De Ruyter and Minister for Home Affairs (Migration) - [2019] AATA 1392

De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392 (21 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1876
Re:Vincent De Ruyter
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC

Date:21 June 2019
Place:Brisbane

The Tribunal affirms the reviewable decision, being the decision of a delegate of the Minister for Home Affairs on 1 April 2019 not to revoke the cancellation of Mr De Ruyter’s Class TY Subclass 444 Special Category (Temporary) Visa.
.............[sgd]...........................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category visa – violent and serious criminal offending – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
BCF16 v Minister for Immigration and Border Protection [2019] FCA 19
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
21 June 2019

The applicant, Mr Vincent De Ruyter, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (the visa).
The hearing was held in Brisbane on 11 June 2019. The applicant was represented by his sister, Ms Melanie Le Bherz. The Minister was represented by Ms Rachael Law of Clayton Utz.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 24 June 2019.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
Mr De Ruyter is a 29-year-old citizen of New Zealand who first arrived in Australia on

4 October 2000[1] as a 10-year-old child with his mother. Apart from eight relatively brief overseas departures between 2001 and 2014,[2] Mr De Ruyter has resided permanently in Australia for the last 18 years.
[1] Exhibit R1, 70.
[2] Ibid 69-70.
Mr De Ruyter attended primary and high school in Australia to Year 11. After leaving high school he worked in the construction industry for about a year, and then held various jobs in the service and hospitality industries for approximately seven years.[3]
[3] Ibid, 59.
On 19 June 2017 Mr De Ruyter’s visa was mandatorily cancelled under s 501(3A) of the Act. This followed his conviction on 18 May 2017 of multiple charges in the Southport District Court, for which he was sentenced to five years imprisonment.[4] At the time of his visa cancellation Mr De Ruyter was serving a full-time sentence of imprisonment and remains imprisoned at the Maryborough Correctional Centre.
[4] Ibid, 32 [16].
Mr De Ruyter was invited to make representations to have the visa cancellation decision revoked, and did so on 20 June 2017 within the period and in the manner specified under the Act. After considering his representations, the Minister advised Mr De Ruyter on
1 April 2019 that the cancellation of his visa would not be revoked.
By application dated 6 April 2019, Mr De Ruyter applied to the Administrative Appeals Tribunal for a review of the non-revocation decision, stating through Ms Le Bherz:
I believe the decision was wrong as there has not been enough weight or recognition placed on the genuine effort Vincent has made towards successful rehabilitation and that the period of offending was brief and out of character. This decision has also not given adequate consideration to the long term, damaging effects on Vincent’s son [child’s name redacted].
EVIDENCE BEFORE THE TRIBUNAL
In addition to the G-documents numbering 155 pages and Supplementary G-documents numbering 355 pages,[5] other documents taken into evidence were:
(a)an undated letter from Mr De Ruyter;[6]
(b)an undated, unsigned letter from Mr De Ruyter’s mother;[7]
(c)an undated letter from Mr De Ruyter’s biological child;[8]
(d)two letters from general practitioner Dr Ken Cameron, both dated 17 April 2019;[9]
(e)a letter from Mr De Ruyter’s brother;[10]
(f)Minutes of a meeting dated 28 February 2019 of the Maryborough Correctional Centre’s Prisoner Advisory Committee;[11] and
(g)A copy of the applicant’s academic transcript from the University of Southern Queensland and Certificate of Achievement from ‘Atrius’.[12]
[5] Exhibit R2.
[6] Exhibit A1
[7] Exhibit A2.
[8] Exhibit A3.
[9] Exhibit A4.
[10] Exhibit A5.
[11] Exhibit A6.
[12] Exhibit A7.
The only witness called at the hearing was Mr De Ruyter.
National Police Certificate and Sentencing Remarks
Mr De Ruyter’s National Police Certificate discloses that in 2008 and 2015 he answered three relatively minor public nuisance and dishonesty matters, which the courts dealt with through fines, a good recognisance period, and without recording convictions.
On 18 May 2017 Mr De Ruyter was convicted in the Southport District Court of offences committed during an approximately 13-month period between June 2015 and August 2016 as follows:
(a)Burglary and commit indictable offence;
(b)Assault occasioning bodily harm whilst armed/in company;
(c)Three counts of Enter premises and commit indictable offence by break;
(d)Three counts of Unlawful possession of weapons category d/h/r weapon - short firearm in public;
(e)11 counts of Unlawful use of a motor vehicles;
(f)Two counts of Enter premises and commit indictable offence;
(g)Enter premises with intent;
(h)Two counts of Dangerous operation of a vehicle;
(i)Possess weapon with altered identification marks;
(j)Seven counts of Receiving tainted property;
(k)Common assault;
(l)Four counts of Stealing;
(m)Three counts of Wilful damage;
(n)Two counts of Possess dangerous drug;
(o)Possessing anything for use in the commission of crime; and
(p)Riot or mutiny endangered the security of the facility.
Sentencing Remarks
In sentencing Mr De Ruyter, Judge Katherine McGinness of the District Court of Queensland, stated:[13]
Mr De Ruyter, you have pleaded guilty to numerous offences, namely 43 offences on indictment, summary offence and 34 matters which you have not pleaded guilty to, but which are being taken into account today and you accept guilt in relation to those. The offences to which you have pleaded guilty included numerous dishonesty offences, receiving stolen property, breaking and entering business premises and cars, stealing property…You entered the complainant’s apartment at night-time with others, in an attempt to retrieve a phone. You burned the complainant on the leg with a lighter. You abused him, before taking some property from him and the keys to his car, which you then drove away in. Fortunately he was not seriously injured. On the 16 of January 2016, whilst on bail, you and others assaulted a second complainant. You were armed with a bat, you struck him to the head and he fell to the ground and then you and others continued to punch and kick him.
He suffered some bruising and other, relatively minor injuries…you then stole his car. You have also pleaded guilty to offences of possession of weapons, to wilful damage, dangerous operation of a motor vehicle, when you were driving on the wrong side of the road and a police vehicle which happened to be in the vicinity had to swerve off the road to avoid a collision with you. You have also committed a number of drug offences as well…And whilst you were in custody, you took part in a riot. It is accepted that you were not one of the instigators of the riot. Nevertheless, it is clear on the facts that you played an active role that day.
…As is often the case, you have had a history of drug and alcohol abuse, which is often seen in offending of this kind. It is important that you address that upon your release, or otherwise you will end up back in custody. I note that you have also been medicated with some mood stabilising drugs and, again, it is important that things like that are managed both whilst you remain in custody and upon your release.
…Firstly, I must have regard to the very serious nature of the offences…I also have regard to the period of the offending…, over which time you committed some of the offences whilst on bail and one offence in custody. A concerning feature is the fact that dangerous weapons were found in your possession on occasion and also what is particularly serious are the offences of violence which you committed. They were in company and in one case, you were armed. The offending on both of those occasions involved standover-type behaviour intended to provoke fear and cause distress to your victims. It was cowardly and gratuitous behaviour…
Sentences do, however, need to be imposed to deter you and others from offending in such a serious manner. As I have already stated, the riot offence is also serious, it having occurred in custody. Balanced against that, I must have regard to a number of factors personal to you. Firstly, you did cooperate significantly in the administration of justice by your pleas of guilty. Due to the nature of the charges and the number, you have saved the cost of what would have otherwise been a number of very lengthy trials by your cooperation... I also note that for someone in this situation, you have a surprisingly minor criminal history. There are no previous offences of violence and that is a factor that I also have regard to. Although, having regard to the cases, the court of appeal has previously decided…I was initially of the view that a sentence in the range of six years would have been appropriate, I intend to impose a head sentence of five years imprisonment, to reflect the total criminal behaviour and set a parole eligibility date on 17 June 2017…
[13] Ibid, 30-34.
Information purportedly from Queensland Police Service
The Tribunal notes a document lodged by the Respondent, purportedly from the Queensland Police Service, referring to possible associations between Mr De Ruyter and members of Outlaw Motorcycle Gangs.[14] There is no evidence before the Tribunal of any charges or convictions arising from the information in that document. In the absence of an opportunity to hear from the authors of the document, or to test the veracity of the material through cross-examination, or to otherwise assess the reliability of the information, the Tribunal places no weight on this document and draws no negative inference from it.
[14] Ibid, 66-68.
Traffic Record
Mr De Ruyter’s Traffic Record during the period 2007 to 2017 discloses a substantial number of traffic offences, encompassing licence disqualifications and seizure of his vehicle.[15] He has also been convicted of Dangerous operation of a vehicle.
Medical Evidence
[15] Ibid, 151-155.
Dr Cameron’s letter regarding Mr De Ruyter
The Tribunal notes the letter provided by general practitioner Dr Ken Cameron dated

17 April 2019, stating:
The above was my patient from 2006 to 2015 as I was his family doctor.
He suffered significant psychological and psychiatric difficulties, exacerbated in 2015 by drug use.
I organised psychological help in 2012 with Craig Pearman and psychiatric help in 2015 with Dr John Mcaulay.
He suffered from a major depressive illness with high levels of anxiety, subsequently aggravated by his drug abuse.
The Tribunal notes that Dr Cameron’s remarks relate to consultations with Mr De Ruyter that ended approximately four years ago. The Tribunal also notes that Dr Cameron does not have any qualifications in psychology or psychiatry.[16] He was not called as a witness and could not be cross-examined. No medical records were tendered from Dr Cameron or any of the other physicians referred to in his letter.
[16] Australian Health Practitioner Regulation Agency, Register of practitioners (1 December 2015) < Cameron’s letter regarding Mr De Ruyter’s mother
The Tribunal notes the letter provided by Dr Cameron dated 17 April 2019, stating

Mr De Ruyter’s mother has been his patient since 2006. He notes that she suffers from a number of chronic health conditions requiring multiple medications, and which he assesses will ‘slowly worsen’ over time. Dr Cameron notes that Mr De Ruyter’s mother has been under care of a cardiologist, rheumatologist, urologist and nephrologist.
Reference in sentencing remarks to medication
The Tribunal notes the May 2017 sentencing remarks refer to Mr De Ruyter having been ‘medicated’ at the time ‘with some mood stabilising drugs,’ which needed to be managed in custody and upon release.[17]
[17] Exhibit R1, 31 [33].
Mr De Ruyter’s evidence
The Tribunal has considered Mr De Ruyter’s written submissions in evidence.[18] Following cancellation of his visa, Mr De Ruyter stated: ‘This is my first run in with the law since being in Australia.’ The Tribunal notes Mr De Ruyter’s general references about his psychological health, including voluntary engagement while imprisoned with an ‘on site mental health psychologist fortnightly’ to ‘identify…triggers and high risk situations.’ Mr De Ruyter submits he is awaiting approval to be placed on the ‘high intensity cognitive self-change program,’ to further lower his risk of reoffending.
[18] Ibid, 34-42.
In his oral evidence, Mr De Ruyter spoke about the breakdown of his parent’s relationship in New Zealand when he was 10, and six subsequent return visits to New Zealand between 2000 and 2005 to try and ‘fix the relationship’ with his father. He said he felt rejected by his father for a second time in 2005, when his father decided their relationship should not continue. Mr De Ruyter submits that although he was aged between 10 and 15 during his return visits to New Zealand, the time with his father was ‘generally spent drinking,’ which is where his ‘alcoholism began.’ There is no other evidence before the Tribunal to corroborate Mr De Ruyter’s submission about alcoholism.
In relation to his earliest offending, Mr De Ruyter said charges against him in 2008 were alcohol-related. He claimed to have found his initial court appearance ‘daunting’ and felt that the court had treated him leniently by not recording a conviction, instead issuing a fine and good behaviour bond. When asked why, despite that initial ‘daunting’ experience he continued to reoffend, Mr De Ruyter said it wasn’t until he undertook ‘rehab courses – cognitive behavioural courses’ in 2018-2019 and ‘engaged with mental health’ that he ‘found the underlying problem.’
Mr De Ruyter could not recall the nature of the ‘Contravene direction’ charge against him in 2015, referring to this period of his life as characterised by ‘failures at work’ and the ‘peak’ of his drug and alcohol abuse. He claimed to have been prescribed medication for his psychological conditions in 2013-14 by his general practitioner, Dr Cameron, but failed to take the medication, which exacerbated his problems. He said the prescribed medication was Sodium Valproate and Citalopram, which were anti-depressants and mood stabilisers that he continues to take to the present day. When asked why he failed to take the prescribed medications previously, Mr De Ruyter said it made him feel like he wasn’t himself. He now realised, through psychological therapy, the importance of taking prescribed medications.
Mr De Ruyter agreed that approximately three weeks after his 2015 court appearance, he committed serious and violent offences for which he was imprisoned. He claims to have been ‘heavily into drugs and alcohol’ at that time and ‘wasn’t thinking.’ After being released on bail, he committed further violent offences in January 2016 and was placed on remand. He agreed that he then played an active role in a prison riot, explaining that it occurred in the context of 36 people in close confinement, leaving him little choice but to participate: ‘you sort of have to be a part of it – you can’t go against the grain.’ During re-examination, Mr De Ruyter said there would be repercussions from other inmates if he did not participate.
It was put to Mr De Ruyter that his offending occurred during an approximately 13-14 month period, which could not be considered impulsive or short-lived. Mr De Ruyter agreed his offending during this period was ‘violent…horrendous,’ but explained he had no access to rehabilitative courses and had been ‘returned to the same community’ and negative peer associations when released on bail. He said he had no access to mental health services or other assistance to help develop his insight during this period.
Mr De Ruyter contextualised his offending as driven by negative peers who preyed on his insecurities. When asked who these negative associations were, he said they were people he met while working in the nightclub industry in Surfers Paradise, including some criminals. He agreed that some of his offending involved carriage of weapons, which he claimed to have ‘found in cars’ that he was convicted of stealing. He accepted responsibility for keeping the weapons and carrying them ‘on my person generally.’ Mr De Ruyter said he had ceased all association with these previous negative influences, including by being moved into protective custody in prison. When asked how the move to protective custody was achieved, Mr De Ruyter said ‘you sign a piece of paper and away you go.’
When asked about the sentencing judge’s decision to set a parole eligibility date of

17 June 2017, which was two years ago, Mr De Ruyter explained he had chosen not to apply for parole. He said this was because he had ‘immigration looming’ and if placed in immigration detention, he would not have access to rehabilitative courses or study opportunities. He decided to remain in prison where he had ‘been given insight’ and information about his psychological needs.
Mr De Ruyter submitted that as a result of the psychological support he had received, including by learning ‘simple cognitive techniques,’ he had found his ‘underlying problem.’ Through fortnightly psychological counselling, he claims to have also learned ‘diffusion techniques, mindfulness techniques…giving myself time to separate myself from emotions…give myself a few seconds to step away from situations.’ Mr De Ruyter submitted that he now spent his days helping other inmates get on courses, reconnect with their family, and learn the skills they need to stay out of prison.

Mr De Ruyter agreed that his rehabilitative courses were all undertaken in 2018-2019, which was after the cancellation of his visa in June 2017.
It was put to Mr De Ruyter that his mother’s evidence contextualised his offending as following a period in his life when he had a ‘nice apartment, beautiful girlfriend, fulltime job,’ and a relationship with his son. Yet these factors were insufficient to prevent the ‘downward spiral’ he claims to have experienced. Mr De Ruyter referred to a lack of satisfaction at work and bad associations as factors influencing his conduct. He characterised his previous employment in the hospitality industry as lacking intellectual stimulation. He had subsequently gained that stimulation through the tertiary preparation course he undertook in prison. He was now ‘very committed’ to further study because it gave him ‘a pathway from reoffending.’ He opined that if he had begun his degree much earlier, his life may have travelled a different path.

When asked about his conduct while imprisoned, Mr De Ruyter said he had been ‘breached’ after involvement in a fight in ‘2016 possibly 2017,’ and ‘breached’ again by prison authorities in relation to another fight in Maryborough Correctional Centre in 2018. When it was put to Mr De Ruyter that his claims about rehabilitative progress was at odds with the breaches he referred to, he claimed to have been defending himself during both fights. In one incident he was outnumbered and claimed that prison authorities should never have put him in that situation. On another occasion he claimed that fighting erupted spontaneously and he was subsumed into the melee by those fighting around him. Mr De Ruyter said rehabilitation had helped him ‘take ownership’ of his involvement in these incidents, stating: ‘I can’t change the fact I was in these violent altercations – all you can do is defend yourself.’
When asked about his decade-long history of traffic and driving offences between 2007 and 2016, Mr De Ruyter said the root cause was his ‘alcoholism.’ When asked why he had not learned from the numerous fines, losses of licence and car seizure, Mr De Ruyter claimed to have repeated his conduct due to ‘feelings of failure spurred on by anxiety and depression – a revolving cycle of depression.’
When asked about the ‘risk of re-offending psychological assessment’ he foreshadowed in a written submission, Mr De Ruyter said ‘Corrective Services haven’t done it.’ When asked what evidence he was relying upon to support the contention that he now constitutes an acceptably low risk to the community, Mr De Ruyter agreed it was based on his word alone and uncorroborated by expert evidence. When asked how the Tribunal could be confident he would not re-establish associations with negative peers if released, Mr De Ruyter responded ‘because I don’t need their approval.’ Given he had offended while free in the community, while on conditional liberty, and while imprisoned, Mr De Ruyter was again asked why the Tribunal should be confident he would not reoffend. He replied: ‘I’m not going to offend again, because I’m not the same person I was then.’
Mr De Ruyter said he had wasted too much time away from his family and particularly his son, which underlay his motivation not to reoffend in the future. He referred to the relationship with his mother breaking down in the past when she found illicit drugs in the family home and asked him to leave. He had repaired that relationship very slowly and with ‘lots of apologies.’ He characterised the current relationship with his mother as ‘very good’ and would live with her if released.
Mr De Ruyter discussed the breakdown of his relationship with his former partner over a decade ago. He said they initially shared care of their son on a 50:50 basis, then a 70:30 basis. He claims to have paid for his son’s childcare and other expenses. In about 2014, when Mr De Ruyter says his life spiralled out of control, he cut all family contact entirely – including with his son. His son has since been cared for exclusively by his former partner, who married some 12 years ago and started a family with her new partner. Mr De Ruyter said he refused to see his son in prison until late 2017, because he didn’t think it was a suitable environment for a young boy. But he has since had approximately monthly visits facilitated by Mr De Ruyter’s mother and sister. He also speaks to his son frequently by telephone on weekends. Mr De Ruyter said if released, providing financial support for his son would be his main priority.
Mr De Ruyter had also worked to re-establish relationships with his sister’s two children, one of whom he is godfather to. Mr De Ruyter submitted that if any of the children whose interests he invoked got into trouble by abusing alcohol or illicit substances, who better than him to address such behaviour, which was another reason why he should be allowed to remain in Australia.
Mr De Ruyter said that if released, he had a commitment from his brother to employ him as a storeman. He said although he would not be intellectually challenged as a storeman, that imperative would be satisfied through tertiary study. He submitted that his efforts on a tertiary preparation program had gained him ‘direct entry’ into ‘mechatronic engineering.’[19] Mr De Ruyter said he had no intention to return to the hospitality industry, which ‘led to this and who I became.’
[19] Undated submission of Mr De Ruyter’s advocate, 2.
When asked about the possibility of repatriation to New Zealand, Mr De Ruyter said he had no family or social network there to draw on. When asked to confirm that he had no family members in New Zealand Mr De Ruyter replied: ‘not to my recollection.’ He said that his closest family and social connections were in Australia. He agreed, however, that he could maintain contact with family and friends in Australia by telephone or Skype. Mr De Ruyter claimed no knowledge of New Zealand’s cultural background, having last visited there in 2005. He said he would also be a burden on his family in Australia who would have to support him financially if he was returned. When asked why he could not work if returned to New Zealand, Mr De Ruyter said he was not aware about how to find a job, or accommodation, or whether he could access medical support for his psychological conditions.
STATUTORY FRAMEWORK
Section 500(1)(ba) of the Act provides for applications to be made to the Tribunal if the Minister decides under s 501(CA)(4) not to revoke a visa cancellation decision.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a full-time sentence of imprisonment.
The character test is defined in ss 501(6) to 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3)(b), the Minister is obliged as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about the revocation of the original cancellation decision. Provisions relating to the form and process of those representations are regulated by reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). The Direction commenced on 28 February 2019, replacing Ministerial Direction No. 65. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[20]
[20] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104 at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under s 501 of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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) 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 minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. 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.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C…’. The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(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.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’ Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ As held in Jagroop[21] at [57] and [78] however:
[57]…the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
[78]…Ultimately, in the application of both Directions, each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
[21] Jagroop v Minister for Immigration and Border Protection 241 FCR 461.
DOES MR DE RUYTER PASS THE CHARACTER TEST?
Mr De Ruyter has been sentenced to a term of imprisonment exceeding 12 months. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds Mr De Ruyter does not pass the character test.
ISSUE TO BE RESOLVED
Under s 501CA(4)(b)(ii) of the Act, it remains to be determined if there is ‘another reason’ why the mandatory cancellation of Mr De Ruyter’s visa should be revoked. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[22] which I respectfully adopt:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
PRIMARY CONSIDERATIONS
[22] [2016] FCA 1166 at [38].
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c)    The sentence imposed by the courts for a crime or crimes;
d)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)    The cumulative effect of repeated offending;
f)     Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)    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);
h) Where the non-citizen is in Australia, that a crime committed while the 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.
Tribunal consideration: The nature and seriousness of the conduct
The Tribunal places considerable weight on the sentencing remarks dated 18 May 2017, which reflect very serious criminal conduct by Mr De Ruyter over an approximately 13 month period. He was found in possession of dangerous weapons and committed violent crimes while armed and in company with co-offenders. Her Honour described some of

Mr De Ruyter’s offending as involving ‘standover-type behaviour intended to provoke fear and cause distress to victims.’
Mr De Ruyter committed offences while police were trying to detain him. On another occasion he actively participated in ‘Riot or mutiny endangering the security of the facility’. It is clear from the evidence that Mr De Ruyter’s offending has occurred while he was free in the community, while on conditional liberty, and in custody. In his oral evidence, Mr De Ruyter stated that he had been ‘breached’ on two occasions in 2017-2018 for involvement in fights with other inmates. He contextualised these fights as self-defence and on one occasion, says prison authorities contributed to the altercation by putting him in a situation he ‘never should have been put in.’
The Tribunal notes that Mr De Ruyter’s decade-long history of traffic infringements and driving offences reflects an increase in objective seriousness over time, encompassing licence disqualification of up to two years and vehicle seizure.
Tribunal findings: The nature and seriousness of the conduct

The Tribunal finds that:
(a)
Mr De Ruyter’s written submission that the offending he was sentenced for on

18 May 2017 was his ‘first run in with the law since being in Australia,’[23] is factually inconsistent with his National Police Certificate. Mr De Ruyter previously came to the attention of the courts in both 2008 and 2015. The Tribunal also notes the frequent occasions he has come to the attention of police due to traffic offences between 2007 and 2016;
[23] Exhibit R1, 34.
(b)charges against Mr De Ruyter in 2008 and 2015 were dealt with leniently by the courts, which elected to issue fines, a good behaviour period, and not to record convictions;
(c)
despite what he describes as a ‘daunting’ court appearance in 2008, then a further court appearance at the Southport Magistrates’ Court on 23 July 2015,

Mr De Ruyter committed numerous serious offences within weeks of the 2015 court appearance;
(d)pursuant to paragraph 13.1.1(1)(a) of the Direction, Mr De Ruyter’s offending encompasses convictions for violent crimes, which are viewed seriously;
(e)notwithstanding the Court’s observation about Mr De Ruyter’s surprisingly minor criminal history and no previous offences of violence,[24] a head sentence of five years imprisonment was imposed. This reflects the gravity and objective seriousness of his offences. As then Deputy President Kendall of this Tribunal stated in Saleh v Minister for Immigration and Border Protection [2017] AATA 367 at [50]: ‘Dispositions involving incarceration are a last resort in the sentencing hierarchy;’ and
(f)Mr De Ruyter’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[24] Ibid, 32 [11].
Paragraph 13.1.2 of the Direction states in part:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
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).
Regard must be had for the guidance at paragraph 6.2(1) of the Direction that the principles at paragraph 6.3 are of critical importance in protecting the Australian community from harm as a result of criminal activity. These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.’
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage at [111] relates to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
Mr De Ruyter submits that being cast out by his father at the age of 10 ‘had an unimaginable affect (sic)’ on his later life, causing deep ‘insecurities of abandonment and failure.’ He attributes his offending behaviour to ‘a combination of drug use and…negative peer group,’ who ‘seemed to encourage me to offend by exploiting my insecurities.’ In his Personal Circumstances Form dated 20 June 2017 he states:[25]
At the time of offending I had just lost my job, I was surrounded by negative peers & wasn’t taking my medication. I believe that the mixture of these factors were the gateway to my offending. Once my offending began, anxiety was a major factor to my continued behaviour. My peers exploited my insecurities to encourage further offending.
I believe the likelihood I will re-offend is low, because I’ve spent so long in custody, I have been able to separate from my negative peers. My family has stood by and supported me through this time. I couldn’t put my family through this again.
[25] Exhibit R1, 58.
Mr De Ruyter submits that the time he has spent in custody, coupled with access to psychological support and rehabilitative courses, has enabled him to reflect on the things most important to him; family and particularly his son. He states that he has been drug-free since being imprisoned and has maintained his prescribed medications. In an undated submission to the Department he refers to commissioning a ‘risk of re-offending psychological assessment’ (sic). When asked about this at the hearing, Mr De Ruyter claimed ‘Corrective Services haven’t done it.’ The Tribunal also notes the submissions of his representative about a reduced risk of reoffending arising from:[26]
(a)a ‘rebuilt’ relationship with his son and broader family;
(b)availability of stable accommodation with his mother if released;
(c)an offer of ‘regular part time work’ from Mr De Ruyter’s brother, which would allow him to ‘earn while studying;’
(d)the progress Mr De Ruyter has made with a ‘prison-appointed psychologist to address mental and emotional issues which were contributing factors to his anxiety, depression, substance abuse and subsequent offending;’
(e)Mr De Ruyter’s commitment to rehabilitation as evidenced by his completion of courses, selection for a managerial role in the prison workshop, membership of the Prisoner Advisory Committee, and mentoring of other prisoners; and
(f)Mr De Ruyter’s separation from negative peer groups, tertiary study preparations, and intention to choose a different career path away from the hospitality/nightclub industry where he says his negative peer associations originated.
[26] Applicant’s Statement of Facts, Issues and Contentions, 2.
The Tribunal notes Mr De Ruyter’s evidence about courses he has completed in prison, including: Artius – ‘Decisions: Recovery from substance Abuse through individual counselling’ dated 26 February 2019; Bridges Substance Use & Intervention Training on
[27] Ibid, 82.
1 March 2018; an Adult Resilience program on 1 November 2018; and a Substance Abuse Maintenance Intervention erroneously dated 9 November 2019. Mr De Ruyter has also completed part of a Tertiary Preparation Program in late 2017 and during 2018, achieving ‘Pass’ up to ‘High Distinction’ results.[27]
The Tribunal notes that as at 2 July 2018, Mr De Ruyter was performing a supervisory role in the prison workshop, with prison authorities noting he was ‘able to take instructions…and give instructions to other workers. Is able to lead on team on projects with minimum guidance.’[28] The Tribunal also notes from the Minutes of a Prisoner Advisory Committee (PAC) meeting dated 28 February 2019, that Mr De Ruyter was one of five prisoner representatives who attended that meeting.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[28] Ibid, 83.
The Tribunal finds that:
(a)if Mr De Ruyter were to repeat his violent offences, the harm that may be inflicted on members of the Australian community is potentially very serious. For example, if Mr De Ruyter was to again strike someone to the head with a bat or his fists, or kick them after they fell to the ground, the potential consequences could include serious injury or death. Similar consequences may arise if he was to again possess dangerous weapons or drive a vehicle dangerously. Were he again to commit traffic offences such as exceeding speed limits by 40 km/h, or drive above allowable alcohol limits, the consequences for public safety are also potentially very serious;
(b)Mr De Ruyter’s criminal offending and persistent traffic offences continued in the years after his son’s birth. The interests of his son were insufficient to prevent his criminal conduct and other misconduct in the past, which gives rise to concerns about the extent to which Mr De Ruyter can now rely on that protective factor if allowed to remain in Australia;
(c)while abuse of illicit drugs or alcohol, or negative peer associations may provide context for a person’s conduct, the Tribunal does not accept this in any way justifies Mr De Ruyter’s offending over an approximately 13-month period. The Tribunal can only conclude that Mr De Ruyter’s conduct while free in the community, while on conditional liberty and while imprisoned, reflects a pattern of unacceptable conduct and a blatant disregard for Australia’s law enforcement framework. That is evidenced by Mr De Ruyter:
(i)
committing criminal offences despite lenient treatment from the courts in 2008 and 2015. The violent crimes for which he was sentenced in

May 2017 were committed within three weeks of his August 2015 court appearance. He reoffended soon after being charged and placed on bail for those violent crimes, then committed a further serious offence once his bail was revoked and he was placed on remand;
(ii)being ‘breached’ for involvement in two fights while imprisoned in 2017 and 2018;
(iii)Mr De Ruyter’s traffic record between 2007 and 2017 reflects a persistent disregard for traffic laws, disclosing infringements that include several licence disqualifications for periods of up to two years and vehicle seizure.
(d)
Mr De Ruyter’s reliance on the breakdown of his parent’s relationship as a contextual factor to his offending is unpersuasive. There is no expert evidence to corroborate his contention that this event and the deteriorating relationship with his father up to the age of 15 caused enduring insecurities making him susceptible to exploitation by others. Moreover, the Tribunal notes the evidence of

Mr De Ruyter’s mother, who submits in her statement:
Vincent was raised knowing the security of family…Vincent’s life was not without its challenges but he had the benefit of good role models and grew into a young man with a promising future…
…
It was not always an easy journey for him, but with family support he contributed equally in raising his son while working a full time job…Between the ages of 17 and 25 Vincent continued to raise [child’s name redacted], he worked his way up in the hospitality industry…and at 24 had a position as assistant manager in a hotel. He had a beautiful girlfriend, a nice apartment and always showed good sense in choosing his friends. He owned a new car and…been on an overseas holiday…He had never been in trouble with the law.
Vincent’s fall from grace was huge, he became someone we didn’t recognise. He pulled away from his family and society in general. His group of friends changed and by all accounts he seemed to be on a path of total and utter destruction…
I was thankful the day I learned he’d been arrested. Not perhaps a normal reaction for a mother but it meant he was off the streets, he could no longer hurt himself or others…
(e)the evidence shows Mr De Ruyter was raised in a supportive family, was able to help raise his child from the age of 17, secured and retained jobs, formed supportive personal relationships, and lived independently. His submissions about negative influences preying on his longstanding insecurities,[29] or loss of a job, or an inability to resist peer pressure, come across as self-serving and an attempt to deflect blame from his own poor decision-making. The vast majority of people in our society who experience similar personal difficulties do not resort to violent criminal conduct or persistent disregard of traffic laws;
[29] Ibid, 34.
(f)
while the sentencing judge in May 2017 noted Mr De Ruyter’s ‘surprisingly minor criminal history,’ his criminal conduct cannot be considered impulsive or

short-lived. It occurred over an approximately 13-month period, encompassing offences while on conditional liberty and while imprisoned. The Tribunal notes that his criminal offending overlaps a time in his life that was preceded by a stable relationship, stable accommodation, and a history of stable employment.

Mr De Ruyter also committed persistent traffic offences over approximately a decade. On his own evidence Mr De Ruyter’s conduct in prison encompasses two fights in 2017-2018, for which he has been breached by prison authorities;
(g)
by completing the courses and programs in evidence, Mr De Ruyter has undoubtedly taken some positive rehabilitative steps. There is a dearth of detail, however, about the duration or specific content of the rehabilitative programs in evidence, or how their completion may have influenced factors relevant to his risk of recidivism. The Tribunal also notes that completion of these courses and programs was in 2018-2019, all following the cancellation of Mr De Ruyter’s visa in June 2017. Any rehabilitative progress is therefore relatively recent, has been completed within a controlled prison environment, and any effect on

Mr De Ruyter’s risk of recidivism is untested in the community;
(h)
the submission of Mr De Ruyter and his advocate that he will be placed on a 12-18 month parole period after serving his sentence, allowing ‘his rehabilitation to be tested with a degree of supervision,’ is speculative at best and is not accepted.

Mr De Ruyter’s evidence is that he has not applied for parole, despite becoming eligible some two years ago. There is no evidence before the Tribunal about when he might be paroled or what conditions might be imposed;
(i)general practitioner, Dr Ken Cameron, last treated Mr De Ruyter approximately four years ago and does not have any recorded qualifications in psychology or psychiatry. Moreover, Dr Cameron did not appear at the hearing and his perspectives could not be tested under cross-examination. In those circumstances the Tribunal places little weight on Dr Cameron’s letter;
(j)there are no clinical records from Dr Cameron, or the mental health practitioners he names, or from the pre-sentencing process in 2017, or from prison authorities, to support the mental health diagnosis Mr De Ruyter relies upon, or that ‘anxiety’ was a ‘major factor’ in his offending. Beyond his own claims, there is no corroborating evidence about the treatment regime, or medications prescribed to him for any diagnosed mental health conditions, or any effects resulting from a failure to take such medication. There is no expert evidence from a psychologist or psychiatrist that any nexus between Mr De Ruyter’s substance abuse and offending has been adequately addressed as he claims. In the absence of such evidence, it is not for the Tribunal to make its own conclusions about
Mr De Ruyter’s mental health, largely by reference to his own submissions and dated information from a general practitioner.[30] The Tribunal is unable to conclude what underlying psychological conditions Mr De Ruyter may be currently suffering from, what treatment he received or is receiving for any such conditions, the extent to which any such conditions are contextually relevant to his offending, his compliance with any medications that may be prescribed to him, and the extent to which any nexus between his substance abuse or other relevant factors and his offending have been addressed;
(k)the submission of Mr De Ruyter and his advocate that he has influenced the rehabilitation of other prisoners is not reliably established by the evidence;
(l)Mr De Ruyter has some plans for his future if permitted to remain in Australia, noting in particular the offer of employment from his brother, and an offer of accommodation from his mother. He aspires to resume and strengthen the relationship with his son, nieces and nephews, which, on his own evidence he cut completely in 2014 and has only sought to re-establish in the recent past. The Tribunal accepts that factors like stable employment, stable accommodation, fatherhood and a supportive family network can constitute protective factors mitigating recidivism risk. The Tribunal notes, however, that Mr De Ruyter’s previous criminal offending and decade-long record of traffic offences occurred despite what appears to be a loving and supportive family, stable accommodation, a seven-year record of employment, and having been a father since January 2007; and
(m)Mr De Ruyter’s expressions of insight and remorse must be considered in the context of his attempts to deflect blame for his criminal offending on the breakup of his parent’s relationship and negative peers exploiting insecurities from his childhood. His involvement in fights in 2017-2018 while imprisoned, adds to the Tribunal’s concerns. This makes it difficult to accept Mr De Ruyter’s submissions about insight and rehabilitation.
[30] Pallett v Commonwealth of Australia, Department of Human Services - Centrelink [2017] FCA 1132 at [58]; BCF16 v Minister for Immigration and Border Protection [2019] FCA 19 at [45].
The Direction acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides. But the nature, seriousness and persistence of Mr De Ruyter’s criminal offending, failure to take advantage of opportunities to reform his behaviour, and continuing misconduct while imprisoned, elevates concerns about the risk of recidivism he poses.
There is no expert evidence to support Mr De Ruyter’s contention that his risk of recidivism is acceptably ‘low.’[31] The Tribunal concludes there is a real risk he will reoffend if released into the Australian community, and the potential harm arising from such offending constitutes an unacceptable risk. On balance, this primary consideration weighs strongly against revoking the cancellation of his visa.
[31] Ibid, 58.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2(1) of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children with whom Mr De Ruyter is associated in Australia.
Mr De Ruyter refers to six children in his Personal Circumstances Form dated 20 June 2017, consisting of:
(a)a biological child, now aged 12, who resides with Mr De Ruyter’s former partner;
(b)a niece, aged 10, and a nephew, aged 14, who are his sister’s children; and
(c)two nephews, aged 16 and 8, and a niece, aged 14, who are his brother’s children.
Mr De Ruyter became a parent in January 2007 just before turning 17. The Tribunal notes his evidence about the role he played in his son’s life prior to 2014, and his submission that he deserves a ‘second chance’ for them to be together and rebuild their relationship. The Tribunal notes an unsigned, undated letter, purportedly from Mr De Ruyter’s 12-year-old son, which refers to telephone conversations with Mr De Ruyter on the weekend and accompanying Mr De Ruyter’s mother and sister during prison visits. The letter does not specify details about these visits, stating: ‘we like the same stuff and laugh a lot…Please let him stay in Australia with me I know dad has learnt his lesson and wont let anyone down again.’

The Tribunal notes an unsigned letter dated 28 June 2017, purportedly from the mother of Mr De Ruyter’s biological child, which states:
I have known Vincent de Ruyter for 12 years, and…we have been separated for 10. I have been in a happy and loving relationship with my husband [name redacted] for almost 10 years…
Vincent is the father of our eldest child [name redacted] who is 10 years old.
…
Although I have not been in contact with Vincent in recent years…he has reached out numerous times writing to [child’s name redacted] and he sent him a birthday card this year, the most effort I’ve witnessed in years.
I am sure that with time and consistency they will be able to build on this to regain the relationship they once had.
…
In relation to his nieces and nephews, Mr De Ruyter states in his Personal Circumstances Form dated 20 June 2017:
[name redacted] is my nephew, I have had a relationship with him from birth & see him on a weekly basis. [name redacted] is my niece & god daughter, I’ve known her from birth and saw her weekly until my incarceration.
The cancellation of my visa would severely effect (sic) any input I could have in my sons life. The cancellation would restrict any visitation with my son, my nieces and nephews.
Mr De Ruyter’s former partner, son, nieces and nephews were not called as witnesses at the hearing, and could not be cross-examined.
Tribunal findings: Best interests of minor children in Australia
The Tribunal accepts Mr De Ruyter had no access to his son from 2014 until resuming contact while imprisoned. That is supported by a letter from Mr De Ruyter’s former partner when referring to a birthday card Mr De Ruyter sent his son in 2017, which she says is ‘the most effort [she has] witnessed in years.’ The evidence shows Mr De Ruyter has played a sporadic role at best in his son’s life during the last five years. Their relationship has been characterised by long absences and infrequent contact. It is clear from the evidence that the needs of Mr De Ruyter’s son, including his financial needs, have largely been met by his former partner in the context of a new, decade-long relationship. Consistent with paragraph 13.2(4)(a) of the Direction, less weight is therefore placed on Mr De Ruyter’s relationship with his son.
The Tribunal notes Mr De Ruyter’s desire to resume and strengthen the relationship with his son is set within the context of imprisonment and visa cancellation. That is not to doubt the love Mr De Ruyter expresses for his son, nor to diminish his former partner’s written submission that their child ‘loves Vincent wholeheartedly regardless of the time they have spent apart.’ But on the evidence before the Tribunal, Mr De Ruyter’s desire to be a better father is aspirational at best. If Mr De Ruyter were repatriated to New Zealand, there is no evidence that his son could not continue to maintain contact with him by telephone, internet or letter, or travel to see him if he and those performing a parental role so desired.
Consistent with paragraph 13.2(4)(a) of the Direction, less weight is placed on Mr De Ruyter’s relationship with his nieces and nephews, which is non-parental and characterised by long periods of absence and meaningful contact. The Tribunal notes he has not had a relationship with his nieces and nephews since 2014 and is working to re-establish those relationships through phone calls and visits while imprisoned. There is no evidence from the children themselves about how their interests may be affected if Mr De Ruyter was unable to remain in Australia. On the evidence before the Tribunal, it is not possible to differentiate how the individual interests of Mr De Ruyter’s nieces and nephews may differ. If he were repatriated to New Zealand, there is no evidence that Mr De Ruyter’s nieces and nephews could not continue to maintain contact with him by telephone, internet or letter, or travel to see him if they and those performing a parental role so desired.
On balance, the Tribunal accepts there is sufficient evidence to conclude the relationships between Mr De Ruyter, his son, nieces and nephews are genuine, and that there are prospects of him re-establishing a more meaningful relationship with these children in the future. That would clearly be more difficult if he were repatriated to New Zealand.
On balance, the Tribunal finds that the interests of children invoked under this primary consideration, particularly Mr De Ruyter’s son, weigh in favour of visa revocation, although, for the reasons adduced, only slightly so.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Although community expectations are ultimately a matter of judgement for each decision-maker, they turn on the specific circumstances of each case and must be able to be explained.[32] Deputy President Frost of this Tribunal has previously elaborated on the difficulty of distilling the expectations of the Australian community:
…[The Australian community] comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.[33]
[32] Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72].
[33] Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].
Paragraph 6.3(3) of the Direction states that non-citizens who commit serious crimes, including of a violent nature, should generally expect to forfeit the privilege of staying in Australia. Paragraph 6.3(7) of the Direction refers to ‘The length of time a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations.
In considering Mr De Ruyter’s contribution as a non-citizen, the Australian community would acknowledge he has lived here for over 18 years and worked for approximately a year in the construction sector, then seven years in the service and hospitality industries.[34] The community would also note his general, but uncorroborated claim about volunteering to gather donations for Child Vision Australia[35] and for other charities while employed in licenced premises. Weighed against that contribution, however, the community would be concerned by Mr De Ruyter:
(a)committing offences soon after reaching adulthood in 2008;
(b)failing to moderate his conduct after being dealt with leniently by the courts in 2008 and 2015;
(c)committing serious and violent offences over a 13-month period, including his most serious offending soon after his 2015 court appearance, followed by further offences on bail and then while in custody;
(d)his misconduct while imprisoned, resulting in breaches recorded against him;
(e)failing to moderate his conduct on our roads by repeatedly infringing traffic laws between 2007 and 2016.
[34] Exhibit R1, 59.
[35] Ibid.
Tribunal findings: Expectations of the Australian community
The Tribunal concludes that Mr De Ruyter’s criminal conduct and prolonged traffic offending in particular substantially outweighs any positive contribution he has made to Australia. Any sympathy the Australian community may have had for him as a long-term resident has been exhausted.
Informed of the specific circumstances of his case, the broad middle ground of Australian society would consider Mr De Ruyter should not hold a visa, and would expect that the mandatory cancellation of his visa should not be revoked. This primary consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm.[36] Paragraph 14.1 further provides:
(1)       …
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa if the mandatory cancellation is not revoked, it   is unnecessary to determine whether non-refoulement obligations are owed   to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
[36] Direction, para 14.1(1).
The Tribunal has considered Mr De Ruyter’s written and oral submissions about repatriation to New Zealand. In the section of his Personal Circumstances Form asking if he has any concerns or fears about repatriation, he states:
I’am (sic) concerned that if I return to New Zealand, I will have no work accomidation (sic) or support. I fear that I will have no future.
The Tribunal finds that Mr De Ruyter has not raised any claims, nor does the evidence disclose, that Australia’s non-refoulement obligations are enlivened as a relevant consideration in this matter.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr De Ruyter lived in New Zealand for the first ten years of his life and in Australia since October 2000. He completed primary school and attended secondary school in Australia to Year 11.[37] He was charged with his first criminal offence approximately a decade ago in 2008, soon after reaching adulthood, which the court dealt with through a fine and without conviction. He claims to have worked for a year in the construction industry and then in the service and hospitality industries for approximately seven years. When asked about any positive contribution he has made to Australia, Mr De Ruyter claimed that he: ‘volunteered for Child Vision Australia gathering donations in my spare time on the Gold Coast.’
[37] Exhibit R1, 59.
Mr De Ruyter undoubtedly has strong family ties in Australia. His mother, brother, and sister are New Zealand citizens, but have an indefinite right to reside in Australia.[38] Mr
[38] Exhibit R1, 57.
[39] Ibid.
De Ruyter’s son is an Australian citizen and he also refers to a brother-in-law and sister-in law who are Australian citizens married to his siblings. The Tribunal is also satisfied he has five nieces and nephews who are Australian citizens.[39] Mr De Ruyter describes a renewed relationship with close family members and an aspiration to strengthen those relationships in the future, which the Tribunal accepts.
Mr De Ruyter submits through his advocate, that his mother suffers from several chronic health conditions.[40] The Tribunal accepts that submission on the basis of Dr Cameron’s letter. However, there is no corroborating medical evidence to support the submission that those chronic conditions ‘are likely to worsen’ if Mr De Ruyter is repatriated. Nor is there any reliable evidence to support the contention made about ‘longer-term support and assistance’ required by Mr De Ruyter’s mother or that ‘she will likely be unable to travel to New Zealand to see her son.’ The Tribunal accepts that if Mr De Ruyter was at liberty in the community, he may be in a position to assist his mother with medical appointments and other issues. But the evidence before the Tribunal is that Mr De Ruyter’s mother currently lives independently and she makes no claim in her written evidence about any support required from Mr De Ruyter or others in his absence. The Tribunal notes Mr De Ruyter’s mother has two other adult children living near her in Australia and has catered for her medical and other needs independent of Mr De Ruyter following his imprisonment.
[40] Applicant’s Statement of Facts, Issues and Contentions, 2.
Mr De Ruyter submits that his repatriation to New Zealand would put ‘enormous stress, financially and emotionally’ on his family. The Tribunal accepts there would be emotional impact on his family members and friends if he could not remain in Australia. When asked during the hearing about the ‘financial stress’ he was referring to, Mr De Ruyter said if he was repatriated to New Zealand, his family in Australia would have to support him financially.
Tribunal findings: Strength, nature and duration of ties
More weight is given to Mr De Ruyter’s application on the basis of his extended residence in Australia during the last 18 years. The lack of corroborating evidence about
Mr De Ruyter’s employment history and claimed history of fundraising means that less weight is placed on his positive contribution to Australia. In any event, any positive contribution he has made is substantially outweighed by the costs and consequences of his criminal conduct and repeated infringement of traffic laws.
The Tribunal does not accept Mr De Ruyter’s claims about financial stress on his family if he were repatriated to New Zealand. That submission is speculative at best and based on Mr De Ruyter being reliant on Australian relatives for accommodation, living and other expenses. It remains unclear to the Tribunal why, at 29 years of age, with a claimed previous work history in the construction and hospitality industries, coupled with prospects to undertake further tertiary study, Mr De Ruyter would be unable to seek work in New Zealand.
The Tribunal accepts that if repatriated to New Zealand, Mr De Ruyter’s family members and friends in Australia would lose easy access to him and would likely miss him greatly. There is no evidence, however, that Mr De Ruyter’s family members and friends could not visit him in New Zealand or maintain contact with him in other ways should they wish.
On balance, the Tribunal is satisfied Mr De Ruyter has strong family and social ties in Australia, which weighs in favour of revocation.
Tribunal consideration: Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that Australian business interests will be affected by a decision not to revoke Mr De Ruyter’s visa cancellation. This consideration weighs neither for nor against revocation.
Tribunal consideration: Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any direct evidence from the victims of Mr De Ruyter’s offending, the Tribunal finds this consideration weighs neither for nor against revocation.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
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:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr De Ruyter left New Zealand as a 10-year-old child and if repatriated, would lose ready access to his strongest family and social ties in Australia. His aspiration to reconnect more meaningfully with his biological child, nieces, and nephews would also be more difficult. The combined effects of separation from his immediate family, most of whom reside in Australia, and particularly greater geographical separation from his son, would likely cause Mr De Ruyter significant emotional distress.
At 29 years of age, Mr De Ruyter is a relatively young man with a previous history of work in the construction and hospitality industries. He has since taken some rehabilitative steps while imprisoned, including pre-tertiary courses, which may further enhance his employability and study potential. Notwithstanding his uncorroborated claims about suffering psychological conditions, the available information does not support a conclusion that the disabling effect of any condition he may be suffering from prevents him from working. The Tribunal notes his reference to successfully maintaining his medication for the last two years, which would indicate a level of stability in any psychological condition he may have. In any event, the Tribunal considers the availability of mental health services in New Zealand is comparable to that of Australia.

The Tribunal accepts that in Australia Mr De Ruyter would have access to stable accommodation with his mother, employment with his brother, and established support from family and friends. He would likely experience hardship in New Zealand maintaining contact with his family in Australia and building a new circle of friends, while also trying to secure stable accommodation and employment.
Tribunal finding: Extent of impediments if removed
The Tribunal finds that:
(a)there is no language or cultural impediment to Mr De Ruyter’s repatriation to New Zealand;
(b)Mr De Ruyter has work capacity and a skillset enabling him to apply for work in New Zealand;
(c)if Mr De Ruyter were unable to locate work or stable accommodation, there is no evidence he would not have access to the same health, housing services and income support available to all other New Zealand citizens;
(d)the submissions of Mr De Ruyter’s representative that psychological and medical services in New Zealand ‘are not readily available via public health funding,’ and that Mr De Ruyter ‘will not realistically be able to access these services at a time he needs it most,’ are absent any supporting evidence – including reliable diagnoses about any specific conditions Mr De Ruyter suffers from or attendant treatment requirements;
(e)Mr De Ruyter would have access to the same support services available to any other New Zealand citizen; and
(f)on balance this consideration weighs in favour of revocation.
Any Other Considerations
No additional considerations were advanced by the parties or identified by the Tribunal as relevant to the specific circumstances of Mr De Ruyter’s application.
CONCLUSION
Mr De Ruyter does not pass the character test. In determining whether the conditional discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of his case.
Mr De Ruyter’s violent criminal offending is objectively very serious. Were he to repeat his crimes, the harm that may be inflicted on members of the Australian community is potentially very serious. Mr De Ruyter has reoffended despite being the beneficiary of lenient treatment by the courts in 2008 and 2015. He committed serious and violent offences soon after his July 2015 court appearance. After being charged and bailed for those violent offences, he committed further serious and violent offences while on conditional liberty. After his bail was revoked and he was placed on remand, he committed a further criminal offence while in custody. Mr De Ruyter’s evidence during the hearing was that he has also been ‘breached’ by corrections authorities for misconduct, specifically for involvement in two fights in 2017 and 2018.
Mr De Ruyter has committed numerous traffic infringements and driving offences over a decade, attracting fines, licence suspensions for periods of up to two years, and vehicle seizure. Mr De Ruyter’s conduct reflects a prolonged and regrettable disregard for Australia’s laws.
The Tribunal notes Mr De Ruyter’s claims about rehabilitative progress, which all follow the cancellation of his visa in mid-2017. Any such progress is relatively recent and untested in the community. There is no corroborating expert evidence to conclude that the alcohol, drug and other problems Mr De Ruyter says contextualise his offending have been adequately addressed, or that he represents an acceptably low risk of recidivism. The Tribunal concludes there is a real risk of Mr De Ruyter reoffending, which constitutes an unacceptable risk of harm to the Australian community.
Mr De Ruyter’s evidence is that he severed all connection with his family in 2014, including with his biological child, nieces and nephews. The Tribunal acknowledges his aspiration to reconnect with and play a more prominent role in the lives of these children in the future. Less weight is placed on these relationships, however, because

Mr De Ruyter’s role during the last five years has been non-parental and there have been long periods of absence and meaningful contact. Apart from the letter from his son, there is no evidence from the other children (nieces and nephews) about how their interests may be affected if Mr De Ruyter was unable to remain in Australia. It is not possible to differentiate how the interests of these children may differ. That said, the Tribunal accepts that Mr De Ruyter has positive relationships with the children whose interests he invokes. The Tribunal also accepts that there are prospects of him re-establishing a more meaningful relationship with his son, which the letter purportedly from his former partner appears to welcome. Further developing the relationships with his son, nieces and nephews would clearly be more difficult if Mr De Ruyter was returned to New Zealand. This primary consideration weighs in favour of revoking the cancellation of Mr De Ruyter’s visa, but for the reasons adduced, only slightly so.
The Tribunal notes Mr De Ruyter has spent approximately 18 years in Australia as a
long-term resident and has made some contribution through work. But any contribution is substantially outweighed by the nature and seriousness of his offending, and the unacceptable risk of harm he poses to the community. The community would expect the Minister to refuse to revoke the mandatory cancellation of his visa.
Of the other considerations relevant in this matter, Mr De Ruyter has strong and established ties with the Australian community. Although there is no language or cultural impediment to his return to New Zealand, the Tribunal accepts he would lose access to established family and friendship networks in Australia, from which he sources a measure of practical and emotional support. This consideration weighs in favour of revocation.
In contrast to the offer of accommodation and part-time employment he has in Australia, Mr De Ruyter would be confronted by the challenge of finding stable accommodation and employment if repatriated to New Zealand. There is no evidence before the Tribunal, however, that as a relatively young man with a previous work record, Mr De Ruyter could not work in New Zealand. His recent participation in a tertiary preparation course suggests he may be a candidate for further study, which may enhance his employability. Were he unable to quickly secure work or find reliable accommodation in New Zealand, there is no evidence that Mr De Ruyter could not access the same income and housing support available to any other New Zealand citizen. That said, the impediments arising from his possible repatriation to New Zealand are not inconsiderable, and the ‘Extent of impediments if removed’ weighs in favour of revoking the cancellation of his visa.
Having examined the factors for and against revoking the cancellation of Mr De Ruyter’s visa individually and cumulatively, the influential weight of evidence supports a finding that there is not another reason why the decision should be revoked. That is because ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of minor children in Australia,’ which weighs slightly in favour of revocation, and the other considerations of ‘Strength, nature and duration of ties’ and Extent of Impediments if removed,’ which favour revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior member A. Nikolic AM CSC

.........[sgd]...............................................................
Associate
Dated: 21 June 2019

Date of hearing: 11 June 2019

Advocate for the Applicant: Ms Melanie Le Bherz

Advocate for the Respondent: Ms Rachel Law

Solicitors for the Respondent: Clayton Utz

Date of hearing:	11 June 2019
Advocate for the Applicant:	Ms Melanie Le Bherz
Advocate for the Respondent:	Ms Rachel Law
Solicitors for the Respondent:	Clayton Utz