Dawson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4604

Dawson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4604 (10 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/7505
Re:Michael Sean Dawson
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar
Date:10 December 2021
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Dawson’s visa.
.....................[sgnd]...................................................
Senior Member K Millar
Catchwords
MIGRATION – mandatory cancellation of Transitional (Class BF) visa under section 501CA – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Firearms Act 1996 (NSW)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
Mukiza v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Millar
10 December 2021

Mr Dawson came to Australia from the United Kingdom with his mother and sister when he was two years old and was granted a Transitional (Class BF) visa. He started using drugs as a teenager, progressing to using heroin in his early 20’s. Mr Dawson’s history is testament to the wide ranging and damaging effects of drug use. He has approximately 49 convictions, which are in the most part accepted as being because of his drug use. His drug use has harmed many of his relationships with others. Following an injury to his leg, his drug use led to the eventual amputation of his leg above the knee in approximately 2012.
Mr Dawson’s criminal history most recently involved a conviction for break and enter when he broke into a bike store and took 8 mountain bikes. He was convicted and sentenced to imprisonment for 16 months. This conviction led to the cancellation of his visa. Mr Dawson sought revocation of the cancellation, however a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided not to revoke the cancellation of his visa.
Mr Dawson has applied to the Tribunal for a review of the decision not to revoke the cancellation of his visa.
BACKGROUND
Ms Dawson’s mother and sister are in Australia and prior to his imprisonment he lived with his mother. His sister, with whom he has little contact, has five children and is the primary carer of her grandson. His mother and his sister each provided a statement and gave oral evidence to the Tribunal.
Mr Dawson has two adult children and two minor grandchildren. He has re-established contact with his daughter, Ms Aimee Anthony, and her two children over the last few years. His son is in Queensland undergoing drug rehabilitation. He separated from the mother of his children, Ms Stockman, in 1996 after a relationship of approximately six years. Both Ms Stockman and Ms Anthony provided a statement and attended the hearing to give oral evidence.
In his request to revoke the cancellation of his visa, Mr Dawson states he has battled a drug addiction since his early teens. He worked as a labourer after leaving school in year 9 and started an apprenticeship as a chef for his partner’s father before his partner’s father passed away. Mr Dawson’s left leg was amputated above the knee approximately 10 years ago. At the hearing he said he suffered a leg injury in his late teens and after injecting drugs into his leg, he developed blood clots that led to the amputation. Prior to his imprisonment he received disability support pension.
Mr Dawson states he has been on methadone for more than 15 years. Since his most recent imprisonment he has reduced and then ceased methadone and has started regular drug and alcohol counselling.
Mr Dawson provides care to his mother whose health has deteriorated and he has a developing relationship with his daughter and her children. He has a difficult relationship with his son but is communicating with him. He states he has undertaken the high intensity program while in prison and realises this is his last chance.
CRIMINAL HISTORY
Mr Dawson’s offending history is set out in a National Police Certificate dated 23 November 2020.[1] He has committed offences between 22 September 1994 and 22 October 2020. Most of the offences are drug offences and larceny. He has convictions for contravening an apprehended violence order in 1995 and 2009 with one conviction for assault. There are firearms offences from 2004, and two driving offences in 1996 and 2020. He has one conviction for making a false or misleading statement, two for shoplifting and two for failing to hold a train ticket.
[1] G6, pages 28 – 33.
The conviction that led to the cancellation of his visa is an offence of breaking and entering a bike store and taking eight mountain bikes with a value of $13,600. The sentencing remarks of Magistrate Cheetham[2] states that Mr Dawson was clearly identified in the CCTV footage. Three days later he was seen by police walking along a street and arrested. He agreed to take the police to his home and four of the bicycles were recovered. He also directed them to where he had hidden a fifth bike. Three days later he contacted the police station to tell them he had recovered the remaining three bicycles. He was sentenced to a term of imprisonment of 16 months.
[2] G7, pages 34 - 38
At the time he was sentenced he was subject to a conditional release order (with no conditions) for driving a motor vehicle with an illicit substance in his blood. The Magistrate directed that no action be taken on the breach of the conditional release order.
Property offences
The majority of Mr Dawson’s offending is comprised of larceny, break and enter, possession of stolen property and trespass with this amounting to approximately 30 offences. Of these offences, he has been sentenced to imprisonment for larceny on 9 occasions, with terms of imprisonment of between 3 – 7 months. He has been sentenced to terms of imprisonment for break and enter on two occasions in addition to the offence that led to the cancellation of his visa. He has five convictions for possession of stolen property and four for trespass, none of which resulted in terms of imprisonment.
Drug offences
Mr Dawson has been convicted of 14 offences for possession of prohibited drugs. The convictions for possession of a prohibited drug ceased after 2012, however he was convicted of driving a vehicle with an illicit drug (cannabis) on his blood in February 2020.
He received a sentence of 12 months imprisonment for possession of a prohibited drug, which was initially suspended, and he attended Drug Court programs. His Drug Court program was terminated and his sentenced reconsidered and confirmed on 18 May 2007.
He has been sentenced to a term of imprisonment for 12 months for supply of a prohibited drug.
Family violence offences
In 2009, Mr Dawson was convicted of two breaches of an apprehended violence order and one charge of assault. The Minister relies on the statement of police facts which states at the time Mr Dawson had been in a relationship with the victim for approximately three years. Mr Dawson and the victim had been arguing most of the day including when they went to the shopping centre. On returning home the victim went inside the house and locked the door before Mr Dawson could enter, but then allowed him inside to collect some personal belongings. It is acknowledged that at this time Mr Dawson had a leg injury, used crutches to move about and could not stand for long periods. It is reported Mr Dawson pushed the victim and when he let go, she was able to push him out of the door and call police. When they arrived, Mr Dawson had left the premises. Mr Dawson was sentenced to a 12-month good behaviour bond for the assault.
A further conviction for a breach of a domestic violence order resulted from contact between Mr Dawson and the victim at the shopping centre. Following a report of a male and female in the male toilets together, police attended. It is reported Mr Dawson and the victim appeared drug affected. On being asked about the apprehended violence order, Mr Dawson is reported as saying they were back together now and trying to sort the AVO out.
At the hearing Mr Dawson stated that this was a toxic relationship, and he had been in a long-term relationship with the victim who was also addicted to drugs. He said at the time he was losing his leg, and she did not want to separate from him. Mr Dawson denied being violent and said he does not strike out when angry.
Ms Stockman gave evidence and stated that Mr Dawson had been subject to an apprehended violence order when she separated from him in 1996. There are no convictions of breaching this order, however there are police reports of family violence which are discussed below.
Firearms offences
Mr Dawson has been convicted of failing to keep a firearm safely, use of an unauthorised firearm and possessing ammunition and was sentenced to imprisonment for 12 months.
The police facts state that on 14 April 2004, the police attended his premises under a drug premises warrant. One 12-gauge shotgun round was found in the bedroom. Mr Dawson admitted to owning the shotgun round and said he had had it for some time. A 12-gauge shotgun was found in the garage in three pieces wrapped in a towel inside a backpack. The police facts record that Mr Dawson declined to answer questions about the shotgun but did confirm he did not hold a firearms license.
Mr Dawson told the Tribunal a person renting a room had stored property in his shed and the gun was found in the shed. He denied knowing a firearm was on the property. Mr Dawson acknowledged he had the ammunition in the house, and “has it for years and never got rid of it”.
Sentencing remarks for this offence are not before the Tribunal. Mr Dawson’s account is not inconsistent with the police facts. The maximum sentence for possessing a firearm is imprisonment for five years,[3] and for not keeping a firearm safely is two years.[4] Mr Dawson was sentenced to imprisonment for 12 months, suspended on entering a good behaviour bond.
[3] Firearms Act 1996 (NSW) s 7A.
[4] Firearms Act 1996 (NSW) s 39(1)(a).
In the absence of any further information or the findings made by a Court about this offence, the Tribunal is left with Mr Dawson’s oral evidence of this offence which is that it was not his firearm and did not know it was on his property.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (the Act) states the Minister must cancel a visa that has been granted to a person if the person does not pass the character test because he or she has a substantial criminal record, and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
A person does not pass the character test if he or she has a “substantial criminal record”.[5] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[5] Section 501(6)(a) of the Act.
Mandatory cancellation of the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[6]
[6] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is required to apply written directions given by the Minister.[7]
[7] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 90, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The matters to be decided in this case are whether Mr Dawson does not pass the character test; and if so, whether there is another reason the decision to cancel the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 22 October 2020, Mr Dawson was sentenced to a term of imprisonment of sixteen months. As this is more than 12 months, he has a substantial criminal record as defined in s 501(7)(c) and he does not pass the character test.
The remaining question is whether there is another reason the decision to cancel the visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether the cancellation of Mr Dawson’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction contains principles that provide the framework within which decision-makers should approach the task of deciding if a cancellation should be revoked. These principles are found at paragraph 5.2 of the Directions. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
The Tribunal has examined each of these considerations.
PRIMARY CONSIDERATION 1: THE PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering the protection of the Australian community, cl.8.1 of the Direction requires decision-makers to keep in mind 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In examining the protection of the Australian community, cl.8.1(2) of the Direction requires decision-makers to consider:
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 conduct
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, and the Tribunal considered each of these factors.
Crimes involving violence against women or children and acts of family violence
Sub-clause (a) of cl.8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Mr Dawson has been convicted of two breaches of an apprehended violence order and one assault in 2009. These incidents have been detailed above.
Mr Dawson said he was in a relationship where drugs were involved, and that at this time he was losing his leg. He said his then partner did not want to separate from him and when they were caught together, it was a breach of the apprehended violence order.
An apprehended violence order was imposed in 1995 to protect his then partner Ms Naomi Stockman, who is the mother of his two children.
Mr Dawson stated he did have an issue with separation from Ms Stockman, and did not want it to happen. He said he pushed and slapped her and said he should have walked away and done things differently.
Ms Stockman gave oral evidence to the Tribunal. Ms Stockman said there were a lot of incidents when Mr Dawson took drugs, and she was not comfortable with his lifestyle. She said she left him multiple times. She said there was aggression and threats in the relationship which included incidents where the walls were punched. She said she is the same size as Mr Dawson and so was not injured but recalled times when she was pushed or grabbed around the throat.

Ms Stockman recalled in cross-examination an incident that occurred in 1994, also described in a police report, where Mr Dawson was under the influence of drugs and had started using heroin. She states during an argument he picked up a chef’s knife and started waving it around. The police record states no formal action was to be taken but an apprehended violence order was to be taken out on her behalf and Mr Dawson was to be removed from the premises. On the police attending the scene, Mr Dawson appeared heavily intoxicated and was charged with drug offences.
Ms Stockman was also asked about another occasion in 1996 where a police report details Ms Stockman being pushed and slapped. She said when Mr Dawson was on drugs, she found him very frightening. She could not recall being injured but did recall being frightened. She denied that he was ever abusive to the children.
Mr Dawson openly admitted to the incidents with Ms Stockman and stated he should have done things differently. This is now nearly 26 years ago, and Ms Stockman has had intermittent contact with Mr Dawson regarding their children with no further recorded incidents.
The more recent offences were approximately 12 years ago. Mr Dawson states he is not a violent man and accepts that he should have walked away and done things differently. He did not attempt to minimise these offences.
Mr Dawson has been convicted of an assault against his previous partner and has acknowledged acts of family violence. This is considered very serious as required by cls.8.1.1(1)(a)(ii) and (iii).
Other conduct referred to in cl. 8.1.1(1)(b) does not apply on the facts of this case.
Sentences imposed
The sentences imposed for offences, other than sentences for offences involving violence or family violence, must be considered under cl. 8.1.1(c). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
Mr Dawson has many sentences of imprisonment imposed on him, with the lengthiest sentence being imprisonment of 16 months for his most recent offence involving a break and enter. He has been the subject of other sentences of imprisonment for periods up to and including 12 months, as well as home detention, bonds, fines, community service orders, conditional release and supervision orders.
Frequency of offending
The frequency of offending and whether there is any trend of increasing seriousness is to be considered on accordance with cl. 8.1.1(1)(d) of the Direction. Mr Dawson has a lengthy offending history.
The Minister urged the Tribunal to consider the severity of his offending to be increasing as Mr Dawson acknowledged that the offence that led to the cancellation of his visa involved a value of $13,600 which is greater than the value of any other larceny offences. The Tribunal is not satisfied this shows an increase in the seriousness of his offending, as the offences with which he has been charged have been constant. The Tribunal is not satisfied that the facts of this offence show a trend of increasing seriousness in his offending.
The cumulative effect of repeat offending
The cumulative effect of an Applicant’s repeated offending is a consideration under paragraph 8.1.1(1)(e) of the Direction. Mr Dawson has repeatedly offended. However, it appears the firearms offences and one possession of a prohibited drug offence appear multiple times in his record. This is because these offences are the subject of a call up following Mr Dawson’s involvement in the Drug Court process. These offences have the same reference number in his criminal record but appear on three occasions.
Mr Dawson has been convicted of a number of offences over a lengthy period of time.
False or misleading information
There is no information before the Tribunal to suggest Mr Dawson has provided false or misleading information to the Department.
Reoffending since being warned
Whether the non-citizen has reoffended since being formally warned, or otherwise since being made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status is to be considered under cl. 8.1.1(1)(g) of the Direction.
Mr Dawson was given a notice of intention to consider cancellation of his visa on 15 August 2007.
On 22 October 2007, he was given notice of a decision not to cancel his visa that included the following warning:
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
Mr Dawson said he did not recall receiving this warning but accepted that he had. It was sent to Goulbourn Correctional Centre, and his transfer records from NSW Corrective Services show this was where he was located at the time. The warning has not been signed as acknowledged by Mr Dawson. The warning does not clearly specify the effects of future offending.
Since this warning was issued, he has been convicted of contravening an apprehended violence order, assault, drug offences, larceny, trespass and driving a vehicle with an illicit drug present in his blood.
Conclusion - nature and seriousness of the conduct
Having considered the matters in cl.8.1.1 of the Direction, the nature and seriousness of the offending weighs against Mr Dawson to a moderate extent.
The risk to the Australian community
In considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl.8.1.2(1) of the Direction). Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that may be repeated may be unacceptable.
Factors in assessing the risk that may be posed by the non-citizen to the Australian community, are set out in cl.8.1.2(2) and must be considered cumulatively. They are:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should Mr Dawson engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in 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.
The majority of Mr Dawson’s offending involves stealing and the use of drugs. He has one conviction for the supply of a prohibited drug, for which he was given a suspended sentence, however the Tribunal does not have the benefit of any further information or sentencing remarks on this offence.
The nature of the harm to the community if he re-offends in similar ways as in the past involves the cost to those from which he has stolen goods, and the cost to the community in policing, sentencing and imprisoning of Mr Dawson, or in supervising him in the community in accordance with his sentence.
There is a harm that comes from the use of prohibited drugs, however this has generally been borne by Mr Dawson with the harm done to his relationships and to himself.
Likelihood of engaging in further criminal or other serious conduct
In looking at the likelihood of Mr Dawson engaging in further criminal or other serious conduct, the Tribunal must consider the information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
The sentencing assessment report dated 29 September 2020 states Mr Dawson is a medium to low risk of re-offending. This was also the assessment in a home detention assessment dated 22 September 2017.
Mr Dawson states he completed the high intensity program while in prison and health records show that since he has been in immigration detention he has actively engaged with drug and alcohol counselling. He has ceased methadone, which he now regards as being another addiction, and has commenced buvidal injections.
The police and other records show that Mr Dawson has not tried to evade culpability in his interactions with police and has generally admitted at the earliest point to culpability for an offence. He does not come across as trying to minimise his actions or evade the consequences of his behaviour. Mr Dawson has also been given opportunities through the Drug Court to address his drug use, and the records show that while he abstained for approximately three months, his drug use continued. Mr Dawson states this was because he was in a relationship with person who was also using drugs. His account is reflected in the comments of the sentencing Magistrates’ when his offences were called up.
Mr Dawson intends to live with his mother and assist in her care. This has not proved prevent his drug use in the past. However, he has more recently been re-establishing his relationship with his daughter and his grandchildren. This is clearly of high value to him, and the Tribunal considers this is a protective factor against relapsing into drug use as his daughter said she would not allow him to have contact with her children if he is affected by drugs. Mr Dawson refers to his knowledge that this would be his last chance to remain in Australia, and the motivation this provides.
Mr Dawson expresses willingness to undertake trauma counselling as recommended by Ms Stockman. As this is planned for the future, and not undertaken to the date of the decision, this is at best an intention to undertake further counselling.
While Mr Dawson has an extensive history of drug use which is linked to his offending, there are changes since he has been in prison that differentiate his current state from that in the past. The Tribunal considers that he is a low risk of re-offending.
As with all cancellations, Mr Dawson has not had the opportunity to be in the community since his most recent offence as his visa was cancelled while he was in prison, and on his terms of imprisonment ceasing he has been in immigration detention. It follows his ability to abstain from drugs in the community is untested.
CONCLUSION – THE PROTECTION OF THE AUSTRALIAN COMMUINITY
Having considered the factors in cl.8.1 of the Direction, the Tribunal finds this weighs somewhat in favour of not revoking the cancellation of his visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Clause 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Mr Dawson has been convicted twice of breaching an apprehended violence order and once of assault. There is information in the police reports and from the oral evidence of Ms Stockman that he has been involved in perpetrating family violence
Frequency of the conduct
Conduct of Mr Dawson that amounts to family violence has been infrequent and the Tribunal does not consider there is a trend of increasing seriousness. Given the description in the police reports of Mr Dawson’s conduct to Ms Stockman, the trend is of decreasing seriousness.
The cumulative effect
The conduct towards Ms Stockman detailed in the police reports and in Ms Stockman’s oral evidence is serious but occurred over 26 years ago. There are two offences of breach of an apprehended violence order which occurred in 2009. One of these breaches also resulted in the charge of assault with Mr Dawson pushing his previous partner, who then pushed him out of the door and called police. This is now 12 years ago.
The fact that this conduct is apparent in two different relationships is of concern. However, as there are two isolated periods which are a considerable time apart, it does not show a pattern of behaviour that should result in greater weight being given to this consideration.
Rehabilitation
Mr Dawson has not undertaken any formal rehabilitation in relation to family violence. He did not try to minimise his behaviour and said he should have walked away. The Tribunal finds he accepts responsibility for his family violence related conduct.
In relation to the later offences relating to family violence he gave evidence that it was a drug fuelled relationship which should have ended earlier. Police reports of the later incidents report that Mr Dawson was walking away and was followed by the victim, who was asking him for money. At this time Mr Dawson had poor mobility and relied on crutches to mobilise.
There is little information before the Tribunal about Mr Dawson’s understanding of the impact of his behaviour on the victims and witnesses of the abuse, particularly children.
In looking at his efforts to address factors which led to his conduct, the Tribunal considers these offences, and his behaviour that is related to his drug use and his rehabilitation which is incomplete.
Reoffending since being warned
There are no sentencing remarks regarding family violence before the Tribunal, and as such there is little information about whether Mr Dawson was formally warned about the consequences of his behaviour.
CONCLUSION: FAMILY VIOLENCE
Having considered the factors in cl.8.2 of the Direction, the Tribunal considers this factor weighs slightly in favour of not revoking the cancellation of Mr Dawson’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
In making a decision about whether the cancellation of Mr Dawson’s visa should be revoked, under cl.8.3(1), the Tribunal must make a determination about whether this is in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years at the time the decision is made (cl.8.3(2)).
If there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ (cl.8.3(3)). In this case, Mr Dawson has two minor grandchildren. He had greater contact with his older grandchild, and she is likely to be more significantly affected by his absence, but otherwise no significant difference was suggested between the interests of his grandchildren. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out several factors to take into consideration with respect to the best interests of minor children in Australia. These include:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Dawson has two minor grandchildren, A born in 2011 and B born in 2013. He had increasing involvement in the lives of his grandchildren in the two years prior to his imprisonment, visiting once a week or once a fortnight. His daughter Ms Anthony states that she wants her children to know their grandfather as her husband’s father is deceased. Other than the greater amount of contact he has had with the older child, there was no significant difference in the interests of each child noted in evidence for each of Mr Dawson’s grandchildren.
Mr Dawson has an emerging relationship with his grandchildren, and the Tribunal considers this will have a significant negative impact on them if he leaves Australia. Mr Dawson’s relationship with his grandchildren is non-parental, as both parents fulfil this parental role. There are no known views of the children, nor is there evidence that they have been exposed to family violence or any other trauma from his conduct. His daughter, Ms Anthony states he will not have contact with the children if he is affected by drugs. His previous conduct has no known impact on the children. The children can maintain contact with Mr Dawson in other ways if he is removed from Australia, however given their ages this will be more limiting than if he is in person.
CONCLUSION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

The Tribunal considers this factor weighs somewhat in favour of revoking the cancellation of Mr Dawson’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In considering the expectations of the Australian community, cl. 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
In accordance with cl.8.4(2), non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Clause 8.4(2) goes on to state that in particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[8]
[8] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Accordingly, in assessing the weight attributable to the expectations of the Australian community, it is necessary to have regard to the expectation that Mr Dawson’s visa will be cancelled. While there are apprehended violence orders that have been made, and two breaches of the order with one assault, the expectation relating to family violence refers to refusing entry to non-citizen or cancelling a visa but does not refer to non-revocation of a cancellation.
This primary consideration weighs against Mr Dawson, as it is designed to do so. His history shows he is a greater risk to himself than to other people, however this expectation applies regardless of whether he poses a measurable risk of causing physical harm to the Australian community.
CONCLUSION: EXPECTATIONS OF THE AUTRALIAN COMMUNITY
On the particular facts of this case, the Tribunal finds this consideration weighs somewhat in favour of not revoking the cancellation of Mr Dawson’s visa.
OTHER CONSIDERATIONS
The other considerations are set out in cl.9(1) of the Direction, and are international non-refoulement obligations, the extent of impediments if removed, the impact on victims and links to the Australia community.
International non-refoulement obligations
Mr Dawson does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.
Extent of Impediments if Removed
As a guide for exercising the discretion, cl.9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·     the non-citizen’s age and health;
·     whether there are any substantial language or cultural barriers; and
·     any social, medical and/or economic support available to that non-citizen in that country.
Mr Dawson is 50 years of age. He has a longstanding drug problem. He has an above knee amputation of his left leg, a hernia that requires repair and hepatitis C. There is no direct evidence of services that would be available to him on his return to the United Kingdom.
He would not have language barriers in the United Kingdom, but as he left the country at 2 years of age and has not travelled out of Australia since, he may face some cultural barriers.
Mr Dawson’s mother has one brother in the United Kingdom but said she has lost contact and does not know how to contact him. Mr Dawson would return to the United Kingdom without any family support.
Mr Dawson has little work capacity as his previous occupations were as a labourer and chef, both of which require a degree of mobility he says he has lost due to the amputation of his leg. At the hearing he walked with the assistance of a cane. He says his mobility is not of a standard that would allow him to work in either profession. He states he has few skills in using computers, and left school at the end of year 9.
While the Tribunal is prepared to assume some health and economic support would be available to Mr Dawson in the United Kingdom, the Tribunal is mindful of the need for information on how this would meet his particular needs.[9] There is no information before the Tribunal about how and whether services in the United Kingdom would meet his needs for services regarding his amputation, his drug addiction, or his need to obtain housing for himself and his mother.
[9] Mukiza v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503 at [91]
The Tribunal considers this factor weighs moderately in favour of revoking the cancellation of his visa.
Impact on victims
The impact on victims requires decision-makers to consider the impact of the decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This consideration is therefore neutral.
Links to the Australian Community
This requires that decision makers must have regard to the following factors set in cl 9.4.1 and cl 9.4.2 which are:
(i)the strength, nature, and duration of ties to Australia; and
(ii)the impact on Australian business interests.
In making a decision, under cl.9.4.1(1) decision-makers must consider the impact of the decision on the non-citizen’s immediate family members in Australia where those family members are Australia citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
Mr Dawson has been in Australia for approximately 48 years, arriving as a young child at 2 years of age. His mother, sister and two uncles live in Australia. He has five nieces and nephews. His two children and his two grandchildren live in Australia. He has not had any contact with his father.
His most significant tie in Australia is to his mother. Her considerable distress at the prospect of Mr Dawson being removed from Australia was evident in her evidence. Mr Dawson assists her at home with gardening, shopping and driving her to medical appointments. His mother stated that he would cook and make sure she was eating. Since he has been in prison, she had to rely on her ex-husband visiting her twice a week to assist her with shopping. She stated that in the past when Ms Dawson had been in prison she was with her husband, but now she is single and had a heart attack.
His mother said if Mr Dawson leaves Australia, she will also leave to live with him in the United Kingdom. This will result in a need for her to be in contact with health services, obtain housing and establish income support. The Tribunal finds it will have a highly adverse effect on Mr Dawson’s mother if his visa remains cancelled and he is removed from Australia.
This in turn has an effect on his sister and her children. Ms Lee independently gave evidence that her mother would travel to the United Kingdom with Mr Dawson if he is removed from Australia and said this would result in the loss of her mother, and the loss to her five children of their grandmother. The Tribunal finds the cancellation of Mr Dawson’s visa will indirectly have a substantial adverse impact on his sister and her children as his mother will also relocate to the United Kingdom.
Mr Dawson has re-established his relationship with his daughter, Ms Anthony, and her children. He was visiting her and her children once or twice a week before his imprisonment. Ms Anthony gave evidence and stated she wants to have a relationship with her father and that his attitude has changed. She states she wished his imprisonment and detention had occurred 20 years ago as it has shown him what he would lose. Ms Anthony said Mr Dawson was around when she was younger, but due to his bad choices their mother removed them. She said she chose to get into contact with Mr Dawson when she was 13 years of age and lived with him for a period of approximately 9 months. In the past she said he made bad decisions about friends and addiction and before he would make it seem that everything was someone else’s fault but now he is taking responsibility and has stopped using drugs. She said before he was imprisoned, he was spending time with her family including having a holiday with them. Ms Anthony said her children idolise Mr Dawson and he is very good with her children. The Tribunal finds it will have a substantial adverse effect on Ms Anthony if Mr Dawson’s visa is cancelled.
Mr Dawson previously had his son living with him, however his son is currently in Queensland undergoing drug rehabilitation. Mr Dawson says he wants to remain in Australia to help his son to avoid drugs and does not want his son to follow his footsteps. The Tribunal finds it will have an adverse effect on his son if Mr Dawson is required to leave Australia.
Ms Stockman states she has limited and sporadic contact with Mr Dawson, and if the cancellation of his visa is not revoked this will have little effect on her, but their children would struggle with him not being in Australia as both children want to have a positive relationship with Mr Dawson. She said his relationship with his children needs work.
The Tribunal must also consider the strength, nature or duration of any other ties the non-citizen has to the Australian community, and in doing so have regard to how long the non-citizen has been in Australia. In considering the time in Australia, less weight should be given where the non-citizen started offending soon after arriving in Australia and more weight should be given to time the non-citizen has spent contributing positively to the community. The Tribunal is also to consider the strength, nature or duration of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Dawson has been in Australia since he was 2 years of age and has not left since his arrival. He has lived and worked in Australia and has strong ties to Australia. As he arrived as a young child, there was a long period before his offending commenced. His ability to contribute positively through working has decreased following the amputation of his leg, and his extended history of drug use has limited any contribution he could make.
Mr Dawson does not claim that his removal from Australia will have an adverse impact on Australian business interests.
The Tribunal finds the links to the Australian community weigh heavily in favour of revoking the cancellation of his visa.
CONCLUSION: OTHER CONSIDERATIONS
The application of the other considerations that apply in the present matter can be summarised as follows:
·The extent of impediments if removed weigh moderately in favour of revoking the cancellation of his visa.
·Mr Dawson’s links to the Australian community including the strength, nature, and duration of ties to Australia weigh heavily in favour of revoking the cancellation of his visa.
CONCLUSION
Having considered the factors in the Direction, the Tribunal has found that the protection of the Australia community weighs somewhat in favour of not revoking the cancellation of Mr Dawson’s visa as does the family violence consideration. The expectations of the Australian community weigh in favour of not revoking the cancellation of his visa.
The best interests of the children weigh slightly in favour of revoking the cancellation. The extent of impediments if he is removed weighs moderately in favour of revoking the cancellation. The strength, nature and duration of his ties to Australia weighs heavily in favour of revoking the cancellation.
While the primary considerations should generally be given more weight than other considerations, in the circumstances of this case the other considerations weigh moderately (in relation to the extent of impediments) and heavily (in respect of his ties to Australia) in favour of revoking the cancellation of Mr Dawson’s visa. This is in a large part due to the length of time he has been in Australia and the effect on his family, particularly his mother, if he is removed from Australia.
In the circumstance of this particular case, the Tribunal finds the other considerations should be given the greatest weight, and the cancellation of Mr Dawson’s visa should be revoked.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Dawson’s visa.

I certify that the preceding one-hundred and thirty-nine (139) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

......................[sgnd]..................................................
Associate
Dated: 10 December 2021

Date of hearing:
1 & 2 December 2021

Applicant:

Self-represented

Solicitor for the Respondent
Siva Valliappan

Minter Ellison Lawyers