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

[2020] AATA 5760

Dan Granxxa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5760 (17 December 2020)

Division: GENERAL DIVISION

File Number:          2020/5325

Re:Cristian Nick Dan Granxxa  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision     

Tribunal: Senior Member Theodore Tavoularis and

Member Andrew McLean-Williams

Date:17 December 2020

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 24 August 2020 and substitutes a decision that the cancellation of the Applicant’s visa be revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

................................[sgd]........................................  Senior Member Theodore Tavoularis

…………………………[sgd]……………………….  Member Andrew McLean-Williams

Catchwords

MIGRATION – Revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa– where the Applicant does not pass the character test – where there is a substantial criminal record – consideration of Ministerial Direction Number 79 – grievous bodily harm – interest of affected minor children – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs[2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337

Khalil v Minister for Home Affairs [2019] FCAFC 151

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367

Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Materials

Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

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 and Member Andrew McLean-Williams

15 December 2020

introduction and background

1. Mr Cristian Nick Dan Granxxa (“the Applicant”) is a 32-year-old citizen of Spain.[1] Movement records indicate that the Applicant arrived in Australia (for final settlement purposes) on 11 December 1988. He departed Australia in September 2012 and returned to Australia on 17 October 2012. The movement records indicate that he has not left Australia since 17 October 2012.[2]

   [1] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [3].

   [2] Exhibit G1, G50, page 216.

2. Upon initial Arrival in Australia, the Applicant was granted a “V12” class visa.[3] At or around the time of his single departure from Australia in September 2012, the Applicant was granted a Class BB Subclass 155 Five Year Resident Return visa (“the visa”).[4]

   [3] Ibid.

   [4] Ibid, G51, page 217.

3. The Applicant has, in terms of a criminal history in Australia, found himself before lawful authority for sentencing on some seventeen separate occasions. He has a varied offending history having committed offences in the following realms: 

   ·Assault occasioning actual bodily harm;

   ·Intentionally choke person without consent;

   ·Possess prescription drug (not being drug of dependence);

   ·Resist police (multiple);

   ·Unauthorised person drive motor vehicle on road;

   ·Failure to comply with bail agreement (multiple);

   ·Commit act likely to cause harm (aggravated offence);

   ·Arson of building or motor vehicle;

   ·Commit assault aggravated by use of offensive weapon;

   ·Possess equipment to use with controlled drug (not cannabis) (multiple);

   ·Commit act without due care (basic offence);

   ·Exceed speed limit by 20km/hr or more but less than 30km/hr;

   ·Fail to give personal detail to officer on request;

   ·Duty to hold license or learner’s permit (multiple);

   ·Estreatment of bail (multiple);

   ·Carry offensive weapon;

   ·Drive under disqualification or suspension (multiple);

   ·Breach of bond;

   ·Fail to comply with request to stop vehicle;

   ·Contravene code of practice (defect notices) (multiple);

   ·Drive at dangerous speed;

   ·Drive uninsured motor vehicle on road;

   ·Drive unregistered motor vehicle on a road;

   ·Fail to give way to vehicle when leaving road-related area.[5]

   [5] Exhibit A1, Applicant’s SFIC, pages 6-7, paragraph [22]; Exhibit G1, G5, pages 29 to 31.

4. On 26 April 2019, the Applicant was sentenced to an aggregate custodial term of imprisonment of 18 months for very serious offences against the person. For present purposes, it is important to note (1) the custodial term commenced on 26 April 2019 and (2) the Applicant was compelled to serve a non-parole period of 10 months in actual custody. This period in actual custody expired on 25 February 2020.

5. While serving his term of imprisonment (i.e., actual criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act (1958) (Cth) (“the Act”), decided on 10 September 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]

   [6] Exhibit G1, G51, pages 217-223

6. Via a document dated 1 October 2019, the Minister’s Department was notified of the Applicant’s request for revocation of the decision to mandatorily cancel his visa.[7] The delegate of the Minister decided on 24 August 2020 not to revoke the cancellation of his visa pursuant to s 501CA(4) of the Act.[8]

   [7] Ibid, G8, pages 73-150.

   [8] Ibid, G2, pages 7-26.

7. The Applicant lodged an application with this Tribunal on 2 September 2020 seeking a review of the abovementioned decision dated 24 August 2020 not to revoke the cancellation of his visa.[9] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[10]

   [9] Ibid, G1, pages 1-6

   [10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.

8. The hearing of the instant application proceeded before us on 12 and 13 November 2020.  The Tribunal received oral evidence from:

   (a)the Applicant;

   (b)his wife (Ms Duaa Al Attar);

   (c)the Clinical and Forensic Phycologist (Mr. Istvan Schreiner);

   (d)the Applicant’s mother-in-law (Ms Suad Hechal);

   (e)the Applicant’s father-in-law (Dr. Ramzi Al Attar);

   (f)the Applicant’s friend and work colleague (Mr Wayne Zahra); and

   (g)the Applicant’s Senior Mentor (Mr Kirby Brownlow).

9. The Tribunal also received written evidence. This written evidence was categorised into an exhibit list, a true and correct copy of which is attached hereto and marked “Annexure A”.

   An Important Procedural Aspect of This Matter

10. The Hearing of this matter was originally set down for 5 and 6 November 2020. On 2 November 2020, the Tribunal received notification from the Applicant’s then-legal representative that on and from that date, he would be no longer representing the Applicant in this matter. Pursuant to a request from the Applicant, the Tribunal then organised an urgent Case Management Telephone Directions Hearing (“CMTDH”) for the following day, 3 November 2020. During the CMTDH, the Applicant sought to vacate the originally listed hearing dates to allow him additional time to engage alternate legal representation. In accordance with the Applicant’s request, the Tribunal vacated the original hearing dates and re-listed the hearing for a week later on 12 and 13 November 2020. The vacation of the original hearing dates and its re-listing occurred with the consent of the Respondent.

11. The Applicant managed to secure alternate legal representation in the ensuing period. On 11 November 2020, the Tribunal received notification from the Applicant’s newly engaged representative that (1) he would be withdrawing from the matter on that day and (2) he would not be representing the Applicant at the hearing on 12 and 13 November 2020. The Applicant represented himself at the instant hearing. The 84^th day in this matter occurred on 17 November 2020.   

12. It should be noted that 12 and 13 November 2020 (a Thursday and Friday) comprised, respectively, the third and fourth last business days before the occurrence of the 84^th day relevant to this matter which occurred on the immediately following Tuesday, 17 November 2020. It should also be noted that this hearing involved the reception of evidence from seven witnesses across two hearing days together with exhibited material comprising approximately 973 pages. On Tuesday, 17 November 2020, the Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). In so doing, the Tribunal also met the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.

13. In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:

    “41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.

    …

    48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”

    [My underlining]

    ISSUES

14. 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

    that there is another reason why the original decision should be revoked.

15. There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue becomes whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]

    “…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…”[12]

    [11] [2018] FCAFC 151.

    [12] 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).

16. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

17. 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.[13] We will address each of these grounds, in turn.

    [13] Ibid.

    Does the applicant pass the character test?

18. 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”.

19. As mentioned earlier in these Reasons, on 26 April 2019, the Applicant was sentenced to an aggregate custodial term of imprisonment for very serious offences against the person. In his SFIC, the Applicant did not deny his offending and made the following concession:

    “9. As to the first issue, it is conceded that the Tribunal would not be satisfied that the applicant passes the character test within the meaning of s501 of the Act. When the mandatory cancellation decision was made, the applicant had been sentenced to a full-time period of imprisonment of at least 12 months”. [14]

    [14] Exhibit A1, Applicant’s SFIC, page 3, paragraph [9].

20. The custodial sentence imposed on the Applicant involved his early release (on 25 February 2020) after serving a custodial period of 10 months. We note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[15]

    [15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”

21. We are consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act 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?

22. 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” or “Direction 79”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[17]

    (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.

    [16] 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.

    [17] The Direction, sub-paragraph 7(1)(b).

23. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) 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.

24. Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.

25. 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.

26. We 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:[18]

    “…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.”

    [18] [2018] FCA 594 at [23].

27. 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:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

1. We will now turn to addressing these considerations.

   Primary Consideration A – Protection of the Australian Community

2. In considering Primary Consideration A, paragraph 13.1(1) of Direction 79 provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, the paragraph stipulates an expectation that non-citizens are, and have been, law abiding, that they will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

3. Paragraph 13.1(1) in Direction 79 further provides that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the principle identified in the paragraph, by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

4. In determining the weight applicable to 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

   The Nature and Seriousness of the Applicant’s Conduct to Date

5. In the introductory paragraphs to these reasons, it is recorded that the Applicant has now appeared before criminal sentencing courts in Australia on some 17 discrete occasions.  Whilst the preponderance of the offences resulting in these court appearances have been at the ‘low end’ of seriousness, there are however other offences within the totality of the Applicant’s criminal history that are objectively far more serious. In light of those convictions, the Applicant does now have what is termed a “substantial criminal record”, within the meaning given to that expression by s 501(7)(c) of the Act.  The most objectively serious offences in the Applicant’s criminal history include those of intentionally choking a person (in this instance his wife), without her consent (an offence of domestic violence); as well as an earlier offence of arson, in South Australia.  Both of these offences did result in the Applicant being sentenced to a custodial term in excess of 12 months.

   Application of Paragraph 13.1.1(1) of the Direction

6. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of Direction 79 specifies that decision-makers ‘must’ have regard to a number of factors, including:

   (c)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (d)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (e)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (f)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

   (g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (h)The cumulative effect of repeated offending;

   (i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (j)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   (k)Where the non-citizen is in Australia, that a crime committed while a non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

7. Sub-paragraph (a) of paragraph 13.1.1(1) of Direction 79 provides that crimes of a serious, violent and/or sexual nature are to be viewed ‘very seriously’.  The Applicant’s own Statement of Facts, Issues and Contentions (SFIC) makes the following submissions in relation to this sub-paragraph:[19]

   “23. Cl 13.1.1(a). A review of the applicant’s criminal history in Australia demonstrates that he committed a number of offences that may be considered violent. On 26 April 2019, the applicant was found guilty with the violent offences of assault occasioning actual bodily harm and intentionally choke person without consent (G61-62).

   24. The learned Magistrate found that the photographs of the victim show she was assaulted to her neck, the victim had sustained serious injuries, consistent with being choked (G61). In that context, the applicant’s offending can be readily characterised as very serious.

   25. On 20 November 2013, the applicant was also convicted with the offence of commit assault aggravated otherwise by use of an offensive weapon (G30). This offence also appears to involve an element of violence (given the offence involved an assault).”

   [19] Exhibit A1, Applicant’s SFIC, paragraphs [23] to [25].

8. The Respondent’s SFIC[20] makes the following submissions in relation to this and other sub-paragraphs in paragraph 13.1.1(1) of Direction 79:

   [20] Exhibit R2, Respondent’s SFIC, paragraphs [23] to [30].

   “23. First, the applicant’s most recent offences involved serious domestic violence against his wife, Ms Duaa Al Attar (G 104). Whilst the applicant sought to maintain his innocence for this offending, Magistrate Funston of the Parramatta Local Court relevantly remarked (G 61):

   Mr Dan, I don’t accept your evidence at all. The evidence that I accept is the evidence prepared from the person that was in need of protection, the complainant. Ms Attar’s – the evidence that is the closest to the truth in all of this matter is the statement that Ms Attar gave to police on 16 December.

   24. Ms Al Attar’s statement to the Police reveals the extreme and impulsive violence administered by the applicant towards her at around midnight on 16 December 2018 (RTB 10-13). Relevantly, Ms Al Attar provided the following evidence:

   We were sat in the car arguing for more than fifteen minutes. As we were arguing Cristien used his right arm to hit me in the face with the back of his hand however it was in a closed fist.

   …

   It all happen so quick, but he hit me in the eye with his hands, I don’t know how he hit me, but he in my right eye. Cristien also choked me, I can’t remember if he used one hand or two, but he was squeezing my neck so badly that I couldn’t make one noise, I tried but nothing came out. I couldn’t breathe and held me like that for some time. I was unable to fight back when he was chocking [sic] me, he is so big, and I could even scream for help.

   …

   My whole body is sore and there are bruises on my back and one of my arms.

   …

   Cristien chocked (sic) me for what felt like forever, I don’t know how long it was (sic) (RTB 12).

   25. In light of the extreme domestic violence committed against Ms Al Attar, causing physical injuries (RTB 5-9), it is evident that the applicant’s conduct is of a very serious nature (paragraph 13.1.1(a), (b) and (c)). Further, the seriousness of this offending is accentuated by the cruelty and psychological harm associated with the applicant’s actions towards Ms Al Attar, which is evident in: (a) the applicant hitting her twice; (b) her struggling to breathe and inability to seek help; (c) the applicant’s choking of her for a prolonged period; and (d) her attempts to cover up the visual injuries (RTB 12-13). Furthermore, the serious harm caused to Ms Al Attar, and the real threat of further harm, is reflected in the apprehended domestic violence order issued for a period of two years for Ms Al Attar’s protection (G 66 and RTB 180- 182).

   26. Adding to the egregiousness of the applicant’s conduct is the evidence that indicates that he attempted to perpetuate a false narrative to the Court to mislead it into finding that he was not guilty of the offending. In particular, the evidence suggests that the applicant influenced the provision of false evidence by Ms Al Attar and Mr Muhammad Amin, which is highlighted by Magistrate Funston’s findings that “I heard your evidence and I was not at all satisfied that you were being truthful to the Court” and “there is a strong inference of covering up for something” (G 61).

   27. Moreover, the applicant’s attempt to categorise this instance of extreme domestic violence as an “isolated incident” (G 93), is significantly undermined by various evidence indicating a prolonged pattern of domestic violence administered by him (RTB 10, 86-109, G 228).

   28. Second, the applicant’s further violent offences (G 30-31) and abusive behaviour in detention (RTB 209-218) demonstrate a proclivity for threatening the safety and wellbeing of members of the community. Relevantly, the sentencing remarks for the applicant’s conviction on 20 November 2013 for Commit assault aggravated other by use of weapon, reveal that after the applicant identified Mr Christopher Murphy, who allegedly owed him money, he:

   … ran at him with the hammer and he tripped over. You swung the hammer at him, not connecting, and then you punched him in the jaw (RTB 45).

   29. Further, the sentencing remarks for the applicant’s conviction on 9 September 2014 for arson reveal that he was intoxicated and went to the house of a man he believed had threatened his partner and children. The applicant, believing the house to be empty on the basis there was no car in the garage and no lights on, proceeded to pour petrol on the front of the house, with the assistance of another person, and set fire to it. However, this was not the house of the man who had threatened the applicant but the home of that person’s girlfriend and there were children in the house. Fortunately, the occupants came out quickly and were able to put the fire out. The sentencing magistrate found the applicant’s conduct was a “significant risk of harm” and that he was “reckless as to whether harm was caused”. The sentencing magistrate noted that this had a “very serious impact” on the occupants of the house, namely, they no longer felt safe in their home and the children required psychiatric treatment and ongoing counselling. The business the family were running from the home was also adversely impacted (G 70). The sentencing magistrate found that the fact that this offending happened while the applicant was on bail was an aggravating feature (G 71) and concluded that it fell above the middle range of seriousness but short of the top of the range (G 72).

   30. In these circumstances, the Minister submits that the applicant’s further violent offending, and the harm it caused, should be viewed very seriously (paragraph 13.1.1(a)).”

9. Having considered sub-paragraph 13.1.1(1)(a), we conclude that the applicant has committed violent offences, that can only be categorised as ‘very serious’ in the context of the required assessment of the nature and seriousness of the applicant’s conduct.

10. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

11. The Applicant’s SFIC makes the following submissions in relation to this sub-paragraph:

    “26. Cl 13.1.1(b). The applicant’s criminality concerning assault occasioning actual bodily harm and intentionally choke etc person without consent was committed against his wife (G61). Accordingly, given that these violent crimes were committed against a woman, clause 13.1.1(b) deems the criminality to be very serious (regardless of the sentence imposed).”[21]

    [21] Exhibit A1, Applicant’s SFIC paragraph [26].

12. Again, the very fact of the Applicant having committed a crime of violence against his own wife is a matter that can only be assessed by the Tribunal as very serious.

13. Sub-paragraph (c) of paragraph 13.1.1(1) of Direction 79 provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”

14. The Applicant’s SFIC makes the following concessions in relation to this sub-paragraph:

    “27. Cl 13.1.1(c). The applicant’s criminal history shows that he was convicted of resisting police on 10 February 2016 (G30) and 25 June 2007 (G31). This offence appears to be a crime committed against an official in the performance of their duties. Accordingly, clause 13.1.1(c) deems the applicant’s resist police offences to be serious.”[22]

    [22] Exhibit A1, Applicant’s SFIC, paragraph [27].

15. The Respondent’s SFIC says the following in relation to this sub-paragraph:

    “31. Third, the applicant has committed crimes against police whilst attempting to perform their duties on two occasions, which is evident in his convictions for Resist police on 25 June 2007 and 10 February 2016.”[23]

    [23] Exhibit R2, Respondent’s SFIC, paragraph [31].

16. Again, we can only conclude that those offences wherein the Applicant has been convicted of assaulting police in the execution of their duty are squarely within the ambit of this sub-paragraph (c) and, as such, must be viewed as serious.

17. 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) of the Direction) to the sentence(s) imposed by the Courts for the crimes of a non-citizen.

18. The imposition of a custodial term is an option of last resort for sentencing courts in Australia, and should thus be viewed as a reflection of the objective seriousness of an applicant’s offending.

19. The Respondent’s SFIC makes the following submissions in relation to this sub-paragraph:

    “32. Fourth, the objective seriousness of the applicant’s offending is demonstrated by the significant terms of imprisonment imposed by the Court. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending (paragraph 13.1.1(1)(d) of Direction 79). The applicant has been sentenced to terms of imprisonment for periods including 21 days, four months, five months, one year and six months, and two years and four months. He has also been subject to various good behaviour bonds and fines (G 29-31). The Minister submits that the sentences, orders and fines imposed upon the applicant individually and cumulatively reinforce the overall seriousness of his offending (paragraph 13.1.1(d)).”[24]

    [24] Exhibit R2, Respondent’s SFIC, paragraph [32].

20. This range of custodial terms imposed on the Applicant leads the Tribunal to conclude that that the Applicant’s offending is of a serious nature.

21. 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 to consider whether there is any trend of increasing seriousness.

22. The Applicant’s SFIC makes the following submissions in relation to this sub-paragraph:

    “30. Cl 13.1.1(1)(e). The applicant’s criminal history document demonstrates that he came before the court on multiple occasions in 2007, a single occasion in 2009, multiple occasions in 2012, multiple occasions in 2013, a single occasion in 2014, multiple occasions in 2016, and on one occasion in 2019 (noting that the appeal proceedings related to the same offences) (G29-31).

    31. Considered in totality, the applicant’s criminality in Australia appears to have been fairly frequent. That said, most of the applicant’s offending between 2007 and 2013 appear to be at the lower end of objective seriousness in terms of criminal offending (largely relating to driving matters) (G30-31).

    32. The applicant’s most serious offending appears to have related to the offences of arson of a building and commit an act likely to cause harm (aggravated offence) for which the applicant was sentenced to a term of imprisonment of two years and four months with a non-parole period of 15 months (imposed on 9 September 2014) (G30).

    33. The applicant’s most recent offending concerning the assault occasioning actual bodily harm and intentionally choke a person without consent resulted in the applicant receiving a head sentence of 18 months with a non-parole period of 10 months (imposed on 26 April 2019) (G29-30).

    34. Considered in context, it cannot be said that there has been a trend of increasing seriousness concerning the applicant’s criminality in Australia. The 2019 sentence imposed upon the applicant for his most recent offending is less than the applicant’s earlier sentence imposed for the arson offence in September 2014.

    35. Despite the preceding, it must be readily conceded that the applicant’s most recent offending appears to be at least on par (in terms of objective seriousness) with his earlier criminality - for which he was sentenced to a substantial period of imprisonment in 2014.”[25]

    [Underlining and emphasis added]

    [25] Exhibit A1, Applicant’s SFIC, paragraphs [30] to [35].

23. The Respondent’s SFIC makes the following submissions in relation to this sub-paragraph:

    “33. Fifth, the applicant’s regular interactions with the criminal justice system since 2004 demonstrates an ongoing disregard for the rule of law in the community, which has increased in objective seriousness (paragraph 13.1.1(e)). The applicant contends that the difference in sentencing for his domestic violence convictions in 2019 and his arson conviction in 2014 means that there is not a trend of increasing seriousness (ASFIC at [34]). That submission should be rejected. The progression in the applicant’s offending from predominantly unlawful driving and bail related offences to violent offending involving arson and extreme domestic violence demonstrates that the applicant has now proven himself capable of causing significant harm to members of the community.”[26]

    [Underlining and emphasis added]

    [26] Exhibit R2, Respondent’s SFIC, paragraph [33].

24. Ultimately, we conclude that the applicant’s criminal history and the sentencing pattern does not reveal an upward shift in the objective seriousness of the applicant’s offending behaviour, over time. Rather, the applicant’s criminal history is one in which there are a number of instances of different kinds of minor, serious or very serious offending at different points in time, attracting different sanctions in consequence of different considerations relevant to sentencing for each event. 

25. 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 does or does not demonstrate the seriousness of that offending.

26. The Applicant’s SFIC makes the following submissions in relation to this sub-paragraph:

    “37. The applicant has been the subject of successive custodial sentences for violent matters and has otherwise committed an offence (arson) that had the potential to cause significant harm to members of the Australian community. The applicant’s offending has also occurred over a substantial period in Australia.”[27]

    [27] Exhibit A1, Applicant’s SFIC, paragraph [37].

27. The Respondent’s SFIC makes the following submissions in relation to this sub-paragraph:

    “34. Sixth, the applicant’s numerous offences relating to unlawful driving and his breach of bail and bond undertakings, add further gravity to his frequent offending, and when viewed cumulatively with his other crimes, reinforce the overall seriousness of his conduct (paragraph 13.1.1(f)). Furthermore, the evidence before the Tribunal indicates that the applicant’s behaviour whilst operating a motor vehicle has posed a significant and unnecessary risk to innocent members of the community on numerous occasions (RTB 156-158, 163-165).”[28]

    [28] Exhibit R2, Respondent’s SFIC, paragraph [34].

1. The required cumulative assessment only causes us to galvanise our views that the offending under examination is, in totality, very serious.

2. Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

3. It is acknowledged, by the Applicant that this sub-paragraph ‘is against the applicant’[29] on the basis that he provided incorrect information to the Australian Government. The details are outlined in the Respondent’s submissions:

   35. Seventh, the applicant provided false information to the Department on his incoming passenger card dated 17 October 2012 by declaring that he did not have any criminal convictions (G 215). Insofar as the applicant seeks to explain that this was due to [his] being exhausted from assisting his wife and that he therefore did not give enough importance to the document (G 96), such an explanation does not adequately explain why he was not truthful in his response (paragraph 13.1.1(1)(g)).

   [29] Exhibit A1, Applicant’s SFIC, paragraphs [38] and [39].

4. We agree with the Respondent’s submission that the Applicant‘s stated explanation for providing incomplete information when completing his in-bound passenger declaration does not adequately explain why he was misleading in his response to the standard question regarding prior convictions. This factor is, in our view, sufficient to now attach at least some further additional weight in favour of a finding that the Applicant’s criminal offending or other conduct to date has been of a ‘very serious’ nature.

5. Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. Sub-paragraph (h) is therefore not relevant to determination of this application.

6. Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. Here, there is no evidence of the Applicant having committed a crime whilst in immigration detention in Australia. Sub-paragraph (i) is therefore not relevant to determination of this application.

7. Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), (f) and (g) of paragraph 13.1.1(1) of the Direction are relevant, we conclude that the totality of the Applicant’s offending conduct is now capable of a ‘very serious’ characterisation.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

8. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following on a cumulative basis:

   a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   Nature of harm should the Applicant engage in further criminal or other serious conduct

9. The assessment of the nature of the harm to individuals or the Australian community in the event that the Applicant were to engage in further criminal or other serious conduct, is a matter that is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

10. The Applicant’s SFIC makes the following submissions in relation to this sub-paragraph:

    “43. On the hypothesis that the applicant was to engage in future criminality in Australia, it could cause emotional, financial, physical, and psychological harm to individuals and the Australian community. It is accepted that the nature of harm, were to occur, could be very serious.”[30]

    [30] Exhibit A1, Applicant’s SFIC, paragraph [43].

11. The Respondent’s SFIC makes the following submissions in relation to this sub-paragraph:

    “37. The Minister submits that the nature of the harm caused if the applicant were to reoffend is very serious and is likely to involve significant physical, psychological and financial harm to members of the Australian community such that any risk of reoffending is unacceptable. In addition, considerable public resources would be expended to deal with the applicant’s re-offending (paragraph 13.1.2(1)(a)).”[31]

    [31] Exhibit R2, Respondent’s SFIC, paragraph [37].

12. Having regard to the Applicant’s past offending it is difficult to oppose the contention that, were the applicant to re-offend in a similar manner upon any return to the Australian community, the consequences could then involve significant emotional, physical, financial and psychological harm to members of the community. The Tribunal concludes that were the Applicant to re-offend, its effect on a member or members of the Australian community would be very serious.

    Likelihood of engaging in further criminal or other serious conduct

13. The Applicant submits,[32] that he now poses what should be assessed as only a very low risk of re-offending, because:

    ·The recent imposition of a custodial term upon the applicant will act as a specific deterrent against the applicant engaging in further criminal conduct in Australia.

    ·Time in prison has enabled the applicant to undergo various rehabilitative programs and courses.

    ·Time in prison has given the applicant the necessary time to reflect on the consequences of his actions, and has made the applicant accountable for same.

    ·The applicant is now very keenly attuned to the fact that further offending behaviour will give rise to the prospect of automatic visa cancellation, on character grounds.  This awareness, it is submitted, will act as a substantial deterrent against further offending behaviour.

    ·The applicant’s offence of domestic violence was, at least, an isolated instance.

    ·The applicant has immediate employment prospects.

    ·The clinical and forensic psychologist Mr Istvan Schreiner has concluded that with ‘appropriate and long-term goals and ongoing psychological treatment the likelihood of the applicant reoffending is minimal’. 

    ·Mr Schreiner has further opined that the applicant is not a hardened criminal, and could lead a functioning life; and notes that the applicant had voluntarily ceased using drugs, had enrolled into and completed educational courses and relationship counselling with his wife, and that the applicant has had used his time in custody productively and has otherwise demonstrated a motivation for change.

    [32] Applicant’s SFIC, paragraph 45.

14. The Respondent’s SFIC makes the following submissions in relation to this sub-paragraph:

    “38. The risk of further domestic violence is particularly concerning. As reported in the Commonwealth Government’s Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022, every day there are on average 12 women in Australia who are hospitalised due to domestic violence. Such crimes represent a grave violation of the dignity and personal security of victims. In addition to the immense physical and psychological toll of such crimes, violence against women and their children also resulted in an overall economic cost of $26 billion in 2015-16, with victims bearing approximately 50 per cent of that cost.

    39. In considering the likelihood of the applicant reoffending, the Minister submits, for the following reasons, that the applicant poses an unacceptable risk of re-offending.

    40. First, the Minister submits that the applicant has failed to demonstrate genuine remorse for his offending or insight into the harm he has caused. Rather, his claims of remorse appear to be a reaction to the possible consequences that he now faces as a result of his serious offending and conduct. In this respect, the following may be noted.

    41. When given the opportunity to accept responsibility for the significant harm he inflicted upon Ms Al Attar, the applicant instead advanced falsehoods to the Court in an orchestrated effort to avoid punishment for his actions. In this respect, the following remarks of Magistrate Funston are pertinent:

    You haven’t shown any remorse in this matter at all, you have blatantly lied to the Court was my finding and you have clearly demonstrated that there is absolutely no remorse attached to this charge even in the face of photographic evidence, a statement by the complainant who attended court today, a complainant who did attend court today and was clearly frightened by being at court (G 63-64).

    42. Furthermore, instead of taking the opportunity for reform when he was convicted of the domestic violence offences, he instead maintained his innocence and caused further public resources to be expended in dismissing his conviction appeal (RTB 19-21).

    43. In addition, the applicant appears to ascribe, as factors that explain his domestic violence offending, Ms Al Attar’s conduct in “keep the kids from me for two weeks I was sick worried about our kids (sic)” and that he was worried for the children’s wellbeing and that his resulting anxiety led to his offending (G 87, 93). The applicant also contends that he was intoxicated at the time of the offence (G 93). The Minister submits that the applicant’s explanation for his extreme domestic violence offending is the antithesis to remorse and weighs against his claimed remorse and rehabilitation. Further, the applicant’s intoxication during this offending demonstrates a failure to properly address his longstanding substance abuse problems.

    44. Moreover, in respect of the applicant’s arson offence, evidence in a South Australia Department for Correctional Services psychological assessment indicates that he also ascribed, on this occasion, his intoxication as a contributory factor to his offending, and sought to blame others for the significant harm he caused (RTB 203). The Minister submits that in light of the applicant’s demonstrated history of refusing to take responsibility for the harm he has caused, that his recent claims of remorse should be viewed with considerable scepticism.

    45. Second, the Minister respectfully submits that there is insufficient evidence for the Tribunal to be satisfied that the prospect of future treatment for a claimed psychological condition would meaningfully reduce the applicant’s risk of reoffending. Critically, the following undermines the applicant’s claims in this respect:

    a. Mr Schreiner’s assessment of the applicant in his 29 September 2020 report appears to be substantially based off the applicant’s self-reporting during a two-hour teleconference and in questionnaires (pp 2- 3, 6).

    b. Mr Schreiner does not appear to have had regard to any prior medical evidence relating to the applicant, including contemporaneous medical evidence in the context of the applicant’s significant offending (pp 3- 5).

    c. Mr Schreiner does not appear to explain whether the applicant’s psychological state at the time of assessment was predominantly the result of circumstances relating to his imprisonment and the cancellation of his visa, or other factors.

    d. Accordingly, the Tribunal should approach Mr Schreiner’s conclusion that the applicant’s risk of reoffending is minimal due to “appropriate long term goals” and the prospect of ongoing psychological treatment with extreme caution (p 17).

    e. The applicant’s interactions with psychiatrists, mental health nurses and counsellors in detention are not indicative of any significant mental health condition (RTB 219-251).

    46. Third, in any event, the Minister submits that the weight of the evidence before the Tribunal should instil little confidence that this time the applicant will seek to properly reform his offending and substance abuse behaviours. In the Minister’s submission, the applicant’s claims of commitment to rehabilitation should be approached with extreme caution. Critically, Dr Holmes, a psychologist who prepared a report for the sentencing in relation to the applicant’s arson offence diagnosed the applicant with a stimulant use disorder and alcohol use disorder. At that time the applicant was assessed as having a moderate to moderately high risk of reoffending in the absence of cognitive behaviour style therapy to assist with drugs and alcohol (G 71). There is no evidence the applicant has undergone any such therapy.

    47. Furthermore, the applicant’s arson offence was committed while he was on bail for other offending, including a charge for aggravated assault and whilst taking part in a Treatment Intervention Program at the Port of Adelaide Magistrates Court (G 70). In addition, evidence before the Tribunal demonstrates that the applicant failed to meaningfully participate in the Treatment Intervention Program that was made available to him (RTB 53). This indicates that the applicant has been unresponsive to prior leniency by the Courts and has continued to offend despite outstanding obligations to the Court, which undermine his claims of rehabilitation.

    48. The Minister further submits that there is insufficient substantive or independent evidence presently before the Tribunal to verify the applicant’s assertion that he has guaranteed employment available to him upon release (G 97).

    49. Overall, the Minister submits that in considering (i) the applicant’s extensive criminal history including extreme violence, (ii) his resolve to continue offending and abusing substances despite the previous opportunities afforded to him by the criminal justice system, (iii) the absence of genuine remorse for the harm he has caused, and (iv) the insufficient evidence to demonstrate that the applicant has properly addressed his proclivity for abusing substances and offending, that there is an unacceptable risk that the applicant will reoffend and cause further significant harm to members of the community.”[33]

    [33] Exhibit R2, Respondent’s SFIC, paragraphs [38] – [49].

15. We are, of course, 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:[34]

    “The likelihood of recidivism is a strong factor in favour of the 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.”

    [34] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.

16. Ultimately however, we are satisfied that the evidence heard before the Tribunal supports our concluding that the Applicant is now unlikely to re-offend in the future.  In particular, we are persuaded to that conclusion by the following:

    ·The expert evidence of Mr Schreiner demonstrating that “…with appropriate long term goals and ongoing psychological treatment the likelihood of reoffending [by the Applicant] is minimal. Given my experience working with forensic clients for the past 15 years, it is safe to state that Mr Dan Granxxa is not a “hardened criminal” and in my opinion he will be able to lead a functioning life’[35];

    ·The evidence of the recent efforts made by the applicant to rehabilitate himself, further educate himself, and of having now put in place strategies so as to guard against the risk of relapse, and of his having engaged productively in couples counselling.

    ·The applicant’s clear understanding that any further offending gives rise to the clear risk of his deportation;

    ·The applicant’s strong prospects of immediate employment upon release into the community.

    ·The applicant having ceased the use of illicit substances and having moderated his consumption of alcohol.

    [35] Exhibit A8, page 17, paragraph 5.3.4

    Conclusion: Primary Consideration A

17. We find that (1), the nature of the Applicant’s offending conduct to date is “very serious”, and (2), there is minimal likelihood that the Applicant will engage in further serious conduct if returned to the Australian community.

18. In consideration of all of the evidence and each of the relevant factors contained in the Direction, we find that a certain, but not determinative weight is allocable to Primary Consideration A in favour of non-revocation of the mandatory visa cancellation decision.

    PRIMARY CONSIDERATION B – THE BEST INTEREST OF MINOR CHILDREN

19. Clause 13.2(1) of Direction 79 makes clear that, when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the decision-maker must decide whether revocation is in the best interests of minor children, in Australia.  In circumstances where there are two or more relevant children (as is the case here), clause 13.2(3) provides that the best interests of each child require discrete consideration, to the extent that their respective interests may differ.

20. In this case the applicant is the biological father of two minor children in Australia: a daughter, ‘Child L’, aged seven; and a son, ‘Child Z’, now aged two.  Furthermore, the applicant’s Personal Circumstances Form notes the following other minor children as also featuring in the applicant’s family circumstances:

    ·A nephew, ‘Child A’, now aged five;

    ·A niece, ‘Child H’, now aged 13; and

    ·A sister-in-law, ‘Child S’, now aged 17.

    Clause 13.2(4) Factors

21. When considering the best interests of minor children in Australia, clause 13.2(4) in Direction 79 provides that the following factors must be considered, wherever relevant:

    (a)The nature and duration of the relationship between the child and the non-citizen.  Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements.

    (c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)Whether there are other persons who already fulfill 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.

22. In what follows, each of those matters identified by paragraph 13.2(4) in Direction 79 (above), will be considered in the case of each of L, Z, A, H, and S.

    13.2(4)(a) Nature and duration of the relationship

23. As indicated, the applicant is the biological father of two children in Australia, his daughter Child L, now aged seven, and his son, Child Z, now aged 2. Each of Child L and Child Z is an Australian citizen. The evidence before the Tribunal suggests that the Applicant has a loving and continuing relationship with both children, particularly his daughter Child L, with whom the applicant has an especially strong relationship. The strength of that relationship and the importance of the applicant’s role as father to the psychological well-being of Child L is a particular feature in this case, and is a matter of no little importance to the overall outcome of this application for review before the Tribunal. It is a distinctive feature that has been observed and commented upon by Child L’s mother, Ms Al Attar,[36] and also by the clinical and forensic psychologist giving evidence in these proceedings, Mr Istvan Schreiner.

    [36] Exhibit A6, pages 1 and 2.

1. In her evidence before the Tribunal, at least insofar as it relates to the nature and duration of the relationship between Child L, Child Z and the Applicant, their mother, Ms Al Attar has said:

   “[the Applicant’s] imprisonment and the status of his visa has caused more hardship than I have ever imagined.  Our kids, [Child L] and [Child Z] in particular, have been impacted mentally, emotionally and financially…

   Not having him in our life [has] had the biggest impact on our 6-year old daughter [Child L].  Her suffering is often very visible and has required medical attention.  Not being able to see him has caused her severe anxiety, sleeping problems and has also affected her school performance and most of all behaviour.  [Child L] is currently seeing therapy with very little to no improvement.  If [the Applicant] were to get deported it means that my kids would lose their dad.  [Child L] is very attached to her dad.  His involvement in her everyday life has created a strong bond for them.  He is the kind of dad that gets involved in all community events, we often go out to community festivals, celebrations like new year with the family, Halloween and many more events.  He picks her up and drops her off to school.  They go shopping, to the parks, to her favourite things in the world like swimming and karate.  I don’t want my daughter [to] be disadvantaged for the rest of her life and the thought of [Child Z] growing up and asking where his dad is brings tears to my eyes, because they both have a warm loving father that can support them emotionally.  Please don’t take that away from us. Allow my kids to have their father. We beg you to consider him staying for the sake of our kids.”[37]

   [37] Exhibit G1, G12, page 100, paragraphs [22] and [23].

2. Similarly, in his report,[38] Mr Schreiner opines that the emotional and psychological consequences of the applicant being deported would be significant for Child L, and that the shock of same would be likely to result in Child L developing childhood anxiety and depression, likely to be of a long-term duration, and from which recovery would become difficult.  This opinion was not disturbed during any of Mr Schreiner’s cross-examination.  The Tribunal now accepts the validity of that opinion, and attaches significant determinative weight to it.

   [38] Exhibit G1, G52, pages 240 and 241.

3. In its SFIC, the Respondent concedes[39] that revocation of the mandatory cancellation decision is in the best interests of both Child L, and Child Z, yet submits that the following factors serve to moderate the weight that should be attributed by the Tribunal to this consideration:

   “Firstly, by reason of his imprisonment (or later, immigration detention) the applicant has had long periods of either absence, or limited meaningful contact, with his children.  L was born in May 2013, yet the applicant has been either imprisoned or detained for approximately three years and one month of her young life.  Z was born in August 2018, yet the applicant has been either imprisoned or detained for approximately one year and five months [in other words the majority] of his life.

   Secondly, by reason of the applicant’s history of offending and substance abuse, the respondent submits that the Tribunal should exercise “extreme caution” when assessing claims that the applicant will play a positive parental role in the future lives of his children

   Third, the applicant’s prior criminal offending, and in particular the domestic violence inflicted by him on his wife Ms Al Attar is likely to have caused detriment to his children.

   Fourth, Ms Al Attar already fulfils a parental role for the children and appears to have done so throughout the applicant’s periods of absence, arising in consequence of either his periods of imprisonment, or immigration detention.

   Fifth, the respondent submits that Mr Schreiner’s psychological report on L  does not appear to have had regard to any previous medical evidence relating to L; was based on a single clinical interview and assessment; and his report does not make clear the extent to which Mr Schreiner’s assessment took into account the fact of the applicant’s domestic violence offending against L’s mother, Ms Al Attar.  In other words, the applicant submits that, for these reasons, diminished weight should now be attached by the Tribunal to the professional opinions of Mr Schreiner

   Sixth, the respondent submits that it is relevant to consider that L and Z would be able to maintain contact with their father the applicant by digital means, “which would not be drastically different to the nature of his interactions with the children during [his] imprisonment and detention”.”

   [39] Respondent’s Statement of Facts Issues and Contentions (‘SFIC’), paragraphs [51] to [58].

4. Although it may be conceded that the Applicant’s relationship with his son Child Z is not yet as rich and developed as that which the Applicant has forged with his daughter; and although the Applicant himself concedes[40] that less weight may be given to clause 13.2(4)(a) by reason that meaningful contact between the Applicant and his children has been necessarily diminished during the period of his imprisonment/detention; we are not persuaded that only ‘moderate weight’ attaches to this factor, for those reasons now urged on us, by the Respondent. 

   [40] Exhibit A1, Applicant’s SFIC, paragraph [60].

5. Even after taking into account the reduced duration of the Applicant’s relationship with Child L, and (particularly) Child Z, as has unarguably been caused by the fact of his imprisonment, and later, immigration detention, this consideration is still one to which we conclude that significant weight in favour of revocation must now attach.  As to the six factors now raised by the Respondent that are said to be antithetical to our conclusion, we observe the following:

   (a)Although it is undoubtedly the case that the Applicant has spent significant portions of the lives of both children in either prison or immigration detention, the evidence received before the Tribunal reveals that the applicant - and his wife - have still gone to considerable effort within the limits of their resources in an effort to maintain meaningful contact between the Applicant and the children that is the best that can be achieved, in all the circumstances.  And, during those times when the Applicant has been able to physically be with Child L, and Child Z, the evidence shows him to have been a very active and involved parental figure.

   (b)There is no compelling evidence before the Tribunal that the Applicant’s past offending and prior history of substance abuse will serve to prevent him from playing a positive parental role in the future lives of his children.  Quite to the contrary, the available evidence suggests that the Applicant has gone to considerable effort so as to distance himself from his past behaviours, and is now a very low risk of further offending, or of engaging in substance abuse.

   (c)There is no evidence of any direct harm caused to either child in consequence of the Applicant’s past offending, or in consequence of the domestic violence inflicted by the Applicant on his wife.

   (d)Ms Al Attar’s ability to sufficiently fulfill the role of parental figure in lieu of the Applicant in the aftermath of any deportation is more an assertion based on presumptive thinking than an accurate reflection of the true state of things.  The Respondent’s contention to this end takes no account of the observed detriment caused – to Child L in particular - by the loss of a father figure in the lives of the children, and nor does it take into account Ms Al Attar’s reduced capacity for parenting, as caused by her own physical, psychological and emotional condition.

   (e)We do not regard the criticisms levelled by the Respondent at the report prepared by Mr Schreiner regarding the psychological condition of Child L as matters detracting from the reliability of his conclusions regarding same.  Here, it seems clear that Mr Schreiner was aware of the surrounding circumstances of domestic violence; that he did take into account the general backdrop of the applicant’s prior offending and substance abuse issues; and that he was, at all times, careful to draw relevant information from a wide variety of sources, and to look for corroboration before reaching the conclusions now expressed in his report.

   (f)We do not accept as credible the submission that, should deportation eventuate, Child L and Child Z would still be able to maintain contact with their father by digital means which would not be so qualitatively different to their current electronic interactions with the Applicant, during his periods of imprisonment and immigration detention.  Acceptance of that submission would require for us to overlook the fact of permanent physical separation inherent in deportation, and takes no account of the considerable financial, social and logistical difficulties that would be apt to envelop this family as real, everyday impediments to effective long-term electronic communication, post-deportation of the Applicant.

   13.2(4)(b) Extent to which non-citizen is likely to play a positive parental role in the future

6. The Tribunal accepts that the applicant has a close and loving relationship with his two children, particularly with his daughter, Child L.  There is little reason to now doubt that the Applicant will be likely to play a positive parental role in his children’s future, and is likely to provide substantial emotional, financial and practical support for them - and the family unit as a whole - post his release from immigration detention.

7. Our views in that regard are fortified by the oral and written evidence received by the Tribunal from each of the following: Applicant, the Applicant’s wife (Ms Al Ataar), and from each of her parents, Ms Suad Hechal and Dr Ramzi Al Attar. Their combined evidence was to the effect that the applicant is a good provider, who has a strong work ethic and a drive to improve the financial circumstances of his family.  In addition, their evidence and that of other family members and family friends was that the Applicant is an active, ‘hands-on’ father, engaged in all of the necessary aspects of parenting.  This evidence, when coupled with other evidence of the clear efforts made by the Applicant to deal with his past offending behaviour and substance abuse problems is enough to give rise to confidence that the applicant is likely to play a positive parental role in the lives of each of Child L and Child Z in the future.

   13.2(4)(c) Any negative impact of the non-citizen’s prior conduct/any likely future conduct on the child

8. The Applicant’s prior offending has not directly impacted on either of his children, yet it is accepted that the Applicant’s criminality is likely to have had some indirect effects on the emotional, financial and practical needs of each of Child L and Child Z.  In large measure, these indirect effects may be seen as related to the fact of the Applicant’s  forced separation from the children in consequence of his imprisonment, and subsequent immigration detention; and by reason of the adverse impact on Ms Al Ataar’s capacity for parenting, as caused by her own psychological fragility, which itself appears substantially referable to the Applicant’s offending against her, and the deleterious impact on the family unit caused by the custodial aftermath of that.

9. In the event that the Applicant were to re-offend, this would, no doubt, again raise the spectre of his deportation, which would, no doubt, again threaten the emotional, financial and practical needs of both Child L, and Child Z.  This is a matter to which the applicant is now clearly keenly attuned, and which will be likely to serve as a factor diminishing the risk of the applicant engaging in any future conduct that may have a negative impact on either Child L, or Child Z.

   13.2(4)(d) Likely effect of separation from the non-citizen on the child

10. In his report,[41] Mr Schreiner opines that the emotional and psychological consequences of the Applicant being deported to Spain would be significant for Child L, and that the shock of same would be likely to result in Child L developing childhood anxiety and depression, likely to be of long term duration; and from which recovery would be difficult.  This opinion was not, to our thinking, disturbed in any sense during Mr Schreiner’s cross-examination. 

    [41] Exhibit G1, G52, pages 240 and 241.

11. Although there is no specific evidence in relation to the likely effects of permanent physical separation from the applicant upon Child Z, it is not difficult for the Tribunal to foresee the prospects of anxiety and other adverse psychological impacts of the applicant’s deportation that will impact upon Ms Al Ataar, as Child Z’s mother, and upon Child L, as Child Z’s older sister then transferring, as a further adverse impact, on Child Z.

12. Although the Respondent contends that the children might maintain a relationship with the Applicant by electronic means once he is deported to Spain, we are not satisfied that this prospect serves to obviate the very real concerns that arise in terms of adverse emotional, psychological, financial and practical effects on Child L and Child Z as will arise in the event of non-revocation of the visa cancellation decision.

    13.2(4)(e) Whether there are other persons already fulfilling a parental role for the child

13. It is the case that Ms Duaa Al Ataar, as the children’s mother, is a person already fulfilling a parental role for each of Child L and Child Z.  However, the evidence received before the Tribunal also paints a compelling picture of a woman now suffering from serious depression, significant anxiety and clinically significant general emotional distress,[42] such that her practical capacity for parenting, particularly in circumstances where her children would need a bedrock figure to assist them whilst navigating their own travails, appears to have become degraded, by the impending spectre of the deportation of her husband.  In this context, we conclude that there is a real doubt as to whether Ms Al Ataar could effectively fulfill the required sole parental role, in the event that the spectre of deportation becomes a lived reality for this family.

    [42] Exhibit G1, G52, pages, 230 and 231

14. In this later regard, during the course of proceedings, evidence was received from Ms Al Ataar’s father, Dr Ramzi Al Attar, who is himself a general practitioner, based within the Accident and Emergency Department of the Mildura Base Hospital.  The following exchange took place between Dr Al Ataar and the Tribunal:

    Member:Now, earlier in your evidence you said that you’re at least concerned that your daughter is depressed?

    Witness:        Yes.  That’s right.

    Member:        All right.  Is that impacting on her ability to effectively parent?

    Witness:Well, look, generally speaking, actually, definitely.  There is no way to say, actually, the father – the father has no role in raising up as a kid.  Those parents are needed for the kids.  And this is the unity of the family.

    Member:        Yes?

    Witness:So yes, she’s been actually affected, she’s mentally depressed, she’s upset, she’s – yes, all these actually things happening, but definitely one of the main reason that her husband absence.

    Member:If your son-in-law were to be deported, what impact do you estimate that would have or could have on your daughter’s ability to effectively parent into the future?

    Witness:It’s a hard question, but honestly, actually to be very honest, in my – it’s hard to say, but I have to say the truth.  She will fail.  And unfortunately, she would, in my opinion, not be able actually to raise those kids, lovely kids they both have, unfortunately she will fail to look after them as it should be and a tragic or disaster may happen.[43]

    [43] Transcript, Day 2, pages 89 and 90.

    13.2(4)(f) Known views of the child

15. Although Child Z is still much too young to have expressed any views, the views of Child L, aged 7, are revealed through the clinical assessment undertaken by Mr Schreiner, and as are now recorded in his report dated 19 July 2020.[44]  For reasons already indicated, we accept the veracity of the opinions expressed by Mr Schreiner.

    [44] Exhibit G1, G52, see particularly section 4.5, pages 234 to 236.

16. We are informed that Child L has no actual awareness of the imminent risk of her father’s permanent deportation, such that there is an element of artificiality in speculating about her views regarding same.  Nonetheless, the best interests of the child are such that some element of speculation on the question does become necessary. 

17. Mr Schreiner’s interview with Child L does reveal her to have a close and loving relationship with the Applicant, as well as a strong attachment bond to both of her parents.  In Mr Schreiner’s view, Child L already appears to be struggling to cope emotionally in consequence of her current forced separation from her father, the Applicant.  Further, in the event that this forced separation were to go on and become permanent - as would be the case if the mandatory visa cancellation decision were to remain extant - Mr Schreiner has opined that significant emotional and other psychological harm would be caused to Child L.  It is no stretch then for the Tribunal to infer that a child aged 7 would express clear views contrary to that outcome.   We are satisfied therefore on the available evidence that Child L has sufficiently expressed views that support the Tribunal determining to revoke the mandatory cancellation decision.

    13.2(4)(g) Evidence that the non-citizen has abused or neglected the child in any way

18. There is no evidence that the Applicant has either abused or neglected either of his children.

    13.2(4)(h) Evidence that the child has suffered or experienced any physical or emotional trauma from the non-citizen’s conduct

19. There is no evidence that either Child L or Child Z have suffered from any physical or emotional trauma arising directly from the applicant’s prior criminal conduct.  It is accepted that Child L in particular has suffered indirect emotional hardship, in consequence of her father’s imprisonment and subsequent immigration detention.

    Summary of 13.2(4) factors in respect of other children A, H and S.

20. Because of clause 13.2(3), the best interests of each minor child do require discrete consideration.  Nonetheless, in light of clause 13.2(4)(a), less weight should generally be given where the relationship between the non-citizen and the subject child is non-parental.

21. The Respondent submits[45] that it is ‘clear’ that the Applicant does not play a parental role in the case of Child A, Child H, or Child S, such that the Tribunal should ‘exercise caution’ when considering whether the Applicant has had and will play a positive role in the lives of each of these children, particularly in light of the Applicant’s periods of imprisonment and immigration detention and frequent history of offending and substance abuse.

    [45] Exhibit R2, Respondent’s SIFC, paragraph [59].

22. However, and despite these submissions, there is satisfactory evidence[46] before the Tribunal of the Applicant endeavouring to play his part in terms of his being a positive role model in the lives of each of Child A, Child H, and Child S, in his capacity as both uncle, and brother-in-law.  The Tribunal is entitled to infer that this role, although non-parental and therefore only peripheral, has nonetheless been genuine, and substantially positive.  Some further moderate weight in favour of revocation of the mandatory cancellation decision therefore arises in account of the best interests of these other minor children.

    [46] Including a statement from Child S, aged 17 (Exhibit G1, G28, page 184), who speaks of the Applicant having fulfilled a role in as her ‘second elder brother’ for more than half her life.

    Conclusion: Primary Consideration B

1. Having regard to the relative levels of weight we have allocated to the relevant paragraphs in paragraph 13.2(4) of the Direction, we determine that the best interests of the Applicant’s minor children in Australia here weigh very strongly in favour of revocation of the mandatory visa cancellation decision.

   PRIMARY CONSIDERATION C – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

2. Clause 13.3(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or in circumstances where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Clause 13.3(1) also provides that non-revocation may be appropriate simply because of the nature of the character concerns, or the offences are such that the Australian community would expect that the person should not hold a visa.  Decision-makers should have due regard to the Government’s views in this respect.

3. In FYBR v Minister for Home Affairs,[47] when dealing with paragraph 11.3(1) of Direction 65 (a direct analogue of paragraph 13.3(1) in the current Direction 79), Flick J concluded that the principles reflected in clauses 6.3(5) and 6.3(7) were necessarily incorporated into the primary consideration of expectations of the Australian community in Direction 79, as factors that may be taken into account when determining whether to give more or less weight to a deemed community expectation of visa refusal, arising because of character concerns regarding the non-citizen, or the nature of their offending.  Charlesworth J came to a similar conclusion, expressing that:

   “In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion.  They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.[48]

   [47] [2019] FCAFC 185 at [22]. On 24 April 2020 special leave was refused by the High Court, see: FYBR v Minister for Home Affairs & Anor [2020] HCA Trans 56.

   [48] Ibid, at [22].

4. Clauses 6.3(5) and 6.3(7) in Direction 79 are expressed in these terms:

   5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   …

   7The length of time a non-citizen has been making a positive contribution to the Australian comm unity, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

5. The Applicant has an unenviable criminal record.  As previously indicated in these reasons, and in light of his having been sentenced to actual terms of imprisonment exceeding 12 months, the Applicant concedes[49] the Tribunal could not be satisfied that the Applicant meets the character test in s.501 of the Act, and we have now found so, accordingly.  It follows therefore that this primary consideration weighs against revocation of mandatory visa cancellation. 

   [49] Exhibit A1, Applicant’s SFIC, page 3, paragraph [9].

6. Yet, the Applicant submits that the principles identified in each of clauses 6.3(5) and 6.3(7) in Direction 79, when correctly applied, substantially reduce the weight that can be attributed to this primary consideration.  In this regard, the Applicant submits that the following factors should be assessed by the Tribunal as now ‘tipping the balance’ in favour of revocation of the mandatory visa cancellation decision:

   ·The Applicant has lived in Australia for what is effectively his entire life.  Although a Spanish citizen, the applicant was born in Switzerland, and first arrived in Australia before the age of three months.  Thereafter he was raised and educated in Australia, and has resided in Australia continuously.  The Applicant speaks no Spanish; has no living relatives in Spain; and has only been to that country on one occasion, for a few weeks in September - October 2012.  In these circumstances clause 6.3(5) suggests a higher level of tolerance for the applicant’s past criminal or other serious conduct than would be the case had the applicant not lived in Australia continuously from such a very young age.

   ·In terms of clause 6.3(7), the Applicant submits that he has made a positive contribution to the Australian community, particularly when reference is had to the fact of his lengthy employment history in the building and construction industry.  Furthermore, the Applicant submits that the consequences of non-revocation of mandatory cancellation for the identified minor children and other immediate family in Australia would be devastating.[50]

   [50] The impact of non-revocation on minor children and other family members are discussed in these reasons at paragraphs [77] to [96], [116] to [144].

7. As against that, the Respondent submits[51] that these contentions should be rejected, by reason that:

   (a)any monetary contribution made by the applicant to the community has been substantially mitigated in consequence of the public costs expended in dealing with his serious and frequent offending;

   (b)the Applicant’s conduct has caused significant harm to innocent members of the community;

   (c)the Applicant has already been extended opportunities by the criminal justice system; and

   (d)there is limited material evidence to substantiate the applicant’s claimed employment history.

   [51] Respondent’s SFIC, p.17, paragraphs 63-64.

8. Ultimately, we are of the view that the clause 6.3(5) and 6.3(7) matters raised by the Applicant do carry certain yet non-determinative weight in favour of revocation of mandatory visa cancellation.  We are unpersuaded by the arguments raised by the Respondent as to why the factors here raised by the Applicant ought be rejected.  In this regard, and as to (a) (immediately above), the evidence reveals that the Applicant has been engaged in consistent remunerative employment since he was 16 years of age.[52] Nor does there appear to have been any significant interruption to his employment history in consequence the applicant having served actual periods of imprisonment.  To this extent at least, any burden caused by the fact of the applicant’s past offending on the community’s law-enforcement and judicial sentencing resources is a matter that might be seen as having been offset by the Applicant’s simultaneous payments of taxation, and by his making other contributions to the general economy, arising in the form of his productive outputs, and his expenditure of legitimately earned income on goods and services.  Here, the reality is that a person can make a productive contribution to life in Australia, even in circumstances of that person simultaneously accumulating a criminal history.

   [52] See Exhibit G1, G9, page 88 (Applicant’s Personal Circumstances Form).

9. As to the Respondent’s contention (b), further above, although harm has undoubtedly been caused to victims by the past criminality of the Applicant, such must nonetheless be viewed in the context that a fundamental purpose of sentencing within the Australian criminal justice system is to make offenders appropriately accountable for their actions causing harm.  Equally, it must here be noted that the most significant and recent victim of the Applicant’s offending has been his own wife, Ms Al Attar.  Ms Al Attar’s views before the Tribunal are very clearly in favour of revocation of the mandatory visa cancellation decision.  Ms Al Attar’s views cannot be ignored.  Although these are not determinative in any sense, these are a specific feature in this case, to which considerable weight must be attached by the Tribunal.

10. As to (c), and as is recorded elsewhere in these reasons, the Applicant arrived in Australia prior to the age of three-months in December, 1988. His first adult appearance before the criminal justice system in Australia did not then occur until almost 20 years later, in 2007. Even if the applicant’s juvenile offending history is taken into account[53] - it is still some 15-16 years after his first arrival before the applicant appeared before a court. The Applicant’s history of offending indicates approximately 17 sentencing episodes during hist 32 years. Whilst unenviable, this Tribunal has seen significantly worse criminal histories than that which arises in the case of this Applicant.

    [53] The first episode of which occurred in 2003.  See Exhibit R1, Respondent’s Tender Bundle, pages 59–68, 194.

11. As to (d), that being the assertion of limited evidence to substantiate the Applicant’s employment history, this is a matter that has been largely overtaken by subsequent evidence received before the Tribunal.  Whilst there may have been some moment in that contention, had the only evidence for it remained the Applicant’s self-reporting regarding his employment history, that is no longer the case.  In the manner that is discussed in more detail later in these reasons, the applicant’s employment history is now amply corroborated, by other evidence.  The reality is that the applicant has a demonstrably good work history, and the fact of the Applicant having at least two firm offers of immediate employment in the event of his release from immigration detention[54] does, in our respectful view, further diminish this contention.

    [54] See Written Statement of Philip Amato, Exhibit 1, G42, page 199; See also Evidence in Chief of Mr Wayne Zahra, Transcript, 13 November 2020, page 101, lines 20–30.

12. In an overall sense, we conclude that the expectations of the Australian community (Primary Consideration C) require that certain, yet non-determinative weight, be given in favour of revocation of the mandatory visa cancellation decision.

    Other Considerations

13. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

    (a) International non-refoulement obligations

14. The Applicant has not claimed to fear harm if removed to Spain. The following paragraph appears in his SFIC

    “116. International non-refoulement obligations. Clause 14.1(1) makes plain that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The applicant does not advance any contentions directly relevant to this consideration. Accordingly, this consideration is not relevant for these proceedings.”[55]

    [55] Exhibit A1, Applicant’s SFIC, page 30, paragraph [116].

15. This position is mirrored in the written submissions filed on behalf of Respondent:

    “International non-refoulement obligations and Impact on Australian business

    Interests

    79. There is no evidence before the Tribunal bearing upon international nonrefoulement obligations and the impact on Australian business interests in this case.”[56]

    [56] Exhibit R2, Respondent’s SFIC, page 22, paragraph [79].

16. We are therefore of the view that this Other Consideration, (a), is not relevant to determination of this application.

    (b) Strength, nature and duration of ties

    A limited concession on behalf of the Respondent

17. There appears the following commentary in the Respondent’s written material:

    “Strength, nature and duration of ties

    66. Relevantly, the applicant has spent the great majority of his life in Australia, has family links, and has made employment contributions, which weigh in his favour.

    ……..

    70. ……….. to the extent that this consideration weighs in favour of revocation, the Minister respectfully submits that it does not outweigh the primary considerations which weigh against revocation.”[57]

    Paragraph 14.2(1)(a)(i) of the Direction

    [57] Ibid, page 18, paragraph [66], page 19, paragraph [70]

18. The Applicant was born in Switzerland in September 1988. He came to Australia, initially in December 1988 prior to the age of three months and has, save and except for a period of three weeks in September/October 2012, exclusively resided in Australia since the date of his initial arrival. He is currently aged 32 years. He has therefore spent the predominant majority of his life in this country. His offending commenced in mid-2007, some two decades after his arrival. It therefore cannot be sustainably contended that, having regard to paragraph 14.2(1)(a)(i) of the Direction, his offending history in this country commenced soon after his arrival. Accordingly, no adverse weight against the Applicant can be allocated to paragraph 14.2(1)(a)(i) of the Direction.

    Paragraph 14.2(1)(a)(ii) of the Direction

19. A significantly greater measure of weight in favour of the Applicant can be found via an application of paragraph 14.2(1)(a)(ii) of the Direction. It is clear from the material that he has made an appreciable level of positive contributions to the Australian community during the course of his life in this country. In his personal circumstances form, the Applicant discloses, on a yearly basis from March 2005 to “now” a solid work and employment history in the building and construction industry. His primary area of trade expertise seems to be as that of a “Renderer” while there is also reference to three work stints as an “Installer”.[58] His diligence and expertise in the workplace has been independently acknowledged and endorsed by other people in the building and construction industry. For example:

    ·Mr Daniel Zuro is the principal of “Distinguished Painting Services Pty Ltd.” He describes the Applicant as a “…….  driven and ambitious person……”  He considers the Applicant to be “…… a good provider for his family, he is  loving husband and father, a trustworthy and loyal friend.” Mr Zuro has a belief that “….. due to his good character and work ethics his position at work is still valid and had been saved for him when he is to be released. It is not as often that happens but due to the hard work and the selflessness of cristien he has left a great impression and a reputation of great quality.”[59] [Errors in original]

    ·Mr Abdallah Jamal derives from a family that owns and operates a supermarket business in Adelaide, South Australia. Mr Jamal confirms that the Applicant was an employee in that supermarket business “…….. for a number of years …….”  until he moved to Sydney with his wife and two children. Despite facing difficulties, Mr Jamal further confirms that the Applicant “………. Put his head down and continued to thrive. Christian never gave up he kept trying until he succeeded…….”.[60] [Errors in Original]

    ·Ms Sopheap Kranh is the principal of the business trading under the firm name or style of “Feather Touch Brows and Beauty” in Adelaide. Ms Kranh describes the Applicant’s wife as “my closest friend.” She says that “In the years I have knowing this man although he may have made some bad decisions you would never doubt the support and unconditional love he gives his family. Ive always knowing him to be a hardworker, fun loving & always providing what he can for his family.” [61] [Errors in Original]

    ·Mr Colin Turner works as a “General Manager – Cladding” with the Stoddart Cladding Systems Pty Ltd (trading as the “Stoddart Group”). Mr Turner describes the nature of the Applicant’s work while he was under Mr Turner supervision and observes that “Cristien undertook these duties with professionalism and passionately upheld the quality standard that are central to Stoddarts offering.” Mr Turner further noted that the Applicant “ …….. had previously worked with us as a sub-contractor, so we knew him and his work ethic before the Supervisor role became available. We also had good reports about him from a sister company in Adelaide that he worked with before moving to Sydney.” Mr Turner also made the following personal observation of the Applicant: “On a personal note, I have always found Cristien to be an honest and reliable member of the team and have no hesitation in supplying this reference.”[62]

    ·Mr Phillip Amato is the principal of the business trading under the firm name or style of “Amato Plastering” in South Australia. It is pertinent to quote the text of Mr Amato’s reference in full: “Christian has previously worked for Amato Plastering Pty Ltd. During this time with us he showed good leadership and organisational skills, this enabled him to conduct work on his own and be his own boss. He had to deal with builders and clients on a regular basis. He took lot of pride in his work and made sure that the work he undertook and completed was to his best ability. I found Christian to be a reliable, trustworthy and hard working employee. Christian would normally start work at 7am, he worked hard during the day and would finish at approx. 5pm. I would not hesitate to employ him again. In the time he worked for me he became a good friend and a loving father and husband…….” [63]

    [58] Exhibit G1, G9, page 88.

    [59] Ibid, G34, page 191.

    [60] Ibid, G35, page 192.

    [61] Ibid G36, page193.

    [62] Ibid, G41, page 198.

    [63] Ibid, G42, page 199

20. In his Personal Circumstances Form the Applicant responds as follows to the directive stated as “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc. ……helped in community R U OK days with my Partner. She is a mental health educator. I have also been employed and have my job waiting for me” .[64]  It is clear from the material that the Applicant has spent a very significant portion of his life contributing positively to the Australian community. We are of the view that a significant level of weight is attributable to the Applicant pursuant to this paragraph 14.2(1)(a)(ii) of the Direction.

    Paragraph 14.2(1)(b) of the Direction

    [64] Ibid, G9, page 89.

21. We are of the further view that a greater (and potentially determinative) measure of weight is attributable to the Applicant pursuant to this Other Consideration (b), with particular reference to paragraph 14.2(1)(b) thereof. Initial reference should be made to the Applicant’s personal circumstances form wherein he lists the following immediate and extended family in Australia;

    ·His mother;

    ·His father;

    ·His sister;

    ·His aunt;

    ·His uncle;

    ·A further uncle;

    ·His father-in-law;

    ·His mother-in-law;

    ·His brother-in-law;

    ·His sister-in-law;

    ·A further sister-in-law. [65]

    [65] Ibid, page 86.

22. In addition, he cites four uncles/aunts, four nieces/nephews and six cousins in Australia.

23. On a simply temporal basis, it can be forcefully contended that the Applicant does have significant ties to Australia and its community. He has resided here since he was three months of age. As will be noted from the abovementioned list of immediate and extended family members, every single person known to the Applicant – regardless of the nature of the relationship – resides in Australia. In our view, while not necessarily determinative of the basis of the allocation of weight pursuant to this paragraph 14.2(1)(b), the Applicant’s level of connectivity to Australia can only be augmented by the reality that his two biological children also reside here.

24. It is reasonable to infer from the abovementioned references and comments of past employers and/or work colleagues that the Applicant has developed defined social ties with a number of people in the Australian community. They relevantly can be said to comprise:

    ·Ms Davy Son describes herself as the “best friend” of the Applicant’s wife. Ms Son is aware of the Applicant’s offending, but speaks very positively of his role as a “very fun, loving father”. She has understood his role within his family unit such that “He provides that protection & is a big part of where the family’s financial support comes from. He is a hard working man doing all he can for his family and their future.”[66] We are not of the view that Ms Son would have idly provided such a favourable reference only on the basis of her friendship with the Applicant’s wife. It is reasonable to infer that her assessment of the Applicant is based upon her understanding and experience of him during the course of time she has known his family unit;

    [66] Ibid, G30, page 187.

    ·Ms Hannah Melick works for a ceramics business and has known the Applicant “for nearly nine years.” Her connection with the Applicant is, again, via her “best friend” – the Applicant’s wife. She speaks very positively of the Applicant and regards him “…to be a kind, generous, trustworthy, and hardworking man.” She speaks of his willingness to selflessly assist others, to the extent where Ms Melick feels “…extremely lucky to have him in my life.” She goes on to describe him as “…an honest, kind-hearted man with a strong character, and this charge is not an accurate reflection of what a wonderful person he is.”[67] We again infer that Ms Melick has formed this level of connection with the Applicant based on her direct experience of him and not via her close friendship with the Applicant’s wife;

    ·Mr Serge Lebedev has also provided a personal reference in favour of the Applicant. Mr Lebedev lives and works in Adelaide. He regards the Applicant as “…a very close friend of mine for 15 years.” He adds that “During this time I have seen him grow from a loyal and caring friend, to a hard working, loving, supportive father and family man.” Mr Lebedev acknowledges and is aware of the Applicant’s offending history, but is of the sincere belief that the Applicant will become “…a valued member of the community and should be allowed to stay in Australia.”[68] On any reasonable view, Mr Lebedev’s comments appear to be genuinely held and genuinely made. It is reasonable to find that Mr Lebedev, together with Ms Melick and Ms Son, do comprise close social ties of the Applicant to Australia.

    ·Mr David Kurkinen and Ms Kristhel Kurkinen are, respectively, a citizen of the United States and a citizen of Australia. They have known the Applicant and his family for 10 years. They are aware that the Applicant has been “…a great father figure for his children and main support for income.” Mr and Mrs Kurkinen are aware of the Applicant’s offending and the impact of his removal on his family unit. They nevertheless “…respect Cristian and all the hard work he does for his family.” Mr and Mrs Kurkinen visit the Applicant’s family “…every year in Sydney and appreciate all the hospitality they show to us and you cant ask for better friends than Cristian and his wife Duaa.”[69] [Errors in original];

    ·The abovementioned Mr Daniel Zuro speaks of a friendship with the Applicant that dates back to June of 2018. The friendship developed on the basis that Mr Zuro “…would go on to bump into Cristien on more sites and we developed a friendship. In time he opened up to me about his personal life and what his story was.” Mr Zuro also speaks of him and the Applicant “…both enrolled in our Certificate IV in building and construction together at the Master Builders Association, with the goal of supporting each other academically as we had been supporting each other through work.”[70] It is reasonable to infer a strong social tie between Mr Zuro and the Applicant. This is surely supported by the reality that the Applicant felt close enough to Mr Zuro to confide in him about his personal life and to jointly enrol in courses for the development of their expertise in their given trades;

    ·The Applicant also has a social connection with the abovementioned Mr Abdallah Jamal. We have earlier described the past employment relationship between Mr Jamal and the Applicant. Mr Jamal goes on to say that the Applicant has “…contacted me and a friend of mine surge, as we are now married to organise a holiday to the Gold Coast so we can spend some time with our families and group getaway.”[71] [Errors in original]. It is reasonable to find the existence of a strong social connection between the Applicant and Mr Jamal in circumstances where even after the Applicant has left Mr Jamal’s employment, Mr Jamal confirms that they are arranging family holidays to the Gold Coast;

    ·Mr Simon Maraz describes the Applicant as “…a close friend of mine…” He recounts that he and the Applicant attended primary school together nearly 20 years ago and that the Applicant “…has stayed one of my closest friends until this day where I’ve seen him grow to the loving father of two beautiful children and partner Dee/Duaa.” Mr Maraz is aware that the Applicant “…had come to Australia when he was 3 months old and grew up as a Australian he knows nothing else, I couldn’t imagine or wish that upon anyone to be taken away from your newborn son and your gorgeous daughter and partner.” Mr Maraz is of the view that the Applicant “…has established roots in Australia…”[72] it is, in our view, reasonable to find that the Applicant and his family have demonstrable social ties  to Mr Maraz and, indeed, Mr Maraz himself confirms that the Applicant has “established roots” in this country.

    ·Ms Georgina Bell describes herself as a “close University friend” of the Applicant’s wife. She was first introduced to the Applicant in 2016. She describes the Applicant as a “doting father”. In a social context, she confirms that “I have been invited over for dinner on many occasions with the family.” While perhaps the extent of the Applicant’s ties with Ms Bell may not be to the same level as those applicable to the preceding referees, it is difficult to refute a contention that he does have at least some measure of social ties with Ms Bell in circumstances where Ms Bell has dined with the Applicant and his family “on many occasions.”[73];

    ·Ms Georgi Bzikadze is a social friend of the Applicant. She describes him as “…my long-time friend Cristien…” She has known the Applicant since she was “approximately 13 years of age.” The social tie between them is derived as follows: “as time went on and our social groups continued to cross paths, as a result we ended up becoming close friends over the years.” She adds that “When Cristien resided in Adelaide, throughout our teenage years and into our mid-20s we were pretty much neighbours for well over a decade. As he used to live at his parents’ house in very close proximity to my house, which is still my current home residence.”[74] She is aware of the Applicant’s offending but nevertheless felt compelled to provide her reference and to confirm that his removal would significantly impact upon his family. In the circumstances, it is reasonable to find that the Applicant’s friendship with Ms Bzikadze has stood the test of time and that there exists a strong social tie between him and her.

    ·Ms Elena Rullo has known the Applicant “…since we are young children, we are of a similar age.” The social connection apparently derives from “Our parents were close friends for a many years and we grew up virtually on the same street in Blair Athol, Adelaide” [Errors in original]. Ms Rullo’s reference is lengthy and contains an intimate knowledge and detail about the Applicant’s life. She is aware of the Applicant’s offending but nevertheless has stayed in contact with him following his move from Adelaide to Sydney. She concludes by saying “Yes, bad decisions were made along the way, but he is a good person, one that can be responsible and works hard, he has shown that. There is nothing he wants more. I believe he deserves this chance to be what he is, a good father and husband.”[75]

    ·Mr Andreas Bjerkan has also provided a personal reference. He knows the Applicant because he used to work for his brother as an employed renderer. He recalls that the Applicant “…was always nice to everyone…” Mr Bjerkan concludes his reference by confirming the Applicant “…is trustworthy friendly and good respectable person!”[76] [Errors in original].

    [67] Ibid, G31, page 188.

    [68] Ibid, G32, page 189.

    [69] Ibid, G33, page 190.

    [70] Ibid, G34, page 191.

    [71] Ibid, G35, page 192.

    [72] Ibid, G37, page 194.

    [73] Ibid, G38, page 195.

    [74] Ibid, G40, page 197.

    [75] Ibid, G54, pages 245 and 246.

    [76] Ibid, G55, page 247.

1. We respectfully disagree with such a configuration and application of Paragraph 14.4(1) of the Direction for the purposes of ascertaining any weight attributable to it. To our minds, Paragraph 14.4(1) looks for adverse impacts that could be experienced or suffered by victims or their families of a given applicant’s offending. For example, the Paragraph does capture a situation where an Applicant has committed an offence against a member of the Australian community, and the victim has clearly expressed discomfort at the prospect of again confronting that applicant in an everyday life context. By contrast, it does not, to our minds, cover a situation where the same victim expressed financial or other ambivalence, displeasure or concern about an applicant’s removal. In the latter scenario, and applied to the instant facts, any adverse impact upon Ms Al Attar and her capacity to sustain the family unit is relevant to an analysis of weight attributable to, respectively, Primary Consideration B (best interests of minor children) and Other Consideration (b) involving the strength, nature and duration of the Applicant’s ties to, in this case, her.

2. We do not think the draftsperson of Paragraph 14.4(1) of the Direction intended this Paragraph to attract weight in circumstances where victims of offending wish for perpetrators to remain in Australia.

3. Even if we are wrong about how this paragraph 14.4(1) should be configured for the purposes of allocation of weight, we are also of the view, consistent with submissions made on behalf of the Respondent,[96] that any weight to be allocated to this Other Consideration (d) should, to an extent, be moderated as a result of the following factors:

   ·there is a suggestion in the material of a level of obfuscation in the evidence previously provided by Ms Al Attar in relation to the domestic violence offending perpetrated upon her by the Applicant;[97]

   ·Ms Al Attar previously told NSW Police about family pressure she had experienced to remain in the conjugal relationship with the Applicant despite the circumstances of domestic violence within it;[98]

   ·the Applicant’s domestic violence offending against Ms Al Attar has not been isolated and there have been a number of such incidents in their relationship;[99]

   ·despite what Ms Al Attar may say now about the removal of the Applicant, the reality is that there is in place an apprehended domestic violence order for a period of two years.[100] As against that, we are mindful of what Ms Al Attar says in her written statement to this effect:

   “On or about 15 September 2020, I had a hearing to revoke the Apprehensive Domestic Violence Order concerning my husband (as I am not fearful of my husband). I do not fear any threat or future danger from my husband. I need my husband in Australia with me. I cannot live my life without him.”[101]

   [96] See Exhibit R2, Respondent’s SFIC, page 20, paragraph [73].

   [97] Exhibit G1, G6, pages 61–62.

   [98] Exhibit R1, Respondent’s Tender Bundle, page 11.

   [99] Exhibit R1, Respondent’s Tender Bundle, pages 10 and 86–109; See also Exhibit G1, s 501 G Documents, G52, pages 227–228.

   [100] Exhibit G1, G6, page 66; Exhibit R1, Respondent’s Tender Bundle, pages 180–182.

   [101] Exhibit A6, Statement of Duaa Al Attar, page 2, paragraph [14].

4. Accordingly, we cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.

   (e) Extent of impediments if removed

5. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

6. It is contended on the Applicant’s behalf that this Other Consideration

   “173. […] the applicant will face insurmountable hardships if removed to Spain. Although the applicant is still relatively young, the applicant faces significant mental health issues of a long-standing nature. There are substantial language and cultural barriers that the applicant will face in Spain, noting that the applicant only speaks English and has lived his entire life in Australia. The evidence shows that the applicant will not be entitled to unemployment benefits upon a return to Spain. The applicant has no family or social support system in Spain.”[102]

   [102] Exhibit A1, Applicant’s SFIC, page 42.

7. For reasons that follow, we broadly agree with the position taken by the Applicant with regard to this Other Consideration (c) but propose to allocate a different level of weight to this specific factor.

8. In his written statement before the Tribunal, the Applicant expresses serious misgivings about establishing himself in Spain. Indeed, he expresses doubts about having the capacity to actually survive in Spain:

   “Prospects in Spain

   26. I have no known family in Spain. I have no social ties otherwise in that country. If I am removed from Australia, I will be devastated. Moreover, I am concerned that I will be homeless in Spain. With no known support in that country, not speaking Spanish, the adverse implications of COVID-19, noting my subsisting mental health challenges, I do not believe I will survive in Spain.

   27. I never imagined it possible that I could be deported to Spain. Having lived all my life in Australia, I am not accustomed to Spain's cultural traditions and norms. I consider myself an Australian. Having lived in Australia since I was a baby, I know of no other life.

   28. I would be devastated to be without my wife and two children, who will remain in Australia for their progression and advancement in life. I will be shattered.”[103]

   [103] Exhibit A2, Applicant’s written statement dated 5 October 2020, page 4.

9. The Applicant is a physically healthy man of 32 years of age. The Applicant’s Personal Circumstances Form dates from 1 October 2019. He responded thus to a specific question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?”: the Applicant ticked the “No” box.[104] Similarly, when asked to list any medications he was taking, the Applicant responded with: “N/A” which we presume to mean “Not applicable”. He was also asked in his Personal Circumstances Form: “If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.” Again, the Applicant responded with: “NA” which we will also presume to mean “Not applicable”.

   [104] Exhibit G1, G9, page 89.

10. In his written statement now before the Tribunal (dating from 5 October 2020) the Applicant says the following about mental health issues from which he now apparently suffers:

    “5. Furthermore, on 24 September 2020, I undertook a psychological assessment with a clinical and forensic psychologist (Istvan Schreiner). As a result of that assessment, an expert report has been prepared to support my review proceedings before the Tribunal.

    …

    Current Health

    29. The status of my current and pre-existing mental health issues is reflected in the expert report of Istvan Schreiner. Presently, I am suffering from severe depression, anxiety, and high stress. I feel drained daily, and I am very sad to be detained in immigration detention.

    30. I miss my wife and two children greatly. My heart is breaking inside. I am concerned that if I am removed from Australia, my mental health will deteriorate even further. Ultimately, to not have my wife and two children around if I was overseas would be just heartbreaking.”[105]

    [105] Exhibit A2, Statement of Applicant dated 5 October 2020, pages 1, 5.

11. The clinical and forensic psychologist, Mr Istvan Schreiner, performed a clinical assessment on the Applicant using the following scales:

    ·Depression, Anxiety and Stress Scale - 21 Items (DASS21),

    ·Beck Depression Inventory (BDI),

    ·Kessler Psychological Distress Scale - 10 Item (K10),

    ·Personality Assessment Inventory (PAI).[106]

    [106] Exhibit A8, page 11, paragraph [3.1].

12. In terms of an overall assessment, Mr Schreiner noted the following:

    “5.2.2 Mr Dan Granxxa’s scores on the structured assessment tools indicated Severe and Extremely Elevated current symptoms of psychological difficulties. He mainly reported symptoms of depression and anxiety (see 3.2.3, 3.3.3, and 3.4.3). On the various diagnostic questionnaires he indicated cognitive, emotional and physiological symptoms of depression and anxiety. This suggests clinically significant conditions and notably compromised functioning. These results were also consistent with his presentation. Mr Dan Granxxa came across as a notably lethargic, anxious and pessimistic individual (see section 2.1).

    …

    Whether  Mr Dan Granxxa was  suffering  from a  mental  illness/disorder either when he  engaged  in  criminal  offending  in  Australia or otherwise is suffering from a mental illness/disorder at present

    The assessment revealed symptoms consistent with the following current and pre-existing DSM-V1 conditions:

    Persistent Depressive Disorder (Previously Dysthymic Disorder) Major

    Depressive Disorder (Recurrent) – Current Episode – Severe Generalised Anxiety Disorder

    Substance Use Disorder – Stimulant – In Remission”[107]

    [107] Exhibit A8, pages 15, 18.

13. It is pertinent to include a passage from the Transcript relating to Mr Schreiner’s evidence-in-chief wherein he specifically spoke of difficulties he thought would be faced by the Applicant in terms of accessing necessary care for his mental health issues.

    “Applicant: Thank you.  As well - how difficult do you believe it would be for myself to get the help that I need in a country where I don’t understand or know anybody?

    Mr Schreiner: I think it would be extremely difficult.  It would be fairly similar to other people who are trying to settle in Australia.  I have experienced it with some of those individuals and I can only assume that you would have a very similar experience if you were to live in Spain.  So I don’t think that you would be able to access their services quickly and I am not sure that you would be able to find the efficient services without knowing the language and without knowing the local customs and how things work, so it would probably take quite some time and timing is quite crucial in my opinion, so it turns to the question, I think it would be extremely difficult.”[108]

    [108] Transcript, 13 November 2020, page 62, lines 12–22.

14. The Applicant sought to express some difficulty he would potentially have in accessing necessary healthcare upon a return to Spain. The contention ran along the lines of him not being someone who is ‘insured’ under the Spanish healthcare system. As such, there was a resulting contention that he may experience difficulty in accessing necessary healthcare. The Applicant’s insurance status pursuant to the Spanish healthcare system may not initially be to the same level as that of other Spanish citizens in terms of accessing healthcare, but we do not consider that this initial uninsured status will entirely preclude him from accessing at least some level of care.

15. We are of the view that Spain is a contemporary, developed and sophisticated major western-European country. We can therefore safely find that the level of medical care and governmental social support the Applicant will receive in Spain[109] will be (or eventually become) at or about the same level as that available to him in Australia. The Applicant will have access (or eventually will have access) to such care and support in Spain in the context of what is generally available to other citizens of Spain. That said, we are nevertheless of the view that the state of the Applicant’s mental health, as now diagnosed by Mr Schreiner, is a factor that does attract a measure of weight in the Applicant’s favour pursuant to this Other Consideration (e).

    [109] Paragraph 14.5(1)(c) of the Direction.

16. While we accept the Applicant has lived the predominant majority of his 32 year life thus far in Australia, we do not consider that to the extent he may face language or cultural barriers upon a return to Spain, those barriers would not be insurmountable and would represent a short-medium term hardship and would not otherwise absolutely preclude his successful re-settlement in Spain.

17. Also in his Personal Circumstances Form, the Applicant was asked:

    “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?

    [The Applicant ticked the ‘Yes’ box]

    If yes, describe your concerns and what you think will happen to you if you return.

    a foren country. No language NO relatives I rather end my life. Since the age of 3 moths Australia has being my home. I left once for 6 weeks to spain and I was lost because I had no one and my Parner and kids would never leave Australia as its their home too.”[110]

    [Errors in original]

    [110] Exhibit G1, G9, page 90.

18. In his oral evidence, the Applicant spoke of having grandparents in Spain, but both of those grandparents are now, unfortunately, deceased.

    “Mr Reilly:[111]    Where did you stay in Spain?

    Applicant:       My grandparents' house that I met for the first time.

    Mr Reilly:        And are your grandparents still alive?

    Applicant:       No, they're both dead unfortunately.

    Mr Reilly:Do you have any other relatives in Spain, any cousins or aunts or uncles, or anything like that?

    Applicant:       No.  She's an only - she was the only child.”[112]

    [111] Mr T Reilly, Barrister-at-Law, Counsel for the Respondent.

    [112] Transcript, 12 November 2020, page 19, lines 40–46.

19. As previously mentioned, the Applicant also has a significant employment history in Australia. There is little to cavil with the suggestion that were he to be removed to Spain, he would be able to find similar plastering / rendering / installing work in the building and construction industry, as he has done in Australia. The counterbalancing consideration is that while the Applicant is duly qualified and experienced to do this work, he does not have any existing contacts or knowledge about sources or individuals that could offer him such work.

20. Having regard to the totality of the evidence referable to this Other Consideration (e), and in particular, the reality that the Applicant would appear to have absolutely no familial or other contacts in Spain, we are thus of the view that this Other Consideration (e) is of moderate weight in favour of revocation.

    Miscellaneous Considerations Raised by the Applicant

21. The Applicant advances certain further contentions in support of demonstrating another reason to set aside the mandatory cancellation decision. These further contentions are put on the basis that paragraph 14(1) is posited in non-exhaustive terms as a result of the reference  in that paragraph to “(but are not limited to)” the five Other Considerations nominated at subparagraphs (a)-(e) inclusive. We are of the view that, ultimately, these additionally raised factors are not determinative of any weight attributable for or against setting aside the mandatory cancellation decision and go nowhere.

22. The first component of these miscellaneous considerations contends that the Applicant will experience emotional distress as a result of Spain’s rate of unemployment upon his removal to that country. We do not think such a contention belongs to an “miscellaneous” category over and above the five nominated categories in paragraph 14(1) of the Direction. It seems obvious to us that such a contention (and the assessment of any weight attributable to it) is relevant to the extent of impediments the Applicant may face if removed. Similarly, the specific contention raised on behalf of the Applicant referring to “Emotional Hardship to Extended Family and Friends” rightly belongs to that particular sub-paragraph of paragraph 14(1).

23. There is a further contention that the presence of the COVID-19 virus (and resulting pandemic) in Spain places the Applicant at a risk of harm upon his removal to that country. We think the Respondent’s responsive contentions are correct. First, this claimed risk of harm is put in very general terms and there is no detail about how it will impact the Applicant at a strictly personal level. Second, if the outcome of the instant application compelled a removal of the Applicant to Spain, current international travel restrictions arising from the pandemic will inevitably result in any such removal occurring when it is reasonably practical to do so, consistent with the provisions of s 198 of the Act. We are of the view that the Respondent’s following contention is correct:

    “The practical result is that a decision not to revoke the cancellation would mean that the applicant would be detained on a temporary basis until it is reasonably practicable to remove him to Spain. Although the timeframe around this is currently unknown, it is not presently expected to be of any substantial duration.”[113]

    [113] Exhibit R2, page 23, paragraph [81].

24. The further miscellaneous contention put on behalf of the Applicant is that if the Applicant is removed from Australia to Spain, Australia will be in contravention of Articles 12(4) and 17(1) of the International Covenant on Civil and Political Rights, (ICCPR) which relevantly stipulate that “No one shall be arbitrarily deprived of the right to enter his own country”, and, further, “No one shall be subjected to arbitrary or unlawful interference with his…family…” The resulting contention is that the Tribunal “…should accept that Australia’s international obligations under the ICCPR may be relevant to determining whether there is ‘another reason’ to revoke a mandatory cancellation.”[114]

    [114] Exhibit A1, pages 42-43, paragraph [174].

25. Our initial approach to this submission is predicated on the basis that even if there was a demonstrated breach of Articles 12(4) and 17(1) of the ICCPR, it would be unsafe to allocate anything other than little or insignificant weight to this, because these Articles are not mandatory considerations under the Direction, and, in particular, Article 12(4) does not constitute a non-refoulement obligation.[115] At a more fundamental level, we are of the view that neither of the Articles 12(4) nor 17(1) of the ICCPR are actually engaged. The Applicant’s reliance on Clegg v MICMSMA [2020] AATA 3383 at [105] is, in our view and with respect, misplaced. In its response to the decision of the Human Rights Committee in Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011), the Government views as correct previous decisions of the HRC which said that a person who enters a  state under a state’s immigration laws cannot regard the state as his “own country” when he has not acquired the nationality and continues to retain the nationality of his country of origin.

    [115] Steve v MIBP [2018] FCA 311 at [53].

26. We disagree with the contention put on behalf of the Applicant that any removal of him to Spain (together with the resulting consequences thereof) would be arbitrary. Thus, we do not consider that the provisions of either Article 12(4) or 17(1) of the ICCPR are engaged. His removal from Australia would occur pursuant to Australian law and procedure involving a contested determination during which the Applicant would have been offered appropriate procedural fairness.

27. For the abovementioned reasons, we are not of the view that these miscellaneous considerations or contentions are of any utility in allocating weight to any of the extant five Other Considerations, nor are they of any such value in terms of doing so as “standalone” factors beyond those contemplated by paragraph 14(1) of the Direction.

    Findings: Other Considerations

1. 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: significant, and potentially determinative, level of weight in favour of revocation;

   ·impact on Australian business interests: not relevant;

   ·impact on victims: neutral; and

   ·extent of impediments if removed: moderate weight in favour of revocation.

   Conclusion

   Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

2. 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 we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As we have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before us, we are satisfied there is “another reason” for us to revoke the cancellation of the Applicant’s visa.

3. 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, we have had regard to the considerations referred to in the Direction. We find as follows:

   ·Primary Consideration A carries a certain, but not determinative, weight in favour of non-revocation;

   ·Primary Consideration B weighs strongly in favour of revocation;

   ·Primary Consideration C carries a certain, but not determinative, weight in favour of revocation;

   ·We have outlined the weight attributable to the relevant Other Considerations, specifically:

   o   Other Consideration (b) is of significant and potentially determinative weight in favour of revocation, and

   o   Other Consideration (e) weighs moderately in favour of revocation;

   ·We consider (and find) that the cumulative weight we have attributed to:

   o   Primary Consideration B (strong weight in favour of revocation);

   o   Primary Consideration C (a certain, but not determinative, weight in favour of revocation);

   o   Other Consideration (b) (of significant weight in favour of revocation); and

   o   Other Consideration (e) (of moderate weight in favour of revocation)

   -    When combined, result in a globally determinative level of weight in favour of revocation and otherwise outweighs the weight of the remaining Primary Consideration A favouring non-revocation; and

   ·a holistic view of the considerations in the Direction therefore favours revocation of the mandatory cancellation of the Applicant’s visa.

4. Consequently, we find that there is another reason to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

   Decision

5. The decision under review is set aside and substituted such that this Tribunal exercises the discretion conferred by section 501CA (4) of the Migration Act 1958 (Cth).

I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Member Andrew McLean-Williams

............................[sgd]............................................

Associate

Dated:   17 November 2020

Date of Written Reasons:                  15 December 2020

Date of hearing:

12 & 13 November 2020

Applicant:

Self-Represented

Solicitor for the Respondent

Mr Tim Reilly

Sparke Helmore Lawyers

Annexure “A”

EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pp 1-281)	R	-	16 SEP 20
R1	Respondent’s Tender Bundle (pp 1-284)	R	-	30 OCT 20
R2	Respondent’s SFIC (pp 1-24)	R	30 OCT 20	30 OCT 20
A1	Applicant’s SFIC (pp 1-49)	A	6 OCT 20	6 OCT 20
A2	Statement of the Applicant (pp 1-6)	A	5 OCT 20	6 OCT 20
A3	Statement of Suad Hechal (pp 1-4)	A	1 OCT 20	6 OCT 20
A4	Statement of Nikica Dan (pp 1-3)	A	4 OCT 20	6 OCT 20
A5	Statement of Natalia Dan (pp 1-3)	A	5 OCT 20	6 OCT 20
A6	Statement of Duaa Al Attar (pp 1-2)	A	6 OCT 20	6 OCT 20
A7	Statement of Wayne Zahra (pp 1-3)	A	4 OCT 20	6 OCT 20
A8	Report of Psychologist, Istvan Schreiner (pp 1-22)	A	29 SEP 20	6 OCT 20
A9	Applicant’s Tender Bundle (pp 1- 110) Annexure A: The Social Security Office of Retirement and Disability Policy website Annexure B: Euraxess Spain, Unemployment procedures and benefits in Spain ·     Annexure C: European Commission, Employment, Social Affairs and Inclusion ·     Annexure D: The Guardian, ‘Spanish healthcare explained’ ·     Annexure E: TransferWise, ‘Healthcare in Spain: A guide to the Spanish healthcare system’ ·     Annexure F: Expatica, ‘The healthcare system in Spain’ ·     Annexure G: Trading Economics, ‘Spain Unemployment Rate 1976-2020 Data | 2021-2022 Forecast’ ·     Annexure H: How Widely Spoken, ‘How widely Spoken is English in Spain?’ ·     Annexure I: BBC News, ‘Coronavirus: Why Spain is seeing second wave?’ ·     Annexure J: Worldometers, Spain ·     Annexure K: Australian Embassy, COVID-19 in Spain ·     Annexure L: BBC News, ‘Coronavirus: Spain imposes partial lockdown on defiant Madrid’ ·     Annexure M: Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007, dated 18 August 2011	A	-	6 OCT 20
A10	Applicant’s Supplementary Tender Bundle, Part A (pp 1-8) ·     Letter from Adam Brooks, 29 September 2020 ·     Letter from Ibrahim Eter, 1 October 2020 ·     Letter from Ramzi Al Attar, 28 September 2020 ·     Letter from Dr Edmund Tse, 6 July 2020 ·     Eye Examination Report for Nicky Dan, 4 August 2020	A	-	28 OCT 20
A11	Applicant’s Supplementary Tender Bundle, Part B (pp 1-20) ·     Certificate of Completion, 52 lessons: domestic violence ·     Certificate of Completion, 12 lessons: anxiety and stress reduction ·     Certificate of Completion, 3 lessons: study skills ·     Certificate of Completion, 3 lessons: grief and loss ·     Certificate of Completion, 24 lessons: alcohol and other drugs ·     Certificate of Completion, battery intervention course ·     Certificate of Completion, 9 lessons: financial wellness course ·     Certificate of Completion, 3 lessons: mindfulness mediation ·     Certificate of Completion, 12 lessons: relationships 101 course ·     Alison Certificate, mental health studies (suicide, violent behaviour and substance abuse) ·     Certificate of Completion, 3 lessons: sexual harassment ·     Certificate of Completion, 3 lessons: mindful social media course ·     Certificate of Completion, 24 lessons: parenting 101 course ·     Certificate of Completion, 52 lessons: anger management course ·     Certificate of Completion, 6 lessons: nutrition and exercise ·     Certificate of Completion, 3 lessons: burnout prevention ·     Certificate of Completion, 12 lessons: communication skills ·     Summary of Certificates	A	-	30 OCT 20
A12	Images of Applicant’s daughter and her drawings (four images)	A	-	9 NOV 20
A13	Copy of an Application to Vary or Revoke an AVO (one page)	A	undated	9 NOV 20
A14	Letter from Mr Kirby Thomas Brownlow of Acrofyre (four pages)	A	undated	9 NOV 20
A15	Certificate of completion - Self Esteem 101 course	A	29 OCT 20	9 NOV 20
A16	Queen Elizabeth Hospital, South Australia, Discharge Summary (pp 1-9)	A	5 DEC 16	9 NOV 20
A17	Arcofyre Client Charter (six pages)	A	undated	9 NOV 20
A18	Arcofyre Services and Fee Schedule (nine pages)	A	undated	9 NOV 20
A19	Arcofyre Itemised Tax Invoice (one page)	A	10 AUG 20	9 NOV 20
A20	Project report of Claire Seppings: “Rehabilitative role of ex-prisoners offenders as peer mentors in reintegration models – In the UK, Republic of Ireland, Sweden and USA” (pp 1-119)	A	2015	9 NOV 20

ANNEXURE “B”

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)   No: 2020/5325

General Division  )

Re: Cristian Nick Dan Granxxa
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DECISION

TRIBUNAL:              Senior Member Theodore Tavoularis

Member Andrew McLean-Williams

DATE:   17 November 2020

PLACE:                    Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 24 August 2020 and substitutes a decision that the cancellation of the Applicant’s visa be revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

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Senior Member Theodore Tavoularis

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Member Andrew McLean-Williams