Dalley and Minister for Home Affairs (Migration)

Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019)
Division:GENERAL DIVISION
File Number: 2019/3957
Re:Carlos Dalley
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:20 September 2019
Place:Brisbane

The decision under review is affirmed.
............................[SGD]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa –expedited matter – Special Category Class TY Subclass 444 visa – where visa was cancelled under s 501(3A) because Applicant had a substantial criminal record and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – risk of harm to Australian community – best interests of minor children – expectations of Australian community – decision under review affirmed
LEGISLATION
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR and Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
TGXY and Minister for Home Affairs [2019] AATA 757
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
20 September 2019
INTRODUCTION AND BACKGROUND

Mr Carlos Dalley (“the Applicant”) is a 32 year old New Zealand citizen. Movement records indicate that the Applicant was granted a Class TY, Subclass
[1] Exhibit 5, s 501 G-Documents, G23, page 162. Note: the Applicant was also granted an identical Class TY Subclass 444 Special Category (Temporary) visa upon his initial arrival in Australia on 19 June 1997.
444 Special Category (Temporary) visa (“the visa”) upon his most recent arrival into Australia on 6 March 2014.[1]
The Applicant has a criminal history in Australia which commenced on 17 December 2006 and ran until 22 January 2017.[2] His first sentencing episode came before the courts on 8 January 2007 while his final sentencing episode occurred on 2 May 2018. His offending was both multi-faceted in nature and committed with relative frequency and consistency during its 11 year duration. The offending culminated in him being sentenced to a term of two years’ imprisonment on 2 May 2018. There is an earlier custodial term of 18 months’ imprisonment imposed on 7 March 2008.
[2] Ibid, G18, pages 121-122.
While serving a term of imprisonment, a delegate of the Minister, pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 15 June 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[3]
[3] Ibid, G3, page 12.
On 10 July 2018, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[4] A delegate of the Minister decided on 27 June 2019, pursuant to s 501CA(4) not to revoke the cancellation of the subject visa.[5]
[4] Ibid, G21, page 145.
[5] Ibid, G16, pages109-119.
The Applicant applied to this Tribunal for revocation of the cancellation of his visa on 2 July 2019.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[6] Ibid, G2, page 7.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] I will address each of these grounds in turn.
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant helpfully conceded that (a) he had a substantial criminal record for the purposes of s 501(7)(c), (b) did not pass the character test pursuant to s 501(6)(a), and (c) was, for the purposes of s 501(3A)(b) of the Act, serving a sentence of imprisonment, on a full time basis, in a custodial institution, for an offence against a law of the state of Queensland.[10] There is a corresponding concession made on behalf of the Applicant that his offending has been “quite serious”.[11]
[10] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), dated 7 August 2019, page 1, paragraph [3].
[11] Transcript, page 4, line 19.
Accordingly, there was no objection from the Applicant to the Respondent’s contention that he did not pass the character test. For the purposes of the character test, there is no getting around the Applicant’s criminal history. More particularly, there is no getting around the respective custodial sentences of two years, imposed by the Brisbane District Court on 2 May 2018, and 18 months, imposed by the Melbourne County Court on 7 March 2008.
The aforementioned two year term imposed by the Brisbane District Court was ordered to be suspended for an operative period of three years after the Applicant had served six months. The 18 month term imposed by the Melbourne County Court was ordered to be suspended for an operative period of two years after the Applicant had served the first six months in actual custody. It should be noted that although the two year and 18 month custodial terms were each ordered to be suspended after six months, the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[12]
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[14]
[13] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[14] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(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.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[15]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[16]
[15] [2018] FCA 594.
[16] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)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;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his National Check Results Report, which appears in the material.[17] As mentioned earlier, it is an offending history that spans an 11 year period.
[17] Exhibit 5, s 501 G-Documents, G18, pages 121-122.
The Nature and Seriousness of the Applicant’s Conduct to Date
I am of the view that the Applicant’s offending can be readily categorised as very serious. He is only a relatively young 32 years of age, yet has compiled a lengthy criminal history across an 11 year span. It is not unreasonable to say that his offending has played a quite significant role for the better part of his adult life.
A careful examination of his offending history demonstrates that while his first two offences involved a summary offence (committing public nuisance) and a failure to follow the direction of lawful authority (both offences having been dealt with in January and August 2007, respectively), his subsequent offending is both demonstrably more serious and increasingly redolent of a refusal to respect lawful authority, be it in the form of a failure to respect either the personal or property rights of others.
The Melbourne County Court, on 7 March 2008, sentenced the Applicant to an 18 month custodial term for the offence of intentionally cause serious injury. In Queensland, his offending moved into the realm of criminal code[18] offending in 2009, via a charge and conviction for the dangerous operation of a motor vehicle while adversely affected by an intoxicating substance. There followed additional criminal code offending[19] in 2011, for a charge and conviction of stealing. As part of the stealing offence, the Applicant was also sentenced for a breach of probation imposed for his abovementioned dangerous operation of a motor vehicle offence.
[18] Criminal Code Act 1899 (Qld), s 328A(1) and (2)(A).
[19] Ibid, s 398.
On 3 March 2015, the Applicant again found himself before lawful authority for a refusal to comply with a direction or requirement emanating from such authority. His offending reaches both a conclusion and a crescendo on 2 March 2018, when he is sentenced by the Brisbane District Court, pursuant to an indictment for the criminal code offence[20] of grievous bodily harm committed on 22 January 2017. As mentioned earlier, the learned sentencing judge[21] saw fit to impose a custodial term of two years for this offending.
[20] Ibid, s 320.
[21] Her Honour, Judge Dick DCJ.
There can be no doubt that with the passage of time, the Applicant’s offending has increased in seriousness. On a stricter view, one could say with considerable conviction, that his offending became very serious after only the first year of its 11 year duration that commenced in 2007. The evolutionary passage of his offending is such that there can be no question that such offending (particularly from 2008 onwards) falls within the ambit of paragraph 13.1.1(1)(a) of the Direction, involving, as it did, crimes of violence. It is thus capable of being viewed very seriously.
The Applicant’s violent conduct engaging the adverse operation of sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction can only be described as both sobering and very serious. I will cite three examples.
The Melbourne Offending – Sentenced in 2008
First, his offending in 2008 in Melbourne resulting in his sentencing to an 18 month custodial term for intentionally cause serious injury is both very serious and could quite conceivably have been – indeed, almost was – catastrophic. The extreme level of physical violence is shocking. It should be noted that the Crown sought to appeal the sentence imposed upon him at first instance on the basis that the sentence was manifestly inadequate. In dismissing the appeal, the Victorian Supreme Court of Appeal summarised the circumstances of the offending as follows:
“The background
2 On the evening of Monday 7 August 2006, the respondent [i.e. the Applicant, for present purposes], then aged 19 years, was drinking with a friend, [name redacted], at the respondent’s uncle’s home in Sunshine. At around midnight [name redacted – aforementioned friend of the Applicant] and he decided to go for a walk. He [the Applicant] had concealed in his trousers a metal shopping trolley handle which he later told police he carried as a precaution against any trouble that they might encounter.
3 A short time later, they were walking in Anderson Road when they came upon the victim, [name of victim redacted] and his companion [name of victim’s companion redacted], both of whom were obviously intoxicated, staggering and drinking from a wine cask.
4 As the men approached each other, words were exchanged and the respondent struck [name of victim redacted] twice to the head with his fist and then twice in the same area with the shopping trolley handle, knocking him to the ground.
5 When the unfortunate man regained his feet, the respondent struck him once more with the handle again causing him to fall. When he returned to his feet on this occasion, he was dealt another such blow.
6 The respondent then grabbed [his aforementioned friend – name redacted], who was fighting with [the victim’s companion – name redacted], and they fled the scene.
7 [The victim – name redacted] was found by police wandering a short distance from the scene, and taken by ambulance to the Royal Melbourne Hospital. On examination, he was found to have suffered: an open wound to the head requiring sutures; a small subdural hematoma; bilateral cerebral contusions; traumatic subarachnoid haemorrhage; a laceration to the left parietal area of the scalp; an extension commuted fracture of the left maxillary antrum and left orbit; and a soft tissue injury to the right knee. He was admitted to the intensive care unit were he was kept in an induced coma until 8 August 2006, remaining in hospital until 15 August 2006 when he was transferred to the Royal Talbot Rehabilitation Centre where he underwent rehabilitation. He has virtually no recollection of the incident.”[22]
[22] Exhibit 5, s 501 G Documents, G20, pages 138-139.

During the hearing before me, the Applicant’s responses to questions put to him in cross-examination about this offending episode were both tepid and unconvincing. Ultimately, his answers to those questions, like much of the rest of his evidence, gave the impression of an air of indifference and a lack of perspective about the quite dangerous consequences that could have resulted from his offending behaviour. This is borne out from the transcript detailing his cross-examination:
“…
MR HAWKER[23]: We see that in that page that we had open, the criminal history. If we turn over the page, and the third entry from the bottom on page 122 of the G documents, which is the second page of the criminal history, you’ll see there that’s the Melbourne County Court, 7 March 2008, intentionally cause serious injury?
[23] Mr Matthew Hawker, Partner, Sparke Helmore Lawyers, the representative of the Respondent.
APPLICANT: M’hmm.
MR HAWKER: And the sentence there, 18 months’ imprisonment, 12 months of sentence suspended for two years. Do you have a recollection of the criminal court process and that sentencing process at the time that you went through them?
APPLICANT: No, not really.
…
MR HAWKER: And then in broad terms, the facts – if you continue down the page on numbered paragraph 4, the paragraph that starts, “As the men approached each other,” and that’s that broad summary of the facts. So you’re walking with a friend. There are other unknown members of the public that you come into contact with?
APPLICANT: But where I lived there, it’s – that wasn’t a pretty place. Like, I’ve been a victim. I’ve been bottled, kicked in the face, kicked in the ribs. It was a couple of months before this, hence why I had that pole. So it’s – the story’s about- it’s completely different.
MR HAWKER: The members of the public that we’re talking about for this night were unknown to you though, correct?
APPLICANT: Yes, they were.
MR HAWKER: Yes?
APPLICANT: They were unknown, yes.
MR HAWKER: So you wouldn’t have known if they had families at home, what their intentions were. As far as you’re aware, they were unknown to you on that night?
APPLICANT: Yes, they were.
…
MR HAWKER: But on numbered paragraph 12, you’ll see various factors, “A plea of guilty, good prospects of rehabilitation and genuine remorse.” So these notions of rehabilitation, remorse, were things that were taken into account, and…
APPLICANT: 19 years old, you know. There’s a difference. I had no – what, any responsibilities, priorities. I had nothing back then.
MR HAWKER: But nevertheless, this was just an incident…?
APPLICANT: But now there’s – it’s not just me getting affected by this.
MR HAWKER: Well this was an incident that led you…?
APPLICANT: 19 years old, mate, still growing up.”[24]
[My underlining]
[24] Transcript, page 13, lines 42-46, page 14, lines 1-4 and lines 31-47, and page 15, lines 37-47.
There can be no question that this offending is nothing other than “very serious” upon any reasonable application of this subparagraph (a) of paragraph 13.1.1(1) of the Direction. The Applicant’s above evidence at the hearing is demonstrative of both (1) not understanding the severity of what he has done, and (2) seeking to allocate responsibility for his conduct on the basis that he was relatively young at the time and was living in a purportedly difficult neighbourhood. These factors do nothing to ameliorate the very serious nature of his offending.
The dangerous operation of vehicle while adversely affected by an intoxicating substance
Second, on 7 November, 2008, the Applicant purported to drive, manage and control a motor vehicle on a public road while heavily intoxicated. Even a cursory review of the facts reveals both the very serious and potentially catastrophic nature of his offending. The relevant Queensland Police Service Court Brief records the facts thus:
The facts in relation to this matter are as follows:
…
At 9:00pm on Friday the 7^th day of November 2008 police from Redcliffe District Traffic Branch attention was drawn to a white Holden sedan with Queensland registration [number redacted] (target vehicle) on Deception Bay Road Deception Bay. This vehicle had been subject to police broadcast regarding erratic driving, driving at high speed and driving dangerously.
Deception Bay road is a sealed bitumen road surface with two lanes east and west separated by a concrete island. The marked lanes in the easterly direction have a single continuous line running along side the concrete traffic island. Police observed the target vehicle accelerate rapidly in an easterly direction way from the intersection of Park road. Police observed the target on multiple occasions drive the vehicle over the continuous white edge line and then back into the marked lane.
The speed limit on Deception Bay road east of Park Road intersection is signed with official traffic signs showing a speed limit of 70km/h. Police followed the target vehicle and obtain speeds up to 160km/h on this section of road. The high speed was maintained over several kilometres.
Whilst travelling at high speed, police observed the traffic light intersection of Deception Bay Road and Webster Road change to a red light facing the target. Police observed the traffic lights were operating correctly and a clearly painted white stop line was displayed on the road surface indicating where vehicles were to stop. Police observed the target vehicle travel through the red light making no attempt to slow or stop near the stop line.
Police observed other vehicles on the road at that time, the defendant showed no regard for the safety of other road users. This section of road has a system of street lighting and was clear and fine.
Police intercepted the target vehicle on Deception Bay Road near intersection of Coman Road Deception Bay. Police observed the driver (Carlos DALLEY) to be the defendant in this matter. Police detected the smell of liquor on the defendant’s breath and observed his eyes to be blood shot. Police observed the defendant to be unsteady on his feet and demonstrated some difficulty in answering questions and slurred speech. Police subsequently required him to submit to a roadside breath test (0.228%); and as a result of that test the defendant was detained and transported to the Breath Analysis Room located at the Redcliffe Police Station.
The defendant stated he had consumed numerous alcoholic drinks but he could not state exactly how much. The defendant stated he had been drinking pre-mix drinks such as bourbon and southern comfort. The defendant stated he was heading home.
At 10:04pm on Friday the 7^th day of November 2008 upon the second requirement made and direction given the defendant supplied a specimen of his breath for analysis upon an approved breath analysing instrument operated by an authorised officer. At the conclusion of that analysis a certificate was issued showing the defendant had 0.189 grams of alcohol in 210 litres of breath. The defendant was handed a copy of that certificate.
Police arrested the defendant and lodge him in the Redcliffe Watchhouse. He was later released on bail to appear in the Redcliffe Magistrates Court on 19/11/2008 in relation to these matters.”[25]
[My underlining]
[25] Exhibit 4, Bundle of Summonsed Material (filed by the Respondent on 23 August 2019), page 15.
The Applicant had no meaningful or discernible response to questions about this offending put to him during cross-examination. Put simply, operating a motor vehicle with a blood alcohol concentration of 0.228% (over 4.5 times the legal limit – as measured at the roadside) or a blood alcohol concentration of 0.189% (over 3.5 times the legal limit – an hour later, as measured by the approved breath analysing instrument) is both beyond excuse and logical explanation. The severity of this conduct, to my mind, becomes exponentially worse and more serious when it is committed while (1) the offender is exceeding the legal speed limit by 90km/h (or 2.3 times over the legal speed limit of 70km/h); and (2) the offender drives straight through a red light at a suburban intersection at that extraordinary and quite conceivably catastrophic speed.
Grievous bodily harm – sentenced in 2018
Third, on 2 May 2018, the Applicant was sentenced by the Brisbane District Court for a criminal code offence comprising grievous bodily harm, committed on 22 January 2017 in the Brisbane CBD. The factual circumstances recorded in the Queensland Police Service Court Brief are, once again, both very serious and sobering:
“The facts in relation to this matter are as follows:
…
The defendant in this matter is Carlos DALLEY [date of birth redacted] a thirty (30) year old male.
The victim in this matter is [name redacted].
The witness is [name redacted].
At approximately 12:40am on 22 January 2017 the victim walked out of the Meriton Hotel which is located at 43 Herschel Street, Brisbane, with the witness, the witness’s wife and their four (4) year old daughter who had been the victim’s guests at dinner. The victim stated that he observed a group of approximately ten (10) persons at the front of the hotel. Some of these people were standing on the footpath and others were exiting a limousine. The group appeared to be part of a wedding party and there was a female in a wedding gown. The witness and his family entered their vehicle which was parked opposite the hotel. The victim was standing on the driver’s side of the vehicle saying good bye to his guests and chatting to them in Tswana which is their native language.
The defendant and another unknown male have approached the victim and were standing beside him on his right side. The defendant was standing beside the victim and the unknown male was on the other side of the defendant. The victim described the defendant as 20’s, approximately 170cm, slim build, black hair shaved short on the sides, Middle Eastern in appearance, wearing a white shirt and black trousers. The unknown male was described as late 20s, slightly bigger build, 168cm, black hair also wearing a white shirt and black pants. The unknown male has said to the victim words to the effect of “What’s funny now nigger, what’s funny now?” The victim replied words to the effect of “I was just taking my friend, I was just seeing them off, what’s going on?” The victim then said “There’s a child in the car” and the unknown male peered in the window and the witness said “there’s a child in the car”. The unknown male said “Oh there’s a child in the car” and shook the witness’s hand.
The defendant has then said words to the effect of “What’s funny, is it funny now nigger?”
The defendant then punched the victim in the face with a closed fist. The victim stated that he did not see the punch coming and by the way the defendant was standing was [sic] would suggest he used his right fist. The victim immediately started bleeding from the mouth and lost his two (2) lower teeth. The victim stated that he was in shock and fell back against the witness’s car, the victim then felt pain after the feeling of shock had begun to wear off. He pivoted and ran toward Roma Street. The victim looked back and saw three males chasing him.
The victim ran to Roma Street, Police Head Quarters however the door was locked. He continued running and turned left into the next street and called ‘000’ on his mobile phone and was advised to return to Roma Street Police Station, which he did and was let in by security.
The victim reported the incident to police and a crew attended the Meriton Hotel. Police located a group of people, the wedding party in the foyer and corridor of the hotel. The defendant was located with them and had blood on his shirt and right fist.
The group initially obstructed police in an attempt to prevent them talking with the defendant. The defendant was arrested during which he made threats to police stating words to the effect of “Let go, I’m gonna fucking kill you” and threw a punch which missed police approaching him. The defendant was transported to the Brisbane City Police Station.
The defendant was then treated by Queensland Ambulance Service Paramedics, transported to the Royal Brisbane and Women’s Hospital and treated for a laceration to his right second knuckle. Whilst at the hospital the defendant repeatedly made threats inferring that he wanted to fight the Police Officer that had arrested him.
Upon release from the hospital, the defendant was transported to the Brisbane City Watch house where he was formally charged for Grievous Bodily Harm.
The defendant was unable to be offered to take part in an interview as his breath alcohol test when admitted to the watch house had a reading of 0.17.
On 23^rd January 2017 the victim attended Ferny Grove Police Station and provided a statement during which he stated that he had attended a dentist and had a false tooth implant and his front top and bottom teeth wired as they were loose. The victim requires on going dental work and surgery including three (3) root canals. The victim also had a split lower lip which was swollen.
The victim was required to take a week off work due to being on prescribed strong painkillers and as a result was unable to perform his duties as a Cardiologist Medical Practitioner.
The victim stated that he did not provoke the incident nor did he give any person permission to assault him.”[26]
[My underlining]
[26] Ibid, page 25.
As I recall the Applicant’s responses to questions about this episode of his offending conduct put to him during cross-examination, he seemed to largely accept what he had done, but did not seem to readily, or at all, accept responsibility for it. To be clear, I do not regard mere acceptance of what is put to an Applicant about his offending to come anywhere near either plausibly explaining the conduct or otherwise genuinely accepting responsibility for it. This is what transpired in cross-examination between the Applicant and the Respondent’s representative:
“…
MR HAWKER: And you’ll see on the first page down the very bottom, there’s the reference to the grievous bodily harm offence?
APPLICANT: M’hmmm.
MR HAWKER: You gave some evidence earlier about – I think there was a reference to 2018 and the wedding night. It was actually 2017, wasn’t it? Yes?
APPLICANT: Yes, I was charged a year later because I was sentenced.
MR HAWKER: Yes, okay. I just wanted to go through some of these, just such that we are aware of the facts of some of the offending. Because we’ve got some of the documents in the material?
APPLICANT: M’hmmm.
MR HAWKER: But if we can start with that one, being the most recent one, which as you’re aware, led to the mandatory cancellation?
APPLICANT: Yes.[27]
[27] Transcript, page 11, lines 38-47; and page 12, lines 1-2.
MR HAWKER: The grievous bodily harm. So you’ve said it was on your wedding night?
APPLICANT: M’hmmm.
MR HAWKER: The attack itself, you’d accept that was on an unknown member of the public, in other words, a member of the public unknown to you?
APPLICANT: Yes.
MR HAWKER: Yes?
APPLICANT: He was across the road?
MR HAWKER: He was across the road?
APPLICANT: Yes.
MR HAWKER: So to set the scene, it was what, around – it was very late in the night, around midnight or so?
APPLICANT: I believe so.
MR HAWKER: And you and the wedding party get back to near a hotel in the city, near Meriton Hotel?
APPLICANT: Yes, Herschel Street, I believe it was.
MR HAWKER: And this member of the public, who happens to be a cardiologist, I think from Townsville. Is that your understanding know?
APPLICANT: Yes.
MR HAWKER: Yes?
APPLICANT: Yes, I found out after.
MR HAWKER: And so he’s finished dinner in the nearby vicinity and has come out to the vehicle with another person and a child I think of about four years of age that was in the car at the time?
APPLICANT: M’hmmm.
MR HAWKER: One of your friends first approaches this member of the public, that’s correct?
APPLICANT: Yes.
MR HAWKER: And an exchange takes place where ultimately your friend doesn’t take any physical action against the member of the public, correct?
APPLICANT: Yes.
MR HAWKER: Yes. And it was explained to your friend that, “Look, there’s a child in the car.”?
APPLICANT: That was – I – I got – honestly, I can’t say much about it because I’d guess, but I think that’s the facts.
MR HAWKER: Okay. But nevertheless, that effectively deescalates [sic] and you walk over and say words to the effect…?
APPLICANT: I don’t think it happened like that.
MR HAWKER: Do you have a recollection of the night or not?
APPLICANT: No. No, I don’t.[28]
[28] Ibid, page 12 lines 5-43.
MR HAWKER: No. So you’ve walked over and said words to the effect, “What’s so funny now, nigger?” You’ve seen that in the documents?
APPLICANT: Yes.
MR HAWKER: And you’ve proceeded to punch this member of the public smack bang in the face, it must be near the mouth region, correct?
APPLICANT: (No audible response).
MR HAWKER: You’re aware that this member of the public lost teeth?
APPLICANT: Yes.
MR HAWKER: And the result was that you didn’t walk away from this, this member of the public had to start running away. You’ve seen that in the material?
APPLICANT: Yes, I’ve seen that.
MR HAWKER: And he tries, he gets as far as the Roma Street police Station and tries to get in, it’s locked. Then runs a little bit further away, calls Triple O, and then he’s directed back to the Roma Street Police Station and security let him in. You’re aware of that part of the history now, having seen the documents?
APPLICANT: Yes, having read it.
MR HAWKER: Yes. And when the police apprehended you, you were threatening to the police officer, yes?
APPLICANT: Yes.
MR HAWKER: You threw a punch, but you missed the police officer, correct?
APPLICANT: I’m not too sure, but yes, if it’s in the pages, I guess so.
MR HAWKER: When you arrived with [sic] the Meriton Hotel, you were with your bridal party. I think you said in your evidence there were 13 other people there, groomsmen and friends. Amongst those people were also females?
APPLICANT: Yes.
MR HAWKER: And amongst those people were also – one of the people at least was your wife?
APPLICANT: Yes.
MR HAWKER: Yes. And the groomsmen, the friend, your wife, these are people who are still in your life at the moment?
APPLICANT: Yes, yes.
MR HAWKER: When we look at the comparison, so at that point in time you’re not a young man. You were what, turning 31 at the time?
APPLICANT: Yes.”[29]
[My underlining]
[29] Ibid, lines 45-46; and page 13, lines 1-33.
As mentioned earlier, mere acceptance of what happened does not equate to a rational explanation for what happened. The rather sterile and tepid responses predicated by the word “yes” go nowhere near providing any measure of confidence that this Applicant has any level of discernible insight into the very serious and potentially catastrophic nature of his violent offending. Having regard to the totality of the circumstances to be gleaned from the abovementioned three offending episodes, I am of the view that this Applicant’s violent offending is such as to clearly attract the operation of this sub-paragraph (a) in favour of a finding that his offending is indeed very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1)), to the sentences imposed by the courts for a crime or crimes of a non-citizen/Applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s National Check Results Report demonstrates that his offending history has run from January 2007 until May 2018. His offending across this approximately 11 year period has been such as to attract the imposition of custodial sentences in the cumulative sum of three years and six months across eight separate offences. They may be summarised as follows:
·3x offences against the person (committed both in terms of a person’s property and physically against an individual);
·3x offences arising from a refusal to follow lawful authority;
·1x dangerous operation of a motor vehicle while adversely affected by an intoxicating substance; and
·1x summary offence – public nuisance.

The imposition of the abovementioned custodial terms is sufficient to attract the application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts for the crimes of this Applicant are supportive of a finding that his offending to date is considered to be of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph

(e) largely mirrors that required in any analysis of the weight attributable to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I turn firstly to the frequency of the Applicant’s offending. His National Check Results Report demonstrates that the Applicant has found himself before lawful authority as a result of his offending on approximately eight occasions between January 2007 and May 2018. There were eight sentencing episodes across the 11 year duration of the Applicant’s offending behaviour. There can be no finding other than that the Applicant’s conduct has clearly and obviously been of a frequent nature.
The next component of this sub-paragraph (e) involves ascertaining whether the pattern of offending demonstrates a discernible increase in seriousness. The usual trend seen in criminal histories coming before the Tribunal in matters such as this involves the offender committing mostly summary, regulatory and otherwise low-level offences in the first quarter or first third of the history, with a following increase in seriousness – most often involving the commission of indictable offences – from that point onwards.
The Applicant’s criminal history is not configured in this way. While his first two offences, for which he was sentenced in January and August 2007 respectively, comprise an indictable offence and a failure to follow lawful authority, his offending very quickly escalated in severity after 2007. About seven months after the second of his sentencing episodes in 2007 (i.e. in March 2008), the Applicant was sentenced to 18 months’ imprisonment for the intentionally cause serious injury offending in Melbourne. The history does not materially “improve” for the remainder of its approximate 10 year balance of time. One sees the quite extraordinary and dangerous conduct involving the potentially catastrophic operation of a motor vehicle while severely intoxicated in March 2009. This is followed by a criminal offence of stealing in September 2011. In terms of severity, the Applicant’s very serious conduct culminates in the potentially catastrophic grievous bodily harm offence that came before the Brisbane District Court in May 2018.
Suffice it to say that any one of the “offences against the person”, or the dangerous driving offence, could have resulted in permanent and catastrophic outcomes for any number of people in the Australian community in 2008 (the Melbourne offending), 2009 (the dangerous driving while intoxicated offending) or 2018 (the grievous bodily harm offending).
Having regard to the totality of this Applicant’s offending history, I am of the view that this sub-paragraph (e) of Paragraph 13.1.1(1) of the Direction is clearly supportive of a finding that the frequency and severity of the offending – from at least a year after commencement of its 11 year duration – is such as to render it very serious indeed.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect or effects does or does not demonstrate the seriousness of the offending. One of the cumulative effects of the Applicant’s offending has been such as to place members of the Australian community directly into harm’s way. Those victims have suffered both actual and threatened harm. The victim of the extraordinarily dangerous intentionally cause serious injury offending in August 2006 could very well have been killed. Likewise, the unfortunate cardiologist/victim of the Applicant’s wanton and unrestrained violence in January 2017. It is by no means a stretch to suggest that the Applicant’s very dangerous driving with a blood alcohol level at least four times over the legal limit could have also fatally claimed victims.
Another cumulative effect of the Applicant’s offending involves a finding that he has failed to respect the lawful authority governing the Australian community into which he now seeks to be re-admitted. His National Check Results Report contains at least three instances of a refusal or failure to respect the lawful authority governing his conduct, be it in the form of: (1) a failure to meet the conditions of a probation order granted to him; (2) contravening a direction or requirement of lawful authority. He also has a relatively lengthy traffic history[30] containing numerous suspensions of his driving privileges, instances of driving under the influence and at least two instances of driving whilst unlicensed in 2009 and 2015, respectively.
[30] Exhibit 4, Bundle of Summonsed Material, pages 28-35.
This Applicant has continued to violently offend (in 2017) after being sentenced in 2008 for quite similar offending. This was not lost on the learned sentencing judge, Her Honour Judge Dick DCJ, whose sentencing remarks reveal the following observation:
“…
HER HONOUR: The important aspect about it is he has received a jail sentence before.
MR GATES: Yes.
HER HONOUR: …for public street violence, and it didn’t stop him on this occasion.”[31]
[My underlining]
[31] Exhibit 5, s 501 G Documents, G19, page 132, lines 37-43.
The application of this sub-paragraph (f) to the present factual matrix that features:

(1) placement of members of the community directly in harm’s way; (2) the occasioning of actual and serious (and potentially catastrophic) harm to those community members; (3) a demonstrative failure to respect lawful authority; and (4) a failure to respect the personal and property rights of others, clearly militates in favour of a finding that the cumulative effect of the Applicant’s repeated offending is such as to render it very serious.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date. I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The nature of the Applicant’s physical attacks on his victims in both 2006 and 2017 is troubling. His conduct was wanton, unrestrained and designed to inflict a quite significant amount of physical harm and damage to each victim. The offending was gratuitous and without excuse. Although he was dealt with by the Victorian authorities in 2008 by way of imposition of a custodial sentence, he seemingly experienced absolutely no deterrent effect and, some 11 years later, when aged in his early 30s and on the occasion of his own wedding, he saw fit to arbitrarily attack an innocent member of the public enjoying a night out with his family and friends and otherwise availing himself of the amenities to which every member of our community is entitled. Yet the Applicant sought to impose himself into that cardiologist/victim’s personal space – even committing this offending in the presence of a four year old child. I note this offending occurred even in circumstances where someone warned him of the presence of a four year old child before he decided to attack the victim.
One cannot accept any view other than this Applicant is a serious and repeat offender. His history of offending in this country spans 11 years. I have earlier outlined the nature of his offending. Were he to re-offend, members of the Australian community – innocent, unwitting, vulnerable and undeserving members of our community - could realistically be fatally harmed as a result of this Applicant’s unresolved disposition towards crimes of violence as well as other offences involving a complete lack of respect, for example, to other road users and/or those people in our community whose job it is to apply the law for the protection of us all. The community should not be expected to tolerate any future risk of a recurrence of such conduct and to should otherwise regard any recurrence as unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant seeks refuge in citing unresolved issues with his abuse of alcohol as being the primary causative factor behind his offending. He says that much of his offending can be traced to a tendency towards binge drinking such that he cannot control his impulses towards violence. The very significant difficulty with such a contention is that there is no evidence that the Applicant’s issues with alcohol have been addressed or that they are under some kind of effective and remedial management or control.
The material contains a report from a forensic psychologist, Dr Gavin Palk. Dr Palk’s report is dated 5 March 2019.[32] Dr Palk was not called to give evidence in chief, and the Respondent did not have the opportunity to test his evidence in cross-examination. In his report, Dr Palk makes vague references to the role alcohol has played in the Applicant’s offending. He provides, to my mind, a quite unconvincing prognosis about the Applicant’s capacity to control his inclination towards binge drinking. Dr Palk made these observations:
[32] Ibid, G25, pages 182-193.
“…
3. Mr Dalley’s version of the events/offences leading to his arrest and deportation
…
3.2 Mr Dalley indicated that if he had not been intoxicated he would not have committed the offence. He stated that his friend became involved in an altercation with the complainant and he subsequently committed the offence. He expressed regret and remorse for his actions and the injuries the complainant suffered. He told the writer he was not a racist person and that the assault incident followed a period of heavy drinking with friends following his wedding reception.
4. Previous criminal history
…
4.2 Mr Dalley accepted his guilt in relation to his previous offences and indicated that all of them occurred in the context of binge drinking episodes. The writer noted the most serious previous offence occurred 11 years ago in 2008 when the [sic] Mr Dalley was aged about 21 years. The 2008 offence is similar to the current offence in that it involved an act of violence on the public street involving a number of people. In that incident, Mr Dalley used a metal bar to hit the 2 complainants on the head. At the time of this offence, he was also intoxicated.
5. Vulnerability at the time of his offences
5.1 Mr Dalley’s history of offending appears mostly related to low level offences that occurred in the context of substance misuse.
5.2 Mr Dalley admitted he was a hard worker and a heavy drinker at times and enjoyed binge drinking with his friends.
5.3 Overall, it appears that Mr Dalley is most vulnerable to offending in the context of alcohol misuse.”[33]
[33] Ibid, G25, pages 184-185.
With respect, Dr Palk’s report – at least to this point – contains nothing of a revealing nature and merely states the obvious. It is patently obvious from the factual circumstances of his offending that if the Applicant “…had not been intoxicated, he would not have committed the offence.” Of perhaps greater concern with Dr Palk’s observations is his comment that the Applicant’s “…history of offences appears mostly related to low level offences that occurred in the context of substance misuse.” The Applicant’s offences in 2006 (Melbourne), 2008 (Redcliffe – dangerous driving while severely intoxicated) and 2017 (Meriton Hotel, Brisbane) are not, in any way, “low level
offences”. Such a suggestion is to grossly misconstrue the factual circumstances of the offences.
Dr Palk made additional observations and findings, which can be stated as follows:
“7. Clinical, Psychometric and Risk Assessment
7.1 In regards to his presenting personality and clinical features, there was no evidence that Mr Dalley currently suffers from major clinical psychopathology. There was evidence of past alcohol misuse, early childhood abuse, adjustment problems, antisocial activities, and alcohol related violence. Currently, there is evidence of separation anxiety and depression related to his situation.
7.2 Although he has committed a number of offences, most of them have been low level offences occurring in the context of alcohol misuse. He appears to be a hard worker and at times has binged on alcohol. It is at these times that he has come into contact with the law.”[34]
[34] Ibid, pages 186-187.
To my mind, Dr Palk’s observation of “…separation anxiety and depression related to his situation” goes nowhere in circumstances where (as I will discuss in relation to Primary Consideration B, The Best Interests of Minor Children) his wife gave sworn evidence of her readiness to relocate with the Applicant’s 16 year old stepdaughter to New Zealand were he compelled to return there as a result of this application. I have significant misgivings about Dr Palk’s observation that most of the Applicant’s offending, committed as it was in the context of alcohol misuse, somehow constituted “low level” offences. His criminal history reveals nothing of the sort. It is predominated by offences relating to wantonly direct and potentially catastrophic violence against other members of the community, intentional interference with the personal rights of others (stealing) and at least three instances of refusing to follow lawful authority – indeed, threatening to kill a member of the police force. These are not low level offences.
Dr Palk’s report also contains a section titled “Attitudes towards rehabilitation”. It reads as follows:
“9.Attitudes Towards Rehabilitation
9.1 Mr Dalley is aged 32 years and seems to be at an age when he is ready to live a more settled and law-abiding lifestyle. He has completed a substance prevention misuse course and plans to continue attending ‘AA’. There is no evidence that he has a history of using any other illegal substances.
9.2 His expression of sorrow and remorse for the negative impact of his binge drinking and offending history seemed sincere.”[35]
[35] Ibid, page 187-188.
Again, with respect, simply noting that the Applicant has “…completed a substance prevention misuse course and plans to continue attending ‘AA’ [common abbreviation for Alcoholics Anonymous]…” is by no means convincing evidence that this will militate against the risk of future offending. Dr Palk says the Applicant wants to continue doing something – that is, “attending AA”. This does not mean, and can never mean, that expressing an intention to do something will automatically prevent or minimise the person’s risk of re-offending. What is required in terms of an opinion from Dr Palk is how completion of such a course or other program of therapy actually works to minimise future risk of recidivism. This analysis is absent from Dr Palk’s report.
In terms of a concluded opinion, Dr Palk said these things:
“13. Opinion and Conclusions
13.1 Mr Dalley’s difficulties with the law occurred in the context of a long history of alcohol misuse. Despite his binge drinking episodes he has managed to maintain employment and remain supportive and loving towards his family.
13.2 Prior to his arrest on the current offences, Mr Dalley commenced reducing his alcohol intake and during his imprisonment he has completed an ‘AA’ course. He has not consumed alcohol since being imprisoned and does not plan to return to alcohol consumption. He recognises the negative impact binge drinking has had on his ability to refrain from breaking the law. He realises he may need to continue receiving support from ‘AA’ to maintain abstinence.
…
13.4 The risk that Mr Dalley will be involved in offences in the future is most closely linked with his ability to avoid binge drinking and preferably to abstain from alcohol use. Mr Dalley displayed the ability to recognise the seriousness of his behaviour and the impact [sic] his alcohol misuse on others. Mr Dalley impressed as being ready to act maturely and live a responsible lifestyle for the sake of his marriage and stepdaughter.[36]
[36] Ibid, pages 189-190.
Once again, Dr Palk makes certain observations but does not engage in any predictive exercise about how any course of treatment the Applicant has undertaken, or will undertake, can be expected to minimise his risk of reoffending. With further respect, an observation that the Applicant “…has not consumed alcohol since being imprisoned and does not plan to return to alcohol consumption” does not equate to a formal finding about the Applicant’s risk of recidivism. Of perhaps greater concern is Dr Palk’s further observation that the Applicant “…realises he may need to continue receiving support from ‘AA’ to maintain abstinence.” What the Applicant thinks he “may need” to overcome a preponderance to abusing alcohol and consequential violent offending will never approach an expert’s definitive finding about (1) the extent to which a person has overcome reliance upon or a tendency to abuse a given substance and (2) how the expert reaches a reasoned and concluded prognosis about a preponderance towards such reliance and/or abuse of a given substance. Neither such finding is evident in Dr Palk’s report.
In a similar vein, to simply cite “…a number of protective factors that considerably reduce…” the Applicant’s risk of recidivism, while not actually explaining how those factors reduce that risk, makes it difficult to lend any measure of evidentiary weight to the report. To say that a “protective factor” includes a “determination [on the part of the Applicant] to cease binge drinking and maintain an alcohol free lifestyle…” is merely an observation and falls way short of the predictive exercise expected from an expert.
It should also be noted that there is a dearth of evidence to demonstrate that the Applicant has – in the context of participation in the broader community – developed a capacity to overcome a preponderance towards binge drinking and resulting violence. Any course of rehabilitation has been approached and undertaken in the context of his absolute removal from the broader community and has only occurred either in criminal custody or immigration detention since 2 May 2018. I therefore agree with the Respondent’s observation that insufficient time has elapsed where the Applicant has been in an unsupervised environment in the Australian community to allow any claimed rehabilitation to be tested.[37] Accordingly, the only rational finding can be that his likelihood of reoffending remains unresolved and a live possibility.
[37] Exhibit 3, Respondent’s SFIC, page 7, paragraph [31]

During his evidence at the hearing, the Applicant spoke of lower risk of him reoffending because of a supportive network that will be around him in future. This supportive network primarily comprises his wife, and, to an extent, his minor step-daughter. I have misgivings about such a contention in circumstances where those support mechanisms were around the Applicant in the past but they did not prevent him from very seriously offending. Indeed, the Applicant committed the very serious grievous bodily harm offence in January 2017 against the cardiologist/victim on the very evening of his own (i.e. the Applicant’s) wedding reception. As observed by the Respondent, “[T]here is no compelling evidence to suggest that the same support from his wife/partner would be any more effective in the future.”[38]
[38] Ibid, paragraph [32].
I accept that any assessment of an offender’s risk of re-offending is a somewhat arbitrary exercise performed without the benefit of a defined formula or scale for fixing a representative number from a continuum ranging, for example, from a low risk to a high risk of re-offending. Be that as it may, the totality of the evidence in and around both the circumstances of the Applicant’s offending and the specific predictive aspect of assessing his future risk of recidivism is such as to provide little or no confidence in a finding that his risk of re-offending is anything other than, at the very least, medium-high to high. While Dr Palk administered at least two psychometric testing methodologies on the Applicant[39], there is no finding in his report about a measured or assessed level of risk of the Applicant reoffending.
[39] The Psychopathy Checklist Revised (PCL-R) and the Personality Assessment Screener.
Viewed in its totality, the evidence of the Applicant and Dr Palk goes no further than to make observations about how factors previously pre-disposing the Applicant to reoffend now “seem” to be under control and that the Applicant is now apparently “ready to act maturely and live a responsible lifestyle” devoid of binge drinking. There is no convincing and reliable evidence of a predictive nature about recidivism before the Tribunal. I have minimal confidence in this Applicant not reoffending were he to be returned to the Australian community.
I am mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[40]
[40] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction (and each relevant sub-paragraph thereof) and find that: (1) the nature of the Applicant’s offending conduct to date is very serious; and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of alcohol.
Were he to re-offend, his previous very violent offending confirms that the potential harm that would be occasioned to others would be both physically and psychologically substantial, very serious and, quite conceivably, catastrophic. In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The material discloses one minor child – a 15 year old stepdaughter[41] – potentially affected by the cancellation decision. The Applicant’s stepdaughter was born in May 2004.[42] The stepdaughter resides in Australia and is primarily cared for by her biological mother, who is the Applicant’s wife. The Applicant regards the stepdaughter as his own daughter and in the course of approximately the last ten years, has developed a loving and caring father-daughter relationship with her.
[41] For the purposes of protecting the stepdaughter’s identity, I will refer to her as “the stepdaughter” in these reasons.
[42] Exhibit 6, s 501 G Documents, G20, page 148.
There is a helpful concession or notation from the Respondent that were the Applicant to be removed from Australia it would be difficult for him to have any meaningful access to his nieces and nephews who reside here.[43] Be that as it may, there is minimal evidence about the extent of the Applicant’s relationship with his Australian-based nieces and nephews. The preponderance of the evidence about the Applicant’s relationship with an infant child in Australia relates to the abovementioned stepdaughter.
[43] Exhibit 3, Respondent’s SFIC, page 8, paragraph [37].
There was no concession from the Respondent about this Primary Consideration B carrying any measure of significant weight in favour of revocation of the mandatory cancellation decision. The Respondent says[44] that minimal , if any, weight is attributable to this Primary Consideration B due to the following factors:
(a)the stepdaughter is currently aged 15 years and, at best, there are only three years of parenting left until she attains the age of majority, that is, 18 years;
(b)it is unlikely the Applicant will play any significant future parenting role in her life given his absences from her life due to his removal from the community as a result of his offending;
(c)there are other digital and electronic platforms by which the Applicant can maintain contact with the stepdaughter; and
(d)the Respondent takes issue with the findings of Dr Palk that talk about the stepdaughter facing “…significant stressors due to the upheaval in her education and loss of contact with her extended family…” were she to move to New Zealand. The Respondent suggests that Dr Palk’s opinion is of no moment because it assumes the stepdaughter will actually move to New Zealand as opposed to a quite feasible scenario of her remaining in Australia.
[44] Ibid, paragraph [36].
For reasons that follow, I am of the view that the immediately preceding factors (a), (b) and (c) have been largely superseded by evidence given by the Applicant and his wife at the hearing. With reference to Dr Palk’s views at (d) above, those views have, as will be seen from the wife’s evidence, been almost completely subsumed by specific evidence given by the wife about the stepdaughter’s prospects were she to accompany her mother (the Applicant’s wife) in relocating to New Zealand.
It is contended on behalf of the Applicant that:
“42. The Applicant has been in the life of [the stepdaughter] since she was three years old, that is approximately 12 years and plays a significant role in her life, being the only father known to her.
…
44. It is the evidence of the Applicant and his partner and mother of the child that the child cannot relocate to New Zealand as the mother is unwilling to given that her step-father resides there and she is traumatised and fearful returning there.
45. The following general observations about the Applicant’s relationship with his step-daughter:
(a) he has been involved in the child’s life at all times since meeting her when she was three years old;
(b) he has always played a significant, hands-on role with the child, being the only father she has ever known;
(c) he has expressed a clear love for the child and desire to be a prominent and positive presence in her life,
which evidence is not contradicted in any other evidence.”[45]
[45] Exhibit 1, Applicant’s SFIC, pages 7- 8, paragraphs [42], [44] and [45].
While the immediately preceding contentions were made on behalf of the Applicant in written material filed prior to the hearing, the oral evidence of both the Applicant and his wife, to my mind, significantly changed the basis or foundation of that evidence. This is not to suggest that either the Applicant or his wife artificially purported to change their evidence to suit themselves. Rather, they should both be complimented for giving such frank and forthright evidence at the hearing. The upshot of such oral evidence, as will be seen upon application of the relevant factors in paragraph 13.2(4) of the Direction, is that any weight previously attributable to those factors in favour of revocation has now been lessened as a result of that oral evidence.
The cross-examination of the Applicant
During his cross-examination, the Applicant was specifically asked about the 15 year old stepdaughter’s familiarity with digital and other social media platforms in the context of her communicating with her mother while her mother has been at work. The following exchange ensued between the Respondent’s representative and the Applicant:
“MR HAWKER:… Now you’ve mentioned about your wife picking up employment, and you’ve seen in her statement, she talks a bit about how she’s able to communicate with [the stepdaughter], her daughter, through Facebook Messenger and on the telephone while she’s at work?
APPLICANT: Yes.
MR HAWKER: And I know you’ve given some evidence about [the stepdaughter] wanting to move back to New Zealand if you go back to New Zealand?
APPLICANT: M’hmm.
MR HAWKER: But that would be another option – if she was to stay in Australia, I’m not saying either way, but you would know how to use a telephone or Facebook Messenger as well to be able to communicate with her?
APPLICANT: Really? You’re saying that’s the same thing as in person?
MR HAWKER: You would know how to use a telephone or Facebook Messenger if you had to communicate like that with her?
APPLICANT: Yes, Yes, I would.”[46]
[46] Transcript, page 20, lines 10 – 24.
There can be little doubt that the abovementioned exchange points to a couple of realities that do impact upon a proper consideration of the factors appearing at paragraph 13.2(4) of the Direction. First, it is clear that the stepdaughter has, as could reasonably be expected of a 15 year old in today’s world, a familiarity with communicating via electronic and/or digital platforms. This is, after all, how she communicates with her mother while she (the mother) is at work. Second, the concept of relocating to New Zealand is not entirely foreign or otherwise unexpected in the mind of the stepdaughter. Unpalatable though it seemed to the Applicant, it is clear that the topic has been broached within the Applicant’s family unit and consideration has been given to the possibility of a familial relocation.
The evidence of the Applicant’s wife/ mother of the stepdaughter
This familiarity with the feasible possibility of both the stepdaughter and her mother relocating to New Zealand to be with the Applicant were he to be removed, was also apparent from the evidence given by his wife. The following exchange ensued between her and the Applicant’s representative, Ms Samuta[47] in evidence-in-chief:
[47] Ms Jennifer Samuta, partner of Samuta McComber Lawyers.
“MS SAMUTA: So what concerns do you have if Carlos isn’t able to come home and he has to go to New Zealand?
THE APPLICANT’S WIFE: Concerns? It’ll be emotional, emotional concerns for myself and for our daughter.
MS SAMUTA: What are you – well, let’s break that down. With [the stepdaughter] what concerns do you have for [the stepdaughter]?
THE APPLICANT’S WIFE: That her behaviour – that her behaviour just might fall back, slip back a bit. When Carlos was gone earlier, you know, she went into this behaviour, this bit of a pattern where she lost enthusiasm, she lost the mental capacity as a teenager to carry on with her schooling. Her attitude and behaviour changed towards me and not only me she just wasn’t herself, she’s not herself. So that actually – that takes a quite a bit of energy to parent her well to keep her on a narrow path, to keep her doing well at school, to look after her mentally.
MS SAMUTA: So do you have any other concerns if Carlos’s visa isn’t reinstated? So you’re worried [the stepdaughter’s] behaviour, do you have any other concerns about [the stepdaughter]?
THE APPLICANT’S WIFE: She’ll just miss her dad.
MS SAMUTA: And have you had discussions with Carlos about what will happen if his visa isn’t reinstated?
THE APPLICANT’S WIFE: I have. He is my husband, so if it is not reinstated we will move to be with Carlos because I love him, he’s my husband.[48]
[My emphasis and underlining]
[48] Transcript, page 26, lines 3 – 23.
A very unsavoury aspect of this case involved the quite appalling evidence surrounding the abuse[49] endured by the Applicant’s wife at the hands of her own stepfather who is currently in New Zealand. An aspect of the evidence of the Applicant’s wife involved an understandable reluctance on her part to relocate to New Zealand and to thus risk any closer proximity to her abuser than she would otherwise be compelled to experience if she remained in Australia.
[49] Ibid, page 26, lines 43-46.
The position of the Applicant’s wife (i.e. with moving to New Zealand) while of significant note and concern for her wellbeing, is not a factor readily disposed to application of the factors appearing in paragraph 13.4(2) of the Direction. Be that as it may, the Applicant’s wife, in her evidence in cross-examination nevertheless provided helpful evidence about how the stepdaughter would deal with the adjustment to a new life in New Zealand, were that to occur. Later in her evidence-in-chief, the Applicant’s wife said:
“THE APPLICANT’S WIFE:…I just don’t want to be there [New Zealand] nor with my child. It brings back memories, like I’ve already had memories and flashbacks for the last three weeks or so and prior to that I had none because I have been quite healed from my past, I have moved on. So just as of late I’ve been having memories, a few flashbacks. But my major reason is not to be in the same country that he’s been deported to.”[50]
[50] Ibid, page 26, lines 46-47 and page 27, lines 1-5
The prospect of a familial relocation to New Zealand also emerged in the evidence of the Applicant’s wife under cross-examination. The following exchange ensued between Mr Hawker and the Applicant’s wife:
“MR HAWKER: When you spoke earlier about…, your daughter, going back to New Zealand with nana was nana a reference to your mother?
THE APPLICANT’S WIFE: Yes.
MR HAWKER: Okay, I see. And so what she’s still close with her brother and sisters in New Zealand?
THE APPLICANT’S WIFE: My mum?
MR HAWKER: Yes?
THE APPLICANT’S WIFE: They don’t talk very often, I suppose they’ll only talk when they need to.
MR HAWKER: And I take it from what you’re saying in your evidence you’ve got quite a close relationship with your own mother?
THE APPLICANT’S WIFE: Mm.
MR HAWKER: So I know in your statement when you talk about, and you’ve given a bit of evidence about, you’d follow your husband I take it then if you needed to your mum would look out for you in any way she could with her connections in New Zealand?
THE APPLICANT’S WIFE: Yes.”[51]
[My underlining]
[51] Ibid, page 29, lines 5 – 20.
Application of the factors in paragraph 13.2(4) of the Direction
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(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.
Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/ren. I do note and accept that the Applicant has featured as the primary father-figure in the life of the stepdaughter for at least 12 years of her life thus far. I also accept that this 12 year period represents a significant proportion of her 15 year life span. For the purposes of this subparagraph (a) I find that (1) the nature of the Applicant’s relationship with the stepdaughter is one of a genuine father-figure and, indeed, he represents the only father she has ever known and (2) that the Applicant’s fatherly involvement for 12 out of 15 years of her life does constitute a significant “duration”.
Thus, the nature and duration of the relationship between the 15 year old stepdaughter and the Applicant can only be described as both significant and substantial. While I accept that he has spent a relatively short period of time out of her life as a result of his incarceration, this negative element must be outweighed by the positive aspects of his role in her life thus far. The relationship between the Applicant and his stepdaughter is clearly parental. Having regard to all of the evidence surrounding the nature and duration of his relationship with her, it is, in my view, appropriate to allocate an appreciable measure of weight to this subparagraph (a) in favour of revocation.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
There are two aspects to any reasonable consideration of this subparagraph (b). First, given the obviously significant fatherly role he has played in the stepdaughter’s life thus far, it is logical to presume that he is quite likely to play a positive parental role in her future. Second, and contrarily, one must also bear in mind that the stepdaughter has now attained the age of 15 years and will be 16 at her next birthday in May 2020. This only leaves something in the order of 2 – 3 years of parenting time until she attains the age of majority, 18 years.

I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[65]
[65] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[66] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[66] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[67]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[67] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[68] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[68] [2018] FCA 1311 at [85].
In recent months, the Federal Court handed down two decisions relating to the nature of the necessary approach in determining the expectations of the Australian community. Those two decisions comprise FYBR v Minister for Home Affairs[69] and DKXY v Minister for Home Affairs[70].
[69] [2019] FCA 500 (“FYBR”).
[70] [2019] FCA 495 (“DKXY”).
FYBR is supportive authority for a narrow approach to the determination of those expectations. As observed by Her Honour Justice Perry:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[71] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [72]
[My underlining]
[71] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 et seq of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 et seq of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[72] FYBR, paragraph [42] (Perry J).
A broader approach was adopted by His Honour Justice Griffiths in DKXY which is authority for the proposition that:
(a)the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b)so must all other circumstances which are relevant in a particular case.
Analysis – Allocation of Weight to this Primary Consideration C
I note and endorse this Tribunal’s recent findings in TGXY and Minister for Home Affairs[73] that the weight of recent Federal Court authority appears to adopt a somewhat narrower view than that taken by Griffiths J.
[73] TGXY and Minister for Home Affairs [2019] AATA 757 (“TGXY”)
Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C in the instant application, the relevant questions, to my mind, are:
(a)whether the Australian community would expect that a non-citizen with this Applicant’s history of offending should (or should not) retain the privilege of holding a visa to remain in Australia,[74] taking into account:
(i)his criminal history in this country involving the commission of, inter alia, two very serious and potentially catastrophic physically violent attacks on innocent victims;
(ii)whatever contributions he may have made to the Australian community;
(iii)the approximately 21 year period he has lived in Australia;[75] and
(iv)any adverse impact of his removal upon his immediate family (comprising his wife, his 15 year old step-daughter, his mother and four sisters) in Australia.[76]
[74] The Direction, paragraphs 13.3(1) and 6.3(1)-(6).
[75] Ibid, paragraph 6.3(5).
[76] Ibid, paragraph 6.3(7).
The rather unique feature of this case is that the Applicant’s wife has clearly stated in her evidence before the Tribunal that both she and the Applicant’s 15 year old step-daughter will relocate to New Zealand in the event the non-revocation decision is affirmed by this Tribunal. Therefore, it is reasonable to find that if the Applicant is removed from Australia, both his wife and his 15 year old step-daughter will most likely be relocating to be with him. Accordingly, apart from the inevitable adjustment challenges that will face the 15 year old step-daughter, there are only minimal, if any, adverse impacts upon her in that event.
I am of the view that the Australian community – in determining whether this Applicant should retain a visa to stay here – would take into account:
(i)the very serious nature of the Applicant’s offending to date;
(ii)his failure to assume responsibility for his unresolved predisposition towards abusing alcohol and binge drinking, in circumstances where it has resulted in very serious and quite conceivably catastrophic outcomes for at least two innocent victims who could well have been killed;
(iii)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority and the personal and property rights of others in the Australian community;
(iv)my finding that his lack of insight about the severity of what he has done points to a convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community;
(v)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend;
(vi)the absence of any definitive, independent or expert evidence before the Tribunal that the Applicant’s issues with abusing alcohol have been addressed and are otherwise being effectively monitored and managed; and
(vii)the comments of the learned Justices Mortimer, Bromwich, Perry and Griffiths, and Deputy President Forgie of this Tribunal about how a decision-maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore accept that the Australian community would consider that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa in circumstances where the evidence strongly points to him having breached the trust they have placed in him to obey Australian laws while in Australia.
Conclusion: Primary Consideration C
I therefore find that the Australian community would expect this Tribunal to endorse a finding supportive of the Applicant’s visa remaining cancelled. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
There are five “Other Considerations” disclosed in the Direction[77]:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
[77] The Direction, paragraph [14(1)].
I will address each of those considerations, and their respective weights, in turn.
(a) International non-refoulement obligations
There is no suggestion that Australia owes non-refoulement obligations to this Applicant. This Other Consideration (a) is of no relevance to this decision.
(b) Strength, nature and duration of ties
There are readily made concessions by the Respondent that:
·the Applicant has the following relatives who reside in Australia: his mother, mother-in-law, four sisters, two aunts and two uncles; and
·while the Tribunal may accept that this Other Consideration (b) weighs in favour of revocation, it should be given limited weight only because of: (1) the 11 year span of the Applicant’s criminal history, and (2) this Other Consideration (b) does not outweigh the Primary Considerations weighing against revocation.[78]
[78] Exhibit 3, Respondent’s SFIC, page 10, paragraphs [43]-[44].
In his Personal Circumstances Form,[79] the Applicant also makes reference to some five nieces and nephews in Australia. It is reasonable to attribute some measure of weight to this Other Consideration (b) on the basis that those nieces and nephews are also representative of the extent of the Applicant’s ties to this country.
[79] Exhibit 5, s 501 G Documents, G22, page 148-161.
In addition, the Applicant has not been dilatory during his time in this country. In his Personal Circumstances Form[80], he discloses the following employment details:
·from 2006-2008: he worked as a steel fixer with Qld Warriors;
·during 2008: he worked as a steel fixer with Reofore Steelfixing Contractors;
·from 2010-2012: he worked as a steel fixer with Mack Steelfixing;
·from 2012-2013: he worked as a steel fixer with Bliss Steelfixing;
·from 2013-2014: he worked as a steel fixer with E&S Steelfixing; and
·from 2014-2018: he worked as a steel company site supervisor with SAS Steelfixing.
[80] Ibid, page 158.
In terms of positive contributions he has made to Australia, he says:
“I’ve been heavily involved in my local community, assisting friends and family by organising a group to clean and landscape gardens, and by helping by lending my time and vehicle to help neighbours move houses. I am involved in our local Church, and the school community of my daughter.”[81]
[81] Ibid.
I have had regard to the various letters of support and the additional Statutory Declaration appearing in the material.[82] Of particular note, in terms of ties to this country, are the respective letters from previous employers of the Applicant. Mr Joe Rewha of QLD Warriors Pty Ltd said these things in his letter:
[82] Ibid, G27-G39, pages 197-219.
“…
Tuesday 4^th September 2018
…
Subject: Support letter/offer of employment for Carlos Dalley
To whom it may concern,
My association with Carlos Dalley began in 2006 when Carlos came to work for me in Brisbane in the construction industry as a trainee steel fixer.
…
As time passed by Carlos proved to be a reliable and trustworthy worker.
Our work association came to an end due to my business and family relocating to Townsville to commence work on building projects in the area.
…
In the hope that a favourable decision is made for Carlos, and as the owner of this business, I would like to state that I am willing to offer him full time employment upon his release in which case Carlos and his family will relocate to Townsville to commence work immediately.
…
Yours sincerely,
Joe Rewha”[83]
[83] Ibid, G37, page 217.
Similarly, Mr Quinn Martin is the QLD Operations Manager for SAS Steelfixing. In his undated letter of support he said these things:
“To Whom It May Concern,
I’m writing this letter in support of Carlos Dalley.
Carlos has been an employee with SAS Steel fixing for the last 4 years, working on a number of projects throughout Brisbane and the Gold Coast areas…
…
Carlos has a great work ethic which is infectious to our work force. He is very approachable by all he encounters on the job front….
Carlos has been sorely missed these past months and his absence has been a hard pill to swallow. Without doubt he has left a huge hole in our working family which can’t be replaced.
Carlos has, and always will have a position in our company waiting for him when he returns.
…
Regards Quinn Martin”[84]
[84] Ibid, G38, page 218.
It is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. Consistent with Paragraph 14.2(1)(b) of the Direction, those ties, and thus this Other Consideration (b), favours revocation and the Applicant.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. Although the Applicant first arrived here as a 10 year old, and did not begin offending until he was aged 19-20, his offending conduct spans virtually the entirety of his adult life. It culminates, as recently as January 2017[85], in him committing a very serious and potentially catastrophic grievous bodily harm offence on an entirely innocent victim, which resulted in the imposition of a head custodial term of two years. As mentioned earlier, the cumulative period of custodial terms imposed for the Applicant’s very serious and violent offending is in the order of three and a half years.
[85] Sentenced in May 2018.
Thus, while it cannot be said that he commenced offending soon after arriving here, he has nevertheless consistently offended (and very seriously so) for virtually the entirety of his adult life in this country. Accordingly, any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to sub-paragraph 14.2(1)(a)(ii) of the Direction) that any time he may be said to have spent contributing positively to the Australian community is significantly outweighed by his very serious criminal conduct during the corresponding period.
The stark reality that this Applicant did not learn any lesson from the custodial term he received in 2008 for his very serious and quite conceivably catastrophic violent offence in Sunshine, Melbourne can be gleaned from the comments of the learned sentencing judge who, in May 2018, sentenced him for his identical offending committed in the Brisbane CBD in January 2017:
“MR GATES:[86] In my submission, your Honour ultimately would sentence my client to two years imprisonment, and that’s based on the fact that while he does have the entry in his criminal history, it is quite dated: 2006. My instructions are he admits – admitted to the fact that there was a weapon involved, but I’m told that he had disarmed one of the people – one of the complainants.
HER HONOUR:[87] The important aspect about it is that he has received a jail sentence before.
MR GATES: Yes.
HER HONOUR: …for public street violence, and it didn’t stop him on this occasion.”
[My underlining]
[86] Counsel for the Applicant at his sentencing hearing on 2 May 2018.
[87] Her Honour, Judge Dick DCJ.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). While I would think that neither the victim of the Applicant’s offending in Sunshine, Melbourne or the Brisbane CBD would in any way be receptive towards the Applicant’s return to the Australian community, without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on either of those victims or any other victims of the Applicant’s offending. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that any assessment of impediments faced by a non-citizen if removed from Australia back to their country of origin must take into account:
(a)the person’s age and health;
(b)whether there are substantial language and cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Some time has passed since the Applicant returned to New Zealand. He arrived in Australia as a 10 year old and has resided here on a mostly constant basis since then, and more particularly, until his incarceration in May 2018. He will inevitably experience some short-term hardship in re-establishing himself in New Zealand.
However, I do not consider that any of the factors appearing in Paragraph 14.5(1) of the Direction assist the Applicant. He would suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand… [the Applicant lived in New Zealand for the first decade of his life]… New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.[88]
[88] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.

As well, the Applicant is a relatively young man of 32 years who is in apparently good health and there is nothing in the material to indicate any adverse health or wellbeing outcomes were he to be relocated to New Zealand. He has demonstrated an ability to derive income such as to be able to maintain at least a basic standard of living in Australia. His skills, qualifications and significant experience in the steel fixing industry lead one to the conclusion that he will readily be able to find employment in this field in New Zealand.
Were the Applicant to be in need of state-based support he would be entitled to such social, medical and/or economic support to the same level as is generally available to other citizens of New Zealand.
I therefore respectfully agree with the contention of the Respondent[89] to the effect that there are limited impediments to the Applicant being removed to New Zealand, and that this Other Consideration (e) does not weigh in favour of revocation and is neutral.
[89] Exhibit 3, Respondent’s SFIC, page 11, paragraph [47].
Conclusion – Other Considerations
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant
·Strength nature and duration of ties: is of limited weight for the Applicant
·Impact on Australian business interests: not relevant
·Impact on victims: not relevant
·Extent of impediments if removed: is of neutral weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or Primary Consideration B, outweigh the very significant combined weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........................[SGD].............................................
Associate
Dated: 20 September 2019

Date of hearing:
9 September 2019

Advocate for the Applicant:

Solicitors for the Applicant:

Ms Jennifer Samuta (Solicitor)

Samuta McComber Lawyers

Advocate for the Respondent: Mr Matthew Hawker (Solicitor)

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 3738

20 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	9 September 2019
Advocate for the Applicant: Solicitors for the Applicant:	Ms Jennifer Samuta (Solicitor) Samuta McComber Lawyers
Advocate for the Respondent:	Mr Matthew Hawker (Solicitor)
Solicitors for the Respondent:	Sparke Helmore Lawyers