DKDR and Minister for Home Affairs (Migration)

[2019] AATA 412

DKDR and Minister for Home Affairs (Migration) [2019] AATA 412 (7 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7446

Re:DKDR  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Member Tigiilagi Eteuati

Date:7 March 2019

Place:Brisbane

The Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant’s visa not be cancelled.

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

Member Tigiilagi Eteuati

Catchwords

MIGRATION – cancellation of applicant’s visa under s 501(2) – applicant failed to pass the character test - whether to exercise the discretion to cancel the applicant’s visa - application of Direction No. 79 – decision set aside

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs[2018] FCA 1311

Doan and Minister for Home Affairs (Migration) [2019] AATA 169

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Uelese v Minister for Immigration and Border Protection[2015] HCA 15

YNQY v Minister for Immigration and Border Protection[2017] FCA 1466

Secondary Materials

Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Tigiilagi Eteuati

7 March 2019

background

1. This is an application by DKDR (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) made on 21 November 2018 cancelling the Applicant’s Special Category (TY 444) visa under section 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2.       The Applicant is a 26 year old male citizen of New Zealand. The Applicant first arrived in Australia on a Special Category (TY 444) visa on 23 December 1997 when the Applicant was 5 years old.[1] The Applicant’s visa was cancelled on 21 November 2018 on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months.[2] On 17 December 2019, the Applicant sought that the decision to cancel his visa be reviewed by the Tribunal.

[1] Exhibit G1, page 138.

[2] Exhibit G1, page 5.

3.       The matter was heard on 26 February 2019. For the reasons below, I have decided to set aside the Minister’s decision to cancel the Applicant’s visa and make a decision in substitution that the Applicant’s visa not be cancelled. The Tribunal considers that this is the preferable decision in this case.

issues

4. Section 501(2) of the Act provides:

(2) The Minister may cancel a visa that has been granted to a person if:

a.the Minister reasonably suspects that the person does not pass the character test; and

b.the person does not satisfy the Minister that the person passes the character test.

5.       The two issues are:

1.whether the Tribunal reasonably suspects that the Applicant does not pass the character test as defined in section 501 of the Act and the Applicant does not satisfy the Tribunal that he passes the character test; and if so

2.whether the Tribunal considers that the discretion in section 501(2), to cancel the Applicant’s visa, should be exercised.

6.       If the Tribunal is satisfied that the Applicant passes the character test, the cancellation decision must be set aside as the power to cancel the Applicant’s visa is not enlivened.

7. If the Tribunal is not satisfied that the Applicant passes the character test, the discretion in section 501(2), to cancel the Applicant’s visa, is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(2) should be exercised to cancel the Applicant’s visa, the appropriate decision is to affirm the decision under review.

8. If the Tribunal decides that the discretion in section 501(2) should not be exercised to cancel the Applicant’s visa, the appropriate decision would be for the cancellation decision to be set aside and for a decision in substitution to be made to not cancel the Applicant’s visa.

Evidence

9. The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A14 and the documents tendered into evidence by the Respondent and marked S1 to S3. The evidence contained in these documents is discussed throughout these Reasons: see ‘Annexure 1’.

10. The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least 2 clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.

11.     A summary of evidence of lay witnesses is provided below from paragraph 37 of these Reasons.

does the Applicant pass the character test?

12. Section 501(6) of the Act 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)); or”

13. Section 501(7) of the Act relevantly provides:

“(7) For the purposes of the character test, a person has a substantial criminal record if:

…

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or”

14.     The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.

15. Section 501(12) provides that “imprisonment” includes any form of punitive detention in a facility or institution.

16. The Applicant has not argued that his sentences of detention in juvenile detention are not “imprisonment” and the Tribunal finds that the Applicant’s sentences of detention in juvenile detention fall within the meaning of “imprisonment” for the purposes of section 501 of the Act.

Offending history

17.     The Applicant’s National Police Certificate[3] indicates that on 9 June 2011 the Applicant was:

·convicted of manslaughter and sentenced to 5 years detention;

·convicted of assaults occasioning actual bodily harm while armed/in company and sentenced to 3 years detention;

·convicted of assaults occasioning actual bodily harm while armed/in company and sentenced to 2 years detention; and

·convicted of assaults occasioning actual bodily harm while armed/in company and sentenced to 9 months detention.

[3] Exhibit G1, pages 23-25.

18.     As the Applicant was 16 years old when the offending occurred, his detention was to be served in a juvenile detention facility. The sentences were to be served concurrently and the effective sentence was five years in juvenile detention with release after serving 52.3% of that sentence (just over two years and seven months). The Applicant was released from detention on 10 June 2011, the day after he was sentenced on 9 June 2011.

19.     On 30 January 2012, the Applicant was found guilty of commit public nuisance and obstruct police officer on 2 December 2011. No conviction was recorded and the Applicant was fined $500. The Applicant had pled guilty to the offences.

20.     On 8 February 2013, the Applicant was found guilty of unlawful use of motor vehicle committed on 13 January 2013. No conviction was recorded. The Applicant was placed on probation for a period of 12 months and he was ordered to pay restitution in the amount of $1334.

21.     On 13 June 2014, the Applicant was convicted of commit public nuisance on 31 May 2014 and was fined $450.

22.     On 25 August 2014, the Applicant was found guilty of failure to appear in accordance with undertaking committed on 8 July 2014. No conviction was recorded and he was fined $400.

23.     On 16 July 2015, the Applicant was convicted of failure to appear in accordance with undertaking committed on 4 June 2015 and was fined $500.

24.     On 5 August 2015, the Applicant was convicted of contravene direction or requirement and fined $300.

25. I am satisfied that the Applicant has a substantial criminal record for the purpose of section 501(6)(a), when read with section 501(7)(c) of the Act, as he was sentenced to a term of imprisonment of more than 12 months in 2011. The Applicant has conceded that he does not pass the character test.[4]

[4] Applicant’s Statement of Facts Issues and Contentions dated 29 January 2019, page 1 [2].

26. I am satisfied that the Applicant does not pass the character test and consequently, the discretion in section 501(2) of the Act, to cancel the Applicant’s visa, is enlivened.

should THE DISCRETION TO CANCEL THE APPLICANT’S VISA BE EXERCISED?

27. In considering whether the discretion in section 501(2) should be exercised to cancel the Applicant’s visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether the discretion in section 501(2) should be exercised to cancel a non-citizen’s visa.

28.     Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

29.     The relevant considerations in relation to consideration of cancellation of a visa are contained in Part A of the Direction.

30.     Paragraph 9 of the Direction provides for the consideration of three primary considerations. They are:

A.Protection of the Australian community from criminal or other serious conduct;

B.The best interests of minor children in Australia; and

C.Expectations of the Australian community.

31.     Paragraph 10 of the Direction provides for the consideration of other considerations. They include but are not limited to:

A.International non-refoulement obligations;

B.Strength, nature and duration of ties;

C.Impact on Australian business interests;

D.Impact on victims; and

E.Extent of impediments if removed.

32.     Paragraphs 8(3) to (5) of the Direction provide:

“(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.”

33.     In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:

“Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”

34.     The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.

35.     The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.

36.     The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to exercise their discretion to cancel visas. The principles in paragraph 6.3 are as follows:

1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Summary of the evidence of witnesses

The Applicant

37.     The Applicant was born in New Zealand and arrived in Australia on 23 December 1997 shortly after he had attained five years of age. He was accompanied by his grandfather and his brother. The Applicant’s parents remained in New Zealand. The Applicant said that his parents had separated and that he had seven half-siblings on his mother’s side and “roughly the same” on his father’s side.

38.     The Applicant said that he had maintained a relationship with his mother but that he had not maintained a relationship with his father and his siblings on his father’s side.

39.     The Applicant said that he, along with his only full brother, was raised by his maternal grandfather in Australia.

40.     On 25 October 2008 the Applicant and three other boys were returning home from a multicultural event. The Applicant had not been drinking. They were joined by a fifth boy. While they were walking through a park there was an altercation between the boys and a number of intoxicated older men. The Applicant and one other under aged boy were assaulted by the older men but were not injured. The boys then used a mobile telephone to call other young men to the park to exact retribution on the older men in the park who had assaulted two of the boys. When the group re-entered the park, one of the group was carrying a piece of fence paling, and another was carrying a hammer which had been given to him by the Applicant. The Applicant was not armed when he re-entered the park.

41.     There were nine boys and young men in the Applicant’s group that re-entered the park. When they confronted the older men in the park, some of the older men ran away, leaving three older men who were extremely inebriated and, in effect, unable to defend themselves. All three men were violently attacked by the group of boys and young men. All three men suffered grievous injuries as a result of the attack and one of the three men died as a result of the injuries inflicted by members of the group. All three men were attacked with weapons.

42.     The Applicant was convicted of offences against all three men as he was part of the group that attacked the men and was found to have acted in concert with them. The Applicant’s personal involvement or his “physical participation” appears to have been “limited to assaulting” one of the two men who remain alive.

43.     The Applicant spent 956 days in juvenile detention from 26 October 2008 until 9 June 2011 (the day he was sentenced), and he was released on 10 June 2011 after serving 52.3% of the effective sentence of five years in juvenile detention.

44.     The Applicant said that during the time that he was held in juvenile detention he completed Year 10. He said that this was the highest level of secondary schooling offered while he was in juvenile detention. He said that he also undertook as many vocational courses and counselling services as he could during his time there.

45.     In August 2011, shortly after the Applicant had been released from juvenile detention, he formed an intimate relationship with his current partner. The Applicant’s child to his current partner was born in June 2013. The Applicant said that he had met his partner in school prior to his offending.

46.     On 30 January 2012, the Applicant was found guilty of commit public nuisance and obstruct police officer on 2 December 2011. No conviction was recorded and the Applicant was fined $500. The Applicant had pled guilty to the offences.

47.     The Applicant told the Tribunal that he had no recollection whatsoever of the incident leading to these offences. The Queensland Police Service Court Brief indicated that the Applicant was involved in an altercation with another man and that both were arrested by the police for public nuisance. Both men were ordered to sit down and remain where they were seated. The other man ran away and the police left the Applicant to pursue the other man. When they returned, the Applicant had left and he was charged with obstructing police as a result.

48.     On 8 February 2013, the Applicant was found guilty of unlawful use of motor vehicle committed on 13 January 2013. No conviction was recorded. The Applicant was placed on probation for a period of 12 months and he was ordered to pay restitution in the amount of $1334. The Applicant had pled guilty to the offence.

49.     The Applicant said that on 13 January 2013, he had been attending an acquaintance’s 30^th birthday celebrations. He said that he had been challenged aggressively by another male and that he had walked away from the situation to avoid a conflict. The Applicant said that he was intoxicated at the time.

50.     The Applicant said that after walking for a little while he came across a small vehicle. The Applicant said that he opened the door of the vehicle and started the engine. He said that, in his drunken state, he had intended to use the vehicle to return home. However, the vehicle had a manual gearbox and the Applicant could only drive automatic vehicles. The Applicant said that after he had started the vehicle in his intoxicated state, the vehicle started moving forward. He said that he moved away from the vehicle and that the vehicle travelled some 10 metres before hitting a fence and stopping. This version of events was largely consistent with information in the Queensland Police Service Court Brief.

51.     On 13 June 2014, the Applicant was convicted of commit public nuisance on 31 May 2014 and was fined $450. The Applicant had pled guilty to the offence.

52.     The Queensland Police Service Court Brief in relation to this offence indicated that at about 5:30 AM on 31 May 2014 the Applicant attended the Police Beat in Fortitude Valley and demanded that police tell him why a friend of his had been arrested. The police informed the Applicant that they were not at liberty to disclose information about any third parties to the Applicant. The police report indicates that the Applicant then “started to look intently at police and said the words “I’ll see you later cunt”.” The report alleges that the Applicant was asked to leave the Police Beat but refused to do so and, consequently, he was physically removed. The police report indicates that, once the Applicant was outside the Police Beat, he yelled the following words in a loud voice “I’ll see you later cunt.” The police report alleges that there were several members of the public in the area at the time who appeared to have their enjoyment of the area disrupted by the actions of the Applicant.

53.     The Applicant agreed, for the most part, with the account in the police report. However, he indicated that he left the Police Beat when he was asked and was not physically removed from the Police Beat.

54.     The next two offences for which the Applicant was found guilty, on 25 August 2014 and 16 July 2015, for failure to appear in accordance with undertaking, appear to be for the Applicant’s failure to appear before the Magistrates Court in relation to traffic offences for which he had been charged. On the first occasion no conviction was recorded and the Applicant was fined $400. On the second occasion the Applicant was convicted and fined $500. The Tribunal notes that it has no direct evidence that the Applicant was ever convicted or found guilty of the alleged traffic offences.

55.     The Applicant said that he could not remember why he did not attend on one of the occasions and on the other, he said that he thought he was supposed to attend on the day after he was actually supposed to attend.

56.     On 5 August 2015, the Applicant was convicted of contravene direction or requirement and fined $300.

57.     The Queensland Police Service Court Brief indicated that the Applicant had been required to present himself at a police station to provide identifying particulars and had failed to do so. The police report indicated that the Applicant had told the police that he had forgotten he was required to do so. At the hearing, the Applicant had no recollection of the circumstances surrounding this offence.

58.     The Applicant gave evidence that after his child was born in mid-2013, he and his partner separated and for the remainder of that year and 2014 the couple were "off and on.” The Applicant admitted that during this period he was consuming a large amount of alcohol. He admitted to the psychologist who prepared a report for the purpose of these proceedings that, during this period, he might consume 2 to 3 cartons of beer or premixed spirits over a 2 to 3 day period, several times a month. He told the psychologist that his alcohol misuse was a key factor in his offending subsequent to his release from juvenile detention. He told the psychologist that, in the last one to two years prior to being detained in immigration detention, he had drastically reduced his alcohol consumption as he became increasingly involved in rugby league. He told the psychologist that, in that more recent period since 2015, he would engage in binge drinking approximately once a fortnight, were he would consume more than 10 standard drinks. The Applicant told the psychologist that this level of alcohol consumption did not impact negatively on his employment, fitness training, health or behaviour.

59.     The Applicant said that he and his partner re-established a stable relationship in late 2014 or early 2015. At that point the Applicant reduced his alcohol consumption, was performing well at work, began taking rugby league training more seriously, and began being selected in representative rugby league teams.

60.     The Applicant indicated that, since his release from juvenile detention in 2011, he had always had stable employment. Most recently he had been employed by a company which unloaded shipping containers. He had been in a position of leadership as a crew manager and, prior to being taken into immigration detention, the company had been considering promoting him to site manager.

61.     The Applicant indicated that he had always been the primary income earner for his partner and their daughter. He said that his partner worked on a casual basis and that now, without his income, the family was running a deficit of approximately $320 a month. Prior to being held in immigration detention, he had been earning between $600 and $900 a week in his job and had also made some money from playing rugby league.

62.     The Applicant explained that his partner was an Australian citizen who was born in Australia as was their daughter. The Applicant indicated that all of his partner’s family lived in Australia and that his partner and their daughter were very close to his partner’s family in Australia. Indeed, a number of the Applicant's partner's family members provided letters in support of the Applicant for the purpose of these proceedings.

63.     The Applicant said that his partner had told him that, if he had to return to New Zealand, she and their daughter would relocate to New Zealand to live with him there. He said that this would be extremely unsettling not only for himself, but especially for his partner and their daughter. He said that neither his partner nor their daughter had ever lived in New Zealand. The Applicant said that his daughter was now five years old, had just begun her schooling in Australia and it would be incredibly disruptive for her to relocate to a country where she had never lived in circumstances where she had just begun to settle in to school in Australia. The Applicant said that his partner told him that their daughter was getting used to the routine of going to school and had already made friends. He said that he thought that his daughter would be heartbroken if the family was forced to relocate to New Zealand.

64.     The Applicant told the Tribunal that, while he had never lived in New Zealand, apart from when he was an infant, his grandfather who raised him in Australia, and his brother with whom he had grown up in Australia, were currently living in New Zealand. Further, while he had never had a particularly close relationship with his mother, she and a number of his half siblings lived in New Zealand. The Applicant said that his mother had spent about a year in Australia shortly after the Applicant had been detained in juvenile detention in relation to his serious offences. He said that she had done so to provide him with some support while he was in juvenile detention.

65.     The Applicant indicated that he played competitive rugby league and over the last few years, he had received some recognition for his playing ability by being selected in various representative teams. He said that in recent years, rugby league had taught him skills which had helped him live a better life, including the necessity for discipline, respect, training, hard work and being a team player. He said that the sport had also allowed him to make a number of valuable friends who contributed positively to his life. The Tribunal notes that the Applicant has provided numerous letters of support from those in the Queensland rugby league community, including from those holding senior positions at various clubs.

66.     The Applicant indicated that the people in his life now and the positive role they play in his life was to be contrasted to the people in his life in his childhood and adolescent years, who had often had a negative influence on his life.

67.     The Applicant said that he was confident that he would never reoffend. He said that he did not want to put his young family through the consequences of his reoffending. He said that Australia was his home and he could not see himself living anywhere else. He said that he wanted to be a role model for his daughter, that he wanted her to look up to him and never wanted for her to have to visit him in detention again. He said that he did not want his partner to have to go through the pain and suffering that his current detention has put her through.

68.     The Applicant said that he is now a totally different person than he had been when he committed his offences as a 16-year-old child. He said that he was negatively influenced by those he was associating with at the time. He said that, at the time of his serious offences, he had been associating with other teenage delinquents. He said that now, his associations were primarily with his young family and people that he knew through rugby league and his employment. He also said that having a child had matured him and made him want to try to better himself each day.

69.     The Applicant explained that, when he was released from juvenile detention in 2011, he was learning to adjust to being outside of detention. He said that he only had limited experience with alcohol prior to his detention in 2008. He explained that, between 2011 and 2014, he had been drinking quite heavily, that he and his partner had a child when they were both very young and that there had been serious problems in their relationship up until about 2015. The Applicant said that he used alcohol as a coping mechanism for the “rough patch” he was going through prior to 2015.

70.     The Applicant said that he would not reoffend as his life was going very well prior to being detained in immigration detention and he did not want to jeopardise his settled life. He said that his relationship with his partner had stabilised and that he was in a strong loving relationship with her. He indicated that they were renting a house together where they lived with their daughter. He indicated that his employment was going well and that he was likely to be promoted in the near future to a more senior leadership position. He said that, prior to being detained in immigration detention, a rugby league club had offered him a contract whereby he would be being paid well as a rugby league player. He said that he had aspirations of playing rugby league in the NRL competition.

71.     The Applicant said that, since he had been in immigration detention he had met a number of New Zealand men who had their visas cancelled and been separated from their families. He said that, on the last occasion that he was before a court in 2015, the judge told him that he would be sent to jail if he continued to offend. The Applicant said that these experiences had a profound impact on him and that he never wanted to go to jail or to return to immigration detention, as it would mean separation from his family and their further suffering.

72.     The Applicant told the Tribunal that, although he had never considered that he had a serious problem with alcohol, he reduced his alcohol consumption significantly in about 2015, when he first signed with a particular rugby league club. He said that he wanted to take the sport seriously and that he recognised that alcohol had led him to commit the minor offences for which had been found guilty between 2012 and 2015. He said that, if he were allowed to remain in Australia, he would undertake ongoing counselling in relation to his prior problems with alcohol. He said that he had been referred to an organisation called Lives Lived Well who would assist with his prior alcohol problems.

73.     The Applicant said that he had been attending an alcohol rehabilitation program in immigration detention. He said that he had been attending that program up until the last two weeks before the hearing when he ceased attending the program, as he was too stressed and anxious about the outcome of the proceedings to continue with the program.

The Applicant’s partner

74.     The Applicant’s partner told the Tribunal that she met the Applicant while they were both attending school before his offending. She said that they started a relationship in 2011, not long after the Applicant was released from juvenile detention.

75.     The Applicant’s partner explained that, when their child was born in June 2013, the couple were having troubles with their relationship. She said that there was pressure on both of them because they were both very young at the time. She said that she felt that because of their youth, the couple was not “very stable” and were having difficulties trying to be parents. The Applicant’s partner said that at the time she felt that each of them needed to find themselves.

76.     The Applicant’s partner said that, when they reformed a stable relationship in around late 2014 or early 2015, she felt that this was because they had matured and were ready to commit to a parental relationship with their child.

77.     The Applicant’s partner said that, before they reformed the relationship, she felt like the Applicant did not have a healthy mindset, that he was not himself, that he was “lost.” She said that, when they re-established the relationship, she saw a lot of change in the Applicant, especially in their daily life together as a family. She said that, since they had reformed the relationship, the Applicant was constantly trying to improve himself. She said that he had been doing very well at work and that his employer had been considering promoting him to a site manager. She said that the Applicant had been committed to his football career, that he had won awards and never missed training. She said that, when the Applicant was not at work or involved in football, he would spend his time at home with her and their daughter.

78.     The Applicant’s partner said that she felt that the Applicant wanted to be a better person. She said that they discussed the Applicant having counselling in relation to his prior alcohol problems.

79.     The Applicant’s partner indicated that, if the Applicant had to depart Australia, it would change her life, and that of their child, completely. She said that all of their support systems, family and friends were in Australia. She said “all we know is Australia.” The Applicant’s partner said that their daughter had just started school and had settled in well. She said that she didn’t feel that it was fair on their daughter for her to be uprooted and relocated to a foreign country. She said that, prior to the Applicant being detained in immigration detention, the young family were in a “stable good place” and that relocating to New Zealand would change everything for the family.

80.     The Applicant’s partner said that she felt the Applicant’s participation in rugby league had contributed significantly to the stability that the family now felt. She said the rugby league had taught the Applicant responsibility, commitment and loyalty and that the Applicant had applied these traits in their home life.

81.     The Applicant’s partner said that, after they had re-established a stable relationship in 2015, the Applicant began to take his football participation seriously and this also coincided with him doing well in his employment.

82.     The Applicant’s partner said that the Applicant was the main financial provider for the family and that the family had been struggling without the Applicant to help provide for them.

83.     The Applicant’s partner indicated that, if the Applicant had to return to New Zealand, she felt that it was in the best interests of their daughter for the family to all be together in New Zealand. She said that their daughter was very attached to her father and that she was having a particularly difficult time being separated from him.

84.     The Applicant’s partner said that she had only been to New Zealand once before, when the family travelled there on a family trip. She said that she had only met the Applicant’s mother two or three times since they had been together.

85.     The Applicant’s partner said that the Applicant had decreased his use of alcohol since 2015. She said that she did not consider that the Applicant had problems with alcohol consumption immediately prior to being detained in immigration detention. She said that in her observation, the Applicant was not the kind of person who would consume alcohol and become aggressive or violent. The Applicant’s partner indicated that she strongly believed that the Applicant would never reoffend. She said that she felt that he was a completely different person now. She said that the family were taking steps for the Applicant to attend counselling in relation to his prior alcohol problems. She said that she would ensure that the Applicant would attend counselling in relation to his prior alcohol problems even if the family had to relocate to New Zealand.

The Applicant’s Partner’s sister

86.     The Tribunal heard evidence from the Applicant’s partner’s sister. She said that, prior to the Applicant being detained in immigration detention, she would see the Applicant and her sister (the Applicant’s partner) almost every day. She said that she noticed a major positive change in the Applicant in 2015, when the Applicant began to be selected in representative rugby league teams.

87.     The Applicant's partner's sister indicated that their family was a very close knit family. She indicated that she had two children under the age of 18 who had a close relationship with the Applicant. She said that both children considered the Applicant to be their uncle. She said that her 11-year-old son went to all of the Applicant’s games and was very proud of the Applicant. She said that her 11-year-old son also played rugby league and that the Applicant would attend her son’s games to support him. She said that her 17-year-old daughter was very close with the Applicant and he had recently attended her high school graduation.

88.     The Applicant’s partner's sister indicated that she had another sister who had a 10-year-old son, and that child also had a close relationship with the Applicant. She said that, if the Applicant had to return to New Zealand, both of her children under the age of 18 and her nephew would lose an uncle.

Employer

89.     The Tribunal heard evidence from the Operations Manager of the company which employed the Applicant. He said that they had met playing rugby league for the same team and that later the Applicant was employed by the company where he was employed. The Operations Manager indicated that he was aware of the Applicant’s serious offending. He said that the Applicant was well regarded within the company. He said that the Applicant was polite, respectful and hard-working and that this opinion was shared by everyone at the company. The Operations Manager said that the Applicant had been identified as a potential future leader within the company and that he had been working in a leadership role, as a crew manager, prior to being detained in immigration detention. The Operations Manager said that, if the Applicant were allowed to remain in Australia, he would continue to have employment with the company and that the company is looking to promote him to site leader.

90.     The Operations Manager indicated that he considered the Applicant to be one of his friends and that they would spend time together outside of work. He said that he has never observed the Applicant to be aggressive or violent on the occasions when they have consumed alcohol together or at any other time.

Chairman of rugby league club

91.     The Tribunal heard evidence from the Chairman of a rugby league club where the Applicant had played. He said that he had met the Applicant in 2013 or 14 when he recognised that the Applicant had “fabulous talent,” and that the Applicant began to play for his club in 2015. The Chairman indicated that he was aware of the Applicant’s prior serious offending. The Chairman indicated that, since the Applicant had been playing for his club in 2015, he had always taken his responsibilities seriously and played to the highest level of his ability. The Chairman indicated that he had formed a close relationship with the Applicant. The Chairman indicated that, as far as he was concerned, the Applicant would never return to serious offending. He said that a lot of young men commit the kind of minor offences that the Applicant has committed as an adult.

92.     The Chairman said that he understood that the serious offending had happened when the Applicant was an “impressionable young teenage boy” and would never happen again. He said that the Applicant had grown into good young man and a responsible father. He considered that the Applicant should be given a chance remain in Australia and fulfil his potential as a person.

93.     The Chairman indicated that he had been around the Applicant on occasions where players from the team were consuming alcohol and that he had never seen the Applicant “having a nasty streak or aggressive streak at all.” He said of the Applicant “he is a wonderful free-flowing talent but he doesn’t get hot-headed, he doesn’t get caught up in the emotion of a game, where as some players do, and off the field I’ve never seen [the Applicant] become aggressive on any occasion.”

Support Worker

94.     The Tribunal heard evidence from a support worker who had assisted the Applicant during his time in immigration detention.

95.     The Support Worker indicated that she had discussions with the Applicant while he was in immigration detention. She said that the Applicant had been quite open with her about his previous offending and his intention to better himself. She said that he had shown genuine remorse in relation to his offending.

96.     The Support Worker said that, if the Applicant were allowed to remain in Australia, her organisation would continue to provide him what support they could. They would be available to talk with the Applicant and would try to put him in contact with different services if that would assist him.

PRIMARY CONSIDERATION A: Protection of the australian community from criminal or other serious conduct

97.     The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1(2) of the Direction provides that decision makers should give consideration to:

1.the nature and seriousness of the non-citizen’s conduct to date; and

2.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 Applicant’s Conduct to Date

98.     When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 9.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:

a.    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b.    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c.     The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

d. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

e.    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

f.   Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

g.    The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

h.    The cumulative effect of repeated offending;

i.   Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

j.   Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non­citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

k.     Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

99.     The Applicant’s National Police Certificate indicates that on 9 June 2011 the Applicant was:

·convicted of manslaughter and sentenced to 5 years detention;

·convicted of assaults occasioning actual bodily harm while armed/in company and sentenced to 3 years detention;

·convicted of assaults occasioning actual bodily harm while armed/in company and sentenced to 2 years detention; and

·convicted of assaults occasioning actual bodily harm while armed/in company and sentenced to 9 months detention.

100.    As the Applicant was 16 years old when the offending occurred, his detention was to be served in a juvenile detention facility. The sentences were to be served concurrently and the effective sentence was five years in juvenile detention with release after serving 52.3% of that sentence (just over two years and seven months). The Applicant was released from detention on 10 June 2011, the day after he was sentenced on 9 June 2011.

101.    On 30 January 2012, the Applicant was found guilty of commit public nuisance and obstruct police officer on 2 December 2011 No conviction was recorded and the Applicant was fined $500. The Applicant had pled guilty to the offences.

102.    On 8 February 2013, the Applicant was found guilty of unlawful use of motor vehicle committed on 13 January 2013. No conviction was recorded. The Applicant was placed on probation for a period of 12 months and he was ordered to pay restitution in the amount of $1334.

103.    On 13 June 2014, the Applicant was convicted of commit public nuisance on 31 May 2014 and was fine $450.

104.    On 25 August 2014, the Applicant was found guilty of failure to appear in accordance with undertaking committed on 8 July 2014. No conviction was recorded and he was fined $400.

105.    On 16 July 2015, the Applicant was convicted of failure to appear in accordance with undertaking committed on 4 June 2015 and was fined $500.

106.    On 5 August 2015, the Applicant was convicted of contravened directional requirement and fined $300.

107.    In relation to the serious crimes which the Applicant committed in 2008, the sentencing judge, in her remarks on 9 June 2011, stated:

“As I said at the beginning, these offences have had terrible consequences. The worst and most terrible, of course, is that a man has died and his family and all who knew him have been left bereft.

In addition, two men were seriously assaulted. Other people who were in the park were frightened or affected by what happened.

…

You are part of the group that assaulted [V1] and he, of course, as I’ve said, was incapable of defending himself although the Crown doesn’t rely upon evidence that you assaulted [V1] yourself. You admitted kicking a second person who’d been knocked to the ground in the ribs after [A1] had hit him with the hammer and that is [V2], which was the subject of Count 2. You denied having any interaction with [V3] yourself but saw him being dragged by others. And, of course, count 4 is the assault on - the second assaults on [V2], which you are responsible for as a party. You are to be dealt with as a party on each of the counts and your physical participation limited to assaulting [V2], based on your admissions.

Sentencing factors to be taken into account, as with the others, are: your age at the time; your lack of any previous criminal history; your level of cooperation taking part in an electronic recorded interview with the police and admitting that you were involved in the incident, although the Prosecution submits that your admissions were guarded and restricted the roles played by others.

Also taken into account in your favour is your plea of guilty made when the interview was under challenge; the time you spent in pre-sentence custody and the level of rehabilitation you have shown during that time; your motivation, which I have already discussed in some detail; that the group was armed, although you yourself were not armed. And, of course, the violence, the absolutely unacceptable retributive violence inflicted on three defenceless men, as well as the consequences of that violence.”

108.    The sentencing judge made the following remarks relevant to rehabilitation:

“the court report says that you have taken full responsibility for your offending behaviour and expressed significant victim empathy. You have dedicated considerable time thinking about the offences and the impact it had on the victims and their families and the person who wrote the report said you were visibly upset when the impact of the offence on the deceased victim’s family was explored and that you demonstrated a high level of insight into the family’s loss.

You reported great regret and anger that the offences occurred and that you are part of it and you expressed the view that you have put yourself and your family in the shoes of the victim numerous times without any need for someone to suggest you should do that and you expressed feeling absolutely devastated that your actions had brought such tragedy to the victim’s family and the larger community and you feel burdened because a lot of the people expected more of you and your behaviour on that night was a shock to them.

…

You were very touched by the extent of the support and meaning and acceptance of the apology given in the [apology] ceremony and it was said you wished to apologise to the deceased victim’s family and meet other victims and believe that participation in a youth justice conference would give you the opportunity and you have now written a letter of apology to the [V3] family.

…

You certainly have been very active in doing academic and other training in custody and the principal of the Brisbane Youth Education and Training Centre who was also, as I said before, the principal at the [name deleted] high school, has spoken very highly of you and your achievements.”[5]

[5] Exhibit G1, pages 42-134.

109.    The Tribunal considers that the Applicant’s offending falls roughly into three categories. The first category of offences involves the very serious offences committed in 2008 which resulted in the Applicant being detained in juvenile detention for about two years and eight months. The Tribunal will refer to these offences as the “serious” offences.

110.    The second category involves offences for which the Applicant was found guilty during three court appearances between January 2012 and June 2014. These offences appear to have occurred as a result of the Applicant’s intoxication at the time of the offences. The Tribunal refer will to these offences as the “drunken” offences.

111.    The last category consists of the Applicant’s last three offences where the Applicant was found guilty on two occasions of failing to appear in accordance with an undertaking, and on the last occasion for contravene a direction or requirement. These three offences occurred between July 2014 and April 2015 and arose from the Applicant failing to attend court on two occasions, apparently in relation to outstanding traffic charges, and on one occasion failing to attend a police station to provide his fingerprints. The Tribunal will refer to these offences as the “appearance” offences.

112.    The Applicant's serious offences were obviously extremely violent and very serious. The Applicant’s drunken offences and appearance offences cannot be described as violent or sexual crimes. Tribunal accepts the Respondent’s submission that the serious offences were committed against vulnerable members of society, in that, at the time when they were committed, the three victims were extremely inebriated and were incapable of defending themselves.

113.    The Applicant has not committed any offences relating to immigration detention.

114. Section 501(6)(c) was not relied upon as the basis for the cancellation of the Applicant’s visa.[6]

[6] Exhibit G1, page 13.

115.    In relation to his serious offences, the Applicant was sentenced to five years in juvenile detention to be released after serving 52.3% of that time. In relation to the Applicant’s drunken offences and his appearance offences, he did not have a conviction recorded for three of the six of those offences and received fines of $500 or less for five of the six offences. The Applicant was not sentenced to any period of imprisonment for any offences committed after 2008.

116.    The frequency of the offending has been discussed above. After the serious offending for which the Applicant was convicted in 2011, he has been before the court three times for the drunken offences, and three times for the appearance offences. There is no increasing trend in seriousness of the offences. If anything, the Applicant's offences have become drastically less serious with time.

117.    It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. The Applicant has not sought to hide his criminal offending from the Department. Indeed, he has disclosed his offences, on incoming passenger cards, each time he has returned to Australia from overseas.[7]

[7] Exhibit G1, pages 139-143.

118.    The Applicant has not re-offended since being formally warned by the Department and the offences were not committed while the Applicant was in immigration detention or during or after an escape from immigration detention.

119.    There is no question that the Applicant’s offences in 2008 were extremely serious. Although the Applicant’s personal involvement in the violence appears to have been limited, he was part of a group of young men and boys responsible for a vile and atrocious attack on three defenceless men which resulted in serious injuries to all three men. One of the three men died as a result of injuries sustained in the attack by the group.

120.    The Applicant has quite rightly conceded that the offences in 2008 are particularly serious, and, of course, the Tribunal accepts this.

121.    The Tribunal finds it difficult to accurately describe any of the Applicant’s subsequent offending as serious. It appears that the Applicant went through a period between 2011 and 2014 when he was consuming far too much alcohol, becoming intoxicated and committing stupid, drunken offences. With the appearance offences, it appears that the Applicant was not sufficiently organised to accurately record when he was supposed to appear before court on two occasions and before the police on one occasion. As mentioned previously, none of these offences resulted in a term of imprisonment. A conviction was only recorded in relation to three of his six offences and the biggest fine that the Applicant received in relation to these offences was $500.

122.    The nature of each of the Applicant's offences has been described above.

123.    The Tribunal notes that in the Respondent’s written contentions, it is asserted that the Applicant was charged twice with driving under the influence of alcohol, first on 23 June 2014 and then on 27 February 2015. The Respondent’s written contentions also assert that, on 14 April 2015, the Applicant was charged with driving an unregistered motor vehicle and driving without a valid driver’s licence.[8] The Respondent relied upon Queensland Police Service Court Briefs to substantiate the facts relating to the charges.

[8] See Respondent’s Statement of Facts, Issues and Contentions (undated - February 2019).

124.    The first thing to note is that a police court brief does not provide definitive evidence of the matters it asserts. Rather, it is a police record of a version of events provided by the police. More importantly, there is no direct evidence, either in the form of a current traffic record for the Applicant, or inclusion of the purported offences in the Applicant’s National Police Certificate, which shows that the Applicant was actually found guilty of any of these offences. It appears that one of the Applicant’s offences of, ‘failing to appear in accordance with an undertaking’, may have related to his failure to appear in court in relation to the driving under the influence charge from 23 June 2014, but again, there is no direct evidence that the Applicant was found guilty of that charge.

125.    There is a Traffic Record for the Applicant, printed on 21 January 2013,[9] which indicates that the Applicant was disqualified from driving for six months and fined $350 in October 2012 for unlicensed driving, but that does not appear in the “FACTS” part of the Respondent’s written submissions and does not relate to any of the above mentioned charges. However, the Tribunal has taken the Traffic Record into account including the disqualification mentioned above.

[9] Exhibit S3.

126.    As the Tribunal does not have direct evidence that the Applicant was convicted or found guilty of the offences for which he was charged (mentioned above in paragraph [123] of these Reasons), the Tribunal places no weight on these charges.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

127.    Paragraph 9.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 9.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

128.    In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 9.1.2(2) of the Direction cumulatively. They are:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.information and evidence on the risk of the non-citizen re-offending; and

ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.

129.    The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his serious offences, that is, if he were to attack defenceless individuals as part of a group, it is likely that nature of the harm to victims would be that they would suffer from extremely violent crime including grievous bodily harm with potential lifelong physical and mental consequences and potentially death.

130.    If the Applicant were to re-engage in the drunken offences the most likely outcome would be that the Applicant would become a public nuisance. He may also interfere with the property of others or fail to comply with police directions. However, the Tribunal considers that if he continues with his drunken offences there is a possibility, however small, that he could have altercations with others which may result in him inflicting violence on others.

131.    If the Applicant were to re-engage in the appearance offences, this may result in him failing to appear before courts or police.

The likelihood of the non-citizen engaging in further criminal or other serious conduct

132.    The Applicant provided a psychological report by a psychologist to the Tribunal for the purposes of these proceedings, in relation to the Applicant’s risk of reoffending. The Psychologist stated[10]:

“Overall [the Applicant] has made significant progress in his attempts to establish a responsible, functional and meaningful life and to fulfil the role of partner to his de-facto wife and father to his daughter. He has experienced difficulties with alcohol abuse, as a result of turning to alcohol as a form of self-medication against anxiety, and depression and as a form of social connection. In recent years (he and his partner report) that he has addressed his alcohol use and certainly this is consistent with the report of his developing rugby league career and the opportunities he has recently been given in this regard.

In my view [the Applicant] is a low risk of violent reoffending, and a low to moderate risk of general reoffending. I do consider that alcohol misuse is the key dynamic risk factor. Even though alcohol was not a factor in the offending in October 2008, alcohol misuse substantially impairs judgement and increases impulsivity. [The Applicant’s] vulnerability to alcohol misuse is related to a lack of other strategies to manage emotions and to connect with other males on a social basis.”

[10] See Exhibit A4.

133.    After providing her initial report, the Psychologist was provided with additional information including the statement by the Applicant and letters of support from 28 people who knew the Applicant. The Psychologist was asked to provide further information about the Applicant’s problems with alcohol and his ability to connect with others on a social basis.

134.    The Psychologist indicated that the Applicant had previously had an alcohol abuse disorder which was now in remission “(resolved)” and the remission had occurred prior to the Applicant being taken into immigration detention. The Psychologist also indicated that after reviewing the additional documents provided to her that[11]:

“there is a clear indication that [the Applicant] has in fact developed a range of skills and development and maintenance of prosocial relationships with males, primarily through his employment and his engagement in rugby league. The character references indicate that he is, in fact, very well regarded by teammates, coaches, employers and other people (male and female) who have known him in various facets of his life. There is consistent comment about his ability to get along with others, participate and contribute as a team member, to negotiate and manage differences and challenges, and to adhere to rules and expectations of others.

…

In this regard I amend my opinion that he requires intervention to address and build social skills in terms of his relationships with other males.”

[11] See Exhibit A5.

135.    The Psychologist went on to recommend that the Applicant participate in alcohol abuse education and a relapse prevention program and undertake psychosocial education regarding anxiety, depression, grief and loss and early childhood loss and trauma.

136.    At the hearing, the Respondent’s solicitor appeared to question the Psychologist’s ultimate finding that the Applicant represented a low risk of violent reoffending, on the basis that the Psychologist may not have been aware of the factual background to the Applicant’s drunken offences. The Tribunal assumes that the Respondent’s solicitor was referring to the information asserted by the police in the Court Briefs.

137.    The Psychologist indicated that she could not recall the factual background in relation to these offences. She said that she was contacted during the hearing to give evidence, that she had not been told that her appearance was necessary prior to the hearing, and that she did not have her notes with her. However, the Psychologist indicated that the factual backgrounds to the drunken offences were not strictly relevant to her assessment of recidivism as the tool that she had used did not factor in the factual circumstances for each offence, but rather whether the offence itself was necessarily one of violence. She said that offences of public nuisance, unlawful use of motor vehicle and failure to appear in accordance with undertaking are not considered offences of violence and thus the alleged circumstances behind the offences did not affect the actuarial calculation of risk.

138.    Despite the Respondent suggesting to the Psychologist that the Applicant had been involved in a “punch-up” and had used threatening language towards a police officer, the Psychologist maintained her ultimate conclusion that the Applicant presented a low risk of violent reoffending and a low to moderate risk of any reoffending.

139.    The Psychologist indicated that, in arriving at her ultimate assessment, she had considered that the Applicant was 16 years old when the serious offending occurred. She said that the period between the ages of 16 and 26 is a substantial period of maturation for any person. She said that, since the serious offending, the Applicant had demonstrated an ability to live a reasonably stable life with factors that can be attributed to a reasonable level of prosocial functioning. Those factors included stable employment, engaging in the community, the development and maintenance of a relationship and that the Applicant has not re-engaged in violent offending.

140.    The Psychologist said that the reason that she had assessed the Applicant as presenting a low to moderate risk of nonviolent reoffending was in part because he previously had an alcohol misuse problem which was not uncommon for young males. She said that there was a low to moderate risk that the Applicant may be involved in non-violent offences such as traffic offences, public nuisances and drunk and disorderly conduct.

141.    In cases like this one, applicants will often provide the Tribunal with reports from psychologists to support an argument that they are unlikely to offend in the future. In this particular case, the Applicant has been out of juvenile detention and living in the community for almost 8 years. While it is clear that the Applicant was, for some years, drinking too much alcohol which led to the drunken offences between 2011 and 2014, the Applicant has not committed any violent offences since 2008. Indeed, the Applicant has not committed any offences since April 2015.

142.    There is much evidence from different sources which indicates that from around 2015 the Applicant has reformed a stable relationship with his partner, drastically reduced his alcohol consumption, been excelling in his employment, and has improved as a rugby league player to the point where, in 2015, he began to be selected in representative rugby league teams.

143.    The Tribunal observes that successive Ministers in successive governments did not seek to cancel the Applicant’s visa from the time of his release from juvenile detention, in June 2011, until the Department began the process of cancellation in 2018, ultimately leading to cancellation of the Applicant’s visa on 21 November 2018. Neither party could inform the Tribunal as to what precipitated the cancellation decision in 2018, some 3 ½ years after the Applicant’s last offence and some 10 years after he committed his serious offences.

144.    It is difficult to conclude that successive Ministers and the Department were unaware of the Applicant’s offending up until 2018. This is especially so as the Applicant declared that he was a national of New Zealand, indicated that he was not an Australian citizen and declared that he had been convicted of criminal offences on three incoming passenger cards, which the Applicant completed on returning to Australia after three trips abroad in 2016. In addition, on each of the three occasions when the Applicant returned to Australia in 2016, he was granted a Special Category (TY 444) visa. The Applicant was not refused a visa on any of these occasions on character grounds.

145.    The Tribunal has taken into account the sentencing judge’s remarks, recorded above, which go to the Applicant’s remorse and her comments relevant to his prospects of rehabilitation.

146.    The Tribunal has taken into account that the Applicant undertook a number of educational, vocational and rehabilitation courses during his time in juvenile detention. The Tribunal has also considered that the Applicant was undertaking an alcohol rehabilitation program during the first two months after he was taken into immigration detention.

147.    The Tribunal has considered the 28 letters of support, including over 20 letters from people unrelated to the Applicant, which were provided to the Tribunal. Those letters indicate that the Applicant is very well regarded by members of the Australian community from various walks of life including teammates, coaches, employers and other people (male and female) who have known him in various facets of his life.

148.    The Tribunal has taken into account that the Applicant has always had stable employment, and currently has a secure offer of employment, if he is released from detention, with the prospect of promotion to a more significant leadership position in the near future.

149.    The Tribunal has taken into account that in recent years the Applicant has excelled as a rugby league player, is well liked and respected by those in the rugby league community, and has good prospects of continuing to develop as a rugby league player. The Psychologist indicated that the Applicant’s role as rugby league player should be considered a protective factor against further offending.

150.    The Tribunal has taken into account that the Applicant, prior to this detention in immigration detention, had a stable and supportive family life. The evidence indicates that he has been a good partner and father for his family. In addition, his immediate family is well supported by, and strongly connected with, the Applicant’s partner’s family; her parents and siblings and their children.

151.    Considering all of the evidence permissibly before the Tribunal in relation to this consideration, the Tribunal accepts the conclusion of the Psychologist that the Applicant presents a low risk of violent reoffending and a low to moderate risk of general offending.

Conclusion: Primary Consideration A

152.    The Tribunal has found that the Applicant’s serious offending conduct was very serious and the nature of the conduct was that the Applicant, although his personal involvement in the violence appears to have been limited, was part of a group of young men and boys responsible for a vile and atrocious attack on three defenceless men which resulted in serious injuries to all three men. One of the three men died as a result of injuries sustained in the attack by the group.

153.    The Tribunal has found that the Applicant’s subsequent offences, the drunken offences and the appearance offences (and the minor traffic infringements disclosed in the
Traffic Record mentioned in paragraph [125]), were not particularly serious in the way contemplated by the Direction.

154.    The Tribunal has found that, if the Applicant were to reengage in conduct similar to the serious offences, it is likely that nature of the harm to victims would be that they would suffer from extremely violent crime, including grievous bodily harm, with potential lifelong physical and mental consequences and potentially death.

155.    If the Applicant were to re-engage in the drunken offences the most likely outcome would be that the Applicant would become a public nuisance. He may also interfere with the property of others or fail to comply with police directions. However, the Tribunal considers that if he continues with his drunken offences, there is a possibility, however small, that he could have altercations with others which may result in him inflicting violence on others.

156.    If the Applicant were to re-engage in the appearance offences, this may result in him failing to appear before courts or police.

157.    The Tribunal has found that there is a low risk of the Applicant committing any violent crime and a low to moderate risk that the Applicant will be involved in general offending.

158.    After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of the protection of the Australian community weighs in favour of the cancellation of the Applicant’s visa. However, as the Tribunal finds that, for the reasons mentioned above, there is only a low risk of violent re-offending, the Tribunal does not find that this consideration weighs significantly in favour of cancellation.

159.    While the Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia, the Tribunal considers that, because of the low risk of violent offending that the Applicant presents, only moderate weight should be given in favour of cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.

Primary Consideration B: The best interests of minor children in Australia

160.    Paragraph 9.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 9.2(2) and 9.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether to cancel the visa is being made. The latter provides that, if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

161.    Paragraph 9.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:

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

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

c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)Whether there are other persons who already fulfil a parental role in relation to the child;

f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”

162.    The Applicant has a five-year-old daughter who is an Australia citizen.

163.    Both the Applicant and his partner have indicated that if the Applicant must return to New Zealand, the Applicant’s partner and their daughter will relocate to New Zealand to live with the Applicant.

164.    The Tribunal considers that nature of the relationship between the Applicant and his daughter is a close parental relationship. Up until December 2018, when the Applicant was detained in immigration detention, the Applicant had close, in person contact with his daughter as he lived with her and his partner.

165.    Whether the Applicant is allowed to remain in Australia or must relocate to New Zealand, the Applicant will continue to play a parental role in his daughter’s life. That is because if the Applicant has to relocate to New Zealand, the Applicant and his partner have said that the Applicant’s partner and their daughter will relocate to New Zealand. Whether the Applicant will play a positive parental role in the future in either Australia or New Zealand will depend on whether the Applicant reoffends.

166.    The impact the Applicant’s prior conduct on his daughter appears to be minimal. The Applicant’s daughter was not born when the Applicant first offended or when he was in juvenile detention. Since that time, none of his offences have been punishable by anything more than a fine. It appears that the Applicant’s relationship with his partner was unstable between 2013 and 2014 and during that time the Applicant was drinking heavily and committing his drunken offences. This may have limited the quantity and quality of time that the Applicant spent with his daughter, but this is unclear from the evidence.

167.    As the Applicant’s daughter will relocate to New Zealand with the Applicant should his visa remain cancelled, separation of the Applicant from his daughter for any significant period, other than while he is in immigration detention, is not a significant consideration.

168.    Both the Applicant and his partner fulfil the primary parental roles in relation to their daughter. However, there is also evidence that the child has strong ties to her maternal grandparents, her maternal aunts and uncles and their children. If the Applicant’s visa remains cancelled and the child must relocate to New Zealand, it would mean that the child would be separated from her maternal family members, with whom she is very close. This could have a significant adverse effect on the child. Indeed, the Psychologist indicated that separation of the child from her maternal family members in Australia would be likely to have an adverse psychological impact on the child.

169.    As the child is only five years old, the Tribunal has not heard any express evidence from the child in relation to whether she wishes for her father to remain in Australia. However, from the evidence before the Tribunal, the Tribunal is willing to accept that the child would want her father to remain in Australia, so that she could continue her life here, in her country, surrounded by her family and her parents.

170.    There is no evidence that the child has suffered any physical or emotional trauma arising from the Applicant’s conduct other than the effects of separation of the child from her father while he has been in immigration detention.

171.    The Tribunal considers that it is in the best interests of the Applicant’s daughter for the Tribunal to set aside the decision to cancel the Applicant’s visa so that she can remain in Australia with her parents and her family and friends here.

172.    The Tribunal has also given consideration to the interests of two of the Applicant’s partner’s nephews aged 10 and 11 and one of her nieces aged 17. Both of the Applicant’s partner's nephews consider the Applicant to be their uncle, they both play rugby league, are both proud of the uncle’s achievements in the sport and are quite close to their uncle (the Applicant). Similarly, the Applicant’s partner’s niece is said to be close to the Applicant. He recently attended her high school graduation.

173.    The Applicant does not have a parental role in the lives of these children. However, if his visa remains cancelled, it would mean that, not only will these children be deprived of the opportunity to have contact in person with the Applicant, they would also lose the opportunity to have personal contact with their aunt, the Applicant’s partner and with their cousin, the Applicant’s child. The Tribunal considers that it is in the interests of each of these children for the Tribunal to set aside the cancellation decision, so that they may maintain their relationship with the Applicant, their aunt and their cousin.

Conclusion: Primary Consideration B

174.    The Tribunal finds that the best interests of the Applicant’s child weigh heavily against the cancellation of the Applicant’s visa.

175.    The Tribunal finds that the interests of the nephews and niece of the Applicant’s partner weigh very slightly against the cancellation of the Applicant’s visa.

176.    The Tribunal attributes significant weight to the primary consideration of the best interests of minor children in Australia against the cancellation of the Applicant’s visa.

Primary Consideration C: The expectations of the Australian Community

177.    Paragraph 9.3(1) of the Direction states:

“The Australian community expects non-citizens to obey Australia’s 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 cancel the visa held by such a person. Visa cancellation 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.”

How are those expectations determined?

178.    In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348, Afu v Minister for Home Affairs [2018] FCA 1311 and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:

·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and

·the government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.

179.    In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation. While Doan involved consideration of paragraph 13.3(1) of Part C of Direction 65 and the present case involves consideration of paragraph 9.3(1) of Part A of Direction 79, there are no material differences between these two paragraphs.

180.    In addition, the fact that Direction 79 is relevant to this case, rather than Direction 65, has no material bearing on this case. The differences between Directions 65 and 79 are primarily that the latter direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes. None of the victims of the Applicant’s offences in this case were women or children.

181.    In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.

182.    Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.

183.    However, In Doan I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 9.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the government’s views in relation to community expectations are also informed by:

·whether a non-citizen has lived in the Australian community for most of their life or from a very young age;

·the length of time a non-citizen has been making a positive contribution to the Australian community; and

·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia.

184.    In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. The Tribunal considers that the Australian community expects the Australian government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere[12]. In the present matter the government has acted in accordance with that expectation by cancelling the Applicant’s visa.

[12] see paragraph 6.3(2) of the Direction.

185.    The Tribunal considers that the Australian community would find that the Applicant’s serious offences were very serious and that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia[13].

[13] see paragraph 6.3(3) of the Direction.

186.    Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place great weight, in the Applicant’s favour, on the negative consequences of non-revocation on the Applicant’s Australian citizen child and Australian citizen partner.

187.    The Tribunal also considers that the Australian community would place great weight, in the Applicant’s favour, on the fact that he has lived here for most of his life and that he arrived here as a five-year-old child. The Tribunal also considers that the Australian community would take into consideration that the Applicant committed his serious offences when he was a 16-year-old child, and while he has committed some minor offences since his release from juvenile detention in 2011, he has committed no violent crimes and appears to have been making a positive contribution to the Australian community.

Conclusion: Primary Consideration C

188.    The Tribunal considers that determining how the consideration of the expectations of the Australian community is to be weighed in this case is very difficult. There is no doubt that the Applicant himself is a member of the Australian community having arrived here when he was five years old and living here ever since. At the young age of 16, the Applicant was part of a group of other boys and young men who committed a despicable attack on three other members of the Australian community inflicting great injuries on those three men. One of those men died as a result of his injuries. There is no doubt that the Australian community would be horrified by the Applicant’s serious offences and without being informed of the totality of the current factual circumstances before the Tribunal, would be likely to expect that the Applicant’s visa should be cancelled.

189.    Although the Applicant has committed minor offences since 2008, he has not committed any other violent offences. He has rebuilt his life to a point where he has stable and loving relationship with his Australian partner and Australian child, is gainfully employed, is a well-regarded member of the rugby league community and is now making a positive contribution to the Australian community.

190.    Overall, given that the Applicant has lived in the Australian community for almost all of his life from the very young age of five years old, the negative consequences of cancellation for his Australian child and Australian partner, that since 2011 he has been making a positive contribution to the Australian community, and notwithstanding that there remains a low risk of the Applicant committing violent offences, the Tribunal finds that the Australian community would consider that the low risk of future harm to the community is acceptable and that the Tribunal should not cancel the Applicant’s visa.

191.    The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. However, the Tribunal finds that, because of the seriousness of the Applicant’s serious offences, this consideration is finely balanced and places only low weight on this consideration against of the cancellation of the Applicant’s visa.

Other Considerations

192.    There are five “other considerations” disclosed in the Direction under paragraph 10(1):

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.

(a) Non-Refoulement Obligations

193.    Neither party has raised any issue about non-refoulement regarding the Applicant and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.

(b) Strength, nature and duration of ties

194.    Paragraph 10.2 of the Direction provides:

(1)Reflecting the principles at 6.3, decision-makers must have regard to:

(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.          less weight should be given where the non­citizen began offending soon after arriving in Australia; and

ii.         more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

195.    The Applicant first arrived in Australia in 1997, shortly after turning five years old. He has lived in Australia ever since. The Applicant serious offences were his first offences and these occurred shortly after he had turned 16. The Applicant did not begin offending soon after arriving in Australia. While he has committed some minor offences since his release from juvenile detention in 2011, he has committed no other violent crimes and appears to have been making a positive contribution to the Australian community.

196.    Unsurprisingly, the Applicant remembers very little of his life before arriving in Australia. Again, unsurprisingly, the Applicant considers himself to be Australian. He undertook his primary and secondary education in Australia. Since his release from juvenile detention in 2011, he has been gainfully employed. He has made strong links with the rugby league community in Queensland. The Applicant provided the Tribunal with 28 letters of support from various members of the Australian community from all walks of life, including friends and family, former employers, fellow rugby league players, coaches and other rugby league team officials.

197.    The Applicant has an Australian citizen partner who he met when the two were at school together and an Australian citizen child.

198.    The Tribunal finds that cancellation in this case will have a substantial and ongoing negative affect on the Applicant’s immediate family in Australia, that is, his Australian partner and child. The Tribunal considers that the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant’s partner. As with his child, whose interests were considered previously as a primary consideration, the Tribunal finds that the effect of cancellation for the Applicant’s partner would be that she would relocate to New Zealand. The Applicant’s partner has never lived in New Zealand and would be leaving behind a close-knit family in Australia. The Applicant’s parents, all of her siblings, and their children live in Australia. The Applicant’s partner would be deprived of the assistance of her family, especially in helping to raise her daughter.

199.    The Tribunal has also considered the effect of visa cancellation on the Applicant under this consideration. If it had not, the Tribunal would have considered the effect on the Applicant, other than as regards to non-refoulement and impediments upon return, separately as an “other” consideration. The Tribunal considers that the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. The Applicant would be permanently separated from his friends and family in Australia. In all likelihood, the Applicant would never be able to return to Australia, where he has been raised since he was a young child; the only country he knows as home.

200.    Overall, the Tribunal finds that the Applicant has strong and enduring ties to Australia forged over a lifetime. The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.

(c) Impact on Australian business interests

201.    Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.

(d) Impact on victims

202.    Paragraph 10.4(1) of the Direction provides:

“Impact of a decision not to cancel a visa on members of the Australian community, including victims of the noncitizens, behaviour, and the family members of the victim or victims where that information is available and the noncitizen being considered for visa cancellation has been afforded procedural fairness”

203.    The Respondent admits that there is no direct evidence of the impact of a decision not to cancel the Applicant’s visa on members of the Australian community including the Applicant’s victims and their family members. The Respondent submits that the Applicant’s criminal offences caused significant and substantial physical and emotional harm to members of the Australian community. The Respondent argues that, in the circumstances, this consideration does not favour the Applicant.

204.    Surprisingly, the Applicant’s representative submits that this consideration weighs against the cancellation of his visa. The Applicant appears to argue that, because of the apologies offered by the Applicant to the victims and the deceased victim’s family, that one relative of one of the victims had accepted the Applicant’s apology, and because the Applicant had walked away from confrontations with others who were aggrieved by the Applicant’s role in the attack, this consideration should weigh in the Applicant’s favour. Presumably, the Applicant’s representative is arguing that, in the circumstances of this case, the Applicant’s victims and their family members would welcome a decision not to cancel the visa of the person who was part of a group that killed one victim and seriously injured two others.

205.    There is no direct evidence of the impact of a decision not to cancel on members of the Australian community including victims of the Applicant’s offences and their family members. Given the severe negative effects of the Applicant’s offending, including the death of an Australian, it could be argued that the Tribunal should draw the inference that the victims and their families, especially the family of the victim who was killed, would welcome a decision to cancel the Applicant’s visa. While I see some force to that argument, the Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-cancellation decision is to place no weight on this consideration.

206.    In these circumstances, the Tribunal places no weight on this consideration.

(e) Extent of impediments if removed

207.    Paragraph 10.5 of the Direction provides:

(1)   The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)The non-citizen's age and health;

b)Whether there are substantial language or cultural barriers; and

c)Any social, medical and/or economic support available to them in that country.

208.    The Applicant is 26 years of age and is of good health. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in New Zealand. As a New Zealand citizen, the Applicant will be entitled to any social, medical and economic support available to New Zealand citizens in New Zealand.

209.    The Applicant's grandfather, who raised the Applicant, is in New Zealand, as is his younger brother with whom he grew up in Australia. The Applicant’s mother is in New Zealand. The Applicant also has a number of half siblings in New Zealand. The Applicant’s father and his children (the Applicant’s half siblings) also live in New Zealand, although the Applicant has not seen his father since he was a young child.

210.    The Applicant has always been gainfully employed in Australia, and this augurs well for his employment prospects in New Zealand. There is also no apparent reason why the Applicant could not continue playing rugby league in New Zealand.

211.    The Tribunal finds that the Applicant will face difficulty in re-establishing himself in New Zealand. He has lived almost his entire life in Australia and has deep and lasting connections to this country and its people. The Tribunal accepts that the Applicant would be very upset if he were permanently removed from Australia and accepts the Psychologist’s view that the Applicant’s removal from Australia is likely to have an adverse psychological impact on the Applicant. The Applicant also submitted that he would suffer distress for being responsible for his partner and child having to uproot their lives in Australia to live in New Zealand. The Tribunal accepts this.

212.    While the Tribunal accepts that it will be difficult for the Applicant to re-establish himself in New Zealand, the Tribunal considers that there are a number of factors which will assist the Applicant in re-establishing himself there including his strong employment history, a number of close family members in New Zealand, the ability to continue playing rugby league in New Zealand and the fact that he will be together with his partner and child in New Zealand.

213.    The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal attributes low weight to this consideration in the Applicant’s favour.

Conclusion: Should the discretion to cancel the Applicant’s visa be exercised?

214.    The Tribunal considers that this is a difficult case to decide. The Tribunal has found that the primary consideration of the protection of the Australian community weighs moderately in favour of visa cancellation. The Tribunal has found that the Applicant’s serious offences were very serious, that there would be great harm to the Australian community or to members of the community if they were repeated and that there is a low risk that the Applicant will commit violent offences.

215.    On the other hand, The Tribunal has found that the primary consideration of the expectations of the Australian community weighs slightly against visa cancellation. The Tribunal has found that the primary consideration of the best interests of minor children, in this case, the Applicant’s daughter, and to a much lesser extent the nephews and niece of the Applicant’s partner, weighs significantly against visa cancellation. The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs significantly against visa cancellation. The Tribunal has found that both the Applicant and his partner will be significantly adversely affected if the Applicant’s visa remains cancelled. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs slightly against cancellation of the Applicant’s visa.

216.    After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the best interests of minor children and the expectations of the Austrian community, in addition to the ‘other’ considerations of the Applicant’s ties to Australia and the extent of impediments for the Applicant in re-establishing himself in New Zealand, outweigh the moderate weight in favour of cancellation attributed to the primary consideration of the protection of the Australian community.

217.    The Tribunal has found that the Applicant does not pass the character test but has decided that the discretion to cancel the Applicant’s visa should not be exercised.

218.    Therefore, the Tribunal finds that the Minister’s delegate’s decision, to cancel the Applicant’s visa, should be set aside and that a decision in substitution be made that the Applicant’s visa should not be cancelled. The Tribunal considers that this is the preferable decision in this case.

DECISION

219.    The Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant’s visa not be cancelled.

I certify that the preceding two hundred and nineteen [219] paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

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

Associate

Dated: 7 March 2019

Date of hearing:

26 February 2019

Solicitors for the Applicant:

Jennifer Samuta

Samuta McComber Lawyers

Solicitor for the Respondent:

Christopher Brinley

Clayton Utz Lawyers

EXHIBIT REGISTER

.................................................................................................................................

File No      2018/7446................................................................................................................

Between     DKDR..................................................................................................... (Applicant)

And            Minister for Home Affairs................................................................... (Respondent)

Heard on    Tuesday 26 February 2019

At               Brisbane..................................................................................................................

Before       Member T Eteuati....................................................................................................
Associate   J Kirstenfeldt............................................................................................................

Exhibit Number	Description of Evidence
A1	Statement from Applicant dated 29 January 2019
A2	Newspaper Article, published 14 June 2018
A3	Various Letters of Support for the Applicant
A4	Psychological Report by psychologist dated 16 January 2019 and attached Curriculum Vitae
A5	Further opinion of psychologist dated 5 February 2019
A6	Birth Certificate and Passport of Applicant’s daughter
A7	Statement from Applicant with Lives Lived Well Referral Form and brochure attached.
A8	General Tenancy Agreement of property rented by the Applicant
A9	Employment Agreement between the Applicant and his employer dated 02 March 2018.
A10	Payslips from the Applicant’s employer for the period from 5 March 2018 to16 December 2018
A11	Birthday Card from the Applicant’s Daughter
A12	Various Pictures of the Applicant and his family and friends
A13	Evidence of the Applicant’s daughter’s attendance at Kindergarten
A14	Identity Documents for Applicant’s Partner
G1	Section 501 ‘G’ Documents (pages 1-199)
S1	Queensland Court Outcomes and Queensland Police Service Court Briefs for the Applicant
S2	Verdict and Judgment Record and Queensland Person History for the Applicant
S3	Queensland Police Service Traffic Record in Relation to Applicant