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

Doves and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 367 (28 February 2020)
Division:GENERAL DIVISION
File Number: 2019/8299
Re:Bernardus Doves
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:28 February 2020
Place:Brisbane

The decision under review is affirmed.
..........................[sgd]..............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 (five year Resident Return) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs[2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 February 2020
INTRODUCTION AND BACKGROUND

Mr Bernardus Doves (“the Applicant”) is a 52 year old citizen of the Netherlands.[1] Movement records indicate that the Applicant first arrived in Australia on 7 December 1999 and has left Australia on two occasions, with his most recent arrival date being 13 November 2018.[2] The most recent visa granted to him was a Class BB Subclass 155 (five year Resident Return) visa (“the visa”).[3]
[1] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph 8.
[2] Exhibit R1, s 501 G-Documents, G13, pages 73-74.
[3] Ibid.
The Applicant has a lengthy criminal history in Australia, commencing on 5 January 2006.[4] Since then, he has been a frequent offender finding himself before the sentencing authorities in 2006, 2007, 2008 (four times), 2009 (two times), 2010 (two times), 2011 (two times), 2012, 2016, 2017, and 2019. These offences have resulted in convictions for:
[4] Exhibit R1, Check Results Report produced by the Australian Criminal Intelligence Commission, G8, pages 55–57.
·5 January 2006:
owilful damage to property which is a part of a school/education centre/college/university or other educational institution;
otrespass;
·18 December 2007: assaults occasioning bodily harm;
·13 March 2008:
ocommit public nuisance;
oconsume liquor on a road
·6 June 2008: Failure to appear in accordance with undertaking;
·27 June 2008: wilful damage;
·14 July 2008: failure to comply with noise abatement direction;
·30 July 2009: breach of probation order;
·14 December 2009:
ofailure to comply with noise abatement direction;
obreach of probation order (x 2);
·27 September 2010: commit public nuisance;
·25 November 2010: breach of probation order;
·4 May 2011:
ocommon assault;
odrunk or disorderly in premises to which a permit/licence relates;
· 7 July 2011: breach of probation order;
·13 November 2012: drunk or disorderly in premises to which a permit/licence relates;
·22 August 2016: contravene direction or requirement on licensed premises or regulated place;
·26 June 2017:
ofail to comply with requirement to stop private vehicle;
odangerous operation of a vehicle;
·22 February 2019:
oenter premises with intent to commit indictable offence;
owilful damage;
obreach of probation order.
His latest period of incarceration commenced on 22 February 2019 upon his sentencing for criminal offending at the Mackay Magistrates Court, Queensland to a head custodial term of imprisonment of 18 months (with a parole release date fixed for 6 months later, on 22 August 2019).[5]
[5] Exhibit R1, s 501 G-Documents, G8, pages 55–56.
While serving this term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 24 July 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6] Exhibit R1, s 501 G-Documents, G3.
On 16 August 2019, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[7] On the same day[8] the Applicant provided additional statements in support of his request for revocation. The delegate of the Minister decided on 6 December 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[9]
[7] Exhibit R1, s 501 G-Documents, G7, page 40, paragraph 3.
[8] Ibid, G7, page 53.
[9] Exhibit R1, s 501 G-Documents, G7, page 37-54.
The Applicant lodged an application with this Tribunal on 13 December 2019[10] seeking a review of the abovementioned decision dated 6 December 2019 not to revoke the cancellation of his visa. The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[11]
[10] Exhibit R1, s 501 G-Documents, G2, pages 3-9. .
[11] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 24 February 2020 and received oral evidence from the Applicant. Prior to the hearing, the Applicant filed a written submission with 10 attachments,[12] as well two further “Participation Certificates”.[13] The Tribunal also received oral evidence from the Applicant’s uncle-in-law who was called by the Respondent. The complete suite of written material forming the exhibit record of this proceeding is further particularised in the Exhibit Annexure attached hereto and marked “A”.
[12] See Exhibit A1.
[13] See Exhibit A2.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[16] I will address each of these grounds in turn.
[16] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 22 February 2019, the Applicant received convictions for “enter premises with intent to commit indictable offence” and “wilful damage”, for which he was sentenced to a term of imprisonment of 18 months.[17] Of the 16 sentencing episodes appearing in the Applicant’s criminal history, this is the only such episode involving the imposition of a term in actual custody.
[17] Exhibit R1, s 501 G-Documents, G8, page 56.
The Applicant has a lengthy criminal history (in terms of its duration). The written history runs for three pages and covers a period of just over 13 years.[18]
[18] Exhibit R1, s 501 G-Documents, pages 55–57.
In his written material provided to the Minister, while not directly referring to the character test, the Applicant said this about his offending (dealt with on 22 February 2019):
“…Conflict with another business owner about certain products/pricing being sold Competitive market
Arguing back and forth, my A frames were stolen, her partner argued with me. Social media slander. That’s when I had enough.
They were putting my business livelyhood and family down on social media (facebook). I was just protecting…”[19]
[errors in original]
[19] Exhibit R1, s 501 G-Documents, G14, page 95.
In his written material to the Tribunal, the Applicant did not comment on his offending, and did not make any reference to the character test.
Due to the operational effect of ss 501(6)(a) and 501(7)(c), I am nevertheless satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under 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” or “Direction 79”) has application.[20] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[21]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[20] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[21] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[22]
…Direction 65 [now Direction 79] 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.
[22] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents now before the Tribunal:
(a)his criminal history which appears in a document called “Check Results Report” from the Australian Criminal Intelligence Commission;[23]
(b)the Tender Bundle (comprising pages numbered 1–86)[24] which contains:
(i)extracts of records produced under summons by the Queensland Police Service (pages 1–70);
(ii)extract of records produced under summons by Mackay Magistrates Court (pages 71–80);
(iii)extract of records produced under summons by Queensland Department of Transport and Main Roads (pages 80–86).
[23] Exhibit R1, s 501 G-Documents, G8, pages 55–57.
[24] See Exhibit R2, attachment “A” thereto.
As previously mentioned, the material discloses that between January 2006 and February 2019, the Applicant came before the courts for sentencing on approximately 16 occasions and that he was convicted of some 24 offences broadly capable of categorisation as (1) offences against property; (2) offences against the person; (3) public nuisance; (4) failure to comply with a direction from lawful authority; (5) failure to comply with the requirements of a duly issued order compelling him to do/refrain from doing something; (6) drunk and disorderly conduct; and (7) driving/traffic offences.
The material also contains details about conduct by the Applicant warranting the imposition of Domestic Violence Orders.[25] The subject orders were made for the protection of the named aggrieved, and two children described as “Child < 10” & “Child < 10”.[26] The order has an “Effective To” date of 2 June 2013,[27] having been served on the Applicant on 3 August 2011. In the details surrounding the offence, there is a record that the Applicant’s conduct involved “Emotional abuse x 2 children … matter assessed as minor… no further Police action required”.[28]
[25] Exhibit R2, Respondent’s SFIC, Annexure “A”, TB1, pages 1-3.
[26] Ibid.
[27] Ibid.
[28] Ibid, page 4.

Concerningly, the circumstances of the relevant conduct appears to involve the Applicant exhibiting conduct of such recklessness as to disturb his children (both then aged under 10 years) to the point where his wife, the children’s mother, reported the matter to the police. The police records say this:
“Location: Dwelling. Subtype: House. Location specific: Garage. Victim age: Female child (age 10 and under); Male child (under 10). … Other behaviour at scene: Damaged property; Intoxicated. … ON 7^TH OF NOVEMBER 2007 AT ABOUT 1330HRS THE AGG ARRIVED AT HER HOME ADDRESS. AN ARGUMENT ENSUED BETWEEN HER AND THE RESP. SUBSEQUENTLY THE RESP HAS SMASHED THE WINDSCREEN OF THE CAR BY HITTING IT WITH A BOX OF 2LITRE COCA COLA BOTTLES AFTER TELLING HER TO LEAVE. HE HAS ALSO BENT THE DRIVERS DOOR OF THEIR CAR DURING THIS INCIDENT. THE COUPLES CHILDREN 3YRS AND 18 MONTHS WERE ALSO PRESENT. THE AGG HAS LEFT ADDRESS AND ATTENDED WALKERSTON POLICE STATION TO REPORT THE MATTER. SHE STATED THAT SHE HAD NOT BEEN ASSAULTED AND DID NOT WISH TO MAKE ANY FORMAL COMPLAINT IN RELATION TO PROPERTY DAMAGE. SHE STATED THAT THERE HAD BEEN NO PREVIOUS DOMESTIC VIOLENCE BETWEEN THE COUPLE. SHE STATED THAT THE RESP WAS UPSET AND STRESSED AT THE MOMENT AS HE WAS MISSING HIS FAMILY IN HOLLAND AND HIS FATHER HAD RECENTLY BEEN DIAGNOSED WITH CANCER. SHE COULD OFFER NO OTHER EXPLANATION FOR HIS RANDOM BEHAVIOUR….”[29]
[29] Exhibit R2, Respondent’s SFIC, Annexure “A”, TB1, pages 4–5.
The Nature and Seriousness of the Applicant’s Conduct to Date
As mentioned earlier, the Applicant gave oral evidence at the hearing. He seemed to understand the nature of his offending history and eventually conceded commission of the offences. He also conceded the level of seriousness of much of his offending. There was a level of artificiality and superficiality in the Applicant’s attempts to explain certain offending incidents. Having regard to his evidence (about his offending as a whole) it is correct to say that there was no significant resistance from him against any suggestion that he had committed the offences and that he had done so largely as a result of his unresolved issues with alcohol abuse.
The Respondent’s contends in its Statement of Facts, Issues and contentions (“SFIC”) that upon an application of the relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction, the “applicant’s offending should be viewed as very serious”.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
h)…
i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
The Applicant’s criminal history is redolent of offending that is both violent against members of the general community, but also, specifically, against women. On 18 December 2007, the Applicant was sentenced for assault occasioning bodily harm at the Mackay Magistrates Court. The Applicant was consuming alcohol at the local Duke Hotel. There was a disagreement between him and another patron about the level of the Applicant’s drinking. Consequent upon the suggestion from the other patron that the Applicant would be best-served by engaging with alcoholics anonymous, the Applicant proceeded to strike the victim once in the face, knocking him to the floor and then departing the premises. The circumstances of the offence involving an assault at Duke Hotel Walkerston are recorded in the relevant police narrative:
“…[Police]…spoke to the informant/witnesses who advised that the offender had assaulted the victim in an unprovoked attack in the main area of the hotel. As a result of the assault the victim was knocked unconscious and QAS[30] were called. Reporting officer spoke to the victim who could not really remember the assault but wanted to make a formal complaint. Numerous persons in the bar were spoken to and all reported that the attack was unprovoked. The offender is known in the community and he was immediately identified to the reporting officer. Reporting officer attended the offenders business premises and located the offender who stated he had been angry because the victim told him he should be at Alcoholics Anonymous. He has then struck the victim once to the face knocking him unconscious. The offender then left the hotel. He was then arrested for assault and transported to Mackay Police Station…”[31]
[My underlining]
[30] Queensland Ambulance Service.
[31] Exhibit R2, Respondent’s SFIC, Attachment A thereto, TB1, pages 10-11.
A further instance of the Applicant’s violent behaviour – this time against a female bar attendant who was simply doing her job – resulted in the Applicant being charged with common assault and drunk and disorderly in premises to which a permit/license relates. The Applicant was sentenced at the Mackay Magistrates Court on 4 May 2011. The bar attendant directed the Applicant to leave the licensed premises due to his level of intoxication. His response was violent, irrational and out-of-control. He became abusive towards her and refused to leave the premises. He then adopted an aggressive and threatening posture towards her, involving the yelling of verbal abuse and the making of threats. This conduct culminated in him striking the female victim/bar attendant in the forearm and stomach with his fists. It is important to record the circumstances of the offending as disclosed in (1) the police narrative and (2) one of the witness statements.
First, the police narrative says as follows:
“…At approximately 6:15pm on the 8^th day of April 2011 the defendant in this matter, Bernardus DOVES attended the O’SHEA’S Hotel.
At about 8:00pm the victim has approached the defendant and due to his level of intoxication and behaviour has taken an alcoholic drink from the defendant and directed him to leave the licensed premises. The defendant has then become aggressive towards the victim and has started yelling abusive and obscene language directed at the victim.
The defendant has continued to argue with the victim and has refused to leave as requested.
The victim then walked away from the defendant to the bar area where she has poured out the drink. The defendant has then followed the victim and has taken a step behind the bar area where he has began [sic] yelling verbal abuse and threats towards the victim.
The victim then put her hand up in front of the defendant and told him that he was not allowed behind the bar and that he was to leave. At this time the defendant has began [sic] throwing his arms around with clenched fists. The victim has stepped back however the defendant has hit the victim in the forearm and stomach with his fists.
The victim has then walked away from the defendant to another area of the Hotel where she has contacted Police.
Upon Police arrival the defendant had left the offence location.
On 9^th day of April 2011 Walkerston Police attended [address redacted] where they located the defendant.
The defendant stated to Police that he recalled having too much to drink at the O’SHEA’s Hotel that night however declined to participate in an electronic record of interview…”[32]
Second, a statement from a victim in this incident is also demonstrative of the very serious and menacing behaviour displayed by the Applicant. The victim confirms the physical nature of the violence in virtually the identical terms as recorded in the police narrative. However, that narrative does not record other elements of the Applicant’s behaviour. Those further elements are worth nothing from the following statement:
“I was working at the O’SHEA’s Hotel. Due to the males level of intoxication and behaviour I have directed him to leave the Hotel and remove a can of Jim Beam from him. The male person yelled words to the effect of, “Who do you think you are. I’ll fuck you up”.
The male has then followed me behind the bar where I have told him again to leave…
I then walked away and called Police. Prior to leaving the Hotel the male person continued to yell words to the effect of, “Fuck you, you monkey cunt, I’ll fuck you up, I’ fuck you up the ass”
…I was working at the O’SHEA’s Hotel on the 8^th of April 2011, I observed that the male person was intoxicated. A condition of him drinking at the Hotel is that he does not drink spirits. I have observed him drinking a can of Jim Beam and advised my supervisor [name redacted]. I then observed my supervisor have a conversation with the male person who has began [sic] yelling abusive and threatening language towards my supervisor.”[33]
[32] Exhibit R2, Respondent’s SFIC, Attachment A thereto, TB1, page 31.
[33] Exhibit R2, Respondent’s SFIC, Attachment A thereto, TB1, page 32.
To my mind, the police narrative, disclosing as it does the Applicant’s violent conduct towards a woman, clearly attracts the application of sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction. The quoted portion of the victim’s witness statement also discloses that the Applicant abused her by the use of appalling and threatening language. The quoted portions of the victim’s witness statement also demonstrate that the Applicant’s offending was such as to cause him to refuse to follow a lawful direction from both the victim/bar attendant and her supervisor. His response to those reasonable and lawful requests was to remain on the premises and physically assault the female bar attendant/victim.
In cross-examination, the Applicant unconvincingly and artificially sought to explain his conduct involving the violent offending against the female bar attendant on the basis that (1) he did not apparently follow her behind the bar, and (2) he denied having clenched fists at the time he was alleged to have thrown his arms around in a threatening manner towards her. He also unconvincingly denied that he struck her in her forearm and stomach with his fists. This evidence, to my mind, goes nowhere because the Applicant does not appear to have contested these facts upon sentencing and does not appear to have taken any other issue with either the police narrative or the witness statement at the time of his sentencing.
The circumstances of the Applicant’s violent attacks against both a male member of the general public and a female bar attendant, to my mind, can only confirm a finding that (1) his offences in both instances are, indeed, of a violent nature; and (2) an application of both sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction clearly militates in favour of a finding that the nature of the Applicant’s offending conduct is indeed very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction stipulates that crimes committed against vulnerable members of the community and government officials or representatives are serious. A cursory review of the Applicant’s offending history clearly demonstrates a persistent refusal to follow a lawful direction issued to him by police officers whose responsibility it is to ensure that members of the community observe the laws and regulations governing that community. In his offending history, the Applicant has failed to comply with a direction from lawful authority to either do something or refrain from doing something on at least three occasions. First, on 14 July 2008 he was convicted of a contravention of the provisions of the Police Powers and Responsibilities Act 2000 (Qld) by refusing to comply with a direction relating to noise abatement. Second, on 14 December 2009, he was convicted of a further contravention of the provisions of the Police Powers and Responsibilities Act 2000 (Qld) by refusing to comply with a direction relating to noise abatement. Third, on 26 June 2017, the Applicant again was convicted of a contravention of the provisions of the Police Powers and Responsibilities Act 2000 (Qld) by failing to comply with a requirement that he stop his private vehicle.
Given the circumstances of the Applicant’s repeated offending against the lawful authority governing the community to which he now seeks to be re-admitted, there can be no other finding than that the provisions of this sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction militate in favour of a finding that his offending – to the extent that this sub-paragraph (c) applies – is certainly of a serious nature, verging on the very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
As will be discussed later in these Reasons, the Applicant’s long criminal history does not contain repeated instances of the imposition of custodial terms. On the contrary, the sentencing regime appearing in his history has given him the benefit of non-custodial sentences in the form of fines, orders placing him on probation as well as at least two orders compelling him to pay restitution. None of these non-custodial sentences resonated in any positive way with the Applicant who, as a result of his offending in September 2018 (against the business premises and property of a nearby kebab-shop operator), saw the Mackay Magistrates Court impose a head custodial term of 18 months imprisonment with a parole release date that came into operation after the Applicant had served six months in actual custody. In addition to the custodial term, the Applicant was ordered to pay restitution in the sum of $19,793.19.
The Applicant’s sentencing history is demonstrative of a consistent and persistent offender known to both police, the courts and public venues he attended in his local area. While the sentencing history does not contain multiple instances of the imposition of custodial terms, it nevertheless culminates in the imposition of a significant head custodial term of 18 months for the damage he occasioned to the rival kebab shop business amounting to some $20,000 worth of damage. Having regard to the totality of his sentencing history, I am of the view that this sub-paragraph (d) militates for no other finding than that this Applicant’s offending is, at the very least, of a serious nature, more likely, of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
First, as I have already alluded to, the Applicant is both a frequent and persistent offender. He has been in Australia since December 1999 and was part of the mainstream Australian community until taken into criminal custody in February 2019. His approximately 13 year offending history has caused him to offend on a quite consistent basis since early 2006. His conduct has been the subject of review and sentencing by lawful authority between 2006 and 2019 as follows:[34]
[34] Exhibit 10, Respondent’s SFIC, pages 2-4, paragraph 6.
·5 January 2006:
owilful damage to property which is a part of a school/education centre/college/university or other educational institution;
otrespass;
·18 December 2007: assaults occasioning bodily harm;
·13 March 2008:
ocommit public nuisance;
oconsume liquor on a road
·6 June 2008: Failure to appear in accordance with undertaking;
·27 June 2008: wilful damage;
·14 July 2008: failure to comply with noise abatement direction;
·30 July 2009: breach of probation order;
·14 December 2009:
ofailure to comply with noise abatement direction;
obreach of probation order (x 2);
·27 September 2010: commit public nuisance;
·25 November 2010: breach of probation order;
·4 May 2011:
ocommon assault;
odrunk or disorderly in premises to which a permit/licence relates;
· 7 July 2011: breach of probation order;
·13 November 2012: drunk or disorderly in premises to which a permit/licence relates;
·22 August 2016: contravene direction or requirement on licensed premises or regulated place;
·26 June 2017:
ofail to comply with requirement to stop private vehicle;
odangerous operation of a vehicle;
·22 February 2019:
oenter premises with intent to commit indictable offence;
owilful damage;
obreach of probation order.
This equates to a level of frequency in his sentencing history such that he has found himself before the sentencing authorities in 2006, 2007, 2008 (four times), 2009 (two times), 2010 (two times), 2011 (two times), 2012, 2016, 2017, and 2019.
He has committed some 24 individual offences dealt with by 16 sentencing episodes across an offending history that runs for approximately 13 years. This equates to the commission of at least one offence for every one of the approximately 20 years the Applicant has spent in the mainstream Australian community prior to his incarceration in early 2019. It is undeniable that his offending has clearly been of a frequent nature.
Second, having regard to any discernible trend of increasing seriousness in the Applicant’s offending history, what can be noted from the history is that themes of a refusal to respect the personal and property rights of others are present in the history from its outset. At his first sentencing episode in January 2006, the Applicant was convicted of wilful damage to property forming part of a school. He was convicted of wilful damage in early 2019 resulting in the imposition of an 18 month head custodial term. By way of further example, at only his second sentencing episode in December 2007, the Applicant was convicted of the abovementioned assault occasioning bodily harm pursuant to the Queensland Criminal Code.[35]
[35] Criminal Code Act 1899 (Qld).
The Applicant’s offending history does not begin with anything remotely resembling minor or low-level offending. It begins with serious offending against both individuals and the property of individuals. That offending is then repeated at latter stages of the Applicant’s offending history. Any discernible trend of increasing seriousness in the Applicant’s offending history can be stated on the basis that his history contained serious offending from its outset and did not ameliorate throughout its course. Indeed, the very serious offending which first brought him to the attention of the sentencing courts in 2006 and 2007 was, for all intents and purposes, exactly the same kind of offending that saw him incarcerated in February 2019.

Both the frequency and increasing seriousness of the Applicant’s offending were duly noted by the learned Magistrate[36] who sentenced the Applicant in February 2019 to a head custodial term of 18 months. His Honour noted the following:
“BENCH: …Now, certainly you are at an age where you should know better…Now, your age – how old are you?
DEFENDANT: Fifty-one, your Honour.
BENCH: Fifty-one. That is right. Yes…you do have some record of committing criminal offences. There is a wilful damage charge but they were admittedly many years ago so I will not have regard that [sic] .But there are other offences on your record, albeit far more – far less serious than what the one you are facing here today. Now, I have taken into account all of the circumstances and the maximum penalty that can be imposed is 10 years imprisonment; although this Court can only impose up to three years imprisonment. I have got to have regard to the nature of the offence, how it occurred as outlined in the schedule of facts by the Prosecutor; the effect it had on its victims, the owner of the business; your previous history, which is not good; and the loss – some of the loss has been recovered, obviously, by the insurance with the 20-odd thousand dollars…
…
So what I am saying is that the Courts should impose an appropriate penalty to discourage yourself and other people from committing these types of offences. Now, my view is that the imprisonment range for that sort of behaviour for a person of your age and with your record should be in the vicinity of two years imprisonment. Now, you have pleaded guilty. As I said you must be given credit for that. So the penalty will be reduced because of that”[37]
[My underlining]
[36] Acting Magistrate Muirhead.
[37] Exhibit R1, s501 G Documents, G9, page 59, line 47 and page 60, lines 1, 5-20 and 30-34.
Thus, an application of this sub-paragraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and its level of its severity (which was significant from the outset and remained so until his last offence), is such as to attract a finding that his offending has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Applicant has a 13 year criminal history. As alluded to earlier, sentencing authorities have done their best to try and cause him to curb his propensity to offend via the imposition of a graduated sentencing regime. Across the 13 year history of his offending, the courts have imposed fines on at least 15 occasions. He has also received the benefit of multiple probation orders. His offending history shows he has breached those probation orders at least six occasions. He has also received the benefit of a release on bail, which he has breached by failing to appear in court pursuant to that bail undertaking at least once.
It would be too simplistic to categorise the Applicant’s offending in a way such as to render him a “community pest”. This, to my mind, would be to trivialise his offending. While it has been consistent, the offending has had the potential to seriously and potentially catastrophically injure one of his victims. His extraordinary conduct in destroying the kebab shop business premises is hardly the conduct of a “community pest”. Those sorts of offenders do not cause approximately $20,000 worth of quantifiable property damage.
He has been afforded numerous sentencing opportunities to moderate and curb his impulsivity to offend. None of those measures have resulted in any discernible reduction in the level of either consistency or seriousness of the Applicant’s offending. It starts in early 2006, and remains serious and consistent throughout its history.
A second observation about the cumulative effect of the Applicant’s offending leads to a conclusion that, for his entire time in this country, he has failed to develop any semblance of respect for lawful authority. As could be reasonably expected from any similar criminal history, there can be no doubt that this Applicant has received the benefit of stern words of warning and reprimand from judicial sentencing officers. This much is clear from the above-quoted sentencing remarks of the learned sentencing Magistrate made in February 2019. The Applicant has learned nothing from those warnings and has had continued to offend.
His conduct is such as to make him repugnant to law-abiding members of the mainstream Australian community. He has twice been convicted of public nuisance. The circumstances of one of these instances of public nuisance is particularly concerning. The police narrative records the following:
“At about 2:55am Wednesday 8^th September 2010 police attended the corner of Victoria Street and Wood Street Mackay after being waved down by the informant.
The informant advised Police, that the defendant approached her and her friend and propositioned them a number of times while they were inside the AM Bar in Wood Street earlier in the evening. The informant stated to police that she had advised the defendant a number of times to leave them alone.
Later the informant and her friend had left the AM Bar and were walking along Wood street. The informant stated to police that the defendant had continued to proposition her. The informant advised police the defendant’s behaviour became quite overbearing towards her while doing this. The informant then became fearful of this behaviour.
…The informant did not give the defendant any permission to engage her in any way like this. Nor did the informant give the defendant any reason to continue propositioning her.
Police questioned the defendant in relation to his behaviour. The defendant stated that those sluts are trying to get me in trouble they are just moles. At the time the defendant was intoxicated and was aggressive in his manner and not willing to answer Police questions in relation to his behaviour.
The defendant was arrested and transported to the Mackay Watchhouse where he was formally charged with this matter.
The defendant’s aggressive behaviour continued while in the Watchhouse where the defendant would not answer questions asked of him. The defendant would not follow basic directions where police had to further restrain the defendant to prevent a continuation of another offence.”[38]
[38] Exhibit R2, Respondent’s SFIC, Attachment A thereto, TB 1, page 23.
A further cumulative effect of the Applicant’s offending is evidenced by his failure to respect the rules governing the operation of motor vehicles on Australian roads. He has convictions for a significant number of driving offences, which can be summarised as follows:
·he has received infringements for speeding in 2003, 2006, 2012, 2013, 2014 (twice) and 2016;
·he has been detected driving while under the influence of liquor in 2004 (with a reading over 3 times the legal limit), in 2007 (at over three times the legal limit, approaching four times the legal limit) and in 2018 (at over twice the legal limit, approaching three times the legal limit). For the 2004 offence he was disqualified from driving for 11 months. For the 2007 offence he was disqualified from driving for 18 months. For the 2018 offence he was disqualified from driving for six months;
·he has been disqualified from driving on at least three occasions in June 2007, July 2009 and September 2018;
·he has failed to provide a breath specimen for roadside breath testing twice in 2009. For each of these offences his driving privileges were disqualified for two years; and
·a nine month disqualification from driving was imposed upon him consequent upon a conviction for dangerous driving in 2017. The circumstances of this offending are both concerning and demonstrative of a cumulative effect of the Applicant’s repeated offending in the realm of operating a motor vehicle. The relevant police narrative records the following:
“Facts in Relation to Dangerous Operation of Vehicle.
It will be alleged that when the Defendant was in the process of evading Marian Police by failing to stop as directed. The Defendant returning to Anzac Avenue for the second time has caused the red quad bike to diverge right from the table drain onto the sealed surface of Anzac Avenue.
It will be alleged that Anzac Avenue at this section of the road is a two lane carriageway running East West…
It will also be alleged that at this particular time on a Sunday afternoon traffic on Anzac Avenue Marian and Mackay Eungella Road, Marian is particularly heavy as this road takes tourists to the Eungella Range and Finch hatton Gorge which are very popular tourist destinations. It will also be alleged that this particular section of road is in front of the Marian State School, the heavily populated nabilla River Links estate and also leads to the Marian Town Centre Woolworths Shopping Centre on Anzac Avenue.
It will also be alleged that at this time there were several vehicles traveling on Anzac Avenue Marian in both directions…
It will be further alleged that the Defendant has turned right from the table drain into the westbound lane directly into the path of several oncoming vehicles causing them to diverge sharply to the right to avoid a head on collision with the red quad bike. It will be alleged that this action of the Defendant pushed those oncoming vehicles towards the stationary white Utility turning right. It will be further alleged that the quad bike overtook the turning Utility on the right hand side of this vehicle that was turning right. It will be alleged that this driving action was done deliberately wilfully and dangerously.
The Defendant has continued to drive the red quad bike east bound in the west bound lane straddling the fog line forcing oncoming traffic to take evasive action to left towards other oncoming traffic to avoid colliding with the red Quad bike head on.
Police were then forced to discontinue the attempt to intercept the Defendant on his quad bike due to the dangerous life threatening driving actions of the Defendant.
…The Defendant could not provide any emergent reason for his actions, stating to police “I fucked up it was a stupid thing to do.”[39]
[My underlining]
[39] Exhibit R2, Respondent’s SFIC, Attachment A thereto, TB1, page 57.
The Respondent in its SFIC has helpfully provided a quoted portion of a previous decision of mine about traffic/driving offences companying an indicator of very serious and potentially catastrophic conduct. I can do no more than to repeat and endorse those quoted portions of my earlier decision for the purposes of the instant decision.[40]
[40] Exhibit R2, Respondent’s SFIC, see page 6, paragraph 21.
Having regard to the totality of the Applicant’s unlawful conduct culminating in his recorded offending history, I am of the view that the cumulative effect of the nature and extent of the Applicant’s repeated offending clearly attracts application of this sub-paragraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction asks a decision-maker to determine whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The material discloses two incoming passenger cards[41] completed by the Applicant. The first is dated 3 January 2013 and the second is dated 13 November 2018. There is a contention against the Applicant that he falsely completed those two incoming passenger cards upon his re-entry into Australia on those dates.[42] In both of those cards, the Applicant was asked the following question “Do you have any criminal conviction/s?” and in both cards, his response was “No”. By 3 January 2013, the date of the first incoming passenger card, the Applicant knew he had appeared before lawful authority for sentencing on at least 13 separate occasions involving the commission of some 18 offences. By 13 November 2018, the date of the second incoming passenger card, the Applicant knew he had appeared before lawful authority for sentencing on at least 15 occasions for approximately 21 offences.
[41] Exhibit R1, s501 G-Documents, G13, pages 75-76.
[42] Exhibit R2, Respondent’s SFIC, page 7, paragraph 26.
At the hearing, the Applicant did not have any substantive excuse or reason for wrongly completing the first card. With reference to the second card, his evidence was that he was not thinking clearly when filling out this card because his mind was otherwise occupied with grief and distress at the loss of his late father following a lengthy cancer illness. While I do not doubt the Applicant loved his father, mourned his passing and was otherwise experiencing grief at his loss, I have difficulty in accepting the proposition that this grief precluded him from adequately focussing his concentration and attention to properly answering a relatively simple question requiring a relatively simple answer. Both the question and answer were short. Notably, the Applicant seems to have correctly filled out the rest of both cards with the other requested information.
In my view, the Applicant’s conduct in providing false and misleading information about his criminal offending in the subject incoming passenger cards attracts the application of this sub-paragraph (g) in favour of a finding that his conduct is of a very serious nature.
I have considered the terms of sub-paragraphs (h) and (i) of paragraph 13.1.1(1) of the Direction and am of the view that they are not relevant to determination of this application. Out of fairness to the Applicant, I note my recollection of his oral evidence to the effect that he has received compliments from either or both prison staff and/or immigration detention staff about the exemplary nature of his conduct during his time in either or both of those institutions. While not determinative of anything, this evidence goes to the credit of the Applicant.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c) (d), (e), (f), and (g) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is a contention on behalf of the Respondent to this effect:
“The Minister contends that the nature of the harm if the applicant were to reoffend is serious and could involve physical and psychological harm to members of the Australian community (including road users) and their property with adverse consequences for public health, the justice system and the general incidences of crime.”[43]
[43] Exhibit R2, Respondent’s SFIC, page 7, paragraph 28.
This contention is well founded, especially when one has regard to the provisions of paragraph 6.3(4) of the Direction, which stipulates that decision-makers should be guided by the principle that criminal offending 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. Having regard to (1) the provisions of paragraph 6.3(4) of the Direction and (2) the very serious nature of the Applicant’s offending to date, the Respondent’s abovementioned contention is, to my mind, correct.
The Applicant has a criminal history that runs from 2006 to 2019. There is no discernible explanation provided by him for his offending. I have earlier outlined its very serious nature, together with its level of frequency. I have noted that the Applicant’s wilful damage offending that first came before the Courts in January 2006 was identical to the offending that saw him sentenced to a head custodial term of 18 months in February 2019.
The Applicant’s history is demonstrative of repeated failures to follow and accept the reasonable dictates of lawful authority governing the Australian community to which he now seeks to be readmitted. There are multiple instances of an outright refusal to do something he is legally compelled to do or refrain from doing. He does not respect the lawful authority governing a given facility (such as a hotel) where the owner/proprietor has, with appropriate legal justification, compelled him to do or refrain from doing a certain thing. In short, his offending is indicative of him having minimal insight into the consequences of his conduct that comes to the attention then becomes actionable by law enforcement authorities. While he has not spent long periods in custody during his 13 year offending history, he has nevertheless been removed from the mainstream Australian community for a constant period since February 2019.
There is little or nothing in the material to suggest the Applicant has overcome his predisposition towards violent resolutions to overcome perceived difficulties. His consumption of alcohol to consistently excessive levels completely disorientates his moral compass such that almost anyone and anything is, to his mind, “fair game”. His conduct when intoxicated causes him an inability to delineate between the wrong and right way of acting towards (1) a member of the opposite sex who may have piqued his interest; (2) a lady earning her living working behind a bar at a licensed hotel venue; (3) another patron at a bar who made a comment about the level of the Applicant’s drinking requiring intervention by alcoholics anonymous; (4) how to drive, manage and control a motor vehicle both for his own safety and that of the public with whom he shares the roads; and (5) police/law enforcement officers who gave him a direction to do or refrain from doing something.
The weight of the evidence suggests that were this Applicant to re-offend if returned to that Australian community, especially in the realm of wantonly attacking another person or their property while intoxicated, there is no doubt that the consequences would be very serious and would, quite conceivably, involve very significant, and potentially catastrophic physical, financial and psychological harm to members of that community, particularly to women and unsuspecting people brought into the orbit of his offending.
The Applicant is not a young man. He is 52 years of age. He has been married for something like two decades to an apparently devoted wife. He has two children aged 14 and 16 years, respectively. He is known to the local community, not just for his extraordinary behaviour while offending, but because of the public facing nature of the fish and chip shop/convenience store business he and his wife have operated in the Walkerston district for almost 15 years. It is both disappointing and concerning to observe (and find) that the Applicant has failed to heed warnings and favourable sentencing outcomes as a basis on which to curb his propensity to offend. Despite his family responsibilities, business responsibilities, his life experience and profile in the community, he continues to allow his propensity to abuse alcohol to get the better of him. When he does so, he offends and often, very seriously.

It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community – especially women and individuals drawn into the orbit of his offending - would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
At the hearing, the Applicant spoke of being a changed man and that his offending days were behind him. He says that if returned to the Australian community, he would seek proper treatment for his life-long issues with abusing alcohol and that its causative effect on his offending over the last 13 years will be removed from his life and that he will thus become a model member of the Australian community. The realisation of losing his visa has clearly dawned on him. He understands the impact it will have on him in terms of missing milestones in the lives of his children and his family more generally. The difficulty with both his contention about overcoming his issues with alcohol (if released back into the community) and his fear and anxiety about missing family milestones is that none of it is corroborated by independent expert and clinical evidence of a psychological or psychiatric nature.
The Respondent has a similar view:
“There is presently no independent evidence in respect of the applicant reoffending. The Minister contends that there is presently very limited evidence that these issues have been addressed such that there remains an unacceptable risk of him re-offending, for these reasons:
a …no evidence of any rehabilitation undertaken, specifically targeting his anger management issues and alcohol problem…
b. The applicant has previously attempted at detoxing from alcohol in 2008 but relapsed after two days.
c. The applicant has demonstrated little remorse and insight into his offending…;
d. …sufficient time has not elapsed where he has not been in an unsupervised environment within the community and the likelihood of his reoffending remains a real possibility.”[44]
[44] Exhibit R2, Respondent’s SFIC, pages 8-9, paragraph 30.
I think this contention from the Respondent is correct and clearly supported by the evidence. There is minimal evidence of any rehabilitation. In his Personal Circumstances Form, the Applicant is asked whether he has completed any courses or programs that will assist him to avoid further offending. His response was “No, but currently in LOW custody, working daily on the Farm in Reception store.”[45]
[45] Exhibit R1, s501 G Documents, G14, page 95.
There is some evidence the Applicant has engaged with a rehabilitative process. In 2008, he made contact with a medical practitioner for the purposes of seeking to “detoxify from alcohol”. That evidence goes no higher than what was put in a purported medical report appearing in the material and dated 18 June 2008. The report is written by the medical practitioner whom the Applicant consulted. It reads as follows:
“18/6/2008
TO WHOM IT MAY CONCERN
Re: Mr Bernardus Doves
DOB: 6/8/1967
…
This is to certify that the above named patient came to see me on the 9^th May, 2008 to detoxify from alcohol. He proceeded with the detox programme for 2 days and then started drinking again. He informs me that he is drinking less now and thinks he can control the situation.
Yours sincerely,
[name of medical practitioner redacted]”[46]
[46] Exhibit R2, Respondent’s SFIC, Attachment A thereto, TB 2, page 71.
The concerning aspect of this report is that the Applicant’s subsequent offending history demonstrates that he has abjectly failed to “…control the situation.” Another concerning aspect was seen in the Applicant’s oral evidence at the hearing. The Applicant spoke of a predisposition towards arbitrarily ceasing medication prescribed to him for the specific purpose of removing his craving for alcohol. As I understood the following evidence, the Applicant simply stopped taking the medication and went back to excessively consuming alcohol:
“MR HAWKER:[47] And I want to read out at page 71 of the tender bundle.
[47] Mr Matthew Hawker, Partner, Sparke Helmore Lawyers, Representative of the Respondent.
APPLICANT: 71?
MR HAWKER: 71, yes. There’s a letter - when you turn to page 71 of the tender bundle you’ll see a letter from a medical centre, the Andergrove Medical Centre, [name of medical practitioner redacted]?
APPLICANT: Yes.
MR HAWKER: And the doctor certifies that you went to see the doctor on 9 May 2008 to detoxify from alcohol. You proceeded with the detox program - -?
APPLICANT: ---Yes.
MR HAWKER: - - -for two days and then started drinking again?
APPLICANT: ---Yes, well, I went to see my GP, [name redacted], and I’ve been using medication, Antabuse tablets to help with my drinking because you can’t drink when you’re on that medication because he told me if you decide to drink you have to do it in front of the hospital so - and those tablets they really helped.
MR HAWKER: Yes. So what must happen then though when you decided that you want to drink you stop taking your medication, you had a period of drinking; correct?
APPLICANT: ---After - yes, that’s correct. Yes.
MR HAWKER: So the detox wasn’t really successful in resolving this issue you’ve got with alcohol in any long-term successful way; correct?
APPLICANT: ---Those tablets they really helped, and because you don’t have the urge to drink so that is, yes, something I will keep using.
MR HAWKER: But it’s as simple as if I want to have a drink I just stop taking the medication as you’ve just said?
APPLICANT: ---Yes, you can’t - after you stop the medication you can’t drink for a week, so it’s not in your system any more.
MR HAWKER: And you will have seen the suitability assessment, if you turn over the page to page 72, and these are records from the local Magistrate Court, the Mackay Magistrates Court, the community based order suitability assessment from - well, it’s dated after that letter from your GP later in June in 2008:
Comments on factors considered -
And in handwriting at the bottom, and this is at the bottom of page 72 -
has indicated a serious alcohol problem.
At the very bottom:
Anger issues to be worked on also.
Beyond that letter which indicates that you had detox for two days but started drinking again, you’d agree there’s actually no independent evidence before the Tribunal to say that you’ve successfully overcome your issue with alcohol; you agree with that?
APPLICANT: ---No. No, I didn’t overcome my issue with alcohol, that’s why I went to see my GP, [name redacted].
MR HAWKER: You haven’t overcome it, all right.”[48]
[My underlining]
[48] Transcript, 24 February 2020, page 26, lines 19 – 45, and page 27, lines 1-22.
In terms of engaging with any independent, expert and clinical rehabilitative process, the Applicant accepts that notwithstanding any “classes” he may have been attending in either criminal custody and/or immigration detention, he is barely at the beginning of any such treatment process or regime of rehabilitation. At the hearing, I asked him about this and he responded as follows:
“SENIOR MEMBER: All right, let’s talk about in terms of getting better. Now, in your evidence you were very, very open and honest, weren’t you, when you said that you’ve got unresolved issues with alcohol, you’ve really got to sought that out, haven’t you, Mr Doves?
MR DOVES: Yes, that’s why I’m going to the classes every - every week, on Tuesdays and Thursday and I would like to continue - I would like to continue that when I get out.
SENIOR MEMBER: All right, so you’re still engaging, aren’t you, you’re at the beginning really, I would say, of properly dealing with your alcohol issues, aren’t you?
MR DOVES: Yes.
SENIOR MEMBER: Would you agree with the Tribunal if it was suggested to you that alcohol and the abuse of alcohol and what it does to you is at the root of most of your offending, most of your difficulties, that’s right, isn’t it?
MR DOVES: That’s right, yes.”[49]
[My underlining]
[49] Transcript, 24 February 2020, page 57, lines 4-23.
There is no independent and expert report before the Tribunal gauging the Applicant’s level of remorse and insight into his offending. The state of the evidence regarding remorse and insight is both incomplete and, on any plain reading and understanding of it, speaks against the Applicant. One need look no further than the Applicant’s during cross-examination regarding the assault occasioning bodily harm offence. This offending saw the Applicant push his drinking friend off a barstool causing that friend to strike his head and suffer an injury. The Applicant sought to ameliorate his conduct and explain it on the basis that (1) during the drinking session his friend became a nuisance; (2) an argument then ensued; and (3) that the victim’s actions were somehow deliberate and intended to draw a reaction from the Applicant because (4) the victim was motivated by financial reward.
As noted by the Respondent, this Applicant has been removed from the mainstream Australian community, either in criminal custody or immigration detention, since February 2019. Insufficient time has elapsed such that, were he to be removed from his currently supervised environment and placed into the unsupervised broader community, the likelihood of his propensity to resume abusing alcohol and offending remains untested and unknown.
None of the concessionary sentencing and similarly beneficial sentences imposed upon him have caused the Applicant to experience any form of deterrent effect upon his propensity to offend. None of these non-custodial sentences and/or oral warnings he will no doubt have received from sentencing judicial officers have caused him to place his responsibilities to his family (and broader community) above his predisposition to abuse alcohol, to then lose his moral compass and then offend, often very seriously so. When alcohol has the better of him, serious (often very serious) offending against the personal and property rights of others, coupled with a blatant refusal to respect lawful authority, seem to trump virtually all other aspects of his life.
The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
I am also mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[50]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[50] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
The Applicant has been afforded the benefit of a graduated sentencing regime, involving the imposition of a number of different types of non-custodial sentences. None of those warnings have been heeded, none of those lessons learnt and none of those opportunities have been grasped. He has prioritised his predilection to abusing alcohol and his resulting predisposition to offend, often very seriously so, above his responsibilities to his family, his business and the broader Australian community. Instead, he has continued to persistently offend, and very seriously so.
The Applicant acknowledges he needs to submit to a strict regime of counselling and rehabilitation for his issues with alcohol and anger management. He concedes that he is barely at the beginning of that process. The state of the evidence on this specific issue (i.e. psychological assessment, rehabilitation and an ongoing treatment regime) is such that whatever “classes” the Applicant may have completely thus far do not come anywhere near convincing this Tribunal that he has actively engaged with the rehabilitation process.
The Tribunal does not have anything to confirm an expert(s) has identified and treated the symptoms behind the Applicant’s offending. In the absence of any such external and independent reporting, the only finding must be one that the Applicant’s risk of re-offending remains at its present very high level. At the very least, in the absence of such expert evidence, it is not possible to make a finding that the likelihood of his offending would be any lower upon his return to the Australian community than it was prior to his removal from it.
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(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 or not to revoke the mandatory cancellation decision 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.
It is first necessary to identify the children actually or possibly relevant to this proceeding. As I understood the evidence, the Applicant has two biological children in Australia under the age of 18 years. His Personal Circumstances Form discloses a daughter aged 16 years and a 14 year old son. The biological mother of both children is the Applicant’s above-mentioned wife, with whom he has shared a relationship since 1999 and whom he married in 2006.
The Applicant’s written evidence
In his submission filed in this matter, the Applicant said:
“Apart from the work in the business, I am the primary caregiver to our children while my wife works daily with staff with the businesses [sic] customer service/order fulfilment. Currently my wife is working 7 days a week/8 hours a day minimum. Some days over the weekend she works 12/hours a day. She is unable to sustain this work committment [sic] long term.
Our children are currently very stressed with the potential outcome of this process. They are falling behind towards the latter part of last years school term. They worry… about the fate of their father and what will happen to our family unit. Since my departure there have been none of the recreational activities our family enjoyed as my wife struggles to fulfil our business commitment. I also worry with the world around my children, as they have reached an impressionable age. Normally when one parent is working, the other is with the children. Currently they spend too much time alone with their mother working.”[51]
[51] Exhibit A1, Applicant’s Submission, page 3.
The Applicant’s evidence in cross-examination
I have had regard to the Transcript, and in terms of cross-examination of the Applicant on the specific issue of his two biological children in Australia under 18 years of age, the following transpired:
“MR HAWKER:…Now, just moving on to another factor that needs to be considered, and that is you’ve identified your two children, who are under 18?
APPLICANT: Yes, they just turned 14 [the son] and [the daughter] just turned 16 in January.
MR HAWKER: Yes, 14 and 16…And you’ll be aware from the material provided to you that they’ve decided not to take part in the telephone hearing today?
APPLICANT: Yes, that – we’ve talked about it. It is too hard for the kids because they – yes, well, they’re crying a lot and they’ve [sic] missing a lot of school, so it is, yes, really hard for the kids to do this.”[52]
[52] Transcript, 24 February 2020, page 27, lines 22-33.
It is also worth having regard to contentions on this specific issue made on behalf of the Respondent during closing submissions:
“MR HAWKER: In terms of the next primary consideration, the best interests of minor children, well, the applicant has two children under 18, they’re 16 and 14, which is a relevant age to take into account in terms of the years left until 18. Exhibit OP2 attaches the signed letter from the children that they don’t want to give evidence. They seem - there’s evidence about how they have been caught up, for want of a better phrase, in terms of the applicant’s alcohol related conduct. In a number of ways it acknowledges that when things got a bit fiery at the camp while they were there, and a mate’s friend was there, when he would leave for periods of time, days while - they’re children, they’re at home, dad’s gone.
SENIOR MEMBER: Yes.
MR HAWKER: And of course we know that the mother fulfils the parental role, so, in my submission, yes, we heard evidence, and even if - I mean, look, the uncle readily accepted, look, “The kids will love you, and we know you love the kids”, but, in my submission, it’s not determinative of this case when you take into account all of the circumstances of the minor children, so that it’s not a factor that outweighs, for example, the protection and expectation of the Australian community.”[53]
[53] Transcript, 24 February 2020, page 52, lines 10-29.
I note, with a level of concern, the state of the evidence around whether the Applicant’s two children did or did not wish to provide supportive evidence on behalf of their father, the Applicant. The material contains a letter from the Applicant’s wife to this effect:
“…I know Bernardus has asked myself and our two children [names of children redacted] to be on the phone when his hearing is with the AAT but we do not agree to do that as we do not want to support him. Since Bernardus went to jail on the 22 February 2019 our life has changed for the better…Bernardus is like a bad toxic poison who just couldn’t and will never change.”[54]
[54] Exhibit OP 1, Email from Applicant’s wife.
The difficulty with this letter from the Applicant’s wife is that it purports to give the children’s views without any corroborative evidence from the children that these are their views. The material also contains a hand-written letter from the Applicant’s children. It is written in terms that are diametrically opposed to what the Applicant’s wife says the views of the children towards their father apparently are. The letter from the children is drafted in these terms:
“To whom it may concern,
We miss our Dad so much and we don’t want him to go back to holland. We haven’t seen him for 6 months and the thought of Dad going back to holland means we will never see him again. We always had good family times together out on the boat and going camping and fishing. Dad always made it a laugh and a good time. It’s not the same at home without Dad. [Name of son redacted] and I are hoping Dad will be coming home to us soon, we love and miss him so much.
From,
[Daughter’s name redacted] and [Son’s name redacted].”[55]
[55] Exhibit R1, s501 G Documents, G14, page 104.
In addition to the immediately preceding correspondence from the children, the material also contains a copy of an email from the Applicant’s wife to “NCCC Revocations”. Its terms may be stated thus:
“From: [Applicant’s wife]
To: NCCC Revocations
Subject: HPRM: Re Bernardus DOVES…-14 days Natural Justice/Further Information Letter
Date: Thursday, 21 November 2019 10:50:02 PM
I’m writing this letter for our children [name of daughter redacted] 15 years and old and [name of son redacted] 13 years old that they are finding it hard in coping with everything that is happening to their father Bernardus Doves. They are worried about not being able to see him and how he will cope as well. Even though after everything he is still there [sic] father and they love him very much.
Kind regards, [the Applicant’s wife]”[56]
[56] Exhibit R1, s501 G Documents, G17, page 129.

While the Applicant’s wife may have disputed the truthfulness and accuracy of a letter purportedly from her that appears as an attachment to the Applicant’s submission (specifically, Exhibit A1 to these proceedings), I cannot recall or find anywhere in the material where she either challenges or purports to retract the truthfulness and accuracy of (1) the abovementioned hand-written letter from the children, and (2) the abovementioned email she has apparently written in support of the Applicant dated 21 November 2019.
In the final analysis, the Applicant’s wife did not give oral evidence at the hearing and did not submit herself to cross-examination about any of the written evidence she has provided throughout the course of this matter. On this basis, I will treat her written evidence[57] with caution. Further, I will take at face value the abovementioned hand-written note from the children and the email of the Applicant’s wife dated 21 November 2019 supportive of the Applicant.
[57] Specifically, Exhibits OP 1, OP 2 and OP 3.
Instead of the Applicant’s wife making herself available for cross-examination, this task apparently devolved to her uncle, who did give oral evidence at the hearing. The significant difficulty with the uncle’s evidence was that he purported to give evidence of (1) the apparent current state of the Applicant’s wife’s feelings towards the Applicant; (2) the apparent current state of the children’s feelings towards the Applicant; and (3) the apparent historical nature of the domestic relationship between the Applicant, his wife and their children. The uncle has not resided in the Mackay area for something like seven years. He and his wife now reside in Adelaide. While I am prepared to accept his evidence to an extent, I do so only from the perspective of what he may have observed of the abovementioned domestic relationship as a once-proximate but now distant relative.
I entirely discount the uncle’s evidence insofar as it purports to tell the Tribunal anything about (1) the apparent current state of the Applicant’s wife’s feelings towards the Applicant; (2) the apparent current state of the children’s feelings towards the Applicant; and (3) the current state of the domestic and business affairs of the Applicant and his family.
Application of Factors in Paragraph 13.2(4) of the Direction
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned minor child. Those factors relevantly comprise for present purposes:
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.
Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child/ren and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/ren.
The Applicant has been in either criminal custody and/or immigration detention since at least February 2019. This has caused him to be absent from the lives of his children with whom he has a connection in Australia for approximately 12 months. There can be no question that his relationship with the children, prior to his incarceration, was a lengthy and durable one. He has been a father to his 16 year old daughter for 15 years of her life. He has been a father to his 14 year old son for 13 years of the son’s life. The Applicant has thus been a father of the children for 28 of the 30 years of the combined length of both their lives.
On the strength (i.e. nature and duration) of the fatherly relationship the Applicant and the children up to February 2019, I am of the view that a moderate level of weight can be attributed to this sub-paragraph (a) such that it would be in the children’s best interests that the Applicant’s visa status to remain in Australia be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child/ren turn 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
First, with reference to both children, it is clear the Applicant has played a parental role in both of their lives until February, 2019. There are approximately six years of parenting time left until both children attain the age of 18 years. There is nothing in the material to suggest that if he were returned to the community – and conducted himself in a manner such as not to cause himself to be removed from it – he would play an on-going fatherly/parental role in the lives of both children.
Second, I take at face value the evidence that both the Applicant and his wife have worked in the fish and chips shop/convenience store business for something approaching 15-20 years. I also take at face value the Applicant’s submission that the demands of the business are such that at least one parent is required in the business on a virtually full-time basis, such that primary parenting responsibilities devolves to the other parent. This “other parent” has been the Applicant.
As against that, the children are at a sufficiently advanced age and stage of life whereby it could be reasonably said that they can – to an extent – look after themselves. However, to my mind, this does not remove the requirement that the children nevertheless require daily supervision, management and control, such as, for example, delivery/collection from school and/or sporting and/or social events. The Applicant gave evidence to the effect that he does much of this for the children.
Having regard to the parental role the Applicant has played in the lives of his two children to date (certainly until February 2019) and the likely role he will play into the future, I am of the view that a moderate measure of weight can be attributed to this sub-paragraph (b) in favour of a finding that it would be the best interests of the Applicant’s two children in Australia that the Applicant’s visa to remain here be restored to him.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the two subject children in Australia.
There is nothing in the material from any expert witness indicating any negative psychological (or other) impact of the Applicant’s prior criminal conduct has had or that and any future such conduct would have on the lives of the two children. That said, it would be very difficult to accept that the Applicant’s extraordinary conduct in an intra-family context, which has clearly drawn the children into its orbit, will not have had any effect on them. His conduct in destroying the family tent and camping paraphernalia during a recent New Year’s Eve camping trip was ridiculous and would not have endeared him to the children.
As against that, the Tribunal has the benefit of the abovementioned hand-written letter from the children, the terms of which are clear. The Tribunal also has the letter from the Applicant’s wife to NCCC Revocations dating from 21 November 2019 where the adverse impact of the Applicant’s absence on the children was clearly expressed.
All too often, these types of applications involve very young and infant children who are not of an age to express any view on the continued absence of one parent. The more unique aspect of the present case is that the Tribunal has at least two written documents giving those views of the children. The further unique feature of the case is that third parties are now purporting to retract the written views of the children.
Having regard to the totality of the evidence, I will allocate a moderate level of weight in favour of a finding that restoration of the Applicant’s visa status to remain in this country is in the best interests of the two biological children in Australia.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the two Australian children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. There are two aspects to this consideration. First, the Applicant has said in his submission that:
“…Our children are currently very stressed with the potential outcome of this process. They are falling behind towards the latter part of last years school term. They worry themselves about the fate of their father and what will happen to our family unit. Since my departure there have been none of the recreational activities our family enjoyed as my wife struggles to fulfil our business commitment.”
The abovementioned hand-written letter from the children clearly corroborates the Applicant’s evidence, as does the letter written by the Applicant’s wife to NCCC Revocations in November 2019.
Second, we live in an age of electronic and digital communication. Those communication modalities will be – one can reasonably expect – well known to both the children due to their relatively advanced ages. Unpleasant though the experience may be for them, the correct finding for this specific sub-paragraph (d) is that the Applicant will have the capacity to maintain contact with the two subject Australian biological children by SMS and/or social media platforms from Holland or elsewhere. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two children via telephone, Skype and other digital platforms.
I have had regard to (1) the effect of the Applicant’s absence on the lives of both children thus far; and (2) the Applicant’s capacity to maintain contact with the children via digital/electronic means. I am of the view that this sub-paragraph (d) is of moderate weight in favour of a finding that it is in the best interests of the relevant minor children that the Applicant’s visa status to remain in Australia be restored to him.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. There can be no question that, in his absence, the primary caregiver for the Applicant’s biological children has been his wife. She also has extended family in her local area who would, presumably, be in a position to assist her with the parenting effort. As against that, there is the Applicant’s evidence to the effect that he has performed a primary parenting role in situations where the wife’s virtual full-time presence is required at their business.
I accept that the Applicant can be reasonably expected to play a parenting role in the future lives of the two children until they each attain the age of 18 years. On this basis, this sub-paragraph (e) is of moderate weight in favour of the Applicant in assessing whether restoration of his visa status is in the best interests of his two children in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As mentioned, while there is no independent or expert evidence before the Tribunal detailing the views of either or both of the children were the Applicant to be removed to Holland and thus removed from their lives. The best evidence before the Tribunal comprises the abovementioned hand-written statement from both of the children appearing in the material and the email letter written by the Applicant’s wife to NCCC Revocations dated November 2019.
I am not prepared to entirely discount the recorded views of the children in either of these documents on the basis that third parties (specifically, their mother and her uncle) now purport to retract those previously recorded views. Accordingly, it is reasonable to find that the known views of the children do militate in favour of the allocation of a moderate level of weight to this sub-paragraph (f) such that restoration of the Applicant’s visa status to remain in this country is in their best interests.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. There is no evidence to this effect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. I have made certain comments about the Applicant’s prior conduct, especially in an intra-family context. However, in the absence of independent and expert evidence detailing any physical or emotional trauma suffered by the children as a result of any such episode, I am of the view that this sub-paragraph (h) is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant, which speaks of a loving relationship between him and both of his children, and that such relationship would most likely be resumed were the Applicant to be returned to their lives in a physical sense;
(b)the evidence of the children (the hand-written letter in the material)[58] detailing their apprehensive and concerned thoughts about the prospect of their father being permanently removed from their lives;
(c)the evidence of an email letter dated 21 November 2019[59], apparently written by the Applicant’s wife to NCCC Revocations, detailing the difficulty both children are having in coping with the absence of their father;
(d)the demands of the fish and chips shop/convenience store on the time of both the Applicant and his wife such that she is required to work in the business on a virtually full time basis, and the quite feasible scenario that he has and will continue to act as the primary caregiver for the children while the wife is working in the business;
(e)the Applicant’s capacity to maintain contact with the children via electronic/digital means from Holland or elsewhere; and
(f)the moderate level of weight I have attributed to factors (a) (b), (c), (d), (e) and (f) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the Applicant’s two children in Australia does weigh moderately in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a moderate level only and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A.
Primary Consideration C: The Expectations of the Australian Community
[58] Exhibit R1, s501 G Documents, G14, page 104.
[59] Exhibit R1, s501 G Documents, G17, page 129.
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[60] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[61] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[60] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[61] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·the Applicant arrived in Australia in December 1999, at the age of 32. He is now 52 years of age;
·he has two biological children aged 14 and 16, respectively, in Australia. He has, until February 2019, played a significant parenting role in the lives of his two children;
·he was first sentenced in Australia in January 2006;
·he has received the benefit of non-custodial sentences from January 2006 to February 2019, at which time he was sentenced to a custodial term of imprisonment of 18 months for wilful damage and enter premises with intent to commit indictable offence;
·his offending has seen him before lawful authority in this country on approximately 16 separate occasions between January 2006 and February 2019, involving the commission of some 24 offences;
·his offending has been both frequent and serious, often very serious. It can be fairly argued that his offending has been at least serious from its outset: his first offence was in relation to wilful damage to property forming part of a school; his second offence involved assault occasioning bodily harm;
·his violent offending has involved both a woman and a member of the general public as its victims;
·any of that very serious violent offending, were it to be repeated, could realistically have the potential of very serious or even catastrophic harm to members of the Australian community;
·his offending derives from unresolved issues with alcohol and anger management. His history of offending betrays a marked incapacity to control an impulsivity towards violent resolutions to difficult situations with which he may be confronted. These situations in which he has offended have most usually involved excessive consumption of alcohol;
·there is no current, independent or expert evidence before the Tribunal providing analysis and commentary around (1) the Applicant’s issues with alcohol, (2) his incapacity to regulate his anger and impulsivity, and (3) his incapacity to submit to lawful authority – such that this Tribunal could confidently make a finding that any such diagnosed/identified symptoms are under some kind of remedial management and control;
·he has failed to experience any deterrent effect from the graduated sentencing process imposed on him in the course of his offending history, accompanied, as it no doubt will have been, by verbal warnings from judicial sentencing officers directing him to curb his behaviour;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention, since February 2019;
·he has an offending history that runs for approximately 13 years. He commenced offending in 2006 and continued to offend on a relatively frequent basis until his incarceration in February 2019;
·in round figures, for the approximately 20 years he has spent in the general community of Australia, he has committed approximately 24 offences. This amounts to more than one offence per annum;
·despite (1) being a father figure in a family with adolescent children and their mother, (2) his business responsibilities, (3) his life experience as a 52 year old, and resulting profile in the community via his small business activities, he continues to allow his propensity to abuse alcohol to get the better of him. When he does so, he offends and often, very seriously;
·given the absence of any independent or expert clinical/medical evidence, the Tribunal cannot be reasonably expected to form any definitive view about the Applicant’s risk of re-offending other than it remains as it was prior to his most recent removal from the Australian community in February 2019;
·the absence of such expert evidence thus makes it virtually impossible for this Tribunal to reach any finding that this Applicant’s risk of re-offending could in any way be stated as “low”; and
·while there is evidence that the Applicant has, to a small extent, engaged with some kind of treatment process, the level and extent of that treatment is not sufficient for the purposes of this Tribunal being able to properly ground a positive finding about the Applicant’s level of rehabilitation and consequential risk of re-offending.
The Evolution of the Australian Community’s “Expectations”

In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[62]
[62] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[63]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[63] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[64]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[My underlining]
[64] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[My underlining]
In Afu v Minister for Home Affairs (“Afu”),[65] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[65] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[66] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[67] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [68]
[My underlining]
[66] [2019] FCA 500.
[67] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[68] FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[69]
[69] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[70]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[71]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government are the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[72]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[73]
[70] Afu at paragraph [85].
[71] FYBR at paragraph [42].
[72] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[73] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a work history in this country. His Personal Circumstances Form refers to a work history as follows:[74]
“From 1999 to 2001 – Line Fisherman – [Name of business redacted]
From 2001 to 2005– Brickies Labourer – [Name of business redacted]
From 2005 to current– owner – Fish and Chip Shop.”
[74] Exhibit R1, s 501 G-Documents, G14, page 96.
The evidence indicates the Applicant and his wife have operated the fish and chips shop/convenience store business on a successful basis for something like 15 years. The business “has an average workforce of 10 staff”.[75] There is evidence that the Applicant and his wife have “…before traded a second shop called Marian Fish and Chips.”[76] It would be illogical to suggest that the Applicant and his wife are devoid of any skills in the conduct and management of a small business.
[75] Exhibit A1, Applicant’s Submission, second page.
[76] Ibid.
The persistent and lengthy offending history of the Applicant has involved very serious unlawful conduct. His resulting extensive criminal history has surely breached the expectations of the Australian community. His offending commenced with serious offences and has also involved very serious offending. His criminal history is clearly demonstrative of a failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(a)the Applicant has made some positive contributions to the Australian community;[77]
(b)the Applicant has lived in the mainstream Australian community for approximately 20 years;[78]
(c)the removal of the Applicant may well have an adverse impact on his two biological children in Australia, aged 14 and 16 years, respectively;[79]
(d)the very serious nature of the Applicant’s offending to date to other people in the community;
(e)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal and property rights of others, and a refusal to follow the rules governing Australian public roads;
(f)the lack of current, independent and expert evidence (1) identifying the factors giving rise to his propensity to offend, and (2) measuring the level of the Applicant’s insight into the nature and severity of his offending;
(g)my finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(h)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[77] The Direction, paragraph 6.3(7).
[78] The Direction, paragraph 6.3(5).
[79] The Direction, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to Holland. None of the evidence suggests a risk of harm were that to occur. This consideration is not relevant to determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“Whilst the Tribunal may accept that this consideration weighs in favour of revocation, the Minister contends that it should be given limited weight and is not sufficiently compelling to outweigh the primary considerations weighing heavily against revocation.”[80]
[80] Exhibit R2, Respondent’s SFIC, page 12, paragraph 44
Upon an application of the factors appearing in paragraph 14.2 of the Direction, I am of the view that the position taken by the Respondent is correct. The Applicant was born in 1967. He came to Australia in 1999. He has thus spent the majority of his life in Holland. He first offended in this country on 29 September 2005, which is less than six years after his arrival in Australia. Applying paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances – that is, where the Applicant began offending soon after arriving in Australia.
As against that, there is evidence that he has made some contributions to Australia. He has held positions of paid employment here. Since 2005, he and his wife have successfully operated a small business in Australia for approximately 15 years. That business “has an average workforce of 10 staff”.[81] His Personal Circumstances Form discloses that he has made the following positive contributions to the Australian community:
“Sponsor the Local Catholic School – [name redacted]
Support local Football Club
7 days/wk providing Fresh Fish and Chips to locals
Attend/Support Local Markets – Vouchers
Attend Local Shows/Festivals
Lived in same community for 20 yrs.”[82]
[81] Exhibit A1, Applicant’s Submission, second page.
[82] Exhibit R1, s501 G Documents, G14, page 97.
These contributions do attract some weight in favour of the Applicant pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
Greater (but not determinative) weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). In Australia, in addition to his two biological children, the Applicant’s Personal Circumstances Form reveals his mother in law and father in law also reside here.[83] There is no reference to any uncles/aunts, nieces/nephews, cousins or grandparents to whom the Applicant is related residing in either Australia or Holland. In Holland, the Applicant has a mother and a brother.[84]
[83] Exhibit R1, s 501 G-Documents, G14, page 94.
[84] Ibid.
It is clear that the Applicant’s two children in Australia would be impacted by the Applicant’s removal to Holland. As against that, the Applicant does have a parent (his mother) and a brother in Holland. The other point that emerged in the evidence was that, for the 20 years the Applicant has been in Australia, his parents visited him here on 22 occasions. The Applicant said:
“I’ve been here for 20 years now in Australia and mum and dad have been coming over for 22 times, sometimes they come twice a year. They come three months at a time, so we spend a lot of time together…”[85]
[85] Transcript, 24 February 2020, page 29, lines 11-14.
Therefore, it can be fairly said that if the Applicant returned to Holland, he would be returning to a mother with whom he has maintained close contact during his time in this country.[86] At best, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
[86] The Applicant’s father passed away in 2018: see Transcript, 24 February 2020, page 49, line 3.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of moderate weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. This consideration is not relevant to determination of this application.
(d) Impact on victims
While the Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, the material nevertheless discloses a statement from the proprietor of the kebab shop which the Applicant seriously damaged in September 2018. This is the offending culminating in his convictions for (1) entering premises with intent to commit an indictable offence and (2) wilful damage. It is the offending that saw him sentenced to a head custodial term of 18 months.
In her statement, the proprietor of the kebab shop said these things:
“Since Ben destroyed my business that day, I’ve had to see a doctor and a psychologist to help me with severe anxiety, emotional turmoil and major trust issues (letter attached). I have not been the same since. My family interactions have been a major issue because of the way this has affected me. I shut off at home, became withdrawn, which caused my relationship with my partner to breakdown. I ceased going anywhere near my business or to the shopping complex for the 5 weeks it took to get all my equipment replaced, the store cleaned up and stock replaced.
…
I always supported you Ben, anytime you needed it, I’ve been there as a friend too, only to have you turn on me without reason and destroy the one thing you knew I put my whole heart and soul into.
My business was starting to pick up and you knew this, but you maliciously and deliberately came into my store and destroyed it in a matter of moments; right at the start of the busy school holiday period.
I am not sleeping at night, I see my psychologist regularly, I’m now on anxiety/depression medication, I’m forever watching my back, because you have destroyed all the values I believed in.
…
…I was left paying rent on an empty store that you had destroyed. I have been left paying increased insurance premiums because of what you did. You are responsible for my current mental state, my stress, my loss of income, and my staff’s loss of income. I hope you are held accountable for your actions.
[Name of kebab shop proprietor redacted]
24^th January 2019”[87]
[87] Exhibit 2, Respondent’s SFIC, Attachment A thereto, TB2, page 78.
The “letter attached” referred to in the statement from the kebab shop proprietor is from a psychologist. He says these things:
“30/01/2019
To The Court,
I have been seeing [name of kebab shop proprietor redacted] under a Mental Health Care Plan…since 21/11/2018.
…
[Name of kebab shop proprietor redacted] has described fearfulness and avoidance behaviours regarding the possibility of being confronted by the perpetrator. She has had to close her business, deal with the legal issues, insurance, finances, repairs, staffing and then re-opening. The ongoing stress has put a severe strain on her relationships with her partner, her family and her friends. [Name of kebab shop proprietor redacted] is often tearful and upset, disappointed and confused at the motivations of the perpetrators actions…
Therapy….is focussing on Cognitive Behaviour Therapy (CBT) with mindfulness skills training, to assist her in coping with the consequences of the vandalism.
I have seen [name of kebab shop proprietor redacted] 3 times so far and I believe her recovery from this hurt will be slow, despite her resilient and stoic nature.
Sincerely,
[name of psychologist redacted]”[88]
[88] Exhibit 2, Respondent’s SFIC, Attachment A thereto, TB2, page 79.
Thus, a finding can be safely made that the Applicant’s continued presence in Australia will adversely affect at least one of the victims of his offending, that being the proprietor of the kebab shop that he so seriously damaged in the latter part of 2018. Accordingly, I find that this factor attracts weighs in favour of not revoking of the decision to mandatorily cancel his visa.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances Form, the Applicant summarises his concerns about returning to Holland as follows:
“Yes, family here in Australia, my house, my business.
…
Yes, I have limited support, nothing for me back in my country! Everything I have is here.”[89]
[errors in original]
[89] Exhibit R1, s 501 G-Documents, G 14, page 98
The Applicant is a man of 52 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[90]
[90] Ibid, page 97; see also Section 14.5(1)(a) of the Direction.
There is no significant or substantial language or other cultural barrier to the Applicant’s return and re-establishment in Holland. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Holland.[91] As I understand the evidence, he was last in Holland in November 2018, albeit for the unpleasant reason of the passing of his late father.
[91] Section 14.5(1)(c) of the Direction
The Applicant has spent the majority of his life in Holland. Therefore, it cannot be said the Applicant will face significant linguistic or cultural barriers were he to be compelled to return there.[92] To the extent that he may face some difficulty in re-establishing himself in the Holland, this would only present as a short term hardship and would not preclude resettlement.
[92] Section 14.5(1)(b) of the Direction.

The Applicant has a record of engaging in both remunerative employment and operating a small business in this country. There is little or nothing precluding him from doing the same types of work in Holland were he compelled to return there.
I am thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: of moderate weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: weighs in favour of non-revocation; and
·extent of impediments if removed: is of neutral weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to all of the Other Considerations combined, even when conjoined with Primary Consideration B, outweigh the very significant combined and determinative weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

173. I certify that the preceding one-hundred and seventy-two (172) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.........................[sgd]...............................................
Associate
Dated: 28 February 2020

Date of hearing: 24 February 2020

Applicant: By videolink

Solicitors for the Respondent: Mr Matthew Hawker (Partner)
Sparke Helmore Lawyers
“A”
EXHIBIT ANNEXURE

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

R1

Section 501 G-Documents

R

-

9 JAN 20

R2

Respondent’s Statement of Facts, Issues and Contentions (with attached Tender Bundle Marked ‘A’)

R

12 FEB 20

12 FEB 20

A1

Applicant’s Submission

A

-

7 FEB 20

A2

Participation Certificates

A

14 FEB 20

17 FEB 20

OP1

Email Correspondence from Chantelle Doves

OP

10 FEB 20

10 FEB 20

OP2

Email Correspondence from Chantelle Doves

OP

11 FEB 20

11 FEB 20

OP3

Email Correspondence from Chantelle Doves

OP

21 FEB 20

21 FEB 20

OP4

Email Correspondence between Chantelle Doves and Sparke Helmore Lawyers

OP

23 FEB 20

23 FEB 20

[2020] AATA 367

28 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	24 February 2020
Applicant:	By videolink
Solicitors for the Respondent:	Mr Matthew Hawker (Partner) Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1	Section 501 G-Documents	R	-	9 JAN 20
R2	Respondent’s Statement of Facts, Issues and Contentions (with attached Tender Bundle Marked ‘A’)	R	12 FEB 20	12 FEB 20
A1	Applicant’s Submission	A	-	7 FEB 20
A2	Participation Certificates	A	14 FEB 20	17 FEB 20
OP1	Email Correspondence from Chantelle Doves	OP	10 FEB 20	10 FEB 20
OP2	Email Correspondence from Chantelle Doves	OP	11 FEB 20	11 FEB 20
OP3	Email Correspondence from Chantelle Doves	OP	21 FEB 20	21 FEB 20
OP4	Email Correspondence between Chantelle Doves and Sparke Helmore Lawyers	OP	23 FEB 20	23 FEB 20