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

[2022] AATA 604

Diehl and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 604 (24 February 2022)

Division:GENERAL DIVISION

File Number(s):      2021/9489

Re:Phillip DIEHL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President

Date:24 February 2022

Date of written reasons:        30 March 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 4 November 2021 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside and in substitution it is decided not to exercise the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.

...................................[SGD].....................................

The Hon. Dennis Cowdroy AO QC, Deputy President

CATCHWORDS

MIGRATION - discretionary visa cancellation - failure to pass the character test - whether there is another reason not to exercise the discretion to cancel the Applicant's visa - Ministerial Direction No. 90 - nature and seriousness of offending conduct - risk of reoffending - protection of the Australian community - family violence committed by the non-citizen - expectations of the Australian community - strength, nature and duration of ties to Australia - impediments to removal - decision set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth) s501(2)

CASES

Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29

Djalic v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 15
DND and Minister for Home Affairs (Migration) [2018] AATA 2716
Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61
FYBR v Minister for Home Affairs [2019] FCAFC 185
GIS v the Queen (2004) 217 CLR 198
HZCP v Minister for Immigration and Border Protection (2018) FCA 1803
Leha v Minister for Immigration [2000] AATA 1054
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
NBMZ V Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1

Vu v Minister of Immigration and Citizenship Migrant Services and Multicultural Affairs [2020] FCAFC 90

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Dennis Cowdroy AO QC, Deputy President

30 March 2022

1. The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 4 November 2021 (“the decision under review”) to cancel the Applicant’s Class TY, Subclass 444 Special Category visa (“the visa”) under section 501(2) of the Migration Act 1958 (Cth) (“The Act”).

2. On 17 December 2019, the Applicant was given notice that his visa may be cancelled under subsection 501(2) of the Act and was invited to make representations about why his visa should not be cancelled.

3. On 14 January 2020 the Applicant provided a ‘Personal Circumstances Form’ to the Department after being granted extensions of time to provide this document, and further representations concerning the proposed cancellation were made on 5 May 2020.

4. A delegate of the Minister was satisfied that the Applicant did not pass the character test in paragraph 501(6)(a) of the Act on the basis that he had a “substantial criminal record” as defined by section 501(7). As a result, the Applicant’s visa was cancelled on 4 November 2021.

5. On 7 December 2021, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 9, 10, and 18 February 2022 using the Microsoft Teams platform.

   RELEVANT LAW AND POLICY: DIRECTION NO. 90

6. Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.

7. Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

8. Section 500(1)(b) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under section 501 to cancel a visa.

9. The Minister has made a written direction pursuant to section 499 of the Act to guide decision-makers in considering whether to exercise the discretion in subsection 501(2) of the Act. The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).

10. The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:

    1Australia 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.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11. Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

12. The primary considerations (paragraph 8 of the Direction) are:

    (a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);

    (b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);

    (c)best interests of minor children in Australia (“Primary Consideration C”); and

    (d)expectations of the Australian community (“Primary Consideration D”).

13. The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.

    FACTS

14. The Applicant, who is 42 years of age, was born in Canada on 2 June 1979 and is a citizen of Canada, New Zealand and England. The Applicant arrived in Australia in June 1987 and has accordingly resided in Australia for 34 years.

    EVIDENCE

    Statements

15. The Tribunal has had regard to the various character references and statements before it. The statements and references in support of the Applicant have been provided as follows::

    ·a statement of the Applicant, dated 30 January 2022;

    ·a statement of Ms Linda Carter (mother of the Applicant), dated 31 January 2022;

    ·a statement of Janine Claire Diehl, formerly Buckwell (wife of the Applicant), dated 1 February 2022; and other referees whose names appear below.

    ·a reference from Ross McKinney dated 18 December 2021 relating to the Applicant’s work as a blacksmith;

    ·a reference from Tricia M Gerny dated 18 December 2021 testifying to the Applicant’s work as a casual worker;

    ·a statement in the form of an email dated 12 December 2021 by Karen Griffin, the sister of the Applicant;

    ·a reference from Elena Pelbart, solicitor dated 1 June 2020 concerning the support the Applicant has provided to his mother following a serious fall she sustained in Jindabyne Shopping Centre in June 2015;

    ·an email from Kathleen Apps (undated), sister of the applicant; an email reference from Sharon Barnes (undated) concerning the applicant’s work ethics;

    ·a reference dated 5 September 2000 from Mr W Suite, Assistant Store Manager, Salvation Army Family Store concerning the high level of assistance provided by the Applicant;

    ·Ms Tanya Wolf of Cooma Steel concerning the service provided by the applicant in the period 4 October 2011 to 9th of July 2012 when the applicant was employed as a qualified welder/boilermaker. The reference acknowledges the trustworthy, reliable, punctual and hard-working service provided by the Applicant; and

    ·a reference from Peter Moore, Director of Caragher Steel and Powder Coating dated 6 February 2013 confirming the trustworthiness of the applicant and of the ability of the applicant to work with other employees, to work unsupervised, and to meet deadlines.

    Oral Evidence

16. The Tribunal heard oral evidence from the Applicant and the following witnesses:

    ·Ms Linda Carter;

    ·Ms Janine Claire Diehl;

    ·Ms Karen Griffin (sister of the Applicant);

    ·Mr Richard Andrew (stepfather of the Applicant); and

    ·Mr Tim Watson Munro (clinical psychologist).

    Other  Evidence

17. Certificates of completion of several courses undertaken by the applicant were received by the Tribunal as follows:

    ·Wollongong Institute of Technology transcripts;

    ·First Aid Certificate;

    ·Certificates in Rural Operations issued by Illawarra Institute of Technology;

    ·Certificate of Proficiency in traineeship in Rural;

    ·Certificate IV in small business management;

    ·Occupational Health and Safety Induction Training for Construction Work;

    ·Certificate III in Engineering – fabrication trade certificate issued by Department of Education and Training (TAFE);

    ·Occupational Health & Safety Awareness Program certification of attendance for a one-day awareness session;

    ·Certificate of completion of Equips Foundation Program;

    ·Certificate for the responsible service of alcohol (issued by TAFE);

    ·Statement of attainment in respect of service of alcohol, responsible gambling services, clean and tidy bar areas issued by TAFE;

    ·Statement of National WHS General Construction Induction Training issued by WorkCover;

    ·Statement of completion of training modules for traffic controller (Riverina Institute); and

    ·Statement of attainment for units applicable to operational forklift and license to operate forklift truck issued by TAFE.

18. The following documents have also been provided:

    ·certificate of registration as a British citizen issued on 5 March 1984 relating to the Applicant;

    ·a certificate of citizenship certifying that the Applicant has been granted citizenship in New Zealand from 12 December 1986;

    ·a letter dated 28 March 2014 from Katoomba Police Station relating to allegations of trespass and animal cruelty offences reported by the applicant to the police on 27 March 2014;

    ·a transcript relating to the above incident;

    ·a letter signed by Linda Carter (applicant’s mother) registered psychologist concerning the family arrangements and providing information that her partner is 76 years of age and that she is 66 years of age and that they rely on the applicant for support;

    ·a letter from Radhika Reddy of the firm of Legal on London dated 5 May 2020 making representations on behalf of the applicant concerning the cancellation of his Visa

    ·a statutory declaration of Linda Carter dated 25th of May 2020 referring to the ill health of Ms Carter

    ·a statutory declaration of Richard Andrew dated 25th of May 2020 concerning the family arrangements if the Applicant were forced to leave Australia

    ·medical records relating to Ms Linda Carter, which relate to her claim for compensation arising out of an injury sustained by her in an accident at Jindabyne shopping centre in 2015 including:

    oa report of Dr Mark Dubossarsky, Rehabilitation Medicine Physician dated 13 September 2018 being an assessment of Ms Linda Carter;

    oreport of Dr Drew Dickson, orthopaedic surgeon dated 18 September 2018;

    ·report of Dr Emily Kwok, psychologist, dated 30 January 2022 concerning the detrimental effect upon Ms Carter if her son were removed from Australia;

    ·a statement of Linda Carter dated 1/4/2012 addressed to the Presiding Magistrate at Cooma Local Court explaining the background of the applicant; of the fact that following his blacksmith’s trade, the Applicant commenced his own business in Cooma and providing an explanation for his breach of an apprehended violence order (AVO);

    ·a letter from Linda Carter dated 7 March 2017 addressed to the Judiciary explaining an incident leading to criminal charges; and

    ·a letter dated 24th of March 2017 from the Applicant addressed to The Magistrate at Cooma Local Court explaining the applicant’s love for dogs and the events leading to an incident resulting in criminal charges.

    Medical evidence

19. A report of Tim Watson-Munro, consultant psychologist, dated 3 February 2022 has been provided to the Tribunal.

    APPLICANT’S CRIMINAL HISTORY

20. The Applicant has been convicted of the following offences:

Date of offence	Date of conviction	Court	Offence	Penalty
05/03/2017	07/06/2017	Cooma Local Court	Owner of dog which attacks etc person	Fine : $400
01/03/2016	21/04/2016	Cooma Local Court	Drive with high range PCA - 1st off	Fine : $660 Community service order: 250 hours disqualification - driver: 8 months participation alcohol interlock program: 24 months
23/07/2011(?)	12/11/2014	Katoomba Local Court	Possess or use a prohibited weapon without permit-T2 (4 counts)	(Call up) Fine : $1,000
01/03/2014-29/03/2014	12/11/2014	Katoomba Local Court	Use offensive language in/near public place/school	Fine : $500
01/03/2014-29/03/2014	12/11/2014	Katoomba Local Court	Common assault-T2	5 years supv NSW prob service accept counselling in respect of drug and alcohol issues and anger management. to be assessed for mental health issues and to accept treatment for any mental health issues as diagnosed. supervision may include submission to urinanalysis and also residential rehabilitation for drug and alcohol issues if assessed as suitable.
01/03/2014-29/03/2014	12/11/2014	Katoomba Local Court	Stalk/intimidate intend fear physical etc harm (personal)-T2 (5 counts)	5 years supv NSW prob service accept counselling in respect of drug and alcohol issues and anger management. to be assessed for mental health issues and to accept treatment for any mental health issues as diagnosed. supervision may include submission to urine analysis and also residential rehabilitation for drug and alcohol issues if assessed as suitable.
01/03/2014-29/03/2014	12/11/2014	Katoomba Local Court	Possess or use a prohibited weapon without permit-T2 (2 counts)	5 years supv NSW prob service accept counselling in respect of drug and alcohol issues and anger management. to be assessed for mental health issues and to accept treatment for any mental health issues as diagnosed. supervision may include submission to urinanalysis and also residential rehabilitation for drug and alcohol issues if assessed as suitable.
20/01/2011	17/07/2012	Katoomba Local Court	Assault occasioning actual bodily harm-T2 (2 counts)	Fine: $500 - Court costs: $83  (for each count)
20/01/2011	17/07/2012	Katoomba Local Court	Common assault-T2	Fine: $500 - Court costs: $83
20/01/2011	17/07/2012	Katoomba Local Court	Recklessly wound any other person - T1	Fine: $500 - Court costs: $83
20/01/2011	17/07/2012	Katoomba Local Court	Common assault (DV)-T2	Fine: $500 - Court costs: $83
20/01/2011	17/07/2012	Katoomba Local Court	Possess or use a prohibited weapon without permit-T2 (2 counts)	Fine: $500 - Court costs: $83
23/07/2011(?)	17/07/2012	Katoomba Local Court	Possess or use a prohibited weapon without permit-T2 (4 counts)	Fine: $250 - Court costs: $87 - 2 year bond
13/02/2014	10/4/2012	Queanbeyan Local Court (On appeal: Queanbeyan District Court)	Assault occasioning actual bodily harm (DV)-T2	Imprisonment :12 months with non parole period with conditions: 9 months release subject to supv all grounds Note: appealed – conviction confirmed but non-parole period reduced to 5 months on 30/5/2012
13/02/2014	10/04/2012	Queanbeyan Local Court (On appeal: Queanbeyan District Court)	Destroy or damage property <=$2000-T2	Imprisonment: 1 month commencing 14/02/2012 concluding 13/03/2012. Note: appealed – conviction confirmed on 30/5/2012
13/02/2014	10/04/2012	Queanbeyan Local Court (On appeal: Queanbeyan District Court)	Common assault (DV)-T2	Imprisonment: 1 month commencing 14/02/2012 concluding 13/03/2012. Note: appealed – conviction confirmed on 30/5/2012
13/02/2014	10/04/2012	Queanbeyan Local Court (On appeal: Queanbeyan District Court)	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 3 months commencing 14/02/2012 concluding 13/05/2012. Note: appealed – conviction confirmed on 30/5/2012
13/02/2014	10/04/2012	Queanbeyan Local Court	Assault occasioning actual bodily harm (DV)-T2	Imprisonment:12 months commencing 14/02/2012
18/12/2011(?)	19/12/2011	Queanbeyan Local Court	Contravene prohibition/restriction in AVO (Domestic)	Fine: $300 costs - court: $81
06/04/2011	26/09/2011	Katoomba Local Court (On appeal: Penrith District Court)	Never licensed person drive vehicle on road-1st offence	Fine: $1000 costs – court costs: $81 and 12 month disqualification period Note: severity appeal – conviction confirmed but fine reduced to $500 with 6 month disqualification period on 21/10/2011
06/04/2011	26/09/2011	Katoomba Local Court (On appeal: Penrith District Court)	Use uninsured motor vehicle	Fine: $500 – court costs: $81 Note: severity appeal – conviction confirmed on 21/10/2011
06/04/2011	26/09/2011	Katoomba Local Court (On appeal: Penrith District Court)	Use unregistered registrable Class A motor vehicle	Fine: $500 – court costs: $81 Note: severity appealed lodged – conviction confirmed on 21/10/2011
06/04/2011	26/09/2011	Katoomba Local Court (On appeal: Penrith District Court)	Negligent driving (not occasioning death/gbh)	Fine: $1550 – court costs: $81 Note: severity appealed lodged – conviction confirmed but fine reduced to $750 on 21/10/2011
06/04/2011	26/09/2011	Katoomba Local Court (On appeal: Penrith District Court)	Not give particulars to other driver	Fine: $1000 – court costs: $81 Note: severity appealed lodged – conviction confirmed but fine reduced to $500 on 21/10/2011
Unknown	28/01/2000	Goulburn Local Court	Behave in an offensive manner in/near public place/ school	Fine : $500 – court costs: $54
Unknown	06/08/1999	Goulburn Local Court (On appeal: Goulburn District Court)	Goods in/on premises reasonably suspected stolen (12 counts)	Imprisonment: 3 months Note: appealed – conviction confirmed but ordered to complete community service order without condition: 100 hours on 13/04/2000
Unknown	06/08/1999	Goulburn Local Court (On appeal: Goulburn District Court)	Common assault-T2	Imprisonment: 3 months Note: appealed – conviction confirmed but ordered to complete community service order without condition: 200 hours on 13/04/2000
Unknown	06/08/1999	Goulburn Local Court (On appeal: Goulburn District Court)	Larceny value <=$2000-T2	Imprisonment: 2 months Note: appealed – conviction confirmed but ordered to complete community service order without condition: 50 hours on 13/04/2000
Unknown	06/08/1999	Goulburn Local Court	Unauthorised possession of prohibited weapon	Fine: $200 – court costs: $52
Unknown	16/07/1997	Goulburn Local Court	AOABG	Community service order without conditions: 250 hours

1. As a consequence, the Applicant received in respect of the convictions referred to in the above schedule various penalties including sentences of imprisonment, fines, and community service orders as set out in respect of each matter.

   Sentencing Observations

2. The Tribunal has considered sentencing observations in relation to these convictions.

   On 8 March 2012, before the Local Court of New South Wales:

3. Magistrate Bone referred to the evidence before the Court in respect of assault occasioning actual bodily harm; common assault, reckless wounding; contravening prohibition in apprehended violence order (domestic) and stated inter alia:

   “The defendant in this matter is charged with assault occasioning actual bodily harm, common assault, which is not a backup, destruction of telephone, and breach of an AVO [apprehended violence order]. All the evidence has been taken today. It is a serious matter, not a minor matter by any stretch of the imagination, but the defendant is in custody bail refused”

   On 10 April 2012 in the Local Court:

4. Magistrate Bone, continuing the proceedings from the 8 March 2012 hearing, said in his sentencing remarks in respect of the breach of an apprehended violence order that the Applicant and the victim had been in a relationship while living in the Blue Mountains which came to an end in mid-2011. The parties separated and that the Applicant moved to Cooma where he conducted his own business as a blacksmith. The victim came down regularly to visit him. An AVO had been issued and the Applicant was not to approach the victim if he had been drinking. A violent domestic dispute took place, resulting in the charges being laid against the Applicant.

5. Magistrate Bone said:

   “I will say something about the defendant. He has had a troubled past. He was actually born in Canada and his father was certainly a very violent man who was an alcoholic. His mother, I think left Canada to try and better things for herself and her children. And it did get in New Zealand, and they came to Australia. He went jackarooing when he was 13, and after that did a boilermaker/blacksmiths course. He got his tickets and he basically is an extremely hard worker.

   …

   Indeed – something that I did not pick up from the report – did community services in the past in what one would almost call record time. There is absolutely no doubt that he is a very hard-working person. Indeed, at the time that he was arrested and his liberty was taken he was working…”

6. Thereafter Magistrate Bone referred to work references from Mr Robert Wolf, Billy Mitchell and Mr Tony Donohoe, each of whom spoke of the very high standard of the Applicant and his work. His Honour noted that Mr Wolf said that the Applicant was “diligent, hard-working tradesmen, pleasant, co-operative and appeared to get on well with fellow workers, quality of the work was excellent”. Mr Mitchell who had known the Applicant for several years referred to him as being “honest, reliable, I speak highly of him, a first grade boilermaker, done numerous welding jobs on our farm, nothing is too much trouble when we are in need of help”. Mr Mitchell had been a former psychiatric nurse and prison warder.

7. Mr Tony Donohoe, who knew the applicant for 11 years, stated of the Applicant:

   “A true and dependable friend, extremely talented blacksmith, always had a strong work ethic. His transgressions that have led to this point should be the only factor to be taken into account in the case. He’s made every effort to make amends through this difficult time by leaving his home of 13 years and finding work in a new town”

8. Magistrate Bone then stated:

   “The defendant has a record. He’s had convictions from 1996 to 2011, but to state it as baldly as that would not be fair because most of the recent convictions, as did most of his convictions, occurred in the late 90s. He had assault in 1997 and 1999, he has had convictions for dishonesty, weapon offences, offensive behaviour type things and they were all in the late 90s. He has some traffic convictions only in the 2000s until he was fined for breaching an AVO in December of last year. I do note that he was on bail at the time of the commission of these offences, and that is an aggravating feature, albeit some of them were withdrawn anyway. But it is an aggravating feature.”

9. In respect of the domestic violence charge the magistrate noted that the most significant incident occurred on 14 February when the Applicant smashed a glass pint mug, into the victim’s nose. His Honour said:

   “That is not a minor matter. That is a major matter. One can accept that in all relationships there will be tensions, one can accept that there might be acts of violence…

   To hit anyone in the face I think with a pint glass is an extremely serious action, particularly if you do so with such force as to cause the sorts of injuries to the face that she received, the broken nose and the cuts and bruises that went with it. And in my opinion it is just far too violent an action not to result in a gaol sentence.”

10. The Magistrate continued:

    “The other thing, of course, is that there has been no indication whatsoever of remorse in this case. The defence, in essence, was “I didn’t touch her. The only time I did touch her was in self-defence”. I think it is a very serious assault to hit somebody, to hit a woman in particular, but anybody in the face with a heavy pint glass is just too serious for anything other than gaol.”

    On 30 May 2012 in the District Court of New South Wales, Criminal Jurisdiction:

11. Judge Williams considered an appeal against a sentence of 12 months imprisonment with a nine-month non-parole period imposed for assault occasioning actual bodily harm. Three other matters were appealed relating to the same victim and the sentences for those matters had expired. Judge Williams stated:

    “I would agree, it is probably in the mid range of objective seriousness particularly when the weapon used in the principal assault was a glass…

    I accept this is not a planned act. There is no doubt that it was alcohol-related…

    I have no qualms with the head sentence imposed by his Honour but I am concerned that a three month parole period does not leave very much leeway for any intervention by the Probation and Parole Service which I think would be in his and the community’s interest. This is a serious matter. It is a matter that is deserving of a level of full-time imprisonment. I do not think in the scheme of things an intensive correction order is likely to achieve any different result than the one I propose. As far as a common assault, intentionally reckless damaged property and contravene AVO, the appeals on those matters are dismissed. In regard to the assault occasioning actual bodily harm, the appeal is upheld. The sentences varied. The non-parole period is reduced to one of five months.”

    In the Local Court on 24 November 2014:

12. The Applicant appeared before Magistrate Toose on charges of common assault; possess or use a prohibited weapon without permit; assault occasioning actual bodily harm; contravene prohibition/restriction in AVO; stalk/intimidate; offensive language; possess prohibited weapon without permit; common assault. Magisrate Toose stated:

    “The matters before the Court are there are six counts of stalk/intimidate with intent to cause fear physical harm, they each carry with a maximum penalty of five years imprisonment or two when dealt with in the Local Court. The possess prohibited weapon, two years imprisonment when dealt with in the Local Court. As is the common assault. There is the offensive language which carries with it a fine only. They place you in breach of four s 9 Bonds which you had received from the Local Court, that was to be of good behaviour for two years. I have those papers and that was concerning the possession of the prohibited weapons”.

13. Magistrate Toose revoked each bond and ordered a fine of $1000 for each offences; with respect to the offensive language a fine of $500 plus the court levy was imposed; for the five counts of stalk/intimidate, the two counts of possession of prohibited weapon, and common assault: a sentence of a s 9 bond for each offence was imposed to run concurrently for a period of five years. The Applicant was ordered to accept the supervision of probation and parole.

    ISSUES FOR DETERMINATION

14. The Minister may exercise the discretion found in s501(2) of the Act if:

    (e)The Minister reasonably suspects that the person does not pass the character test; and

    (f)the person does not satisfy the Minister that the person passes the character test.

15. The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether the discretion in s501(2) should be exercised to cancel the Applicant’s visa.

16. The Tribunal now turns to assess the primary considerations contained in Direction 90 as relevant.

    PRIMARY CONSIDERATIONS

    PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
    
    

17. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:

    When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also have particular regard to the principle that entering or 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.

18. Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.

    Nature and seriousness of the conduct

19. The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction, which outlines certain types of crime or conduct which are to be viewed as very serious. Relevantly, this includes crimes which are violent, especially against women or children, and acts of family violence.

20. Some of the crimes the Applicant has been convicted of were violent and involve the use of a prohibited weapon, as well as breaches of apprehended violence orders. There is no doubt that such conduct is serious. The offending commenced on 16 July 1997 and continued until 2000. The Applicant was then conviction free for a period of 11 years but in 2011, 2012, 2014, 2016 and 2017 was again brought before the courts on a wide range of offences. The relevant facts of the Applicant’s offending are set out as follows:

    Early offending

21. The Applicant has a police record extending from 16 July 1997. In fact an apprehended violence order was applied for on 27 November 1996. The Applicant has been convicted of numerous offences thereafter as referred to in the above schedule. The offences include numerous motor traffic offences to more serious offences involving breaking and entering and receiving stolen goods. The breaking and entering took place at a school and the items removed included a drum kit, a microwave, and electronic equipment. Further, the Applicant has been involved in assaults and in other violence. For example, an incident occurred in a house at Leura on 31 July 2010 and an apprehended domestic violence order was applied for.

    2011 Offences

22. The conduct of the Applicant, as demonstrated by his long criminal record, shows that he has committed offences varying in seriousness. An Apprehended (Domestic) Violence Order (ADVO) was issued against the Applicant on an unspecified date. The record shows that such order was contravened on 18 December 2011 for which the Applicant was convicted on 19 December 2011 in Local Court. The Applicant was subsequently convicted of offences of assault occasioning actual bodily harm, contravening the ADVO, common assault and destroying or damaging property for which he was convicted in Local Court on 10 April 2012.

23. On 20 January 2011 the Applicant attended the home of a female friend where he assaulted a male person who was present. The Applicant was observed to pull a sword or dagger from his coat and approached the victim. He struck the victim with his right hand as a result of which the victim received bruising and abrasions to his left hand left forearm right thigh and forehead. The Applicant then struck the other male who was present on his arm in a stabbing motion with the sword/dagger. The violent altercation continued with the Applicant punching the victim and kicking the victim repeatedly as a result of which the victim sustained a scarred of his foot left for arm, to abrasions the right hand side of his stomach three cuts the right-hand side of his face and a bruised eye.

24. When police attended the Applicant asked if they had a search warrant. Police observed a female in a state of visible distress. Police observed the Applicant walk into the lounge room and throw an item which appeared to be a knife. It was a 23 cm butterfly knife and a search of the Applicant’s jacket revealed a knuckle duster inside the jacket pocket. Both the knuckle duster and the knife are defined as prohibited items. These actions resulted in the charges brought before the Local Court on 17 July 2012.

    2012 Offences

25. With respect to family violence the evidence establishes that the Applicant had a tempestuous relationship with his former partner for about two years whilst they resided in the Blue Mountains. The relationship ended in June 2011. Between June 2011 and September 2011, the Applicant and the victim were separated until the victim contacted the Applicant, who had relocated for work. The victim then made regular trips to visit the Applicant. According to the Fact Sheet of the New South Wales Police, on 4 February 2012 the victim came to stay with the Applicant. On 12 February 2012 the Applicant returned from work and consumed substantial quantities of alcohol, allegedly two casks of wine, between 4:30pm and 7:30pm. An existing apprehended domestic violence order (ADVO) prohibited the Applicant approaching the victim within 12 hours of consuming alcohol. An argument took place between the parties during which the Applicant was violent towards the victim. The parties then went to sleep but at 5:35am the dispute was renewed. The victim was conveyed to hospital where she was found to have a fractured nose, lacerations and redness on the left side of the nose and bruising to the right hip area. The victim stated that she was in fear of her life.

26. As a consequence, the Applicant was convicted of assault occasioning actual bodily harm; common assault, contravene prohibition/restriction in an existing ADVO and maliciously damaging or destroying property of less than $2000.

27. The presentencing report records that the Applicant saw himself as a victim in this situation; that he lacked insight into the dysfunction of the relationship and failed to take any portion of responsibility for the problems that he recognised as present. The Applicant was assessed as suitable for a medium level intervention by the Probation and Parole Service.

    2014 offences

28. The offences for which the Applicant was convicted in the Local Court arose out of the Applicant keeping malamute dogs on his property. The Applicant believed that an elderly neighbour was throwing rocks at the dogs and confronted the neighbour who had taken no such action. It appears that rocks had been thrown but by a different neighbour. There was a confrontation which involved the Applicant shouting abuse at his elderly neighbours. The Applicant threatened the police officers which were called to the scene and said that he was a martial arts expert and that he could “take you all out in one blow”. The Applicant was threatened with a taser by police. In response the Applicant alleged that there was a sniper waiting to retaliate. The police then discovered numerous weapons including a heavy metal knuckle duster, a separate bladed knuckle duster and a butterfly handle stiletto knife.

    2016 offences

29. The Applicant was apprehended on 1 March 2016 whilst driving a vehicle with a high range prescribed concentration of alcohol. The Applicant had ceased drinking 13 hours previously. But 13 hours later, at 3:25 PM on 1 March 2016 his blood alcohol reading was 2.73 g of alcohol in 210 L of breath. A presentence report dated 21 April 2016 relevantly states:

    [The applicant] reported being introduced alcohol at approximately 13 years of age by his older siblings. He described a history of binge drinking on weekends which, led to intoxication, but persistently denies that any past or recent consumption could be considered problematic. Notwithstanding, [the applicant] acknowledged that he consumed a significant amount of alcohol during the evening immediately prior to the offence.

30. The Report also stated:

    It is apparent that [the applicant] is afforded a stable living environment and enjoys the support of his de facto partner, mother and siblings. While [the applicant] denies that his consumption of alcohol could be deemed problematic, he has expressed his willingness to engage in alcohol and other drug counselling, and any other programs aimed at addressing his offending behaviour.

31. The Applicant was assessed as suitable for a community service order. The Police fact sheet records that this was the first PCA offence by the Applicant.

    2018 Offending

32. The Applicant kept two malamute dogs which broke out of the grounds of the Applicant’s residence and killed two sheep belonging to a neighbour. The Applicant was fined $400 for being the owner of a dog which attacks a person etc.

    Other conduct

33. The Applicant has also engaged in conduct which, although not resulting in any criminal charge, is conduct which the Tribunal is entitled to take into consideration, as follows:

34. Motor Vehicle Accident on 22 October 2018: Police records show that a car driven by the Applicant’s wife had been involved in a collision. Police attended and became concerned at the applicant’s behaviour. Police remained at the scene until the applicant had left in order to prevent a breach of the peace. On the following day the Applicant apologised to an unknown party for his behaviour. However, when informed of the cost of repairs, the Applicant became angry and threatened the other person stating “I can make your life so miserable”.

35. Later the Applicant apologised. The third-party telephoned police seeking advice concerning the Applicant’s bad behaviour.

36. Incident involving dogs on 18 November 2018: Police records indicate that on 18 November 2018 a 70 year old female was walking her two small dogs off leash in what she understood as a leash free area. The dogs ran to a car containing the two dogs of the Applicant. The barking caused the Applicant to repeatedly use offensive language and behave in an offensive manner as he berated the elderly lady. Police contacted the Applicant and warned him concerning his behaviour, language and temper.

37. Incident on 3 February 2019: The Applicant attended the front of the victim’s house and from the median strip called her name. The Applicant was then told to “fuck off”. An argument ensued. The female victim felt intimidated because her husband was not at home.

38. Incident on 3 August 2020: The Applicant attended hospital having been on a five-day alcohol bender. Whilst practising his martial arts the applicant had broken two ribs. The Applicant claimed at hospital that he had fallen into some bushes due to his intoxication. When hospital staff went to assist him, the applicant was abusive towards the staff.

39. The Tribunal is entitled to have regard to the conduct for which there is evidence to support a factual finding that the conduct has occurred irrespective of the fact that no conviction has resulted: see Vu v Minister of Immigration and Citizenship Migrant Servicesand Multicultural Affairs [2020] FCAFC 90 at [64]. Further, it is for the sentencing court alone to decide the sentence to be imposed for any criminal conduct, and for that purpose, the court must find the relevant facts: GIS v the Queen (2004) 217 CLR 198 at [30]. Further, in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Court considered whether the Tribunal could “impugn” the conviction or sentence for a crime in respect of which the deportation order was made. The court said at [25]:

    “It is impermissible for the Tribunal to impugn the conviction on which a deportation order is based: Minister for Immigration and Ethnic Affairs v Danielle (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs Gungor (1982) 63 FLR 441.”

1. In summary, the Tribunal has no power to review the criminal convictions and must proceed on the basis that the facts as found at the trial are correct: see HZCP v Minister forImmigration and Border Protection [2019] FCAFC 202, especially the decision of McKerracher J at [63].

2. However, while it is the case that, where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the conviction nor to the essential facts on which it is based, the circumstances the conviction may be reviewed for purposes other than impugning the conviction itself: see HZCP v Minister for Immigration and Border Protection (2018) FCA 1803 at 78 (1) (Bromberg J).

3. The Tribunal notes significant matters relevant to the consideration of the protection of the Australian community, which are undoubtedly serious:

   (a)the Applicant has breached apprehended violence orders and has committed an act of domestic violence;

   (b)the defendant has committed common assault;

   (c)the defendant has intimidated elderly and vulnerable neighbours.

   Risk to the Australian community should the Applicant reoffend or engage in other serious conduct

4. The Tribunal has had regard to paragraph 8.1.2 of the Direction. In this respect it appears that the Applicant’s offending has arisen in part from his inability to control his temper and his excessive consumption of alcohol. Further, in respect of the convictions for unauthorised weapons, whilst such a charge is serious, the facts suggest that such weapons were mainly trophies or items collected as a hobby. Some were used in a threatening manner, but no injury was ever inflicted by their use.

5. The Applicant has an extensive criminal history of offending and also of alcohol abuse. His alcohol addiction was recognised as early as 2012. The Presentence Report of the Probation and Parole Service dated 10 April 2012 reported that the Applicant should undertake courses to address his alcohol problem and anger issues. There is some evidence of steps taken by the Applicant to follow such recommendations, but such material is vague.  

6. A further Presentence Report in 2016 also makes similar recommendations. Again, there is no evidence of any action taken by the Applicant to formally address such issues.

7. The Applicant has undertaken courses to address his alcohol issue whilst in immigration detention. It should be noted that the Applicant, his mother, and his partner gave evidence to the Tribunal indicating that while there were no formal courses completed, there were efforts by the Applicant and his family to address the Applicant’s alcohol behaviour prior to his detention.

8. In a statement provided to the Tribunal by Miss Carter (Applicant’s mother), it is suggested that the Applicant suffers as a result of traumatic experiences from his childhood. There is no evidence from any psychiatrist of any diagnosed mental illness, but the Tribunal notes the evidence of the psychologist referred to hereunder.

9. Mr Watson-Munro, the clinical psychologist states in his written report that the Applicant,

   “..drifted into a pattern of using alcohol as a means of self-medication. Although there have been past denials reparable to his acknowledgement of the impact of alcohol on his judgement and impulse control and attendant to this, its nexus with his forensic history, [the Applicant] now appears more willing to accept that this has been the case and to this extent, expressed a willingness for treatment”.

10. Mr Watson Munro states in his report  that the Applicant “has now detoxified from alcohol”. In his oral evidence, Mr Watson -Munro acknowledged that this information is based upon the fact that the Applicant has not consumed alcohol whilst he has been in detention. Mr Watson Munro also states:

    Taking all factors into account, [the Applicant’s] risk of reoffending in my view is trending from moderate (as described in the presentence report in November 2014) to low. Clearly, for him to be considered a low risk of reoffending, certain conditions will need to be maintained, including ongoing structure and supervision through treatment, the ongoing supportive family and end in particular his wife and mother, employment which provide structure, and a sense of purpose in his life, as well as treatment revelled alcohol, in addition to depression and anxiety.

11. In cross examination Mr Watson Munro was questioned as to whether it was his assessment that he would remain a moderate risk or there was a potential that his risk of offending might fluctuate, Mr Watson Munro replied:

    I think in the absence of treatment he would be fluctuating around moderate because you won’t have the skills to deal with stressors when they arise. If he continues drinking, clearly his judgement and impulse control will be impaired. So it will fluctuate rather than being on a positive trajectory. I think that he requires ongoing treatment from a suitably qualified clinical psychologist independent of the family.

12. Mr Watson Munro considered that the Applicant would benefit from Dialectical Behaviour Therapy which would address his substance abuse, personality issues and behavioural disturbance. He also considered that special skilled training focused on anger management, systematic desensitisation for the Applicant’s anxiety, social skills training for his low self-esteem and the development of relapse prevention strategies would assist the Applicant.

13. Since 2012 the Applicant has known and been aware of his alcohol problem and taken few evident steps to address it. The Applicant’s wife states that he has undertaken courses to address his alcohol addiction. In 2020 the Applicant engaged in a “five day bender”. Any courses that may have been taken prior to the Applicant’s five day bender in 2020 have apparently proved to be ineffectual. The Applicant has always had the support of his mother and family throughout his offending and this has not been sufficient to address his behaviour nor his alcohol addiction. The Applicant claims that he has been stable in his life since he has been with his wife. But his wife has similarly been unable to prevent or wholly address the Applicant’s alcohol consumption and the continuation of his aggressive behaviour towards others as evidenced by his 2020 ‘five day bender”.

14. The Tribunal is required to form an “understanding of the actual circumstances involved in the various offences and their sentences” see NBMZ V Minister for Immigration and BorderProtection [2014] FCAFC 38; (2014) 220 FCR 1 at (202) and at (207] per Buchanan J. The Tribunal also notes the observations of North J in Cotterill v Minister for Immigration andBorder Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91] where his Honour referred to the fact that it was not possible to reach a “legally reasonable conclusion” concerning the seriousness of an offence without informative details the actual circumstances involved. The Police fact sheets of the various offences with which the applicant has been convicted sets out the facts concerning the various offences in respect of which the applicant has been convicted.

15. The issue of the community expectations has been the subject of extensive judicial discussion. In Leha v Minister for Immigration [2000] AATA 1054 Deputy President McMahon stated at (34) that there “would be a general expectation in the community that the Act would be administered fairly and humanely”. See also FYBR v Minister for Home Affairs [2019] FCAFC 185 at (75) per Charlesworth J.

16. This Tribunal notes that s501 of the Migration Act is not punitive: the act proceeds upon the basis that the Applicant has already been punished by virtue of his sentences and visa cancellation or deportation is not to be a punishment for past events: see Djalic v Ministerfor Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 15 at [58]. The critical task before the Tribunal is to consider the future risks when determining the application.

17. The Tribunal must also have regard to what would be the effect on the Australian community should the Applicant reoffend. If the Applicant were to reoffend, it is likely that the Applicant would engage in common assault, or assault occasioning bodily harm. This might have serious consequences upon the physical and mental wellbeing of members of the Australian community, as well as placing a burden on law enforcement and public health providers.

    Finding on Primary Consideration A

18. Given the factors discussed above, the Tribunal finds that this consideration weighs in favour of exercising the discretion under s501(2) to cancel the Applicant’s visa.

    PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

19. Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

20. Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".

21. This primary consideration is relevant in circumstances where (paragraph 8.2(2)):

    a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).

22. Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

    a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));

    b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));

    c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):

    (i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));

    (ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));

    (iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and

    d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).

23. The Applicant has a history of domestic violence offences, with the first apprehended domestic violence order being applied for in 2010 and culminating in the most serious breach of a domestic violence order when the Applicant was convicted of assault occasioning bodily harm in 2012. The detailed facts of this history are as outlined above in primary consideration A, and such details are not repeated.

24. The Applicant’s domestic violence offending, particularly the assault occasioning bodily harm, is undoubtedly serious. The conduct of the Applicant occurred over a period of two years and escalated in seriousness over that timeframe. As noted by Mr Watson-Munro, and considered in more detail above, the Applicant has made progress in his acceptance of responsibility for his family violence offending and has engaged in some rehabilitation programs and changes to his behaviour in order to address his alcoholism and anger management issues.

25. However, in his oral evidence before the Tribunal, the Applicant demonstrated that he still has some difficulty accepting full responsibility for every aspect of his offending, although he ultimately accepts that he rightfully is at fault. Further, the occasion of a five-day bender which occurred in 2020 indicates that he was, at least at that time, still struggling with alcohol despite his self-managed efforts to change his behaviour. Such conduct would indicate that while the Applicant has taken some steps towards rehabilitation, the progress is ongoing. Such factors indicate that this consideration must still weigh in favour of exercising the discretion to cancel the Applicant’s visa. However it is moderated by the Applicant’s rehabilitation efforts and the significant period of time which has passed without repeating any acts of family violence.

    Finding on Primary Consideration B

26. The Tribunal finds that this consideration weighs moderately in favour of exercising the discretion to cancel the Applicant’s visa.

    PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

27. Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether exercising the discretion is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).

28. Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

29. Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

    a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

    b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

    c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

    d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));

    e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

    f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

    g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

    h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

30. The Applicant has no children and there is no evidence before the Tribunal of any infant nieces or nephews in respect of which the Applicant might play a parental role.

    Finding on Primary Consideration C

31. The Tribunal considers that the best interests of the children is not relevant to the current case, so it is given no weight. This consideration is neutral.

    PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

32. Paragraph 8.4(1) of the Direction provides that:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

33. Paragraph 8.4(2) also provides that exercising the discretion to cancel a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)   acts of family violence; or

    (b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

    (d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)    worker exploitation.

34. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

35. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

36. This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.

37. It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

38. In this respect, it is noted that the Applicant asserts that he received no prior warning of the cancellation of his visa. Two letters were forwarded to the Applicant by registered mail but each was returned unopened. Nevertheless, it had been held that “community expectation will depend upon consideration of “the nature and character” of the offences”: see DND and Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].

    Finding on Primary Consideration D

39. In this case, the Tribunal accepts that the Australian community’s expectations weigh against the Applicant. His continued offending over many years demonstrates that he does not abide by Australian law. He has also been convicted of a violent crime against a woman in the context of domestic violence and such conduct is considered to be seriously against the expectations of the Australian community. However, a decision of this Tribunal adverse to the applicant is not to be construed as punishment. In Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61 Nettle J said:

    What s 501 (3A) does is to require the cancellation of a visa in certain circumstances. It confers power, which the Minister has a duty to exercise, to determine whether a non-citizen can enter, or remain in, Australia. That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.”

1. Further, at (94) Nettle J said:

   Punishment in the relevant sense consist of the measures taken in the name of society to exact just retribution on those who have offended against the laws of society and thus, it is hoped, to facilitate their rehabilitation. By contrast, power is the kind conferred on the Minister by s 501 (3A) give effect to Parliament’s right to rid the nation of persons who, in the judgement of the Parliament, as shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation.…

2. The seriousness of the convictions must be tempered with an understanding of the circumstances relating to their occurrence: that is, that the offending has resulted in the main from alcoholism. There is no evidence that any of the offending was pre-meditated. In these circumstances the Tribunal considers that the expectations of the Australian community would weigh in favour of exercising the discretion to cancel the Applicant’s visa.

   OTHER CONSIDERATIONS

3. The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.

   International non-refoulement obligations

4. This consideration is not relevant in this matter.

   Extent of impediments to the Applicant if removed from Australia

5. Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the non­citizen 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.

6. The Applicant is 43 years of age, having resided in Australia since he was 9 years of age.

7. There are no substantial language or cultural barriers between Australia and New Zealand. There is no evidence to suggest that the applicant suffers any ill health. The social, medical and economic support services available New Zealand would be equivalent to those applicable in Australia and would be available to the Applicant.

8. In respect of the Applicant’s criminal record, Ms Carter believes that the Applicant’s offences were triggered by trauma, then alcohol which is consumed by the applicant used to alleviate the trauma.

9. Ms Carter states that the children and herself suffered greatly from the conduct of her first husband who is a native Canadian Indian. She states that he was physically and mentally abusive resulting in her hospitalisation as the result of assaults committed by her husband in Canada. She states that that husband died age of 40 in 1985 due to alcoholic poisoning.

10. Mrs Diehl, nee Buckwell, the Applicant’s wife, states that she met her husband online while she was in England. She arrived in Australia on July 2, 2015. They were married on 5 August 2017.

11. Mrs Diehl is a citizen of the United Kingdom. She stated she will support the Applicant. The Applicant has not been in trouble with the law since that their marriage. She states that the Applicant has “grown up and settled down”, and that he has undertaken courses for anger management and drug and alcohol rehabilitation.

12. Mrs Diehl states that she believes the Applicant will suffer severely if deported to the United Kingdom. He has no relatives in a country and no family except his mother in law and sister-in-law. She states that she considers that the Applicant’s attitude in general concerning his criminal record has changed, even before he was placed in detention.

13. Mr Andrew (Applicant’s stepfather) gave evidence to the effect that the applicant had made mistakes as a young man and that in his opinion, the applicant is fundamentally a goodhearted young man and a wonderfully talented blacksmith. Mr Andrew refers to the assistance that has been given by the Applicant to himself who is now 75 years of age and the Applicant’s mother. Both Mr Andrew and the Applicant’s mother reside on a country property of 8 ½ acres which requires continuing maintenance and upkeep which they are unable to do without the assistance of the Applicant. Mr Andrew also refers to the fact that the applicant will be totally alone and his wife would have to return to England if he were required to leave Australia. Mr Andrew stated that there are no other members of the family residing in New Zealand.

14. The Applicant’s sisters strongly support the Applicant remaining in Australia.

15. The Tribunal finds that this consideration weighs strongly in the Applicant’s favour, given the length of time the Applicant has resided in Australia, his marriage in Australia, and the fact that all of his family reside in Australia.

    Impact on victims

16. Paragraph 9.3(1) of the Direction provides:

    Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

17. There is no recent evidence before the Tribunal of the impact of the Applicant’s offending against his victims. It follows that there is also no such evidence of any likely impacts on victims resulting from possible outcomes of this decision. As a result, this consideration does not hold significant weight in this matter.

    Links to the Australian community

18. The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).

    Strength, nature and duration of ties to Australia

19. Under paragraph 9.4.1 of the Direction:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, 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.

20. The Applicant’s family all reside in Australia. Ms Carter, the Applicant’s mother, has provided an extensive history of the Applicant’s family. Ms Carter states that she is a citizen of the United Kingdom and New Zealand as well as Australia. She resided in Canada as a resident from 1958 to 1984 and travelled back and forth from Canada to England as a child. She states that the family left Canada on the 31 November 1984 and the applicant and the other children travelled to New Zealand on her British passport. Ms Carter states that the family became citizens of New Zealand as she married a New Zealander. She resided in Australia from 1987 when she moved from New Zealand with her then husband, Paul, and two daughters Kathleen and Karen, and the Applicant. Ms Carter states she was frequently hospitalised as a result of her former husband’s assaults.

21. The Tribunal notes the report of Dr Emily Kwok, psychologist dated 30 January 2022 which indicates that Ms Carter’s mental health would be advanced if the Applicant were to remain in Australia. The report refers the fact that Ms Carter has relied upon the Applicant for the last 20 years and even more so since her 2015 accident . Further, as discussed in his evidence above, Ms Carter’s husband Mr Andrew also relies on the Applicant for the maintenance of the property on which he and Ms Carter reside.

22. Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh very strongly in favour of not exercising the discretion to cancel the Applicant’s visa.

    Impact on Australian business interests

23. Paragraph 9.4.2 of the Direction indicates that,

    Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

24. The Applicant operates his own blacksmiths business in Cooma. No information has been provided about such business. However, references supplied by clients of the business testify as to the skill of the applicant as a blacksmith. The Applicant would be able to use his skills as a blacksmith both in Australia and in other countries. As there is no evidence of the Applicant’s business being involved in the ‘delivery of a major project, or… important service in Australia,’ this aspect of the consideration cannot be given significant weight.

    CONCLUSION

25. In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal is required to consider whether there is “another reason” why the discretion to cancel the Applicant’s visa in s501(2) of the Act should not be exercised.

26. In making its decision, the Tribunal has considered the following matters and made the following conclusions which inform the weighting given to each consideration:

    (a)The criminal record of the Applicant, and the sentencing remarks of judicial officers, shows that the recurrent cause of the Applicant’s offending has resulted from his excessive consumption of alcohol. The Applicant has demonstrated that he is able to live a life without crime, as evidenced by the fact that no convictions were recorded against him between 1999 and 2011;

    (b)Other criminal offences have resulted from his interest in martial arts, and weapons. However, there is no evidence that any of the weapons he possesses are illegal. In some instances the police have returned to him articles which they had seized. The offending has largely been on the lower scale, as evidenced by the penalties imposed. The Applicant has never been convicted of very serious offences such as murder, manslaughter, or robbery. No serious offending has occurred in recent years;

    (c)The Applicant’s aggressive demeanour, often fuelled by alcohol, has led to offending or to other conduct which, whilst not criminal, is conduct which the Tribunal has taken into consideration. The Tribunal, noting the reports of the psychologist, Mr Watson-Munro, and having heard his oral testimony, is satisfied that the Applicant’s demeanour has largely resulted from his troubled upbringing and alcoholism. Mr Watson-Munro considers that the offending has resulted from alcohol abuse and personality issues which manifest themselves by behavioural disturbance. Mr Watson-Munro considers that such issues can be addressed by counselling. Mr Watson-Munro believed that the Applicant’s risk of reoffending would trend from moderate to low if he obtained counselling;

    (d)Until the Applicant was taken into detention, he was unaware that he may have been at risk of deportation. The Applicant has undertaken that he will not offend again, and the Tribunal places weight on such an undertaking given that much of his earlier offending took place before he was married. The Applicant is now happily married and the Tribunal notes that the Applicant’s wife appears to be a stabilising influence in his life since there has been no record of any serious offences since the Applicant and his wife married on 5 August 2017. Since the Applicant’s wife was sponsored to Australia by the Applicant, if the Applicant should have his visa cancelled the Applicant’s wife would be unable to remain in Australia;

    (e)The Applicant has shown that he can be a worthwhile citizen. He has undertaken numerous courses of study which have led to qualifications in various fields. However the area of work in which he excels is that of a blacksmith. The testimonials provided speak very highly of his skills;

    (f)The Applicant has expressed remorse for his behaviour and insight into his offending. The Applicant is now acutely aware, because of his detention, that should he offend in the future his right to reside in Australia may be terminated;

    (g)The Applicant, having lived in Australia for 34 years, and having his family, namely his wife, his mother, stepfather, and sisters, residing in Australia would face a significant detriment if removed. The recommendation of the psychologist is that the Applicant needs counselling from an independent expert; and

    (h)The Tribunal is satisfied that the Applicant can fulfil a worthwhile role as a citizen in the future, and should not pose any serious risk to the Australian public. The Applicant is now fully aware that any further transgression of the law will almost certainly result in deportation. With his more settled status, with his wife and a promising business, the Applicant is more likely than not to be stable in the future.

27. In relation to the primary considerations required to be considered by the Direction, the Tribunal has concluded that:

    (a)the protection of the Australian community primary consideration weighs in favour of exercising the discretion;

    (b)the family violence primary consideration weighs moderately in favour of exercising the discretion;

    (c)the primary consideration regarding the best interests of minor children is not relevant in this matter, and thus has neutral weighting;

    (d)the expectations of the Australian community primary consideration weighs in favour of exercising the discretion.

28. In relation to the other considerations to be considered in this matter, the Tribunal has concluded that:

    (a)international non-refoulement obligations do not have any significant weight in this matter;

    (b)there was no material before the Tribunal to suggest that the impact on victims should weigh significantly in this matter;

    (c)the extent of impediments to the Applicant if he is removed from Australia weighs strongly against exercising the discretion to cancel the Applicant’s visa;

    (d)the Applicant’s link to the Australian community, particularly the strength, nature, and duration of ties to Australia as a result his family connections, especially as his mother and her husband rely heavily on the Applicant, weigh very strongly against exercising the discretion to cancel the Applicant’s visa; and

    (e)the impact on Australian business interests did not arise in a significant way on the material before the Tribunal, and thus has neutral weighting.

29. In balancing the above conclusions, the Tribunal finds that while protection of the Australian community, family violence considerations, and the expectations of the Australian community all each weigh in favour of exercising the discretion to cancel the Applicant’s visa, these considerations are outweighed by the other considerations of the Applicant’s links to the Australian community and the extent of impediments to the Applicant if he is removed from Australia. Accordingly, it is considered that the reviewable decision should be set aside.

    DECISION

30. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 4 November 2021 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside and in substitution it is decided not to exercise the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.

I certify that the preceding 128 (one hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

..............................[SGD]..........................................

Associate

Dated: 30 March 2022

Date(s) of hearing:	9, 10 & 18 February 2022
Advocate for the Applicant:	Ms L Carter
Solicitors for the Respondent:	Mr L Dennis, MINTER ELLISON