as set out in the sentencing remarks of the District Court Judge was taken from a two-week trial before a jury and corroborated by at least some closed-circuit television recording as well as the evidence of ‘PA’ and ‘BA’. I note the Applicant had legal representation during this trial and indeed, at the commencement of the trial, acknowledged his role in the offending by entering a plea of guilty to ‘an alternative offence of recklessly cause grievous bodily harm in company’.[33]
[33] Exhibit G-G3, page 40.
Finally, the Applicant’s version of the incident does not appear to be consistent with the following comments attributed to the Applicant in the sentencing remarks of the District Court Judge:
In relation to the current offence, the [Applicant] said that he feels very remorseful for what happened to him; nobody should have to go through what he is: “I was very drunk, it’s just the way it happened; it was all so quick. I put my hand up for bashing him but I didn’t rob him, but they found me guilty so I’m going to do my time and move forward with my life.”[34]
[34] Exhibit G-G3, pages 49-50.
It appeared from the Applicant’s oral evidence to the Tribunal that he sought to minimise his role in the offence and this, in turn, posed a question about the extent to which he has acknowledged his offending behaviour caused injury to the victim. I address this further in my consideration of the Applicant’s risk of reoffending.
The Applicant’s time in prison and immigration detention
The Applicant has been incarcerated since 9 October 2015. He was held in adult prisons until he was granted parole on 8 May 2021 and has subsequently been detained at the Villawood Immigration Detention Centre.
Records from the NSW Department of Corrective Services show that, while incarcerated, the Applicant received regular visits and phone calls with his family, undertook employment, and completed courses and programs including:
·EQUIPS Foundation, EQUIPS Addiction and EQUIPS Aggression programs; and
·‘White Card’ and hospitality, construction, dogger, crane, forklift and asbestos qualifications.[35]
[35] Exhibit SG-SG1.
Case note reports completed by staff at the NSW Department of Corrective Services in 2018 described the Applicant as ‘respectful and polite towards staff’, ‘positive’, ‘keen to work’, ‘now a mentor and an essential element in the development of other inmates’ and noted he has ‘caused nil issues’.[36] An undated letter from the Acting Overseer Community Projects at Cessnock Correctional Centre stated that he had known the Applicant for approximately four years and the Applicant had ‘used his time [in jail] constructively’ completing courses, developing his skills, and thriving ‘with his exceptional work ethic and can do attitude’.[37]
[36] Exhibit SG-SG1, page 56.
[37] Exhibit G-G13, page 203.
There is no evidence before the Tribunal in relation to the Applicant’s conduct in immigration detention.
Declaration of criminal convictions
The Applicant signed Incoming passenger cards when entering Australia in 2011, 2012 and 2015, in which he did not declare he had any criminal convictions. At the Tribunal hearing, the Applicant provided various explanations for incorrectly completing these forms, including that he did not understand the question and he believed the question related to whether he had any convictions in Samoa because the Australian Government would know about his criminal convictions in Australia.
Consideration
Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of the Applicant’s conduct to date:
·The Applicant’s criminal history set out in paragraphs 27 to 47 includes:
oa conviction for a ‘violent’ crime, which is ‘viewed very seriously by the Australian Government and the Australian community’; and
oa conviction for a crime of a ‘violent nature against’ a woman / an act of ‘family violence’, which – ‘regardless of the sentence imposed’ – is ‘viewed very seriously by the Australian Government and the Australian community’.
·The seriousness of the Applicant’s violent offending in August 2015 is reflected by the Court imposing a substantial sentence of imprisonment on [redacted] August 2017 of eight years and one month with a non-parole period of five years and seven months. I therefore place more weight on this factor.
·There is limited evidence in relation to the frequency of the Applicant’s offending or cumulative effect of repeated offending. I accept there is no evidence the incident of common assault in 2004 has ever been repeated, and the Applicant has been held in prison and immigration detention since October 2015 (approximately seven weeks after his offending in August 2015). Relevantly, the Applicant’s conduct while in prison has been reported as positive, he has participated in rehabilitation programs, undertaken employment and training opportunities, and was granted parole at the earliest date possible. There are no records about the Applicant’s conduct in immigration detention. I therefore place less weight on this factor.
·The Applicant has provided false or misleading information to the Department in Incoming passenger cards signed in 2011, 2012 and 2015; however, I accept his explanation given English is his second language. I therefore place less weight on this factor.
Based on the evidence, I am satisfied that the nature and seriousness of the Applicant’s criminal offending and other conduct to date weighs strongly against exercising the discretion to revoke the cancellation of his visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
At subparagraph 8.1.2(1) of Direction No. 90, the Minister states the view ‘that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ and ‘some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’.
Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
·the likelihood of him engaging in further criminal or serious conduct, taking into account:
oinformation and evidence on the risk of him re-offending, and
oevidence of rehabilitation ‘at this time’, giving weight to time spent in the community since his most recent offence.
As set out in paragraphs 27 to 47, the Applicant’s criminal record shows he has engaged in violent crimes. In relation to his offending behaviour in August 2015, the effect of his offending that comprised grievous bodily harm resulted in the victim sustaining extremely serious injuries and he has ‘in medical terms, a moderate brain injury’.[38] Based on this past offending, I am satisfied that if the Applicant were to engage in further criminal or serious conduct, the nature of the harm to individuals or the Australian community is not acceptable as it would be extremely serious.
[38] Exhibit G-G6, page 44.
I now consider the likelihood of the Applicant engaging in further criminal or serious conduct.
Information and evidence on the risk of the Applicant reoffending
In sentencing remarks on [redacted] August 2017, the District Court Judge stated the following about the Applicant’s likelihood of reoffending:
[The Applicant] was assessed as a medium to low risk of reoffending and he is assessed for a community service order, but he was not assessed as eligible for available developmental programs. I accept that the offender has reasonable prospects of rehabilitation. I find that he is unlikely to reoffend.[39] [emphasis added]
[39] Exhibit G-G3, page 51.
Documents from the NSW Department of Communities and Justice include:
·A Pre-release report dated 6 July 2017 identified the Applicant’s excessive consumption of alcohol at the time as a factor related to his offending and noted that ‘he did not drink during the working week, but on Friday’s [sic] he would drink to the point of severe intoxication with little memory of what he had said or done’.[40] In this report, which is repeated in the District Court Judge’s sentencing remarks, the Applicant was assessed as ‘Medium to Low risk of re-offending’ according to ‘the Level of Service Inventory – Revised actuarial risk/needs assessment tool’.[41] [emphasis in original]
[40] Exhibit SG-SG1, page 15.
[41] Exhibit SG-SG1, page 16.
·A Pre-release report dated 23 February 2021 outlined:
othe Applicant’s circumstances at the time of the offence, his current family and social circumstances and factors related to his offending including attitudes, social influences and substance use;
othe Applicant’s responsivity including his mental health, willingness to undertake intervention, behaviour in custody and response to supervision;
othe Applicant’s program and service participation in custody including offence related programs, education and employment;
othe Applicant’s post release plans including accommodation, post release activities with his family and supervision level as he has been assessed at a Medium-Low risk of reoffending, supervision plan and additional parole conditions; and
orecommendation that a parole order for the Applicant include the following conditions:
·         undertake alcohol and other drug counselling and/or program;
·         not contact the victim and/or family;
·         submit to supervision of Community Corrections pending immigration status.[42]
[42] Exhibit SG-SG1, pages 2-9.
A consultant psychologist, Mr ‘TWM’, completed a psychological assessment and report in relation to the Applicant dated 16 June 2021. Mr ‘TWM’ stated the Applicant ‘presents as a co-operative though psychologically troubled man’.[43] He noted the Applicant has ‘suffered longstanding symptoms of psychological malaise, which were escalating at the time of his offending, against a backdrop of him self-medicating with alcohol’.[44]
[43] Exhibit G-G13, page 222.
[44] Exhibit G-G13, page 223.
Following psychometric assessment, Mr ‘TWM’ diagnosed the Applicant with a depressive disorder (moderate and recurring) and recommended that he would ‘benefit from ongoing psychological attention’ both while he is in detention and on his return to the community.[45]
[45] Exhibit G-G13, page 223.
Mr ‘TWM’ opined the Applicant had ‘used his time in custody in a productive way’, noting that he had been sober for over five years and ‘in this context his judgement has been restored’.[46] He reported that the Applicant had:
expressed appropriate remorse for his behaviour, borne not so much from self-interest but rather, what appears to be insight to the impact of the offence on the victim, who clearly suffered very serious injuries, as well as his family, who would be severely affected should he be deported. These issues in turn are galvanising his resolve to remain alcohol free and to live a crime free existence, if he is permitted to remain in Australia.
…
There are additional protective factors in this case now, including his better insight, his sobriety, his acceptance of his offending and associated remorse, the support of his family and his willingness to undertake treatment. [The Applicant] is also keen to return to the workforce and no doubt employment would provide for him ongoing structure and a form of supervision during the day. Taking these factors into account, the risk of offending in this case is now reducing.[47]
[46] Exhibit G-G13, page 223.
[47] Exhibit G-G13, page 223.

At the Tribunal hearing, the Applicant provided oral evidence about the factors that led to his offending behaviour and his rehabilitation. In particular, the Applicant acknowledged that his alcohol use and binge drinking affected his offending behaviour. At paragraphs 39 to 47 above, I outlined my consideration of the Applicant’s evidence that appeared to minimise his offending behaviour and role in causing injury to the victim on 15 August 2015. I have considered this oral evidence together with the documents produced under summons from the NSW Department of Communities and Justice, which show the Applicant’s positive and constructive behaviour in jail, post-release plans and recommendations for a parole order in the Pre-release report dated 23 February 2021, and the psychological assessment and report of Mr ‘TWM’ on 16 June 2021. I place significant weight on this documentary evidence that shows the Applicant has acknowledged and shown remorse for his behaviour.
In relation to rehabilitation, the Applicant told the Tribunal that he has not drunk alcohol for seven years, and he had made ‘a vow and promise’ to his wife and children to ‘never ever touch alcohol again’.[48] He described the rehabilitation programs and training courses he had undertaken while in jail, and said that he has an offer for employment if he is released into the Australian community. I note this offer of permanent employment to the Applicant and the positive circumstances of his son, ‘CA’, that led to this offer is outlined in letters from ‘IPB’ dated 25 June 2020 and 23 April 2021.[49] The Applicant also said that he had recently commenced seeing a psychologist, and he intended to continue counselling and seek other services to support him if he is released into the Australian community.
[48] Oral evidence of the Applicant, transcript of proceedings, 9 August 2022, page 7.
[49] Exhibit G-G13, pages 199-202.
I also accept the extensive evidence before the Tribunal including written statements from his family including Mrs ‘A’, his two older children (‘CA’ and ‘SA’) and extended family members, which shows the Applicant would have substantial support from his family in the Australian community. I find this support would be a significant protective factor in preventing the Applicant from reoffending.
I am satisfied, based on the report of Mr ‘TWM’, that the Applicant’s risk of engaging in further criminal or serious conduct is ‘reducing’. I note that this is consistent with the sentencing remarks of the District Court Judge, who stated that the Applicant was ‘unlikely to reoffend’, and documentary evidence from the NSW Department of Corrective Services prior to the Applicant’s release on parole from jail in November 2020. I further note that if the Applicant is released into the Australian community, he would be subject to the conditions of his parole until 8 November 2023.
Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should the Applicant commit further offences of engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. I place less weight on this primary consideration because of the Applicant’s positive behaviour since his incarceration in October 2015 and the reduced risk of the Applicant reoffending.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE APPLICANT
Subparagraph 4(1) of Direction No. 90 defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’. Examples of behaviour that may constitute family violence include ‘an assault’.
Direction No. 90, at subparagraph 8.2(1), states ‘the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of…remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by the Applicant. These factors relevantly include:
·the frequency of the Applicant’s behaviour and whether there is any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence; and
·rehabilitation achieved at the time of my decision since the Applicant’s last known act of family violence, including:
othe extent to which he accepts responsibility for his conduct;
othe extent to which he understands the impact of his behaviour on his partner and their children; and
oefforts to address factors which contributed to his conduct.
The Applicant’s conviction for common assault related to an incident in October 2004 with his wife, Mrs ‘A’, and the relevant facts are described in paragraphs 30 to 34 above. I am satisfied this offence is consistent with the definition of family violence contained in subparagraph 4(1) of Direction No. 90. I find this offence is very serious.
Based on the evidence of the Applicant and Mrs ‘A’, that is verified in documents produced under summons by the NSW Department of Corrective Services, I am satisfied the Applicant accepted responsibility for his conduct in 2004 and subsequently made efforts to address mitigating factors which contributed to his offending behaviour. Relevantly, I accept that this behaviour of the Applicant towards Mrs ‘A’ has never been repeated.
I am satisfied that the primary consideration of family violence committed by the Applicant weighs against exercising the discretion to revoke the cancellation of the Applicant’s visa. However, I place less weight on this primary consideration because the Applicant’s act of family violence was a single offence and he complied with the conditions of his section 9 bond, which included completing rehabilitation programs.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether cancellation of the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:
·the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);
·the extent to which the Applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;
·the impact of the Applicant’s prior and future conduct, and whether that will have a negative impact on the child;
·the likely effect any separation would have on the child; and
·whether there are other persons who already fulfil a parental role for the child.
The Applicant and his wife, Mrs ‘A’, have four children who are currently aged 21 years old, 19 years old, 12 years old and 11 years old. I am satisfied that the Applicant’s youngest two children are under the age of 18 years old and their interests are affected by the decision to cancel the Applicant’s visa.
Extensive written and oral evidence has been provided to the Tribunal that show the Applicant, Mrs ‘A’ and their four children are very close. The Applicant and Mrs ‘A’ met when they were young – 18 years old and 16 years old respectively – and they have maintained a close relationship for 22 years despite the Applicant’s incarceration and detention for almost seven years. The Applicant speaks at least daily to his children and wife (if not, multiple times a day), and his family have visited him weekly in jail and detention (covid and access permitting).
The Applicant’s son, ‘KA’, is 12 years old. He is described by his older sister, ‘SA’, in an undated written statement as ‘a very quiet boy who is starting to come out of [his] shell [and he] loves and can’t wait to tell dad about his sporting achievements’.[50] She wrote that ‘KA’ recently won gold in discus at the state championship, which was ‘massive to him and to watch his face light up when telling dad was awesome’.[51] The Applicant filed a letter dated 2 June 2021 that outlines ‘KA’ was approved for a full bursary at a Christian high school from year 7 to year 12 commencing in 2022.[52]
[50] Exhibit G-G9, page 102.
[51] Exhibit G-G9, page 102.
[52] Exhibit G-G13, pages 240-241.
The Applicant’s son, ‘MA’, is now 11 years old. Written statements by the Applicant and Mrs ‘A’ describe that ‘MA’ was born with congenital diaphragmatic hernia (CDH) and a heart condition. In oral evidence to the Tribunal, Mrs ‘A’ explained ‘MA’’s medical history as follows:
Our youngest son, [MA], was born with…congenital diaphragmatic hernia, which [means that] his diaphragm never grew. So all his organs were pushed up into his chest cavity, which didn’t allow his lungs to grow at full capacity, and we also found out he had a heart condition which gave him an even lower percentage of survival rate. When he was born, he was taken…straight from us and we didn’t actually get to hold him until he was 27 days old. He…you know, he’s our little fighter. We were told that – at nine days old that…he probably wouldn’t make it, and he was too unstable. We…formally got him baptised whilst in hospital…the Lord looked over him… and he started to look up a bit, so they could transfer him.
He had his first surgery at 14 days old to replace his diaphragm with a patch and remove his organs down, and he was in [hospital] for…four months. But he was still ventilated. They couldn’t get him off the ventilator, so they had to do heart surgery. So he had open heart surgery at…three months old to replace some valves, and then…it’s a long recovery. He was still ventilated for quite some time…and progressed onto CPAP oxygen and…it was six months before we could actually bring him home.
We had to learn how to tube feed, to change the CPAP, to make sure the oxygen level was –…we basically never slept… To have your child next to you, and if the oxygen had turned off or anything like that,…it was quite scary. At 14 months old, he had to go for more surgery, because the patch that they had put for his diaphragm came away. So…it was actually emergency surgery. They…had to take muscle from his side of his stomach, which means now he can’t get hit or play contact sports or…even the slightest fall on his side, he has got nothing protecting his organs. So there’s that danger there that he will have to live with.
His heart will need more surgery as…he grows. The surgeon doesn’t know whether…it could be next week, it could be next year, it could be a couple of months away, because the valves that they’ve replaced doesn’t grow with the body, and it just depends on how quickly his body grows and when that valve will start failing that they will need to do that.
He’s just gone for another sleep study. We’re waiting for those results to see whether…he requires more oxygen when he sleeps, but we’ll know that in time.[53]
[53] Oral evidence of Mrs ‘A’, transcript of proceedings, 9 August 2022, pages 25-26.
I note the Applicant filed extensive evidence that verifies ‘MA’’s medical history including:
·Reports by Dr ‘DF’ (paediatric respiratory and sleep physician) dating from 2012 to 2021, which sets out his medical history of repaired left-sided CDH, heart surgery, feeding problems and nasal CPAP at the Surgical Lung Clinic at Westmead Children’s Hospital.
·A speech pathologist assessment report by Ms ‘YT’ dated 21 March 2019 that recorded ‘MA’ ‘presents with severe expressive language delay [and]…speech sound errors’.[54]
·A report from Ms ‘CT’ (clinical psychologist) dated 12 August 2021 recording that ‘MA’ had attended for psychological support since May 2020 due to ‘behavioural and emotional difficulties (including anxiety) in the context of parental incarceration’, ‘difficulties with learning, memory and attention’; noting that he was ‘always very cooperative and engaged in [the] session and treatment’.[55]
[54] Exhibit G-G13, page 280.
[55] Exhibit G-G13, page 242.
More recently, ‘MA’ underwent ‘cognitive assessment to assist with ongoing intervention’.[56] A report by ‘MA’’s school counsellor dated September 2021 recorded that ‘MA’ presents with ‘moderate expressive language difficulty’ and a ‘delay in literacy skills’; he also ‘attends regular speech therapy sessions and has been seeing a psychologist for 12 months’.[57] The results of this assessment:
indicate that [MA’s] intellectual ability is in the very low range for children his age, an outcome that is consistent with his academic progress at school and results of his previous cognitive assessment. Results of current adaptive functioning assessment indicate that [MA] is functioning significantly below the range expected for his age across the home and school environment, across all domains, excepting practical skills at school. The weight of evidence from assessments completed at this time supports a DSM-5 diagnosis of Intellectual Disability, of Mild Severity… It should be noted that this result is impacted by [MA’s] speech and language difficulties, and there are areas of his nonverbal cognitive profile that are in the low average range for a child his age.[58] [emphasis in original]
[56] Exhibit A2, page 1.
[57] Exhibit A2, page 1.
[58] Exhibit A2, page 5.
I also note documents that show ‘MA’ is a participant in the National Disability Insurance Scheme (NDIS).
At the Tribunal hearing, Mrs ‘A’ set out that Dr ‘DF’ and Dr ‘SC’ (‘MA’’s cardiologist) have provided medical care for ‘MA’ since he was born and said:
As much as I would love to be together [if the Applicant is deported to New Zealand], there is no way that we could… We have [MA’s] health to worry about. His doctors are here. He has the same two doctors [Dr ‘DF’ and Dr ‘SC’] since he was born; they are the only ones that know him. Just the simple echo [echocardiogram] that he goes for each year is quite difficult to take because his heart is not in the right position; it is upside-down, to the side – it’s hard to explain. He’s asked other doctors to come and have a look and he always has to be helped by Dr [‘SC’] [who] knows exactly where to take the pictures to make sure his arteries are growing and working okay. To be able to find doctors in New Zealand with the same care – I would not risk that. I know [the Applicant] wouldn’t want us to risk that either.[59]
[59] Oral evidence of Mrs ‘A’, transcript of proceedings, 9 August 2022, page 27.
In a statement dated 16 April 2019, Mrs ‘A’ wrote:
[The Applicant] is an amazing father and even though he is not physically here we still try to work as a team to parent out children, but I can tell you it’s been extremely hard not having him here to help with sporting weekends, school and generally just not having him at home. [The Applicant] has a very close bond with all his children and I have seen the effects it is having on them…[60]
[60] Exhibit G-G9, page 86.
Based on the evidence, I am satisfied the Applicant has two sons who are minor children affected by the decision to cancel the Applicant’s visa. I am also satisfied that, despite the Applicant’s incarceration and detention for almost seven years, he has maintained a very close and significant parental relationship with his sons through regular visits and talking on the phone. I place substantial weight on these relationships because the Applicant is these children’s father and the only other person who fulfils a parental role for his minor children is his wife, Mrs ‘A’. Having regard to the written and oral evidence of Mrs ‘A’, I accept that she has done remarkably to parent their four children over the past seven years, but it has been extremely difficult to do this on her own and she needs the assistance of the Applicant to help her care for and raise their children.
Further, I consider the particular circumstances of ‘KA’ and ‘MA’:
·‘KA’ has a bursary to a Christian high school that would be unlikely to be replicated if his father is deported and he travels with him to New Zealand. I therefore find the cancellation of the Applicant’s visa could have additional implications for ‘KA’ in relation to his opportunities for education.
·‘MA’ has significant and complex medical conditions. All of ‘MA’’s treating medical specialists are in Australia, he requires further heart surgery and he is a participant in the NDIS. I find the cancellation of the Applicant’s visa could have substantial implications for ‘MA’ in relation to his future medical treatment and care, and his access to support and services. I also accept the evidence of Mrs ‘A’ that she could not leave Australia due to the risk to ‘MA’’s health, which would result in the family being separated if the Applicant’s visa is cancelled and he is deported to New Zealand.
I am satisfied the cancellation of the Applicant’s visa would be severely detrimental to his two youngest sons and have a profoundly negative impact on both these minor children.
The Applicant also told the Tribunal that he currently has ‘around 11’ nieces and nephews who are Australian citizens and under the age of 18 years.[61] I accept that, since the Applicant completed his Personal Circumstances Form on 10 April 2019 that listed nine nieces and nephews, one of his nieces is now over the age of 18 years and other nieces and nephews have been born. The role of the Applicant in the lives of his nieces and nephews (as well as his four children) is documented in written statements from his sister, mother, mother-in-law, brother-in-law and family friends. Three of his nieces and nephews wrote letters in 2019 asking that the Applicant be allowed to remain in Australia. Documents produced by the NSW Department of Corrective Services also show the Applicant has been visited in jail by his children as well as three of his nieces.[62] The Applicant confirmed to the Tribunal that all his nieces and nephews ‘stay with their parents’.[63] In accordance with Direction No. 90, I place less weight on the Applicant’s relationships with his nieces and nephews as the relationship are non-parental and the children have other persons who fulfil a parental role.
[61] Oral evidence of the Applicant, transcript of proceedings, 9 August 2022, page 13.
[62] For example, see Exhibit SG-SG1, pages 166 and 261.
[63] Oral evidence of the Applicant, transcript of proceedings, 9 August 2022, page 13.
Considering all the evidence in relation to the factors set out in subparagraph 8.3(4) of Direction No. 90, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs very strongly for exercising the discretion to revoke the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 8.4(1) of Direction No. 90 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In subparagraph 8.4(2) of Direction No. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.

Subparagraph 8.4(4) of Direction No. 90 states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.
I have set out the nature and seriousness of the Applicant’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 27 to 68 above. I am satisfied the Applicant’s offences in October 2004 was an ‘act of family violence’ and his offences in August 2015 were a ‘serious crime’ of a violent nature.
Based on the evidence and having regard to the principles and requirements in paragraph 8.4 of Direction No. 90, I find the Australian community would have a low tolerance of the Applicant’s offending and would expect the Government to cancel his visa. I am satisfied the primary consideration of expectations of the Australian community weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. Consistent with my reasons at paragraph 68, I place less weight on this primary consideration due to the Applicant’s positive behaviour since his incarceration in October 2015 and the reduced risk of him reoffending.
OTHER CONSIDERATIONS IN DIRECTION NO. 90
Section 9 of Direction No. 90 lists the other considerations that I ‘must also take into account’ in deciding whether to revoke the mandatory cancellation of a visa. The other considerations that are relevant in this matter are:
·the extent of impediments if the Applicant is removed from Australia; and
·links to the Australian community, namely the strength, nature and duration of the Applicant’s ties to Australia.
I note there is no evidence before the Tribunal that shows the considerations of international non-refoulement obligations, impact on victims or impact on Australian business interests are relevant to these proceedings.
Other Consideration: Extent of impediments if the Applicant is removed from Australia
The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of New Zealand. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in New Zealand.
The Applicant was born in Western Samoa where he lived with his grandmother until he was 16 years old. He then lived in New Zealand for a period of one to two years with his adopted parents until he moved to Australia in December 1999 at the age of 17 years. The Applicant told the Tribunal that, since 1999, he has lived in Australia except for short holidays where he travelled to Samoa to visit his grandmother.
At the Tribunal hearing, the Applicant confirmed that his biological mother lives in New Zealand, but he does not know where because he has been ‘separated from her for a while’.[64] He said that he has three aunts and two cousins who live in New Zealand, but he has not been in contact with them. He has not spoken to any family members about what would happen if he returned to New Zealand or considered where he would stay and work if he was removed to New Zealand.
[64] Oral evidence of the Applicant, transcript of proceedings, 8 August 2022, page 8.
The Applicant is currently 40 years old. There is no evidence before the Tribunal that the Applicant has any health concerns, although I note the report by Mr ‘TWM’ dated 16 June 2021 diagnosed the Applicant with a depressive disorder (moderate and recurring) and recommended ‘ongoing psychological attention’.[65] The Applicant told the Tribunal he has been attending weekly counselling for the past two to three months.
[65] Exhibit G-G13, page 223.
At the Tribunal hearing, the Applicant gave evidence with the assistance of an interpreter of the Samoan language. However, the Applicant has lived and worked in Australia for 22 years and he speaks English with his wife (who does not speak the Samoan language) and children. I am satisfied there is no evidence before the Tribunal that there would be substantial language or cultural barriers to the Applicant moving to New Zealand.
In his Personal Circumstances Form dated 10 April 2019, the Applicant stated that his ‘family is [his] biggest issue if [he] was to be sent back to New Zealand [as his] children and wife are all Australian and cannot come with’ him.[66]
[66] Exhibit G-G8, page 70.
I have set out extensive evidence at paragraphs 75 to 86 about the circumstances of the Applicant’s family and in particular, the situation for his two youngest children, ‘KA’ and ‘MA’.
The Applicant’s wife, Mrs ‘A’, gave evidence to the Tribunal that she has full time employment in Australia and is undertaking study to become a teacher. She has extensively written about the support the Applicant provides to and receives from their family.
The Applicant’s oldest child, ‘CA’, is 21 years old; he has completed his apprenticeship as a carpenter and has been employed full time since he was aged 16 years. ‘CA’ provided a written statement dated 4 July 2022 in which he explained how he ‘dropped out of school and got an apprenticeship’ to financially assist his family, and the effect of his father’s incarceration and detention on him and his mother and siblings.[67] ‘CA’ described the support he is willing to provide to his father if he comes home and that he still needs his dad at home even though he is now an adult. I note that ‘CA’ has organised employment for his father in Australia and the positive circumstances of this is outlined in letters from ‘IPB’ dated 25 June 2020 and 23 April 2021.
[67] Exhibit A4.
I am satisfied that both Mrs ‘A’ and ‘CA’ have provided credible evidence about assisting the Applicant to re-engage with employment and access support services in the Australian community.
The Applicant’s daughter, ‘SA’, is 19 years old. In an undated written statement, ‘SA’ wrote:
My dad is a man who has always worked to try support my family and give me everything I need and want… If my dad was to be sent back to New Zealand it would not only be hard on him but for the rest of my family as well. We as a family have everything over here [in Australia] and us kids have better opportunities for our future.[68]
[68] Exhibit G-G9, page 102.
While I accept the Applicant’s statement that he could return to New Zealand, I am satisfied that his evidence – as well as the evidence of his wife and two oldest children – show that the Applicant would not have access to the social and economic support that is currently available to him in Australia.
On balance, I am satisfied that this consideration of the extent of impediments if the Applicant is removed from Australia weighs in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
Other Consideration: Strength, nature and duration of ties to Australia
In considering the strength, nature and duration of the Applicant’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia and I must have regard to:
·how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where he began offending soon after arriving in Australia; and
omore weight should be given to time he has spent contributing positively to the Australian community;
·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.
The Applicant has lived in Australia since he arrived in 1999 at the age of 17 years. He is now 40 years old. Although the Applicant first offended in 2004 at the age of 22 years, he did not reoffend until 2015 – 11 years later. The Applicant has been either incarcerated or held in immigration detention since October 2015. As set out in paragraphs 48 to 51 above, the Applicant has used this time to participate in rehabilitation programs, complete courses and undertake employment.
In the period from December 1999 to October 2015, the Applicant has been employed full time in roles including machine operator, distributor, forklift driver and owner/manager of a restaurant. I find the Applicant’s employment during this period was a positive contribution to the Australian community.
I am satisfied the evidence shows the Applicant has extremely strong and durable family and social links to Australian citizens including his wife, Mrs ‘A’, their four children, members of the Applicant’s and Mrs ‘A’’s extended families, and friends. In particular, I have had regard to statutory declarations and written statements from the Applicant’s family members and friends that were filed with the Department in 2019 (with supporting birth certificates, citizenship certificates and passport copies), and further supporting documents filed from 2020 to 2022 including further written statements from Mrs ‘A’ and ‘CA’.
In a written statement dated 18 August 2021, Mrs ‘A’ described the distress of her children missing their father and observed that:
Even though [the Applicant] has not been physical [sic] at home with us he has worked hard at keeping his bond with his children and this has always been important to him [as] his family is everything to him.[69]
[69] Exhibit G-G13, page 205.
At the Tribunal hearing, Mrs ‘A’ said she has raised their children on her own for almost seven years, ensuring they have participated in school and sport, and had access to medical and support services as required. She acknowledged the support of their extended family but explained that members of her and the Applicant’s family do not live nearby, which limits their capacity to assist her day-to-day. Mrs ‘A’ was emotional and described the situation as ‘hard…really hard’.[70]
[70] Oral evidence of Mrs ‘A’, transcript of proceedings, 9 August 2022, page 25.
Mrs ‘A’ also commented in relation to her older two children:
We have two adult children; everyone calls them adults because they are just over the age of 18, but they still rely on us. They still very much live at home. They rely on me and their father for advice. They are not ready to be out on their own. Everything is here; our whole life is here. Our household, our memories – everything is still here in Australia and…there is just no way that we could move over there [to New Zealand].[71]
[71] Oral evidence of Mrs ‘A’, transcript of proceedings, 9 August 2022, page 27.
This view was also set out in an undated statement by the Applicant’s son, ‘CA’:
I know my dad does not want to leave us and if he was made to go back to New Zealand it would be devastating not only to my dad but to my mum, brothers and sister [as] we don’t want to move anywhere we want to stay in Australia.[72]
[72] Exhibit G-G9, page 101.
The Applicant’s daughter, ‘SA’, also described the effect of her father’s incarceration and cancellation of his visa on her younger brothers, her mother and herself in an undated statement. ‘SA’ wrote that she has struggled with school since the Applicant has not been at home and had to change schools due to bullying; she wrote about how much she misses her dad and wants him home.
Mrs ‘A’ provided oral evidence to the Tribunal about the effect of the Applicant’s incarceration and detention on their daughter, ‘SA’, and explained:
She gets quite anxious. She withdraws a lot so some days she will be okay, and some days she will be hiding in her room and withdrawn. She suffers very much. She is actually seeing [a counsellor] at the moment, and they are helping but she is still suffering. She is very anxious. Some days she will go to work and she will just come home and stay in her room; she doesn’t want to talk to anyone, she will shut off her phone, and just close the door. She just wants to be alone. She has just had a car accident which has made things worse and she is needing care because she fractured seven vertebrae in her neck…
[Our daughter] and her dad had a different bond and since he hasn’t been here, she has taken it the hardest. She is working through this but just her anxiety level – she actually doesn’t know how to cope. I keep busy so I don’t have time to think, whereas she – it is really hard to explain it. She just withdraws and doesn’t want to talk to anybody, and that is her way of coping.[73]
[73] Oral evidence of Mrs ‘A’, transcript of proceedings, 9 August 2022, page 28.
The Applicant filed a hospital discharge report dated 23 June 2022, which shows ‘SA’ was in a motor vehicle accident on 19 June 2022 and suffered injuries including fractures to her cervical spine.[74]
[74] Exhibit A3.
I also rely on the evidence and my reasons at paragraphs 76 to 86 regarding the Applicant’s close relationship with his youngest two children and the nature of their ties to Australia, especially ‘KA’’s access to a bursary for high school and ‘MA’’s access to medical specialists and support.
Based on this evidence, I am satisfied the other consideration of strength, nature and duration of ties to Australia weighs very strongly for exercising the discretion to revoke the decision to mandatorily cancel the Applicant’s visa.
CONCLUSION
I am satisfied that:
·the first primary consideration (protection of the Australian community from criminal or other serious conduct), second primary consideration (whether the conduct constituted family violence) and the fourth primary consideration (expectations of the Australian community) weigh against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa; and
·the third primary consideration (best interests of minor children in Australia) weighs very strongly for exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
In relation to the other considerations, I find:
·the extent of impediments to the Applicant if he is removed from Australia weighs for exercising the discretion to revoke the mandatory cancellation of his visa;
·the strength, nature and duration of ties to Australia weigh very strongly for exercising the discretion to revoke the mandatory cancellation of his visa.
Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations. However, I consider this weighting should not apply to the Applicant in these particular circumstances. Rather, I place significant weight on the third primary consideration of best interests of minor children and the other consideration of the strength, duration and nature of the Applicant’s ties to his family who are Australian citizens, especially his wife and children. I also note – consistent with my reasons and findings in paragraphs 68, 73 and 94 – that I place less weight on the first, second and fourth primary considerations.
Weighing all the relevant primary considerations and other considerations, I am satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.
For these reasons, the decision made by a delegate of the Minister on 26 May 2022 to not revoke the mandatory cancellation of the Applicant’s visa is set aside.
DECISION
The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 128 (one hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

................................[SGD]........................................
Associate
Dated: 19 August 2022

Date(s) of hearing: 8 & 9 August 2022

Advocate for the Applicant: M. Chand, Shiva's Migration Services

Solicitors for the Respondent: W. Sharpe, HWL Ebsworth Lawyers

[2022] AATA 2750

19 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Date(s) of hearing:	8 & 9 August 2022
Advocate for the Applicant:	M. Chand, Shiva's Migration Services
Solicitors for the Respondent:	W. Sharpe, HWL Ebsworth Lawyers