De Veyra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

De Veyra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 223 (16 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7767
Re:Rick De Veyra
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:16 February 2021
Place:Perth

The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated
19 November 2020 not to revoke the mandatory cancellation of the Applicant’s Visa.
.....................[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – assault on a taxi driver – grievous bodily harm – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 31 year old man who arrived in Australia as a 13-year-old child – extent of impediments if returned to the Philippines – impact of COVID-19 pandemic – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(8)
Sentence Administration Act 2003 (WA) – ss 74B, 74D(3)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MJNN and Minister for Home Affairs [2019] AATA 3205
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Department of Home Affairs, Outward Travel Restrictions Operation Directive, version 3
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 6.3(7), 7(1)(b), 8, 13(1), 13(2), 13.1, 13.1(1), 13.1(2), 13.1(2)(a), 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 14, 14(1), 14.1, 14.2(1), 14.3(1), 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
16 January 2021
BACKGROUND

The Applicant is a 31-year-old man who is a citizen of the Philippines.
He first arrived in Australia on 28 November 2002 when he was 13 years of age (G16/71).
On 6 August 2019, the Applicant was convicted in the Perth District Court of Western Australia of the offence of grievous bodily harm, for which he was sentenced to a total term of 16 months’ imprisonment (G10/43). The Applicant has been convicted of seven other offences (comprising five criminal and two driving offences). These will be outlined in further detail under the discussion of the first primary consideration (G10/42-43; R2/23).
On 4 December 2019, the Applicant’s Class BB Subclass 155 – Five Year Resident Return Visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) (G18/75-80) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. This was the sentence for the Applicant’s grievous bodily harm conviction. The Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
On 16 December 2019, the Applicant made representations in support of revocation of the Cancellation Decision (G21; G22).
On 16 June 2020, the Applicant was invited to make additional representations regarding further information that the Department of Home Affairs (the Department) proposed to consider in deciding whether to revoke the Cancellation Decision. This information included the Applicant’s national criminal history check, sentencing remarks dated

29 November 2019 and incoming passenger cards where he did not declare his convictions (G19). Through his migration agent at that time, the Applicant made additional representations on 9 July 2020 (G24) and 24 August 2020 (G25).
He was again invited to make additional representations on 16 October 2020 (G20) regarding a Western Australia police statement of material facts dated 19 September 2019 (concerning breaches of a family violence restraining order) and prisoner performance feedback created 14 December 2019 that the Department proposed to consider. The Applicant made further representations (G26).
However, after considering the Applicant’s representations, on 19 November 2020 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G9/26). This is the Reviewable Decision currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant was notified of the Reviewable Decision in a letter dated 24 November 2020 delivered by email to his authorised recipient (G9/23). Therefore, he is taken to have received it by the end of the day on 24 November 2020 (reg 2.55(8) of the Migration Regulations 1994 (Cth)).
On 25 November 2020, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the

Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 24 November 2020, meaning that the Tribunal must hand down a decision with respect to this application on or before 16 February 2021.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).
THE HEARING AND THE EVIDENCE
This application was heard on Friday 29 January 2021 and Monday 1 February 2021. The Applicant appeared by videoconference from immigration detention on both days.
The Applicant was represented by Ms A Graziotti and the Respondent was represented by Ms E Tattersall. Both Ms Grazziotti and Ms Tattersall appeared in person on the first day of the hearing. However, following the announcement of a COVID-19 lockdown on Sunday

31 January 2021 in Western Australia, they appeared by Microsoft Teams on the second day of the hearing.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called his sister (TR), his friend (M), and another friend (N) to give evidence on the first day of the hearing. Clinical Psychologist, Dr Phil Watts, gave evidence on the second day of the hearing. All witnesses gave evidence by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC), dated 18 January 2021 (Exhibit A1);
(b)Applicant’s bundle of evidence, comprising pages 1 to 74 (Exhibit A2);
(c)Applicant’s supplementary bundle of evidence, comprising pages 75 to 111 (Exhibit A3);
(d)
section 501G documents (G-documents) numbered G1 to G47, comprising

223 pages (Exhibit R1);
(e)Respondent’s supplementary documents numbered 1 to 5, comprising 116 pages (Exhibit R2); and
(f)Respondent’s SFIC, dated 17 December 2020 (Exhibit R3).
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) 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.
Section 501(6) of the Migration Act provides that:
(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 …
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under
s501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with

paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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 non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(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)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(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 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.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)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.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

The Applicant does not dispute that he does not pass the character test (A1/3, para [20]).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As a result of the Applicant’s conviction of grievous bodily harm on 6 August 2019, for which he was sentenced to a total term of 16 months’ imprisonment, the Applicant does not pass the character test.
The Tribunal agrees that the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act.
Accordingly, the Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
(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. …
Paragraph 13.1(2) of Direction No 79 then provides:
(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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) and 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 provides:
(1)In considering the nature and seriousness of the 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 very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)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);
i)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;
The Applicant has been convicted of the following offences (G10/42-43; R2/23):
(a)Driving under the influence of alcohol, with the specific offence being “exceed 0.08g alcohol per 100ml of blood” on 3 February 2009, for which he received a $500 fine and had his licence cancelled for 4 months. This offence occurred on 22 December 2008 (R2/16) when the Applicant was on his red P-plates and was driving some friends home after a night out. He was stopped by police and charged with drink driving (A2/22-23, para [6]-[8]).
(b)“Possess a prohibited drug (cannabis)” on 8 July 2011, for which he received a $500 fine. The Detected Incidents Report records that during a routine traffic stop police suspected the three occupants of the car the Applicant was driving had been smoking cannabis. Police searched the vehicle and found cannabis leaf material and a smoking implement (R2/29). The date of the offence was 14 April 2011.
(c)“Assault driver of passenger vehicle” on 31 January 2012, for which he received a $2000 fine. The date of the offence was 18 September 2011. The Police Detected Incidents Report records the facts as follows (R2/28):
The victim is a taxi driver. …
Whilst he was picking up a group of people in his maxi taxi at about 0400hrs on the 18 Sep 2011 and [sic] male person not known to the group got into the front of the taxi.
The victim told him to get out as he was not part of the group but the [Applicant] became aggressive and pushed the victim in the face. He then got out and went around to the drivers [sic] side door and began pushing the taxi. The victim opened the door to get out of the taxi and the [Applicant] spat at the victim hitting him in the shoulder and left cheek.
Taxi rank security staff observed the incident. The [Applicant] went to punch the victim so the victim reached out to grab him and he ran away. The victim gave chase but only for about 30 metres then police chase the [Applicant] and caught him. …
(d)“Unlicensed vehicle (Owner/driver)” on 4 July 2012, for which he received a fine of $100. This offence occurred on 25 May 2012 and involved the Applicant driving his car without his vehicle being licensed (R2/10). In his written statement the Applicant explained that he had moved to a new house and had not updated his mailing address. Consequently, he did not receive his vehicle license renewal notice and so did not realise that his vehicle license had expired (A2/23, para [14]).
(e)“Give false details to police” on 20 October 2017, for which he received a $200 fine. This offence involved the Applicant giving a false name and false date of birth to police (R2/8) and was committed on the same night as the grievous bodily harm offence on 9 September 2017.
(f)“Grievous bodily harm” for which he was sentenced to a term of 16 months’ imprisonment on 6 August 2019. The date of the offence was 9 September 2017. The facts of this offence were summarised in the following sentencing remarks of his Honour Gething DCJ (G11/45-46):
In summary, on the evening of … 9 September 2017, the victim, [name omitted] and his girlfriend were leaving the [name omitted] Nightclub at around 2.50 am to meet their Uber driver. The victim and his girlfriend had been drinking alcohol that night and were slightly unsteady on their feet.
Immediately prior to [the victim] exiting the bar, you had been in an agitated, aggressive stance and had an altercation with another man, requiring a friend to calm you down. Shortly after this, the complainant became aware that some men were beginning to mill around him.
He felt instinctively that the vibe was aggressive. Conscious of the fact that he was inebriated and not at all in a position to defend himself, he sought to diffuse the situation, waving another away and saying, “Chill out. It’s not worth it”.
At around 12.55 am, a woman started berating [the victim’s] girlfriend then, without warning, you fast approached the complainant and punched him to the face with a right fist. The complainant dropped to the ground while you maintained an aggressive stance, shaping up. The complainant got unsteadily back to his feet with his back to you. You then approached the complainant from behind.
For a second time, without warning, you launched at the complainant, punching him with your right fist and making forceful contact with the right side of his face.
The complainant, [name omitted], had no indication of this second impending assault and no means to defend himself. He fell to the ground momentarily unconscious. Your friends moved towards you and corralled you away from the scene and then you left the scene. Now, the offences were recorded on CCTV which I have watched.
Now, when the victim regained consciousness, he and his girlfriend go into the Uber and drove away and later he was taken to Royal Perth Hospital and treated for serious injuries which I will refer to shortly. Police arrested you an hour later and you were conveyed to the Perth Police Station to be photographed, however, given you were highly intoxicated, you were conditionally released.
You were later arrested on 26 October and you were interviewed under caution. You made no comment as to the incident after being shown the CCTV footage of it and you told the police you couldn’t make out anything or anyone.
You told the author of the pre-sentence report that at the time of the incident, you recall standing outside the nightclub with your friends. The victim came up and started making some derogatory comments. Whilst you say that the victim made negative comments to you and your friends, you accept that the victim did not deserve what happened to him.
(g)Two counts of “breach family violence restraining order or violence restraining order”, for which he received a global $750 fine for each offence. The date of both offences was recorded on the Applicant’s List of Criminal Court outcomes as being 12 June 2019 (R2/23). The records of these offences state that these offences involved the Applicant attempting to telephone his former girlfriend, S, on three occasions on 24 June 2019 and on four occasions on 3 July 2019 (G14/60-61; R2/1-2). S answered the phone on the Applicant’s fourth attempt to contact her on 3 July 2019. At the time of these offences the Applicant was in prison.
Paragraph 13.1.1(1)(a) of Direction No 79 provides that violent and/or sexual crimes are viewed very seriously. Accordingly, the Tribunal finds that the Applicant’s grievous bodily harm offence and his assault driver of passenger vehicle offence should be viewed very seriously. The seriousness of the grievous bodily harm offence is also demonstrated in the sentencing remarks. His Honour Gething DCJ referred to the serious, cowardly and unprovoked nature of the offence against a member of the public who was not known to the Applicant and who posed no threat to him, and the vulnerability of the victim after the first punch. His Honour stated (G11/47):
Now, there are three factors which reflect the seriousness of your offending. The first is the nature of the attack against [the victim]. Your attack was unexpected and unprovoked. [The victim] had no opportunity to brace or defend himself.
You struck two blows both striking his face. With your second punch, you approached [the victim] from behind, leaving him in a very vulnerable position after having received your first punch and with no anticipation of the attack.
The fact that there was a second punch means that there was a degree of persistence in your attack. It’s readily apparent from the CCTV footage that your blows were forceful. The blows you delivered had the potential to inflict serious injury to [the victim], including a risk that he would suffer head injury and risk that he would die.
The second is that there’s nothing in the background to the circumstances of the offending which goes any way towards explaining the attack, in particular the intensity of your attack.
You and the victim were not known to each other and it appears to be a random attack on a stranger. It is apparent from the CCTV footage that you and your friends approached the victim and his girlfriend, outnumbering them.
You appeared to be very intoxicated and aggressive both during and after the incident. Your attack was cowardly, entirely unnecessary and completely unprovoked. The victim was posing no threat to you. It can be characterised as a violent and senseless attack caused by alcohol and anger. In no way was your assault excused or justified.
Third is the nature of the resulting harm to [the victim] and that was serious. He was rendered momentarily unconscious by the second punch. He was taken to Royal Perth Hospital, as I’ve said, and treated. When he arrived at the hospital, he required wheelchair assistance as he was unable to walk or talk coherently.
His Honour continued to describe the serious injuries suffered by the victim which were potentially life threatening, and the impact of the offence on the victim’s life. This further illustrates the very serious nature of the offence (G11/47-48):
Examination revealed a large contusion to his forehead, concussion and a fractured jaw. [The victim] suffered a broken jaw which required two surgical plates and he also had to have two wisdom teeth removed due to them being in the area where his jaw was cracked.
According to the attending doctor, the injuries sustained by him were potentially life threatening and could have caused permanent injury to his health in terms of disfigurement, malocclusion and chronic pain.
Now, I’ve read [the victim’s] victim impact statement. To this day, he continues to struggle with his memory as a result of receiving blows to his head. In terms of his mental health and wellbeing, [the victim] states the events of the offending are constant in his day-to-day life. He’s anxious to be out in public places for long periods of time and has not yet built up courage to go out alone.
As a result of the incident, [the victim] had to take months off work to recover from his injuries and ultimately this resulted in him losing fulltime employment so your offending has had a serious impact on [the victim’s] life, so while the injuries sustained by [the victim] were towards the lower end of the scale of seriousness for injuries that can constitute grievous bodily harm, your offending was nonetheless serious.
Paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that can be regarded as serious. The Tribunal has often regarded driving offences to be of a very serious nature. Road traffic laws are in place to protect the community, including innocent road users, from harm. There is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol, or at the very least for a driver’s judgment and reflexes to be impaired. This can result in road traffic accidents which can have very serious consequences for other innocent road users and pedestrians, including injury or death (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45]; and MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]).
The Tribunal views the Applicant’s “exceed 0.08g alcohol per 100ml of blood” offence to be serious but notes that this offence was committed approximately 12 years ago and there has been no similar offending since that time. Whilst the Applicant drove an unlicensed vehicle in 2012, again, this was approximately nine years ago. This offence appears, from the Applicant’s explanation, to be the result of a lapse in his annual renewal due to a change of address. There is no evidence that the vehicle was unsafe or unroadworthy, and consequently the Tribunal regards this offence to be of a less serious nature.
Paragraph 13.1.1(1)(b) of Direction No 79 provides that violent offences against women or children are viewed very seriously, regardless of the sentence imposed. Although the Applicant has two convictions for breaching a violence restraining order protecting a former girlfriend, S, the breaches were phone calls and there was no threatened violence. As violence restraining orders are in place to protect women and children from violence and intimidation, any breaches should, in the Tribunal’s opinion, be regarded as serious under paragraph 13.1.1(1)(a) of Direction No 79. However, there is no evidence before the Tribunal of the Applicant committing any violent offences against his former girlfriend, or any other women before the Tribunal. Consequently, paragraph 13.1.1(1)(b) of Direction No 79 is not applicable to the Applicant.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community, or government representatives or officials in the performance of their duties are “serious”. This is not applicable to the Applicant.
Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the courts for a crime or crimes. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162 Senior Member Poljak stated at [22] that: “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”.
Except for the grievous bodily harm offence, all the Applicant’s offences have been dealt with by way of fines (and a driving disqualification). This indicates that these offences were regarded by the sentencing Magistrates as being less serious in nature and capable of being adequately dealt with by the imposition of fines. It should be noted here, however, that the Tribunal regards the “assault driver of passenger vehicle” offence for which the Applicant received a $2000 fine as nevertheless being serious despite the lack of a prison sentence. This is because it involved violence against a taxi driver (pushing him in the face and spitting on him).
As noted above, the Applicant was sentenced to a total term of 16 months’ imprisonment for the grievous bodily harm offence, with eligibility for parole after serving eight months (G11/52-53). In sentencing the Applicant, his Honour Gething DCJ stated (G11/52):
I am satisfied the seriousness of your offending is such that only imprisonment can be justified as a sentence. I’m also satisfied the protection of the community requires you to serve a term of imprisonment. That term of imprisonment will be a term of 16 months.
…
… I am of the view that the seriousness of the offending means that only an immediate term of imprisonment is appropriate.
And the seriousness of the offending outlined means that I’m positively satisfied it’s not appropriate to suspend that. I’m also positively satisfied that a fine, even a fine in the sorts of the amounts [the Applicant’s counsel] was suggesting, would not be sufficient to give effect to what is a very serious offence and a very strong need for there to be offences – or be a sentence reflecting general deterrence.
I am going to make you eligible for parole. In my view, it’s clearly in the interests of the community for you to have a graduated release into the community and supervision under the supervision of Community Corrections officers.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79). The Applicant has only committed eight offences between 2009 and 2019 and his offences are not, in the Tribunal’s view, frequent. There have been gaps in his offending. These included: a gap of approximately two years and four months between his drink driving offence and his cannabis offence; and a gap of approximately five years and three months between his unlicensed vehicle offence and the grievous bodily harm and false details offences. There is, however, an overall increase in seriousness when the totality of the Applicant’s offending is considered. For example, the Applicant’s grievous bodily harm offence in September 2017 was at a higher level of seriousness than his assault on the taxi driver in 2012 in terms of the level of violence and injuries sustained by the victims. Indeed, the Applicant’s Parole Review Report dated 4 February 2020 stated that, “[h]is current offences [grievous bodily harm and two breaches of violence restraining order] display a clear increase in the severity of his offending behaviour” (R2/52).

With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), as noted above, the Applicant does not have a lengthy court history and he has only served one term of imprisonment. Therefore, the Tribunal finds that there would only be a slight cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards (paragraph 13.1.1(1)(g) of Direction No 79). When he re-entered Australia from Singapore on 6 February 2017 and again on 12 August 2017, the Applicant ticked the box marked “no” in response to the question, “[d]o you have any criminal conviction/s?”, on his incoming passenger cards. This information was incorrect because at that time the Applicant had four convictions for which he had received fines and a driving disqualification. The Applicant’s explanation was that he had made a genuine mistake because he thought that only convictions resulting in a term of imprisonment needed to be disclosed (A2/27, para [44]). The Tribunal accepts the Applicant’s explanation and therefore does not made an adverse finding under paragraph 13.1.1(1)(g) of Direction No 79.
The Applicant did not previously receive any formal or other written warnings that further offending may affect his migration status (paragraph 13.1.1(1)(h) of Direction No 79) and so this consideration is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crimes while in prison or immigration detention, for example during an escape from immigration detention. This is not applicable to the Applicant.
Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offences, particularly the grievous bodily harm offence (noting his term of imprisonment and the serious injuries suffered by the victim, as well as the ongoing impact of the offence on the victim’s life), and also the assault on the taxi driver, to be very serious. So too was the offence involving driving under the influence of alcohol, although this offence occurred approximately 12 years ago. Overall, taking into account that the Applicant does not have a lengthy criminal history, the gaps in his offending, and the fact that there is some escalation in the seriousness of his offending, the Tribunal finds that paragraph 13.1.1 of Direction No 79 weighs very strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) and 13.1.2(1) of Direction No 79)
A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)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).
Nature of harm
Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 13.1.2(1)(a) of Direction No 79).
The harms suffered by the victim of the Applicant’s grievous bodily harm offence, as described by his Honour Gething DCJ in his sentencing remarks, are indicative of some of the types of harm that victims of violent offending may suffer. As noted by his Honour, the injuries caused by violent offending can be potentially life threatening and can cause permanent injury to health “in terms of disfigurement, malocclusion and chronic pain” (G11/47-48). Additionally, the victim of the Applicant’s grievous bodily harm offence had to take months off work to recover from his head injuries, ended up losing his full-time employment, and continued to struggle with his memory as a result of receiving blows to the head (G11/48). This is indicative of the physical, financial and emotional impact that victims may suffer as a result of this type of offending. There is also a burden, both financial and emotional, on the loved ones and the family members of victims who may have to provide additional care and support to victims following a violent assault. The aftermath of violent offending also includes possible psychological trauma and conditions including, but not limited to, anxiety and depression. For example, at the time of sentencing, the victim of the Applicant’s grievous bodily harm offence felt anxious when he was out in public and had not been able to go out alone (G11/48).
Should the Applicant drive under the influence of alcohol again, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, and possible psychological harm. As noted above, the Applicant’s offence for driving under the influence of alcohol was committed approximately 12 years ago and has not been repeated. The Tribunal is of the view that there is a minimal to low possibility of the Applicant committing a similar offence again. However, that risk would be elevated if he relapsed to alcohol use, which has been a problem for the Applicant in the past and, as will be discussed below, is linked to his violent offending.
Likelihood of engaging in further criminal or other conduct
Next, the Tribunal is required to consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
No 79).
In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as by Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117,
124–5 [42]-[43]):
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.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational”. Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the likelihood of reoffending as requiring a “rational and probative basis”.
As noted above, the Applicant does not have a lengthy criminal history, with only eight offences over a 10-year period. There are gaps in his offending, most notably a five year and three-month period between 2012 and 2017 which indicates that the Applicant is capable of not offending for a period of time. It is of concern however, that the Applicant’s offending has escalated in seriousness.
The Applicant has also demonstrated remorse for his offending. Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. In his written statement the Applicant said of his grievous bodily harm offence (A2/25, para [30]):
I am sickened by my actions on that night. I truly am. Even if I wasn’t to be incarcerated for what happened that night, I can genuinely say I would be just as embarrassed and remorseful as I am today. I’m not sorry because of where it has put me today. I am sorry because it is so far from the kindhearted, honest, and hardworking family man I prided myself on being. It was so out of character and I am ashamed of the person I became in that very short moment and all the events that unfolded that night.
The Applicant further stated his remorse and his belief that he had matured (A2/34, para [93]-[96]):
I acknowledge my wrongdoing and that saying sorry is not enough. My actions caused harm to the Australian community and that is inexcusable.
I do not take my offending lightly. It is against my upbringing and my principles to have disregard for the law. What I did was wrong, it is not a reflection of my beliefs. It was a really a [sic] stupid mistake. I am usually a hardworking and honest productive member of society and I always have been. I want to throw myself back into being that person again.
I hope you consider all the factors in my case, and that it becomes clear that my offending behaviour was out of character and that I committed my crime because I was reckless, immature and in denial about my alcohol consumption, not because I am someone who does not care about the law.
I have thoroughly reflected on what I did and have matured a great deal from it. I am not the same person who committed those offenses. What I have gone through has made me stronger mentally and physically, than ever before. This time has prepared me to be accepted back and be a better member of the community.
He reflected on the cause of his grievous bodily harm offence, which he attributed to the pain that he was feeling after his partner suffered a miscarriage (A2/25, paras [24]-[26]):
The main contributing factor I have identified as being the root cause of my aggressive behavior [sic] the night of this offence was the pain I and my partner [C, full name omitted] were suffering when she miscarried. This happened only months before this offence took place. When this initially happened, it took a huge toll on our relationship emotionally. I would imagine that for most couples an event like a miscarriage is hard but most couples bounce back quite quickly. But for us, having a child of our own has always been the key part of mine and [C’s] life plans. So when this happened it really shook us. Seeing [C] go through the pain of the miscarriage, taking her to hospital, knowing she was in hospital for a few days, and then the emotional trauma was very hard for me to see and deal with.
At this point of my life I didn’t know how to express my emotions, or open up and become vulnerable. I could never speak to anyone about my experiences and feelings. As I have stated previously, drinking was always my coping mechanism. I now recognise this was a negative and toxic response but at the time it was the only way I knew how to numb my feelings. Counselling has since made me see everything that went wrong in retrospect.
Couple months went by, and I thought I was in good place, so when an opportunity to catch up with friends arose for a social gathering, I thought ok why not. What I wasn’t aware of at this time was my feelings in this matter were not resolved at all. I hadn’t spoken to anyone about them I had just bottled them up.
As well as having good behaviour in prison (R2/53), the Applicant also described using his time in prison to reflect on his offending behaviour and that he came to the realisation that he needed to better express his emotions (A2/26, para [31]):
From the endless hours I've spent reflecting on this night I have learned so much about myself and about life in general. I have learnt to acknowledge my emotions with the respect they deserve, during my time of incarceration/detention center [sic] and for the first time in my life I can honestly say I now know how to properly communicate how I am feeling with my support network and address any mental health issues as soon as they arise. This is an important lesson to have learnt for me because its holding in my feelings like I always did in the past that led to them being bottled up and in times like when me and [the victim of the grievous bodily harm offence] crossed paths those feelings led to me losing control and turning to anger as it did that night
In the following statement, the Applicant further described the salutary effect imprisonment had on him (A2/34, para [90]):
As odd as it may sound, being incarcerated was a blessing in disguise for me. The direction I was heading was toxic and unsustainable and I had started to lose my way. I now view being incarcerated as a sign and something that needed to happen. It enabled me to stop and review where my life had headed and where I went wrong.
From the moment I was incarcerated to this day, I see all the measures I have taken as somewhat a journey of self-discovery. Not only I am back to my old self, I am more motivated than ever and physically in the best shape of my life.
When sentencing the Applicant for the grievous bodily harm offence, his Honour Gething DCJ accepted that the Applicant was remorseful (G11/49):
Now, I’m able to take into account remorse and other subjective considerations in addition to your plea of guilty. Remorse, if it’s to be mitigating, at least requires a realisation by you that what you did was morally wrong and some sign of sorrow for the impact and the consequences of your offending. So I’m satisfied you have a measure of genuine remorse for your offending.
It’s clear from the pre-sentence report you took full responsibility for your offending and would like the opportunity to apologise to [the victim]. In your interview with the author of the pre-sentence report, you acknowledged that he did not deserve what happened to him and you were shocked by your behaviour.
The writer of the pre-sentence report stated that in the Applicant’s pre-sentence interview on 8 May 2019, the Applicant “engaged in meaningful discussion, and reflection on the triggers of his offending behaviour”. The report writer recorded that the Applicant stated,

“‘I take full responsibility and I am really sorry for what I have done. If I can apologise to him (the victim) I would, to show I am sorry’” (R2/20).
The Applicant has stated that his fear of deportation and being separated from his family, which if he is permitted to stay in the Australian community, may assist to motivate him to abstain from alcohol and not to reoffend (A2/32, paras [81]-[82]):
Family for me, comes second to none. They literally are my everything which is why I cannot even begin to imagine a new life back in the Philippines without them. The whole concept of being deported and separated from them all makes me feel deeply lost and alone.
Facing possible deportation and the idea of being separated from my entire family really is an eye-opener to say the least. Friends over the years will come and go I’ve learnt, but at the end of the day it is family who will stand by you. Love you. And support you through thick and thin. Like they have throughout this whole ordeal. I would be devastated to have to give up the privilege of having my whole family around in my life and to be a positive part of theirs.
The Applicant’s friends and family members have expressed an intention to support him if he is able to stay in the Australian community (see generally various letters and statutory declarations from friends and family in A2; A3; G27-G29; G31; G37-G45). For example, the Applicant’s brother, RO, stated that (A3/93, para [13]):
If [the Applicant] gets released to stay here with his family in Australia, as an older brother I will do whatever it takes to support him, I will be there for him a lot more as I have failed once and it will not happen again.
His sister, TR, also stated that she would support the Applicant if he was given the opportunity to stay in Australia (A2/20, para [13]):
If [the Applicant] gets a chance to stay here in Australia with his family, I would support [the Applicant] by any means possible, same as he would for me, to ensure he continues on the right path and does not struggle along the way setting up his brand new life.
Support from family and friends may offer some protection for the Applicant to assist him to reintegrate into the community, to abstain from alcohol and to not reoffend. The various statutory declarations from friends and family state that the Applicant and his family are very close. This was confirmed in the evidence at the hearing by the Applicant, his sister TR and his friend M (transcript/26, 28, 70-71, 72, 77, 78), who each described the family as being close knit. Yet, despite having this support from family and friends in the past, the Applicant has offended. However, as noted above, his friends and family members have observed the Applicant to be more open and willing to discuss his emotions and problems, which may make their support more protective than previously. Additionally, his family members are generally aware of his offending and his issues with alcohol consumption.
The Applicant’s increased willingness to talk about his problems and to seek help may also be a protective factor for him. This is demonstrated by his engagement with the prison chaplain whilst he was serving his term of imprisonment for the grievous bodily harm offence. In a letter of support, the chaplain stated (G33/164):
... I have been meeting regularly with [the Applicant] since August 2019 when he made the effort to engage with chaplaincy for support.
I have enjoyed my meetings with [the Applicant] and have found that he has been open about his struggles and how he now has a different perspective on life. I believe he has come to the point of taking responsibility and has been working hard to make positive changes in his life. I believe he has learnt lessons from his past mistakes. He is intentional about becoming the best person he can. I have found [the Applicant] to be genuine in his approach about life.
The evidence before the Tribunal indicates that some of the Applicant’s friends and family are of the opinion that he has changed and matured. For example, his sister TR, stated (A2/19, paras [7]-[8]; see also transcript/72):
… [the Applicant] deeply understands and dearly regrets what happened on that night and his previous misconducts and has since taken steps to ensure this would never happen again. [The Applicant] has vouched to fix his life when he will be given another chance to start fresh with the things that he would like to accomplish. He is planning for a better future here in Australia and has plans for it to succeed to make up for his past mistakes.
I understand the gravity of grievous bodily harm and why his sentencing was so harsh. Nevertheless, [the Applicant] has learnt from this experience and since cannot wait to make up for his lost time, here in the WA Community. [The Applicant] has no violent nature …
A further example can be seen in the following statement from his friend, N (A2/16, para [9]):
After having conversations with [the Applicant] at detention centre, he has demonstrated through our conversations a mature, responsible attitude and positive outlook on life. He is now able to communicate a mature, responsible attitude and a positive outlook on life. He is now able to communicate and articulate his feelings and emotions as well as his inventions very clearly and precisely. I have never heard him speak soopenly [sic] before and this is my opinion is because of the different courses he has completed to ensure he improves his state of mind, attitude and strategies to deal with life and situations that arise. It became very evident to me as to why [the Applicant] had drank so much and eventually led to him offending. I came to understand his hurt and disappointment of his partner miscarriage the impact it had on his mental state of mind and how he did not have the ability and strategies at the time to deal with such an ordeal. Through our conversations, he has stated that he is committed to a positive lifestyle by continuing with AA groups and [h]as asked me if I could support him by having consistent chats when he visits. I assured him that I will support and help guide him. He has also shown how he has grown spiritually and how his sense of right and wrong has changed. Normally when discussing religious topics, [the Applicant] never really responded positively. His conversations have impressed me by the way he has empathy [a]nd sympathy for others.

The Applicant’s friend N also said in her written statement that (A2/15-16, para [6]-[8]):
When speaking to [the Applicant], while being in prison and in the detention center [sic], he is very remorseful and has since grown in his outlook of life and how he should approach situations. He has stated that he learnt from his mistakes …
… I know he is very remorseful, grown in his ability to problem solve and is looking forward to resuming life as a good law abiding resident of Australia.
Further, the Applicant’s friend M, said in her written statement (A2/9, para [10]):
I’ve witnessed his perspective changed. He started owning up to his mistakes. He started thinking differently in a way that you can tell he wanted to do better.
M had previously refused to give the Applicant a reference for a past citizenship application. She had difficulty recalling when she had been asked, initially estimating 2015, but confirming that it was sometime prior to the grievous bodily harm offence being committed. M explained (transcript/91):
He asked me to sign his citizen papers to become an Australian and I said no, because I felt that he wasn't right in himself. He needed to get basically, in my words, get his act together, and I said no. But in this case, that's why I had more of in depth conversations, and for that reason I feel that now, yes, I will write that.
However, it appears that M had only spoken to the Applicant in any depth in the lead up to writing her statement dated 15 January 2021 and that prior to that time her conversations with the Applicant took place when the Applicant spoke to her son on the telephone. M also gave evidence that those conversations were of a fairly general nature and were not

in-depth (transcript/90). M’s in-depth conversations with the Applicant came at a time when he wanted her to write a reference in support of the revocation of the Cancellation Decision. This timing raises some doubt as to the genuineness of the Applicant’s assertions to M and the accuracy of M’s perceptions based on those conversations.
Despite the Tribunal’s reservations about the evidence of M, it does appear to the Tribunal that the Applicant is genuinely remorseful for his offending. However, in the Tribunal’s view, some of the Applicant’s evidence tended to indicate that he was trying to minimise some of his offending which raises doubts about his level of remorse and his insight into his offending.
For example, with respect to the offence of driving under the influence of alcohol the Applicant identified, “the primary contributing factor to have been peer pressure from negative social peers”. He also stated that he “was pressured to be the means of transportation at the end of the night” (A2/22, para [6]; see also transcript/14).
Further, with respect to the cannabis offence the Applicant said that he picked up two friends in his car who had been smoking cannabis, and that because his friends did not want to “own up” he pled guilty. The Applicant also stated that he pled guilty because he was the driver of the car and because he thought that “it was [his] responsibility to know what’s in [his] car at all times”. The Applicant further stated that, “[t]he only factor in this offending was my foolish notion to be loyal to friends who did not deserve it” (A2/23, para [9]-[12]).
With respect to the assault on the taxi driver, the Applicant denied deliberately spitting on the taxi driver, but stated that he pled guilty because he had pushed the taxi driver (A2/24, para [19]). He stated (A2/24, para [18]):
As we got to our feet I felt like vomiting again so I spat next to me. This is where the victim claims it landed on his shoulder. I was spitting to clear the taste from my mouth. It has always been my belief that spitting on someone is considered the lowest display of disrespect and I would like to clarify that this was not the case at all in this situation.
The Applicant also sought to attribute some of the blame to the victim of the grievous bodily harm offence. In his written statement he said (A2/25, para [28]):
In the judge’s transcript it is mentioned that me and the group of people I was with approached the victim and that the attack was unprovoked. From my recollection, [the victim] was, like me also intoxicated, and without any apparent reason he randomly started to make rude comments about the group I was with, calling us a bunch of animals and were too loud and this is when we approached him. I should have just ignored him and walked away. I know that now. But my fragile state of mind combined with my alcohol use, made what he was saying turn my emotions from upset to aggressive in a split second. And in a brief lapse of judgment, I saw red and struck the victim in the face. When he got to his feet, I struck him again.
This explanation from the Applicant is somewhat at odds with the sentencing remarks of Gething DCJ. Specifically, his Honour observed that “[w]hilst you say that the victim made negative comments to you and your friends, you accept that the victim did not deserve what happened to him”. His Honour went on to state that the “attack … was completely unprovoked” and that “in no way was [the] assault excused or justified” (G11/47).
Also, of concern is the Applicant’s inconsistent evidence about when, what and how he remembered the events of the grievous bodily harm incident in the days and weeks following that incident (see transcript/56-59). The Applicant was so intoxicated that after police took him to the police station he was vomiting and incapable of being interviewed. The Applicant recalled being at the police station but stated that he could not remember the offence the following day. He also stated that viewing the CCTV footage when he was arrested the following month clarified that he committed the offence. Although the Applicant admitted that he spoke with his cousin, N, who was with him at the time of the offence, about what had happened, it was unclear when this conversation took place. It was also unclear as to exactly what facts the Applicant remembered, saw on CCTV, or was told about by N. It seems unlikely that the Applicant would remember any details about the offence such as whether the victim made any derogatory comments towards him, and the specific nature of those comments if he did not recall the offence until he was told about it by N, or until he saw the CCTV footage. Curiously, although N was present during the grievous bodily harm offence, he does not mention he was present in his statutory declaration, despite listing his awareness that the Applicant received a 16-month sentence for grievous bodily harm. Thus, the Tribunal has some doubts about whether the Applicant actually remembers the victim making derogatory comments (noting that his Honour Gething DCJ stated that the attack was unprovoked), whether he adopted a narrative put forward by N (noting that N’s evidence was silent about witnessing the offence), or whether the Applicant himself decided to minimise his grievous bodily harm offence by putting forward a version of events that suggested he was provoked by the victim.
With respect to the Applicant’s prospects of rehabilitation, when sentencing the Applicant for the grievous bodily harm offence, Gething DCJ stated (G11/50):
… you’ve also begun the process of rehabilitation by addressing your problems with alcohol. Other than that, you appear to have a degree of stability in your life with a fulltime job and stable employment.
So overall I accept that your prospects of rehabilitation are good and that this experience has been salutary and you’re unlikely to offend in the same manner in the future.
When the Applicant was in prison he was rated as having an above average work readiness score (G15/62-65). The Tribunal notes that the Applicant has some employment prospects should he be released into the Australian community. His aunt stated that, “[m]y family and I are in the process of starting a courier business in the next six months and will hopefully, with [the Applicant’s] experience, employ him full time” (A2/3, para [13]). In a letter dated

8 January 2021, a family friend stated that he had interviewed the Applicant for a position as a pump installer and that the position was “again available for him at the moment, should he be released from detention” (A2/1). His friend M gave evidence at the hearing that she is an employment consultant and could assist him to find employment (transcript/78-79). If the Applicant can gain employment and make meaningful use of his time, it may assist his reintegration, and reduce the likelihood of his reoffending. The Tribunal notes the submissions from the Applicant’s legal representative in this regard (A1/16-17, paras [98]-[102]). The Tribunal makes this observation, however, with some caution because the Applicant has been employed since he was approximately 15 years of age until he began his prison sentence in August 2019 (A1/16, para [97]), and yet he still committed offences.
With respect to formal measures concerning the likelihood of reoffending, an individual management plan dated 18 December 2019 (G15/67) records that when the Applicant went to prison he was assessed using the “Risk of Reoffending – Prison Version (RoR-PV)” as “not recommended for criminogenic programs at this time due to low risk of reoffending”. In a parole review report dated 13 February 2020, it was also noted that the Applicant was “a low risk of general re-offending” (R2/54 and 57), although it was noted that “he may benefit from engagement in voluntary programs that focus on alcohol use” (R2/57). The Applicant only appears to have been formally assessed for general offending, and he did not appear to have been assessed for violent offending. This may explain why a Department of Justice Client event details report records that an “initial case review” was recorded on 6 May 2020 (R2/64) which assessed the Applicant as being a moderate risk of reoffending (R2/66):
[The Applicant’s] ROR score was 3 and ONA score is 12 with moderate needs. When imputting [sic] this data into the harm via severity risk matrix, [the Applicant] is deemed moderate risk of reoffending with harmful behaviour and therefore medium supervision is warranted at this time. His WA court history is fairly limited noting he first came to the attention of Courts in 2009 for alcohol related offending (driving under the influence 0.08). His past convictions have all resulted in financial penalties and it is noted he was convicted of an assault driver of passenger vehicle indicating he has a propensity for violence when under the influence of alcohol, stressed or when feeling provoked. Until [the Applicant] makes gains regarding his alcohol problem, medium supervision is recommended to monitor his risk to others. If predicting reoffending behaviours, worse case [sic] scenario would be for [the Applicant] to re-offending with violence in a like manner, which potentially could cause serious injury or death to a victim. He has gaps in his offending history, however, and this will be his first time on a community order, therefore, imprisonment and ongoing contact with the justice system may act as a deterrent for him.
(Emphasis added.)
When sentencing the Applicant for the grievous bodily harm offence, his Honour Gething DCJ, made the Applicant eligible for parole which he stated would be beneficial for the Applicant (G11/52):
I am going to make you eligible for parole. In my view, it’s clearly in the interests of [the] community for you to have a graduated release into the community and supervision under the supervision of Community Corrections officers.
The Applicant was granted release on parole by the Prisoners Review Board (the PRB) on 5 March 2020, to commence on 5 April 2020, but due to the cancellation of his Visa, he was released into immigration detention before he could benefit from a period of parole supervision in the community. The PRB decided that the Applicant’s “release would present an acceptable risk to the safety of the community” for the following reasons (G30/155):
1.    The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
2.    You having a limited criminal history.
3.    You being assessed as a low risk of reoffending and therefore not meeting the criteria for inclusion in treatment programmes.
4.    Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
5.    You having made a commitment to attend substance abuse treatment interventions with Palmerston to address your offending behaviour.
6.    Your parole plan which includes confirmed suitable accommodation and family and community support.
7.    The fact the conditions of parole will further reduce the risk to the safety of the community.
8.    The Board notes that your visa was cancelled on 4 December 2019 and you will be taken into immigration detention however you have applied for revocation of the cancellation. The Board considers that you have a viable parole plan if the application is successful.
A grant of parole is not made on the basis that there is no likelihood of the parolee

reoffending. Rather, a grant of parole is made on the basis that any risk to the safety of the community can be managed through regular reporting and the imposition of specific conditions. This is coupled with the possibility of a return to custody to serve out the balance of the prison term in the event of breach of parole (see Deputy President Boyle in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256, [75]-[77]). Thus, in addition to the standard conditions of parole, the PRB imposed the following additional requirements (G30/156):
1.    To have no direct or indirect contact with the victim.
2.    To attend for random urinalysis for all illicit substances and alcohol as directed by the Community Corrections Officer and provide a valid sample.
3.    Not to consume alcohol.
4.    Not to enter licensed premises except cafes, restaurants and sporting venues or grocery stores which may have a liquor licence, but no purchase of liquor permitted at any venue.
5.    To submit to random breath testing as required by Police.
6.    To attend programmes and counselling as directed.
7.    Not to change address without the prior approval of the Community Corrections Officer.
8.    To engage in employment and/or training as directed.
In summary, the parole order indicates that the PRB regarded the Applicant as having a low risk of reoffending which could be managed with supervision and the imposition of specific additional parole requirements (conditions). The Applicant’s parole period expired on 5 December 2020 (being his sentence maximum) and unfortunately, he was not able to have the benefit of parole supervision and monitoring, which would have assisted his reintegration into the community, and his continued abstinence from alcohol. Additionally, on 11 November 2020, the PRB decided that a post sentence supervision order (PSSO) was not required for the Applicant (A2/55). The Tribunal notes that s 74D(3) of the Sentence Administration Act 2003 (WA) (SAA) provides that the PRB “must make a PSSO in respect of the prisoner if it considers that the order is necessary for the prevention of harm to the community from further offending by the prisoner”. The PRB gave minimal reasons and the Tribunal is not aware of how the PRB assessed the Applicant’s likelihood of further offending; only that the PRB thought an order was not required.
Prior to going to prison the Applicant attended a counselling session with a community drug and alcohol service. He was only able to attend one session before going to prison due to being waitlisted (transcript/24). He described this as “definitely a start of my rehabilitation” (A2/28, para [48]).
The Applicant has submitted numerous certificates confirming his completion of voluntary programs and therapy meetings whilst in prison and immigration detention. These included:
(a)Acacia Skills for Life, described in the completion certificate dated 24 June 2019 as being “a four session voluntary program which explores individual identity, goal setting, protective factors and risks, employment, time management, planning for a healthy lifestyle and skills for around the home” (A2/40);
(b)4 x Smart Recovery meetings. The Applicant self-reported to the writer of his parole review report created on 21 January 2020 that he had attended these meetings (R2/54);
(c)the Green Lighthouse Program, described in the completion certificate dated March 2020 as “a 6 week – one session per week, voluntary drug and alcohol mentoring program”. The completion certificate further states that, “[s]essions cover costs/benefits of drug and alcohol use, goal setting pertaining to drug use post-release, support, high-risk situations and coping strategies” (A2/42);
(d)participation in 20 Alcoholics Anonymous meetings whilst at Acacia Prison (A2/43, see also G35/167);
(e)a “Basic Workshop” on “Peaceful Pathways” run by Alternatives to Violence Project WA Inc (certificate dated 10 February 2020 at G32/159);
(f)attendance at weekly Men's Group in:
(i)July 2020 with topics including “unconscious bias awareness, understanding fundamental attribution errors” (A2/49);
(ii)August 2020 with topics including “Elliott’s blue eyes/brown eyes experiment – how bias and racism are formed, how to be more charismatic, the amygdala, how to control emotions and institutionalised thinking” (A2/50; G32/160); and
(iii)September 2020 with topics including “understanding ‘otherness’ and ‘belonging’, understanding disabilities, inspirational examples of positivity and resilience …” (A2/51; G32/161);
(iv)October 2020 with topics including “empathy & resilience, nationalism Part I, The shadow pandemic – domestic abuse” (A2/52);
(v)November and December 2020 for the “behaviour and change program” with topics including “The shadow pandemic – domestic abuse, understanding domestic violence is a men’s issue” (A2/53); and
(vi)December 2020 with topics including “gender violence – a men’s issue, finding the positives in life and post traumatic growth” (A2/54);
(g)attendance at weekly “Lifeskills” sessions whilst in immigration detention in:
(i)July 2020 with topics including “reflecting on my substance abuse, change, relapse prevention & letting go” (A2/44);
(ii)August 2020 with topics including “change, relapse prevention & letting go Part II, understanding triggers” (A2/45; G32/162);
(iii)September 2020 with topics including “automatic negative thoughts, identifying triggers, emotions & stress, strategies for dealing with anxiety & Depression” (A2/46; G32/163);
(iv)October 2020 with topics including “recognising the effects of our stress, dealing with anxiety & depression part II, embarrassment, guilt & shame” (A2/47); and
(v)November 2020 with topics including “personal boundaries: what they look like, why we need them, how do we set them” (A2/48);
(h)a “Stress Management” course comprising four contact hours (see completion certificate dated 31 December 2020 at A2/57);
(i)an “Emotional Healing 101” course comprising 6 contact hours (see completion certificate dated 3 January 2021 at A2/58);
(j)a “Problem Solving Strategies” course comprising three contact hours (see completion certificate dated 3 January 2021 at A2/59); and
(k)an “Anger Management 101” course comprising five contact hours (see completion certificate dated 8 January 2021 at A2/60).
The Applicant, in his written statement, described the gains that he made from completing some of these programs (A2/29, paras [53]-[58])
I have also been completing additional online courses to address all the poor decisions I have made in the past, covering stress management, emotional healing, anger management and problem solving (see attached certificates of completion).
I really give merit to the (AVP) Alternate to violence project. It has taught me so much about conflict resolution, it has gifted me the necessary tools to resolve disputes with alternative methods rather than violence, it has taught me to think before I speak and respect everybody as if they were my own family. This course really has changed the way I carry myself. Which I believe is something I really needed to learn in order to change who I was.
This has been tested firsthand at Acacia prison and also here at Yongah [Hill Detention Centre]. I have found myself in some heated disputes. I am proud of myself that I was able to successfully talk them down using these tools and come to an agreement, even sometimes shake hands. This really put into perspective that all the hard work I've put in through all these courses really has made an impact on my personality.
My 20 attended AA sessions also taught me valuable lessons about life. Being surrounded by other people sharing their own experiences about the effect the use of alcohol has had in their lives, validated my own experiences and for the first time made me comfortable with opening up and sharing my story. There is something about going to these meetings that creates a strong healthy reminder of what our addictions can do if they are left unchecked, so it is my intention that once I am released I return to weekly AA meetings somewhere close to where I will be living.
Another aspect of my rehabilitation that I'm truly proud of is my ability to have stayed completely sober from alcohol while at Acacia prison and at Yongah hill. I refer to a comment made by the decision maker where he states that my rehabilitation has not been tested in the community. Although that is true, that is not to say it has not been tested. Countless times throughout incarceration and here at Yongah I have been offered ‘Home brew’ and drugs. It is sad to say but both are just as easily accessible here as they are in the community.
Some weeks I have been so stressed that it felt like a drink would make all my problems disappear, but after all the courses and AA meetings and promises I've made to my family, I have finally identified alcohol as being the source of my issues. And I will not be foolish enough to touch another drink in my life. I have come too far mentally to ruin all my work.

The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 14.1 of Direction No 79) arise on any of the submissions, materials or evidence before the Tribunal.
In the Applicant’s circumstances, Australia’s non-refoulement obligations are not engaged and therefore this consideration is not relevant.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides that the Tribunal is to consider:
(1)The strength, nature and duration of ties to Australia. 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 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).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(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.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states:
(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.
The Applicant is 31 years of age and has lived in Australia for some 18 years since he was a 13-year-old child. He has also completed high school to year 12 in Australia. Therefore, the Australian community may have a higher level of tolerance toward the Applicant’s offending because he has lived in Australia since he became a teenager. He has only returned to the Philippines once as an adult in approximately 2017 or 2018 when he visited an island in the Philippines for a holiday (G16/70; transcript/21-22). The Applicant’s mother lives in the Philippines, and so he was able to see his mother in Manila on that trip (transcript/38).
The Applicant’s first offence of driving under the influence of alcohol was committed on 22 December 2008 when he was approximately 19 years of age. Although this offence was committed in early adulthood, it cannot be concluded that the Applicant started offending shortly after arriving in Australia.
The Applicant has made some positive contributions to the Australian community, through being continuously employed (and therefore paying taxes) (see A2/35-39) for approximately 15 years, and through occasionally babysitting his nieces and nephews. He got his first part-time traineeship in the fast food industry when he was still at high school, working there for two years until he obtained his first full-time job as a wholesale smallgoods distributor where he worked for three years. The Applicant then started working in the transport and warehouse industry where he was employed until he went to prison (G21/89).
The Applicant’s former partner, C, and her child from a previous relationship, B, are Australian citizens. Although the relationship has ended, C and the Applicant remain friends (A2/5, para [1]). As discussed above regarding the best interests of minor children, B appears to have an ongoing relationship with the Applicant, with the Applicant’s evidence being that he spoke to B daily from immigration detention on videocall. The Applicant’s evidence was that there was some possibility that he would recommence a relationship with C, but whether this will happen is uncertain, noting that C and the Applicant had previously broken up and then recommenced their relationship on many occasions. Despite not being in a relationship currently, the Applicant’s former partner stated that (A2/5, para [4]):
If we [C and her son, B] lose [the Applicant] I will not be able to cope. It has been a struggle through out this process to cope without him and if he is deported it will break our hearts.
The Tribunal accepts that C remains close to the Applicant, as does her child B, and that they may suffer some emotional detriment if he is removed from Australia.
The Applicant’s immediate family members permanently reside in Australia, including his father, stepmother, two brothers, three sisters, numerous nieces and nephews, cousins, two aunties and two uncles (G22/95, 99, 101; A2/32, para [80]). The family are described throughout the materials and evidence before the Tribunal as being “close knit” and so they are likely to suffer some emotional detriment if the Applicant is unable to stay in Australia. The Tribunal accepts that if the Applicant were returned to the Philippines that his family members are unlikely to return with him. For example, the Applicant’s brother, RO, stated in a statutory declaration that (A3/92, para [6]):
All members of the family have resided here for the greater good since we left the Philippines. Australia is all we know. We have been raised here in Australia most of our lives. We came here for better life opportunities. Some of us have our own little families now and none of us could just leave with [the Applicant] and drop our responsibilities …
In a statutory declaration the Applicant’s father also described the closeness of the family and how he would suffer emotional detrimental if the Applicant were removed from Australia (A3/79, paras [9] and [11]):
[The Applicant] is very close to his family and is one of my kids that helps whenever a member of the family needs help, he is always there. He especially takes care of [RD] – he was always there for her. The thought of him not being able to stay in Australia – I am trying not to think about it because its affecting my health. I keep praying and telling [the Applicant] to keep praying and hoping. I know I have raised a good son, and that he got sidetracked by the society he was keeping at the time.
…
[The Applicant] considers Australia to be his home – he grew up here, he belongs here now, his family and friends are all here. …
Other than RF and T (who live outside the Perth metropolitan area), the Applicant’s brothers and sisters live close to his house (transcript/39). As noted above, there is also some evidence that family members assist with mortgage payments and some of the costs for R and H who are living in the Applicant’s house, and so the Applicant’s removal from Australia may also cause some increased financial hardship to these family members.
As noted above, the Applicant’s sister, RD, and his nephew R, and niece, H, live in the Applicant’s house. RD is pregnant with her first child and is due to give birth in July. RD’s evidence was that the Applicant would have to sell his house if he was removed from Australia and that she, R and H would not have anywhere to live (A3/84). RD, R and H are likely to suffer some emotional and financial detriment if the Applicant is removed from Australia and if they are unable to remain in his house. The Applicant stated that he provided financial and emotional support to RD, and that the father of her unborn child was not in her life (transcript/29). The Applicant’s evidence was that RD did not get along with their father, so he was unlikely to assist her (transcript/41). If RD is required to find new accommodation at a late stage of her pregnancy it may be stressful to her, however, given the “close knit” nature of the family and their willingness to assist with R and H, it is likely that RD will have some family support.
The Applicant’s evidence was that it would be difficult for R to return to live with his mother (the Applicant’s sister, T) for financial reasons, because she was supporting four other children, and because she and her partner were not working. He also gave evidence that H did not get along very well with her mother (the Applicant’s sister in law, L). Again, given the closeness of the family who have already been willing to contribute to the mortgage and educational costs for R and H, it is also likely that they will have family support, and there is no evidence that they cannot return to live with their parents. However, as mentioned above, having to move from the Applicant’s house is likely to be disruptive to R and H in their final years of high school because they are likely to have to change schools given that their immediate families live outside the Perth metropolitan area.
The material before the Tribunal includes numerous references from family and friends in the community in support of the Applicant, which are also indicative of his close ties to the Australian community (see generally various letters and statutory declarations from friends and family in A2; A3; G27-G29; G31; G37-G45).
In summary, the Applicant has close ties to the Australian community. He has lived in Australia since he was a 13-year-old child, and his immediate family members permanently reside in Australia. He has made some positive contributions to the community, primarily through his continuous employment. The Tribunal has also found that the Applicant’s father, siblings, and other family members, particularly his pregnant sister RD, R, and H (who live in his house) will suffer some detriment if he is returned to the Philippines, as would his former partner, C, and her child, B. Overall, the Tribunal finds that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
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.
This consideration does not arise on the material before the Tribunal.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
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.
There is no information before the Tribunal regarding the effect of a decision not to revoke the Cancellation Decision on the victims of the Applicant’s offending, namely the victim of his grievous bodily harm offence, the taxi driver he assaulted, or his former partner S, who was the victim of the family violence restraining order breaches, or their family members.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides that the Tribunal is to consider:
(1)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.
The Applicant is 31 years of age and is in good physical health (transcript/30). In his revocation submissions, the Applicant reported that he had no diagnosed medical or psychological conditions (G22/104). However, Dr Watts noted, following his assessment of the Applicant on 24 June 2020 that the Applicant’s “general presentation was suggestive of some mild depressive symptoms related to current circumstances (serving a period of imprisonment followed by the indefinite and uncertain process of pending outcomes of his appeals around the visa cancellation)” (G23/126-127). As noted in the Applicant’s submissions, the Applicant is concerned about his mental health if he is returned to the Philippines without social support from his friends and family in Australia. He is also concerned about supporting himself and finding accommodation (A1/23, para [141]-[142]). Deciding whether to sell his house, and concerns about where his pregnant sister RD, H and R will live are likely to be worrying for the Applicant.
The Tribunal notes that the Applicant’s evidence that (A2/32, para [81]):
Family for me, comes second to none. They literally are my everything which is why I cannot even begin to imagine a new life back in the Philippines without them. The whole concept of being deported and separated from them all makes me feel deeply lost and alone.
The Tribunal accepts that Applicant is also likely to face some emotional hardship from being separated from his family members in Australia including his father, stepmother, two brothers, three sisters, numerous nieces and nephews, cousins, two aunties and two uncles, as well as his former partner C, her son B, and his numerous friends in Australia.
The Tribunal also notes the Applicant’s evidence that he can understand the local language, Tagalog, but that he now has difficulty speaking it. He did, however, speak the language until he came to Australia as a 13-year-old-child, and so it is likely he will be able to learn to speak Tagalog again. In his revocation submission, the Applicant stated (G21/89):
I have spent 18 years living in Perth Western Australia. I have completely immersed myself in the Australian culture and have become accustomed to the Australian way of life. Because of the ties I have to this country and the duration of my time here I have become separated from my culture, the language and estranged from my country of citizenship.
The Tribunal accepts that the Applicant will likely suffer some emotional hardship if he is separated from his family members in Australia, and if he is returned to the Philippines. It is a country that is largely unfamiliar to him because he has resided in Australia since his early teenage years and has only returned there once as an adult on a holiday.
The Tribunal notes the submission of the Applicant’s previous representative regarding concerns of the impact of the COVID-19 pandemic if the Applicant were returned to the Philippines, suggesting that the pandemic has created uncertainty which may impact on economic support, health and social services (G25/150). Citing official Australian government travel information, the Respondent submitted that the Philippines had implemented a range of quarantine measures and other restrictions to limit the spread of COVID-19 and that medical facilities in major cities are adequate (R3/16, para [58]). The Tribunal notes that this travel information states that medical facilities are “stretched” due to the pandemic. The problems created by the pandemic may make adjusting to life in the Philippines more stressful for the Applicant, however he will have access to the same social, medical and economic support as other citizens of the Philippines.
The Applicant also has family in the Philippines, namely six uncles and aunties, nine nieces and nephews, and six cousins (G22/101; transcript/37-38). The Applicant lived with one of his aunties (his mother’s sister) in the Philippines for several years before he migrated to Australia because his father had already migrated to Australia (transcript/35). Immediately before moving to Australia he lived with his grandmother who is now deceased (transcript/37). The Applicant’s mother is also currently living in the Philippines. His evidence was that she has married an Australian citizen and is waiting in the Philippines for a partner visa to be approved, or for another visa to allow her to come to Australia until her partner visa is determined (transcript/36-37). As the Applicant has a number of family members in the Philippines, including his mother (although possibly on a temporary basis) and an aunt he previously lived with as a child before coming to Australia, they are likely to be able to offer him some support if he is returned to the Philippines.
Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to

the Philippines, but that these difficulties are not insurmountable. The Applicant does have family in the Philippines who may be able to offer him some level of support. The Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to the Philippines as soon as is reasonably practicable (under s 198 of the Migration Act). However, the Applicant’s previous representative submitted that the Applicant had concerns about whether he could be removed to the Philippines in the foreseeable future due to the COVID-19 pandemic. The representative submitted that this potential delay may result in the Applicant being in immigration detention for a prolonged period which would exacerbate his risk of contracting COVID-19 (G25/150).
The Respondent referred to the Department of Home Affairs, Outward Travel Restrictions Operation Directive (R3/16, para 57) which restricts Australian citizens and permanent residents from travelling outside Australia without an exemption. As the Applicant’s visa has been cancelled, he would not be restricted from departing Australia. Additionally, the official Australian government travel information referred to above provides that the Philippines has only restricted foreigners from entering the country due to the pandemic (cited at R3/16, para [57]).
However, even if there were delays in removing the Applicant to the Philippines due to the pandemic, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
Additionally, there is no evidence of any COVID-19 transmission in immigration detention in Australia, nor any other evidence to suggest that the Applicant is at an increased risk of contracting the virus due to being in immigration detention.
Overall, the Tribunal finds the impact of the COVID-19 pandemic does not weigh in favour of the revocation of the Cancellation Decision and should be given neutral weight.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s offending conduct weighs very strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)the risk to the Australian community should the Applicant commit further offences weighs moderately against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.2 of Direction No 79).

Overall, with respect to the first primary consideration, the Tribunal has concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of
Direction No 79), weighs strongly against the revocation of the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal has found that the best interests of the Applicant’s: 16-year-old nephew R weighed moderately; 15 year-old niece H weighed moderately; five or six-year-old son of his former partner weighed slightly; and other children weighed minimally in favour of the revocation of the Cancellation Decision.
The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration.
In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration, regarding the protection of the Australian community, weighed against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant’s offences, which weighed very strongly against the revocation of the Cancellation Decision. It was also comprised of the risk of the Applicant reoffending, with the Tribunal finding that the Applicant had a low likelihood of reoffending, which weighed moderately against the revocation of the Cancellation Decision. In reaching this conclusion, the Tribunal considered the serious nature of the harm that can be caused to members of the community from violent offending such as the grievous bodily harm and assault on a taxi driver offences, making even a low risk of similar conduct in the future unacceptable (paragraph 6.3(4) of Direction No. 79). Overall, the Tribunal found that the first primary consideration weighed strongly against the revocation of the Cancellation Decision.
Further, in determining the weight to be applied to the third primary consideration, the Tribunal must balance the first primary consideration of the protection of the Australian community with the considerations that weigh in the Applicant’s favour. These considerations included: the primary consideration of the best interests of minor children (with the respective weights having been referred to above). Additionally, the Tribunal found that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighed strongly in favour of the revocation of the Cancellation Decision. Further, the impediments the Applicant would face if returned to the Philippines weighed moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79). The Tribunal also considered the impact of the COVID-19 pandemic, which did not favour revocation of the Cancellation Decision and was given neutral weight.
After balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would nevertheless weigh strongly against the revocation of the Cancellation Decision, particularly given the unacceptable nature of the harm that could result if similar offending were to occur in the future (paragraph 6.3(4) of Direction No. 79).
As articulated in paragraph 13.3(1) of Direction No 79, the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached the trust of the Australian Community by committing violent offences. This concern was articulated by his Honour Gething DCJ when sentencing the Applicant for the grievous bodily harm offence. His Honour stated (G11/51):
… violence in public places is a matter of genuine concern to the community. More specifically, in recent years there has been an increasing level of community concern about one-punch violence sometimes referred to as the coward’s punch. It’s been the subject of a dedicated media and social media campaign. So your act was a grossly disproportionate act of alcohol-fuelled violence.
The frequency with which conduct of this nature is occurring in the Australian community and the level of community concern means that general deterrence is a matter of considerable importance.
The Tribunal is of the opinion that, even though there may be strong countervailing considerations that may favour the revocation of the Cancellation Decision, including the Applicant’s strong ties to Australia, (supported by the best interests of minor children, and extent of impediments if removed), the view of the Australian community would be that the Applicant should not hold a visa. The Tribunal finds that the expectations of the Australian community weigh strongly against the revocation of the Cancellation Decision.
The Tribunal further finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the primary and other considerations which weigh in favour of revocation of the Cancellation Decision including, the best interests of relevant minor children, the Applicant’s ties to Australia and the impediments he will face if he is returned to the Philippines.
Having had regard to the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that there is not another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated
19 November 2020 not to revoke the mandatory cancellation of the Applicant’s Visa.

I certify that the preceding 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...[Sgd].....................................................................
Associate
Dated: 16 February 2021

Dates of hearing: 29 January 2021 and
1 February 2021

Representative for the Applicant:

Solicitors for the Applicant:

Ms A Graziotti

Estrin Saul Lawyers

Representative for the Respondent:

Solicitors for the Respondent:

Ms E Tattersall

Sparke Helmore Lawyers

[2021] AATA 223

16 February 2021

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