DGVR and Minister for Home Affairs (Migration)

DGVR and Minister for Home Affairs (Migration) [2018] AATA 2892 (15 August 2018)
Corrigendum to decision no, [2018] AATA 2892
TRIBUNAL:               Member M Kennedy & Member O’Loughlin
DATE OF CORRIGENDUM:   10 September 2018
PLACE:                     Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
The following correction is made to the decision:
1.On page 32, Counsel for the Applicant is to include the names:
(a)Stephen Walker & Randhir Amoganathan
..............................[Sgd]..............................
M KENNEDY
(Presiding Member)

Division:GENERAL DIVISION
File Number(s): 2018/2933
Re:DGVR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:M Kennedy, Member (Presiding)
M O'Loughlin, Member
Date:15 August 2018
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision to revoke the cancellation of the applicant's Global Humanitarian (Class XB) (Subclass 202) visa.
[sgd]........................................................................
M Kennedy, Member (Presiding)
Catchwords
VISA CANCELLATION – mandatory cancellation – multiple periods of imprisonment – driving offences – violent offences – post-traumatic stress disorder – bests interests of minor children – decision set aside
Legislation
Migration Act 1958 (Cth)
Cases
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Secondary Materials
Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014
REASONS FOR DECISION
M Kennedy, Member (Presiding)
M O'Loughlin, Member
15 August 2018

DGVR’s visa has been cancelled. He has convictions for offences relating to drink driving and some older violent offences also relating to his drinking. The Tribunal has however decided that two matters in particular justify the revocation of the visa cancellation:
(a)the interests of his family, particularly his three young sons; and
(b)our confidence that DGVR will address the underlying causes of his offending through a new approach to treating his PTSD, and counselling, and therefore the risk to the community is mitigated.
PROCEDURE
The Tribunal heard evidence on Tuesday 31^st July 2018 with submissions by the parties’ representatives on the afternoon of the 1^st August 2018.
In addition to the applicant the Tribunal heard from his wife and from Mr Thompson, a counsellor.
As a preliminary matter it should be mentioned that the applicant’s evidence was heard partly by video link from Christmas Island. The quality of the link was poor so it was converted to an audio link with delayed video. This was slightly better though far from ideal.
No video link could be established with the applicant’s representatives in Perth who therefore attended by audio link only. This suffered from the shortcoming that it dropped out from time to time without warning and occasionally small portions of evidence needed to be repeated to make up for this.
These technical issues were undesirable but the arrangements were the best that could be made under the relevant time constraints and the Tribunal does not understand that the applicant or his representatives complain of any compromise to the fairness of the hearing.
The applicant said he did not require an interpreter and there was no apparent difficulty in him making himself understood.
BACKGROUND AND STATUTORY FRAMEWORK
On the 18^th of May 2004 the applicant was granted a Global Humanitarian (Class XB) (Subclass 202) visa.
That visa was cancelled on the 26^th of July 2017. That was a mandatory cancellation under s 501(3A) of the Migration Act 1958. That provision was enlivened on the 30^th of May 2017 when the applicant was sentenced to a custodial term of 7 months and 1 week.
Four months and one week of that sentence was imposed for to failure to comply with breath analysis directions and driving while disqualified from holding or obtaining a driver’s licence. Those offences occurred on the 5^th of March 2016. The other three months of that sentence was for breaching a bond in relation to similar offences that occurred in March 2015.
The applicant had previously been imprisoned for various other periods including:
(c)7^th of November 2007 - 2 counts of commit theft using force, aggravated offences committed 24/09/06 – sentenced to 11 months 15 days’ imprisonment.
(d)8^th December 2009 – Drive under disqualification committed 15 November 2009 – sentenced to 21 days’ imprisonment.
(e)8^th December 2009 – Breach of bond agreement– sentenced to 14 days’ imprisonment.
(f)22^nd July 2011 – Drive under disqualification, breach of bond agreement committed 8^th May 2011 – sentenced to 4 months’ imprisonment.
At the time the last custodial sentence was imposed on 30^th May 2017, the applicant had served at least 4 terms of imprisonment and the total custodial component of those terms was slightly over 19 months.
S 501(7) of the Migration Act 1958 relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
The Tribunal finds that at the time of the visa cancellation on the 26^th of July 2017, the applicant had a substantial criminal record for the purposes of the Migration Act 1958.
Under the heading “Character test”, ss 501 (6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
The Tribunal finds that, because the applicant had a substantial criminal record as defined, he does not pass the character test set out at ss 501(6) of the Migration Act 1958.
S 501 (3A) of the Migration Act 1958 relevantly provides as follows:
(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);
…
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.
It is not disputed, and the Tribunal finds, that on the 26^th of July 2017 the applicant was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the State of South Australia.
Therefore the Minister’s cancellation of the applicant’s visa was under the compulsion of subsection 501 (3A) of the Migration Act 1958.
The applicant does not dispute the mandatory cancellation of his visa but seeks that the cancellation be revoked pursuant to the power to do so contained at section 501CA which provides:
Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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.
…
(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.
The power to revoke the cancellation of the applicant’s visa is contained at ss (4).
There are prerequisites to the exercise of the power, in particular that the Minister provide the applicant with the notice, information, and invitation set out at ss (3) and that the applicant make representations as set out in paragraph (4) (a).
There is no dispute that these prerequisites have been satisfied and the Tribunal so finds.
In relation to the exercise of the power to revoke the cancellation, the Tribunal has found that the applicant does not pass the character test and so the power vested by subparagraph (4)(b)(i) is not available.
Power to revoke the cancellation of the applicant’s substantive visa is provided at subparagraph (4)(b)(ii) and may[1] be exercised if the Minister is satisfied “that there is another reason why the original decision should be revoked.”
[1] In this context “may” takes the sense of “must” – Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [35] and [38].
This is the power that is relevant to the matter at hand. The Tribunal must decide if there is “another reason” why the cancellation of the applicant’s visa should be revoked.
Section 499 of the Act empowers the Minister to give written directions to a person or body having powers under the Act about the exercise of those powers.
A relevant written direction, Direction No. 65, directs this Tribunal in its exercise of power to revoke the original decision under paragraph (4)(b)(ii). The specific factors to be considered in making a revocation decision are identified in Part C of the Direction.
RELEVANT FACTS
The applicant was born in Country A on 17 July 1988. He lived with his parents until their separation when he was about 6 and after that he lived with his mother.
Until he was about 11 he lived in Region C in Country A, near a river which forms part of the border between Country A and Country B.
He gave evidence that he crossed the river regularly and although he said he mainly lived in Country A it is clear that he spent a substantial amount of time in the neighbouring Country B. Indeed his evidence was that he went to school both in Country A and in Country B.
He also gave evidence that he speaks the main language of the neighbouring part of Country B as his first language with English as his second in addition to 3 dialects of the language of Region C. He said that he does not speak the main language of Country A, although under cross examination his evidence about that was vague.
He gave evidence that when he was about 11 he was involved in an incident near the border of Country B and Country A in which he was taken by a group of men and thrown from a cliff, breaking his leg.
He spent some time in hospital in Country B and says that he was separated from his mother during this period. He has only seen her once since then although they must have maintained some sort of contact as he sends her money when he can.
After he recovered he lived with various relatives and family friends and was moved to different places in country A. He did not live in Country B after this time.
He came to Australia in 2004 when he was 16 years old. He was reunited with his father who had been living in Australia for some time. Ultimately his father was unable to offer him much support and the applicant left school to work.
In August 2005 when he was about 17 ½ years old, he had his first involvement with the criminal justice system. It was put to the applicant, who did not disagree, that in the time between 8 February 2006 and 30 May 2017 he was convicted of about 54 criminal offences.
The applicant’s offending consisted largely of driving offences (including drink driving and driving whilst disqualified), failure to comply with bail agreements, and disorderly behaviour.
Obviously drink driving and driving whilst disqualified are offences that must be viewed with concern and the applicant was imprisoned or received a suspended sentence of imprisonment in relation to about 6 of the driving whilst disqualified charges.
He was also convicted of other driving offences being one count each of driving an unregistered motor vehicle, driving without holding a licence or learner’s permit, failing to drive to the left of a dividing line, driving without effective lights, and failing to give way.
All of these offences are capable of being serious offences. The Tribunal understands that the offence of failing to give way was associated with a crash in March 2016. There is little other evidence to assist the Tribunal in considering the seriousness of these offences although it is observed that generally the penalties are either fairly light or are subsumed by other matters dealt with at the same time.
The police certificate[2] shows 16 convictions for failing to comply with Bail Granted agreements. The Tribunal notes that save for those times when the penalty was dealt with together with other matters, the applicant was discharged without penalty in every case. The most recent conviction was for an offence in April 2012.
[2] R1 G documents Pgs 30 to 32
It is difficult to draw a firm conclusion in relation to these offences but the courts don’t seem to have treated them as being particularly serious.
Of more concern are 4 convictions for breaches of good behaviour bonds. 2 of these convictions enlivened fines. 2 invoked periods of imprisonment, one period of 14 days in December 2009 and one period of 3 months for offences in March 2016.
There are 4 charges of disorderly behaviour, the most recent conviction being in September 2016 for offences in December 2015. One is associated with carrying an offensive weapon which the applicant says was his belt. The applicant insisted that he was not in fact guilty of that offence but that he entered a plea of guilty under pressure at court.
This submission is unconvincing but the Tribunal does note that the offence was dealt with by a fine of $490.00 which, in the context of the other offences, suggests that it was not considered to be at the upper end of the scale.
The most concerning of the other offences are what might be described as “offences of violence” being two charges of assault, one charge of aggravated commit theft using force and one of intentionally causing harm.
The first of these was a common assault that occurred on the 23^rd of April 2006 and was dealt with by a fine of $200.00. The appellant gave uncontested evidence that this related to a minor incident in which he pushed someone. He said he didn’t remember any more about it but that he always pleaded guilty to these offences.
The next was the aggravated commit theft using force which occurred on the 24^th of September 2006. The applicant gave evidence that he was in a group of people and that one of them took someone’s phone and ran off with it. The applicant gave evidence that he was not involved in any violence. He was convicted and sentenced to 11 months and 15 days imprisonment.
That suggests neither a minor offence nor minor involvement on the applicant’s part.
The other offence of violence was the conviction for intentionally cause harm in relation to which the Tribunal has the benefit of the sentencing remarks of the District Court of South Australia.
Those remarks set out that the applicant and one of his friends were involved in an altercation with two men in a pool hall in July 2009. The applicant’s friend stabbed one of the men and the applicant and the other man fought with cues.
The applicant struck the other man several times causing him a scalp injury that needed 8 staples.
The court accepted that the applicant did not know that his friend had a knife nor that he had used it to stab the first man. Nonetheless the applicant’s own violent acts were significant.
All of the participants were drunk.
The court noted that the applicant had generally managed to stay out of trouble while on home detention bail, a period about 2 years and 3 months. The Judge also noted that the applicant had sought treatment for his newly diagnosed panic disorder. The court noted that he had not been involved in any similar violent offending for 3 years and noted that he had married and had his first son, which coincided with the improvement in his behaviour.
He told the court that he had given up drinking. If that was true at the time, it does not appear to have lasted.
The Tribunal makes some observations about the applicant’s criminal history.
The first is that the last serious crime of violence committed by the applicant was committed in July 2009, nine years ago.
The second is that applicant’s offending is generally associated with drunkenness. That is true of both the crimes of violence which have not been a recent feature of the applicant’s behaviour, and of the driving offences which have continued to some extent.
The third observation is that the frequency of the applicant’s offending has decreased markedly since the pool hall fight in July 2009. Since his conviction for that offending the applicant has been before the courts 6 times, which represents some improvement and is apparently related to times that the applicant has been unable to curb his drinking.
The applicant was very clear in his evidence that he understands that he will need to abstain from drinking, will need to avoid his old friends, and seek assistance in the form of counselling. He has further asserted very clearly that he is keen to support his family.
The Tribunal has had regard to reports from various people involved in treating the applicant.
A clinical psychologist, Dr Pam Carroll, provided reports dated 28 November 2012 [3] and 16 August 2016[4] in relation to her involvement with the applicant and his problems with alcohol.
[3] R 1 G Docs P 88
[4] R 1 G Docs P 78
In the report of November 2012 the applicant associated his offending with consumption of alcohol, but thought that he had it under control. She noted that an anxiety disorder had been diagnosed by Dr Carol Cayley and expected the problems with alcohol to improve with treatment of the applicant’s other problems.
He told Dr Carroll that he accepted that he would have to abstain to stay out of trouble. He also referred to the fact that he was no longer exposing himself to the bad influence of certain of his circle of friends and also to the beneficial influence of his wife and of fatherhood.
Dr Carroll expressed the view that the applicant was unlikely to reoffend. She attributed that to the advances that he had made in controlling his behaviour and also to the applicant’s likely improvement in brain function having reached what she viewed as the important age of 24.
In the report of April 2016, she noted that he was still suffering from anxiety and also from depression and stress. He was consuming 30-40 alcoholic drinks per week, generally (he reported) to help him sleep.
It appears that he had periods of abstention from alcohol but had not been able to embrace it permanently
She noted that he had previously been sent for a course of therapy in 2012 at about the time he was sentenced in the District Court. He attended 11 sessions which Dr Carroll regarded as having been “effective” (though clearly not entirely successful).
Dr Carroll believes that, in addition to the other features of DGVR’s presentation he is suffering from Post-Traumatic Stress Disorder and that this new diagnosis provided an opening for new types of therapy. In particular she suggested Eye Movement Desensitisation and Reprocessing or Image Rescripting and Reprocessing Therapy.[5] She believed that incarceration was likely to derail his motivation to pursue therapy.
[5] R1 G Docs P 86 last paragraph.

Also relevant to the Tribunal’s consideration of the applicant’s openness to therapy is the evidence of Mr Steve Thompson, a counsellor with the Program Assisting Survivors of Torture and Trauma. Mr Thompson provided reports of 6 September 2017, 16 July 2018, and also gave evidence before the Tribunal.
He saw the applicant over a series of sessions at Mobilong Prison and has been in telephone contact with him since he was moved to the offshore detention facility at Christmas Island.
He noted a number of physical symptoms in the applicant which he believed could be attributed to his psychological conditions. The views expressed in his report related mainly to the effect of revocation of his visa on DGVR, which Mr Thompson saw as overwhelmingly negative.
In addition, Mr Thompson has spoken with the applicant’s wife and the report of 16 July 2018[6] relates to the effect of DGVR’s absence on her and his sons. That report might be summarised as saying that the eldest and youngest sons both show signs of distress at their father’s absence.
[6]Exhibit A4
Mr Thompson also noted the extreme stress that the applicant’s wife is enduring given that he was a “hands on” father who was able to provide aspects of parenting that the boys’ mother cannot.
He concludes that it is in the best interests of the applicant’s wife and sons if they can be reunited with him.
In his oral evidence he expanded on the reports.
Although he was reluctant to predict the applicant’s likely future behaviour he did express the view that the applicant was showing a fresh determination to change and Mr Thompson said that he believes such change is possible.
He said that he believed that the applicant had lacked insight into his own behaviour, which would certainly be consistent with his offending history. Further, he believed that the applicant was improving in this regard. He noted that the applicant had maintained contact with him from Christmas Island despite being under no compulsion to do so and he believed that their contact had been meaningful.
Mr Thompson advised that he also had a background in working with children and was content to express a view about the impact of the applicant’s absence on his 3 sons.
He said that he believed that the youngest boy, P, is exhibiting a form of grieving and he noted that the oldest boy, D, is also concerned that his father was not back with them.
In cross examination Mr Thompson expressed a belief that the applicant would improve with a long term program of treatment, and indicated that he was both funded and prepared to provide such a program.
He resisted the suggestion that there was still a risk of re-offending in the event that the applicant was granted the opportunity to undertake such a program and suggested that the applicant has demonstrated clarity of thinking that will tend against that.
When asked about the possibility of the applicant relapsing into drinking, Mr Thompson said that there is a strong link between Post-Traumatic Stress Disorder and substance abuse but that he believes that the applicant now understands that drinking is incompatible with his recovery and his desire for self- improvement
The Tribunal also heard from the applicant’s wife.
Her evidence was most impressive.
She is also from Region C and came to Australia in 2003. She started seeing the applicant in 2008 and they married in January 2011.
They have 3 sons, D now aged 7 who was born on 19^th of March 2011, J now aged 5 born on 26^th November 2012 and P now aged 3 who was born on the 8^th of September 2014.
She said that the applicant was happy at the birth of their first child but that he did not seem wholly comfortable with the child until he was old enough to play. When D was a baby the applicant was still drinking fairly regularly but he would generally restrict that to outside the home and he did stop for periods.
The applicant’s wife also said that the drinking was a source of occasional friction and that they would argue from time to time.
When the second child was born the applicant was involved from an earlier age and cut his drinking back to some extent. He clearly enjoyed interacting with his sons. He was also more helpful with housework and cooking.
When the last boy, P, was born the applicant was again very helpful around the house and appeared to enjoy his interaction with the new child. Again, he drank less but did not stop completely.
The applicant’s wife said that she had observed improvements in the applicant under the effect of counselling and that she thought that the panic disorder improved.
She said that there were still arguments about his drinking and indeed that she had taken the boys to her parents place on the occasion of the last arrest for drink driving – he was out looking for her. She denied that she and the applicant had separated but conceded that she sometimes did go back to her parents for a night if he was obviously drunk.
She said that although he respected her wish that he not drink in front of the children he did sometimes come home drunk but he was never aggressive.
She said that she had not seen him drunk since late 2016 or perhaps early 2017.
On considering the evidence the Tribunal notes that the applicant was probably drunk at the time of the offending that let to him being imprisoned in May 2017, but that those offences occurred in March 2016 so there was a period of over a year in which he did not offend.
This is consistent with his wife’s evidence that he had reduced his drinking and was not often drunk, as he had been prior to then. Naturally “drunk” is a relative term. It is clear from Dr Carroll’s report that the applicant was drinking, but presumably not enough to lead him astray.
The applicant’s wife also discussed the cleaning franchise that she and her husband had bought not long before he was imprisoned and spoke of their hopes for a secure future.
She said that since his transfer to Christmas Island he had expressed his fears about her future and that of the boys without him and that this was not something that he seemed to have thought about before.
She also gave evidence about the period of over a year that the applicant had been either in prison or on Christmas Island. She referred to the difficulties that she had had in looking after the boys, trying to keep their cleaning franchise afloat and working a weekly shift at and aged care centre.
She said that the boys were happier when the applicant was at home and that she was becoming worried about what she perceived as an increase in their aggressive behaviour since he had been gone. She said that it was her worries about these things that prompted her to see Mr Thompson for counselling in June of this year.
The Tribunal generally accepts the evidence of the applicant’s wife and in particular finds that she believes that she and her children would be better off both financially and emotionally if the cancellation of the applicant’s visa is revoked.
Another potentially important factor in this matter is that, in addition to the regular warnings that the applicant was given when sentenced, the respondent says that he was given a formal warning by the Minister in February 2013 when the Minister contemplated cancelling the applicant’s visa under s501 of the Migration Act 1958 on character grounds.
He was liable to have his visa cancelled but instead he was provided with a letter advising him that a delegate of the Minister had made a decision not to cancel his visa on character grounds and gave what was described as a formal warning in these terms:
“Please note that visa cancellations may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[7]
[7] Exhibit R1 G documents P 122
The applicant said that he did not remember getting this warning but when it was put to him in cross examination he agreed that he had acknowledged receipt of the letter and accepted that he did get it.
DIRECTION NO. 65
Having found that the applicant is entitled to have his application for revocation of his visa considered, and having made findings in relation to some of the evidence it is appropriate to assess the effect of Direction No. 65 on this matter.
Paragraph 13 (2) of Part C of Direction No. 65 provides 3 primary considerations relevant to this matter. They are:
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.
The direction also directs the decision maker, in this case this Tribunal, to take into account other considerations where relevant. These are specified at paragraph 14 as including (without being 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.
At paragraph 8 of the direction the Minister has set out some principles that a decision maker must apply when taking the relevant considerations into account. Importantly the Minister requires that the primary considerations should generally be given more weight than other considerations and further that one or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATION A) PROTECTION OF THE AUSTRALIAN COMMUNITY
The direction notes that remaining in Australia is a privilege conferred in the expectation that non-citizens will be and will have been law abiding, will respect important institutions, and will not harm or threaten individuals or the Australian Community.
Decision-makers are also directed to have regard to a range of more specific matters as part of this consideration, grouped under the headings “The nature and seriousness of the conduct” and “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”.
The Nature and Seriousness of the Conduct
In considering the nature and seriousness of the conduct, one factor is that violent and sexual crimes are to be viewed very seriously. There is no suggestion of any sexual offending by the applicant.
There are convictions for assault and deliberately cause harm in the applicant’s offending history. These have been discussed above. On balance only one of these appears to be of the type and seriousness to be of significant concern to the Tribunal. That is the conviction arising from the fight in the pool hall on the 16^th of July 2009.
This offence tends to weigh against the application. On the other hand, the Tribunal notes that in the offending since then there has not been a repetition of this type of violence.
There is no evidence of any assault since 2009 when the applicant was 21 years old. It does not appear that this type of violent crime is any longer a feature of the applicant’s behaviour.
The Tribunal is satisfied that the applicant is not likely to engage in conduct of this type in the future.
Although Direction No 65 directs the Tribunal’s attention to crimes of violence and sexual crimes when considering the seriousness of an applicant’s offending, it is made clear that these examples do not limit the range of offences that may be considered serious.
The Tribunal considers that repeated and incorrigible drink driving is capable of being serious in the relevant sense.
Assuming that the applicant was intoxicated on the occasions that he failed to comply with alcotest directions, the most recent occasions of drink driving were on 8 May 2011, 27 March 2015 and 5 March 2016.
The Tribunal views the frequency of this offending with concern. It must weigh against this application.
Against this is the evidence that the applicant has undertaken to give up drinking and to seek counselling in this respect.
The Tribunal finds that all of the applicant’s relevant offending arises from drunkenness and that his efforts to control his drinking are key to his future behaviour.
In the District Court sentencing remarks the court notes in the second paragraph on page 5[8], that the applicant had obtained psychological counselling, he had community support, he had stopped drinking, he was avoiding the people who had previously led him into offending behaviour, he was supported by his wife, and was motivated by the desire to be a good father to his children.
[8] P 41 of R1, G Documents
All of those assertions have been made again in relation to this application.
The Tribunal must ask itself why it should accept those assertions now despite them having proven unreliable in 2012?
The applicant has given evidence that he was diagnosed with a mental problem apart from his alcohol problem in 2012. He said that in 2012 he had some treatment but not much. It appears that he is probably referring to the treatment from psychologist Dr Pam Carroll referred to at page 4 of her report of 26 November 2012 as comprising 10 sessions from 13^th of February to 13^th November of that year.
He had been diagnosed as suffering from a panic disorder by another psychologist, Dr Carol Cayley, in January 2012. The panic disorder resulted in panic attacks manifesting as a pounding heart, sweating, shortness of breath, chest pain, dizziness, and a sense of unreality.
At page 6 of the report is the medical history that Dr Cayley took from the applicant.[9]
[9] G Documents P 99
She notes that he reported having been “…hospitalised for eight months in Country B after he broke his leg and arm when he fell from a wall.”
Dr Carroll focussed on both the applicant’s anxiety and panic, and on behaviour change.[10]
[10] Report Dr Pam Carroll 26 November 2012 p 4 ( G documents p. 91) at 5.2
In 2016 he sought further treatment from her. At page 7 of her report of 16 August 2016[11] she notes that he had assumed that the panic disorder was due to his drinking problem. On closer questioning, apparently in May 2016, he said that the incident when he was 11- rather than being an accidental fall- had involved being abducted by a group of men and thrown from a cliff. The history of abduction and injury was only extracted after close and specific questioning by a psychologist.
[11] G Documents P84
Although it is not made clear in Dr Carroll’s report the applicant believes that this was an effort to kill him due to his father falling out with a local rebel group.
As a result of this new history in 2016, Dr Carroll diagnosed the applicant as suffering a Post-Traumatic Stress Disorder in addition to an anxiety disorder. At p 9 of her report she notes that the diagnosis of PTSD was new and would warrant formal treatment which she was happy to provide.
She states in the last paragraph on that page that personalised treatment would “…entail his understanding his triggers to use alcohol and improving his stress, emotional and mood management coping skills.”[12]
[12] G Documents P 86 last paragraph
On 30 May 2017 in his Remarks on Penalty[13], Mr J Wells SM said at paragraph 12 and following that the applicant had participated in a treatment regime with “mixed success”.
[13] G Documents P 33
He noted that the applicant had attended for treatment and had managed to reduce his intake of alcohol. He said that the applicant had taken “important steps forward”.
This is consistent with the evidence of the applicant’s wife.
It is clear that the applicant has engaged to some extent with the support available to him to moderate his drinking.
His wife is content that he has succeeded to a large degree and prior to his imprisonment it had been many months since she had been aware of him being drunk.
There has been a relatively new diagnosis, namely Post-Traumatic Stress Disorder, which has suggested a new course of treatment to the applicant’s psychologist.
There has been some improvement in the applicant’s drinking and behaviour and there is reason to be guardedly optimistic about his capacity to avoid alcohol in the future.
The Tribunal is confident that if the applicant is able to avoid alcohol he will not offend further.
The Tribunal finds that the drink driving offences were serious in nature but that there is good reason to accept that their seriousness does not mean that the protection of the Australian community demands that the Tribunal reject this application.
In relation to the other factors to be considered the Tribunal notes that there is no evidence that the applicant has committed crimes against vulnerable members of the community. This factor does not weigh against this application.
The sentences imposed by the courts, and the weight that they should be given in this application, have been considered above in connection with the seriousness of the offences.
The Tribunal finds that although the applicant’s offending has been frequent in the past there is no trend of increasing seriousness and indeed the seriousness and frequency of the offending has reduced.
The cumulative effect of repeated offending is a matter of some concern although the Tribunal finds that the relatively recent diagnosis of PTSD should help enforce improved drinking behaviour in the future.
There is no suggestion that the applicant has provided false or misleading information to the department and this factor does not weigh against this application.
As set out above, the applicant was provided with a formal warning in February 2013. He was convicted of 5 further offences after that time, two of which resulted in custodial terms.
He said in evidence that he did not remember receiving the warning but ultimately accepted that he did. The Tribunal finds that he did receive it. Presumably he did not appreciate the seriousness of the warning but this is no excuse. This factor must weigh against this application.
There is no suggestion of any crime committed while in immigration detention nor that he ever escaped immigration detention so that factor does not weigh against this application.
The Risk to the Australian Community Should the Non-Citizen Commit Further Offences or Engage in Other Serious Conduct
This is the second aspect of protection of the Australian community that the Tribunal must consider under Direction No 65.
In broad terms the direction proposes that the greater the potential harm of further offences, the less the Australian community will be prepared to take the risk of revoking the cancellation of the non-citizen’s visa. It also directs that in some cases the harm that would be caused by the repetition of some conduct is so serious that the risk of revoking the cancellation of the non-citizen’s visa is unacceptable.
In assessing this risk the Tribunal is directed, at paragraph 13.1.2 (2) to 2 considerations.
The first is the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The second is the likelihood of the non-citizen engaging in further relevant conduct, in assessing which likelihood the Tribunal should take into account available information in this regard.
As discussed above, the serious criminal conduct in which the applicant has engaged to date falls into 2 broad categories.
The first are crimes in the nature of assault. On one occasion the applicant committed an assault that resulted in injury to another person. Clearly that is a serious potential harm and must weigh against this application but the Tribunal finds that this risk is mitigated by the unlikelihood of this conduct being repeated.
In finding that the likelihood of repetition of this conduct is low, the Tribunal notes that courts and the applicant’s psychologists have not been concerned about any risk of repetition of harmful violent conduct.
The second category of serious criminal conduct in which the applicant has engaged is the drink driving and related offences.
The nature of potential harm from drink driving is clearly serious. The increased risk of a car accident due to drink driving is well known. The risk of injury or death from car accidents is also clear.

The Tribunal finds that injury or death from car accidents caused by drink driving is a serious potential harm and must weigh against this application.
This is also mitigated to some extent by the prospect of the applicant being successfully treated for his dependence on alcohol.
Conclusion
On balance the risk to the Australian community of allowing this application weighs against granting it, but there are clear mitigating factors.
PRIMARY CONSIDERATION B) BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
This is the second of the Primary Considerations in Paragraph 13 of Direction No 65.
The applicant has 3 children living in Australia. They are currently aged 7, 5, and 3 and are all under 18 at the time of this decision. Therefore paragraph 13.2 (2) of Direction No 65 is satisfied and the Tribunal should have regard (under paragraph 13.2 (1) ) to their best interests when making a decision about this application.
Paragraph 13.2 (3) directs that where there is more than one relevant child, their best interests should be given individual consideration to the extent that interests may differ.
There is no evidence before the Tribunal to suggest a substantial difference in the interests of the applicant’s individual children.
Subparagraph (4) sets out some specific considerations.
At subparagraph 4 a) the Tribunal’s attention is directed to the nature and duration of the relationship between the child and the non-citizen. On the basis of the evidence of the applicant and his wife, which was not disputed, the Tribunal finds that the applicant has nurtured a parental relationship with each of the boys since birth. There was some variety in the ease with which the applicant took to his status as father of each boy but those differences are not now important.
The considerations at subparagraph 4 b) direct the Tribunal’s attention to the extent to which the non-citizen is likely to play a positive parental role in the future having regard to the length of time before the child turns 18 and the effect of any court orders relating to parental care and access.
In this case the boys are all still young and the applicant has always lived with them and their mother except when he was incarcerated. These considerations do not weigh against this application.
Subparagraph c) directs the Tribunal to consider the applicant’s conduct and whether that has or will have a negative impact on the child. The applicant’s wife gave evidence that even when the applicant was drinking he did not do so in front of the boys. There is no reason to find that his conduct, past or future, will have a negative impact on his children.
Subparagraphs d) and e) concern the likely effect that separation from the applicant will have on the children, taking into account his ability to maintain contact with them in other ways and whether there are other persons who already fill a parental role.
The evidence of the applicant’s wife and of Mr Thompson was that the boys miss their father and all wish for his return. They complain that their mother is unable to participate in a range of activities such as swimming and playing soccer.
The applicant’s wife said that she believes that all of the boys are demonstrating more aggressive behaviour, which she attributes to the applicant’s absence. Mr Thompson described the behavioural changes in the youngest boy as “grieving” and noted that although the applicant’s wife is doing a commendable job on her own, the eldest boy, David, had been very cross with her and seemed to blame her for his father’s absence.
Although there was little direct evidence on the matter it appears that there has been some contact between the boys and their father using various forms of telecommunication. This has not been adequate to ease the effects of his absence.
The applicant’s wife has some assistance in caring for the boys from her family but the applicant’s parenting role has not been replaced. These considerations weigh in favour of the granting of this application.
The Tribunal accepts that the boys long for their father’s return, which may be relevant to subparagraph f). The weight accorded to this is modified by the boys’ youth and immaturity.
There is nothing to suggest that the applicant has abused the boys in any way or that his conduct has caused them any physical or emotional trauma and so subparagraphs g) and h) are not relevant to this decision.
The Tribunal accepts the submission that non-revocation of the cancellation of the applicant’s visa will in all practical likelihood serve to destroy the parental relationship having regard to the country and circumstances of the applicant’s removal. In particular the Tribunal accepts that regular and meaningful communication between the applicant and his sons, either audio or video, will not be adequate to save the relationship and in any event may not be practicable from Country A.
The Tribunal finds that this primary consideration weighs heavily in favour of granting this application.
PRIMARY CONSIDERATION C) EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3 (1) of Direction No.65 provides:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
The Tribunal finds that the worst of the applicant’s offending was serious but that it suggests impulsiveness rather than a fundamentally repugnant character.
The Tribunal further finds that this is supported by what could be characterised as a gradual improvement in the applicant’s conduct. The Tribunal notes that there is a suggestion that the diagnosis of PTSD may provide an insight into the applicant’s behaviour and that rather than the offending being related to an immutable aspect of character; the treating psychologists hope that specific treatment will continue to help.
The Tribunal is not satisfied that there is anything about the nature of the applicant’s offending or the risk of his future offending that would lead the Australian community to expect strongly that the applicant should not hold a visa, particularly given the hope that he will be helped by treatment.
The Tribunal also has regard to the fact that the applicant was warned in February 2013 about the risk to his visa should he offend again and that reasonable members of the community might feel that his visa should remain cancelled in these circumstances.
This consideration may weigh against the granting of the application but not heavily so.
OTHER CONSIDERATIONS
At paragraph 14, Direction No. 65 provides that other matters must be considered where relevant and, without limiting the Tribunal’s discretion, indicates some specific issues.
14.1 International non-refoulement obligations
The applicant made written submissions to the Tribunal which included an assertion that his safety would be at risk if he returned to Country A.
He referred to the apparent attempt on his life at 11 years of age and said Group 1 are a threat to him.
He said that if he were sent to live in Country A he would need to hide Group 1 and Group 2.
In a statement made on a statutory declaration form but not apparently sworn[14] the applicant says that he is in fear for his life from Group 2 and Group 1 and refers to the incident when he was thrown from a cliff at 11 years old.
[14] R1 G documents P49
He says that he is scared that Group 2 will take him and use him as slave labour, though he does not say why he believes this.
In evidence he said that his father’s political activism made his father a target for Group 2 and later, after he became disillusioned with Group 1 he fell out of favour with them as well.
He said that he is known and is associated with his father’s activism and would be a target and his life would be in danger were he to return to Country A and Region C in particular.
On the 27^th November 2017 the applicant applied for a protection visa, but that that application has yet to be determined.
The respondent concedes that the applicant has made claims that may give rise to international non-refoulement obligations.
In the circumstances it is clear that the Tribunal must give consideration to international non-refoulement obligations in considering this application.[15]
[15] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Although that obligation is clear, it is equally clear that the Tribunal is under practical restrictions in considering non-refoulement obligations in the context of this application as opposed to an application for a protection visa[16].
[16] XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (29 November 2017) at para. 92 and following.
The Tribunal has been provided with a DFAT Country Information Report (Country A)[17] dated 10.01.17, a “Standard Q&A Report1”[18], and a further Standard Q&A Report 2[19].
[17] R2 Supplementary Documents P1
[18] R2 Supplementary Documents P34
[19] R2 Supplementary Documents P49
The Country Information Report (Country A) suggests that members of the applicant’s religious group can face low levels of official and societal discrimination.
At P26 of that report it states that Group 2 are reported as occasionally using forced labour of adults and children although the numbers have considerably decreased (para. 5.6).
Standard Q&A Report 1 relates to a different applicant but seeks some general information about Region C people and the situation in Region C.
Although it may not relate to the specific part of Region C that DGVR inhabited, some of the information contained may be of assistance.
It notes that conflict in Region C has diminished since [historical event pertaining to Country A] in 2012[20].
[20] Pge 2 para 1.
On the other hand the report goes on to note other reports from 2017 that suggest that Region C remains “… very heavily militarised” (Pge 3 paragraph 2) and noting an increase in the prevalence of forced labour.
The other “Standard Q&A Report” suggests at point no. 3 on page 5 that there has been an improvement in the lot of members of the applicant’s religious group in Region C. At page 6 it cites a report that says that the Group 1 signed a ceasefire agreement but suggests that the Group 2 has continued to commit human rights violations including forced recruitment.
Although this assessment of the applicant’s likely risk in returning to Country A is limited, the Tribunal notes that there is some support for his suggestion that there is a risk of victimisation at the hands of the military, which is one of the fears that DGVR expressed, however there is nothing to suggest that he would be targeted for this victimisation.
The Tribunal finds that international non-refoulement obligations provide some support for this application and attaches some weight to them.
14.2 Strength, nature and duration of ties
The applicant has lived in Australia for about 14 years and was 16 when he came here. He has lived here for all of his adult life, which tends to weigh in favour of granting this application.
Although the date of his arrival is not clear, the evidence of the applicant, which the Tribunal accepts, is that it was when he was 16. His first offence was recorded as having occurred on the 21st of August 2005[21] when he was about 17 ½ years old. In other words, his offending started within about 18 months of him coming to Australia.
[21] R2 Supplementary Documents P96
The length of the applicant’s association with Australia tends to weigh in his favour but the early date of his first offending lessens the weight of this favourable consideration.
More weight is to be given for the time that the applicant has spent positively contributing to the Australian community. There is a letter from the President of the Region C Community of Adelaide, who said that the applicant has volunteered with them for 8 years. This assists his application to a modest degree.
Weight is also to be given to the applicant’s family ties. The ties with his children have been discussed but in addition to that the applicant’s wife is Australian and her evidence made it plain that her life has been much more difficult without the applicant than it was with him. They had purchased a cleaning franchise which they were able to operate together and which did not require him to drive.
It has been much more difficult to run and much less profitable and the applicant’s wife does not believe that she will be able to maintain the business or pay the mortgage on the family house for much longer. The Tribunal also accepts her evidence that the absence of the applicant has placed greater demands on her family who have had to take on some childcare responsibilities that they would not otherwise perform.
This consideration, particularly in respect of the applicant’s wife, carries some weight in favour of the application.
The other considerations set out at 14.3 (Impact on Australian business interests), and 14.4 (Impact on victims), are not relevant to this application.
14.5 Extent of impediments if removed
The tribunal is directed to consider impediments that the applicant may face in establishing himself and maintaining basic living standards in his home country if he is removed there.
The evidence suggests that the applicant lived near the border of Country B and Country A and for the first 11 years of his life lived in both countries. For the 5 years before he came to Australia he lived in Country A. His evidence was that he speaks the languages of the border area of his upbringing. He gave evidence that he does not speak the main language of Country A although that seems inconsistent with his history to Dr Cayley[22].
[22] See R2 Supplementary Documents P119 final paragraph.
The Tribunal accepts that if he is removed to Country A he will be most likely to settle in Region C. He has not acquired a trade or other skills that might render him particularly employable there but he is still a relatively young man and is at no disadvantage in comparison to the rest of the community.
The evidence was that social, medical and economic support available to him would be limited.
On balance the Tribunal finds that this consideration does not assist in considering the application and does not afford it any weight either in favour or against it.
ASSESSMENT
DGVR has applied for the revocation of the mandatory cancellation of his visa. The Tribunal must decide if there is any reason to do so.
In considering this decision, the greatest weight is to be given to the 3 primary considerations.
The Tribunal finds that the first primary consideration, protection of the Australian community, weighs against granting the application but not heavily so.
The next primary consideration, the best interests of minor children in Australia, weighs heavily in favour of granting the application.
The last primary consideration, the expectations of the Australian community, weighs against the granting of the application but not heavily so.
The primary considerations are to be given greater weight than the other considerations.
One of them may outweigh the other primary considerations.
In this matter the Tribunal finds that the second primary consideration, the best interests of minor children in Australia, outweighs the other primary considerations.
Of the other considerations, international non-refoulement obligations provide a little support for the revocation of the cancellation of the applicant’s visa. The strength, nature and duration of the applicant’s ties to Australia also support the revocation of the cancellation of the applicant’s visa, and the extent of impediments if the applicant is removed to his home country is relevant but does not assist the Tribunal in coming to a decision.
Having taken all of the primary considerations and all of the other considerations that are relevant into account, the Tribunal is satisfied that there is another reason why the original decision should be revoked.
THE BRIDGING VISA
On 18 December 2017 a Class WC Subclass 030 Bridging Visa C was purportedly granted to the applicant. It was contemplated that the mandatory cancellation of that visa would also be reviewed in the context of this application.
On further consideration the parties have agreed that the applicant was not eligible for the grant of that visa and that the decision to grant the visa is, as a matter of law, no decision at all[23] and cannot be reviewed.
[23] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby, and Hayne JJ.
The Tribunal accepts this submission, observes that no visa was granted and does not make a finding about the purported bridging visa.

I certify that the preceding 239 (two hundred and thirty -nine) paragraphs are a true copy of the reasons for the decision herein of M Kennedy, Member (Presiding)and M O'Loughlin, Member

[sgd]........................................................................
Associate
Dated: 15 August 2018

Date(s) of hearing: 31 July 2018 and 1 August 2018

Counsel for the Applicant: Stephen Walker & Randhir Amoganathan

Solicitors for the Applicant: Law Access

Advocate for the Respondent: Claire Stokes

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 2892

15 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	31 July 2018 and 1 August 2018
Counsel for the Applicant:	Stephen Walker & Randhir Amoganathan
Solicitors for the Applicant:	Law Access
Advocate for the Respondent:	Claire Stokes
Solicitors for the Respondent:	Australian Government Solicitor