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

Downes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1037 (9 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/0146
Re: Aaron Downes
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth
Date: 09 April 2021
Place: Adelaide

The decision under review is affirmed
.....................[SGND]...............................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601.
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018.
REASONS FOR DECISION
Senior Member B J Illingworth
09 April 2021
INTRODUCTION

On 8 January 2019, the Applicant filed an application to review the decision of the delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (the Respondent), dated 3 January 2019 to not revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) subclass 444 visa.
This application was originally heard by the Tribunal (the First Hearing) and a decision was published on 27 March 2019 which affirmed the decision under review[1]. Subsequently, following an appeal, by Order of the Federal Court of Australia dated 5 February 2020, the Tribunal decision was quashed, and the matter remitted to the Tribunal for rehearing[2]. The application has now been heard by a differently constituted Tribunal.
[1] Exhibit A, G 20, pages 1224 – 1258.
[2] Exhibit A, G 21, pages 1259 – 1282.
The transcript of evidence and documentary evidence from the First Hearing was received by the Tribunal by consent[3]. The Tribunal also received further evidence including oral evidence from the Applicant and his partner Ms JC.
[3] Exhibit I.
At the hearing before the Tribunal, the Applicant was represented by Mr Glenister, William Gerard Legal Pty Ltd and the Respondent by Mr Brown, Australian Government Solicitor.
BACKGROUND
The Applicant is a 36-year-old citizen of New Zealand and is of Maori ethnicity. He was born in 1984. He first arrived in Australia in April 2005, returned to New Zealand in March 2006 and then re-entered Australia in April 2006 where he remained. He was aged approximately 22 years of age.
On 8 February 2008, the Applicant received his first conviction for the offence of dishonestly taking property without consent. His last court appearance was on 13 March 2018 for assaulting his partner and neighbour. During that time the Applicant committed several offences which included unlawfully damaging property, indecent behaviour, contravention of domestic violence orders (DVO) (two offences), unlawfully causing serious harm, assault, domestic violence and breaches of court orders.
The Applicant’s most serious offence was unlawfully causing serious harm, committed on 3 August 2010 at Tennant Creek. He was sentenced on 3 October 2011 to imprisonment for six years and nine months with a non-parole period of three years and six months. The offence occurred at approximately 8.30 pm. The Applicant was intoxicated. He attacked the proprietor of a pizza shop who was mopping the shop floor. The victim wore an arm brace as a result of a motor vehicle accident 18 months earlier. The Learned Sentencing Judge said, “Your motive for attacking the victim was because you believed he had cast a slur on your partner’s children’s legitimacy.[4]” The Applicant struck the victim in the face which caused him to fall to the ground then kicked him repeatedly including to the head causing very serious and permanent head injury.
[4] Exhibit A, G 3E, page 40.
On 1 March 2013, the Applicant received a formal warning from the Department advising that his visa ‘may be liable for cancellation pursuant to s 501 of the Migration Act 1958’ (the Act) and by letter dated 23 July 2013[5] he was advised that a delegate of the Minister had decided not to cancel his visa on character grounds on this occasion, but warned him that cancellation may be reconsidered if he were to commit further offences or otherwise breached the character test in the future.
[5] Exhibit A, G 3J, pages 55-56.
Despite the warning, the Applicant continued to reoffend. On 21 January 2017, the Applicant was served with a DVO. The protected person was the Applicant’s current partner Ms JC. The Applicant was restrained from directly or indirectly causing harm or attempting or threatening to cause harm to Ms JC.
The Applicant’s last offence occurred on 1 December 2017 at about 11.00pm at his residence where he lived with Ms JC. He was still subject to the DVO order of 21 January 2017. He and Ms JC had been drinking alcohol. The Applicant was intoxicated. He was sentenced on the basis of agreed facts[6], namely that he raised his hands upwards towards Ms JC’s neck causing her to feel threatened. She grabbed the Applicant’s hand and he stopped. Ms JC left and sought refuge at a neighbour’s house across the road. The Applicant went to the house, smashed a ceramic pot plant that was outside the house, left and then returned a short time later armed with a rock which he threw at the neighbours car, then started kicking the locked front gate of the property, picked up a piece of the broken pot plant which he threw at and narrowly missed the neighbour. He threatened the neighbour before leaving.
[6] Exhibit A, G 3AD, pages 126 – 128.
The Applicant was sentenced for the offences of assault of a female, assault – threaten with a weapon and damage property to six months imprisonment to be released after serving 3 months 14 days in prison.
On 23 February 2018, the Applicant received notice that his visa was cancelled under s 501(3A) of the Act[7], and he subsequently applied to the court not to be released after serving 3 months 14 days imprisonment so he could remain close to Ms JC and their daughter and not be placed into immigration detention. He served the total sentence of six months imprisonment before entering immigration detention.
[7] Exhibit A, G 3R, pages 79 – 82.
On 21 March 2018, the Applicant made a request for revocation of the visa cancellation. On 3 January 2019, a decision was made not to revoke the mandatory cancellation pursuant to s 501CA (4) of the Act and the Applicant was given notice of that decision by letter dated 4 January 2019[8]. The Applicant lodged an application for review of that decision with the Tribunal.
[8] Exhibit A, G 4, pages 189 – 195.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(d)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(e)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. The Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (the Direction) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
MINISTERIAL DIRECTION NO. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Primary Considerations are generally to be given greater weight than the Other Considerations.
The Tribunal will now outline the evidence before addressing these considerations.
The Applicant has three biological children to three different partners namely Ms A, Ms B and Ms JC, his current partner. He has four stepchildren with Ms JC. He also had three former stepchildren with Ms B whom it is accepted are not children for the purpose of the Act. Those children are outlined in the table below:

Relationship to Applicant Child initials Birth month/year Relevant to application under review?

Child 1 Biological child TD July 2006 Yes

Child 2 Biological child DD August 2010 Yes

Child 3 Biological child AD May 2016 Yes

Child 4 Stepchild (Biological child of Ms JC) LC February 2000 Primary Consideration B does not apply to Child 4 as he is now 21 years old. The interests of Child 4 are considered in Other Consideration (b): Strength, nature and duration of ties.

Child 5 Stepchild (Biological child of Ms JC) BC April 2003 Yes – Primary Consideration B still applies to this child who is under 18 years of age at the time of publication of this decision.

Child 6 Stepchild (Biological child of Ms JC) GC August 2007 Yes

Child 7 Stepchild (Biological child of Ms JC) IC June 2012 Yes

Child 8 Stepchild (Biological child of Ms B) LB Unknown No

Child 9 Stepchild (Biological child of Ms B) JB1 Unknown No

Child 10 Stepchild (Biological child of Ms B) JB2 Unknown No

Counsel for the Applicant in opening submitted that the issue for the Tribunal in this matter was whether or not the interests of third parties affected by this decision, which are primarily the six relevant minor children and the Applicant’s partner Ms JC, outweighs the countervailing considerations, namely the expectations of the Australian community and the protection of the Australian community.
Counsel for the Applicant submitted that, given the long period of time the Applicant has spent in prison and immigration detention, he has done everything he can to engage in rehabilitation and counselling. He has had a long period of forced abstinence from alcohol such that the risk of reoffending is sufficiently low, and that the expectations of the Australian community and the protection of the Australian community will not outweigh the considerations in favour of revocation of the Applicant’s visa cancellation.
The Tribunal sought clarification from the Applicant’s counsel as to the relevant minor children for the purpose of Primary Consideration B and referred counsel to the Personal Circumstances Form received in May 2013[9]. That form referred to the Applicant’s three stepchildren named LB, JB1 and JB2 born to his former partner Ms B. Counsel advised that the Applicant had not, for some time, engaged with those stepchildren and they were not relevant to the application before the Tribunal. The Tribunal agrees with that submission.
The Applicant’s evidence
[9] Exhibit A, G 3N, page 68.
The Applicant said that he thought he should have another opportunity to live in the Australian community because having been in detention for over 30 months, he has completed numerous courses including anger management and drug and alcohol courses, which have taught him not to assess situations in an angry and impulsive way as he did before. He has taught himself that he does not want to be the type of person he became when substance affected. He has prioritised what is important in both his children and partner’s life and they need a sober and active father, stepfather and partner.
The Applicant said that with the tools he has learned since being in detention and now being drug and alcohol free, he believed he can put this “horrible chapter” behind him. He described immigration detention as being hard, but something he needed because he was heading down a reckless path. He said that he and his partner have discussed the steps he needs to take to be a better father, stepfather and partner.
He also said that the tools he learned whilst in immigration detention will assist him to reintegrate back into the community by finding work, supporting his family and maintaining his abstinence from drug and alcohol abuse. He desperately wants to be part of the community. He wants the opportunity to prove to his family, children and the Minister, that he can do what is expected of him as a valued community member.
The Applicant said that he needed to undertake the drug and alcohol course to understand the effect those substances, particularly alcohol, has upon him.
His future strategies to deal with alcohol and drugs are to cease consumption, and think more positively, rather than allowing negative thoughts to invade his thinking. He has learned to be more positive, which will reduce his negativity and offending.

He intends to admit himself into further ongoing rehabilitation. He said when he was young, he used cannabis, but he also suffered undiagnosed schizophrenia. He stopped using cannabis. He used methylamphetamine when in Australia but not for long periods. This was when he lived in Adelaide and Alice Springs. He did not use those drugs when he offended most recently. His issue was with alcohol.
The Applicant completed parenting courses while in detention, which taught him about child psychology and how to be a better and understanding father to his children and stepchildren.
If returned to the community his focus would be on financially and emotionally assisting his children, stepchildren and partner and rebuilding his family.
He said Ms JC has issues with family members. They had their own rented house and family members would come in from communities or the bush and move into the house and did not show respect for family members who live in the town. They just moved into the house recklessly, violently, intoxicated and standing over Ms JC. The Applicant said that by him being present in the home, those issues did not arise. He speaks to those family members in a way that causes them embarrassment and, as a result, they leave the Applicant, Ms JC and their family alone. The Applicant said that they have support from housing services and counsellors who backed them up and provided them with a safe area in which to live.
In terms of providing future financial support to Ms JC and the family, the Applicant said he intended to obtain employment, that there was plenty of work in Tennant Creek, he has always had employment and he holds a current driver’s license. The Applicant said he has a broad skillset such as driving, labouring, trades assistant, certified tire fitter and tire repairer. He has no trouble finding work and that will enable him to provide a strong financial foundation for his family.
The Applicant explained that Ms JC has four children by two other relationships, namely:
(a) two sons – Child 4 aged 21 years, who resides in Melbourne and Child 7, aged 8 years, who resides in Adelaide. They visit the Applicant and Ms JC twice a year, which visits are organised through their respective carers; and
(b) two daughters Child 5 aged 17 years, and Child 6 aged 13 years who both reside in Alice Springs.
Those children, he said, are not in the care of Ms JC.
The Applicant and Ms JC have a daughter from their relationship, Child 3, aged 4 years, who lives with Ms JC.
Since being in immigration detention, the Applicant’s contact with Child 7 has been limited but he has been able to maintain contact with the other children. That contact has been through the medium of FaceTime. He said that Child 3 is available most of the time. They spend a lot of time on FaceTime communicating with each other. She is old enough to recognise the Applicant and asks when he is returning home. She says that she is going to come and get the Applicant. He has told her that he will be home soon. The Applicant takes photographs of Child 3 when they are communicating, and he can see how the separation is affecting her.
His stepdaughters Child 5 and Child 6 both speak with him on FaceTime if they are present at the home when he calls. They also have family communications in which, save for Child 7, they all connect through FaceTime.
The Applicant said that every morning and every night, “I see the kids off for the start of the day and before they sleep”. However, when he was in the community, he spent more time in person with the children.
The Applicant said that his relationship with Child 4, Child 5, Child 6 and Child 7 involves showing them that he loves Ms JC and each of them. They see their mother is happy. He said there was a strong bond in the family, they did things together, they involve the children with other family members and teach them about their grandparent’s country. The Applicant drives them to places to reconnect with family and their grandparents. He helps them connect with their respective father’s family which the children appreciate.
The Applicant has two other biological children namely a daughter Child 1 aged 14 years and a son Child 2 aged 10 years by two former partners.
The Applicant has not had contact with Child 1. When he was in prison from 2010 to 2015, there was communication between Child 1’s mother and the Applicant’s mother about changing Child 1’s surname. The Applicant refused that request and was hoping to renew contact when released from custody; but the Applicant’s family lost contact with Child 1 and her mother and he is not sure of their current residence. He will pursue that contact at a later stage.
As for Child 2, the Applicant said he had discussion with the child’s mother and hoped to reconnect with him, but now understands that discussion was not genuine on her part and he has no contact with Child 2. He had previously given the mother his address should she pass through Tennant Creek so that they could reconnect, but that has not occurred.
If released into the community, he will search for Child 1 and Child 2 both of whom he believes live in Adelaide. His intention is to reconnect with them both.
If removed from Australia, the Applicant believes the impact on his family would be devastating. Ms JC will be left to care for the children and herself. He said, as the children in foster care are getting older, they are coming back to their mother. Ms JC is already in financial difficulty. She moved to Darwin, but she had the same issues with bullying family members moving into her house. Because she did not have the Applicant’s support, she relocated back to Alice Springs where she has a support network, including her older sister.
The Applicant said it was hard for Child 3 to attend early learning because of the financial difficulty. Ms JC can only afford two days a week at early learning.
The Applicant referred to the support he provides to Ms JC and the children, including financial and emotional. He referred to trips the family would take to homesteads, which strengthens them as a family unit and helps them get away from issues in the town and reflect on those issues and make better life decisions.
When imprisoned for the offence of unlawfully causing serious harm, he was permitted towards the latter part of that sentence to live in a rehabilitation detention centre and work in the community which concluded in mid-2015. At that centre, he met Ms JC who was also serving a prison sentence for the manslaughter of her mother. She was released on parole first and, after the Applicant was released on parole, they commenced a relationship.
The Applicant was asked why the Tribunal should have confidence in him not reoffending given he committed the offence of assault involving Ms JC and the neighbour approximately 12 months after being released from custody for the offence of unlawfully causing serious harm. He explained that, given his length of time in immigration detention, he has had the opportunity to think and reflect on his behaviour and, as a consequence, he committed himself to the various programs that were available to him in detention. He now has better understanding and has insight into the reasons for his offending, and the importance of having a violence and alcohol-free household, particularly for the children and Ms JC. He said he had tried when in prison, but he didn’t try hard enough and now facing detention he realises he was not as strong as he thought he was. He said he was psychologically immature before in terms of how he thought about things. Hence, the programs undertaken in detention have helped him deal with his personal issues.
He said that he and Ms JC are committed to each other and he cannot commit another offence. This is his opportunity to demonstrate he has improved himself. In a practical sense, to achieve this, he said he will attend more rehabilitation and counselling programs, become a more positive person and be there for his children. He is committed to becoming a good father.
The Applicant said there are counselling and rehabilitation services available in Alice Springs such as the Holy Oaks.
Cross-examination of the Applicant
The Applicant detailed his early life in New Zealand. He had a typical upbringing. His parents drank and partied, but he had family support and grew up with a lot of cousins. There was some family violence growing up, but not enough to be traumatising. He said his father was violent towards his mother; he was an angry man and the violence was alcohol related. It was scary. During times of violence he did not like his father’s behaviour. The Applicant said he now understands why his father was violent, having done the courses in custody. In about 2013, he discussed his father’s violence with his mother, and he learned things about his father that gave context to his behaviour.
Life growing up was good and family orientated. He attended primary school and 2 ½ years of secondary school. His father died at 40 years of age which he found difficult to cope with. He lived with his brother and mother. He now has a loving relationship with his brother. His brother still lives in New Zealand and has four children and they keep in contact. His brother turned his life around and overcame drug use. He attended rehabilitation, received baptism and returned to his family. The Applicant’s mother, grandmother and cousin have told him about his brother’s changed life. He enjoys a close relationship with his mother. They maintain regular contact.
His first involvement with the law in New Zealand was for a drunk and disorderly offence when aged 18 – 19 years. He was arrested and remained in a police cell overnight. He did not go to court. The Applicant said that, in respect of his incoming passenger card in which he declared he did not have criminal conviction, he did not know whether he was convicted of that offence.
After leaving secondary school, he worked in a cattle truck company for two years and then in a business which built cowsheds which required him to engage in concreting, welding and carpentry for two months. He then travelled in New Zealand and attended employment courses including panel beating, mechanics, light welding and metal fabrication. He gained certification in welding. He then gained employment in an engineering firm where he stayed for 1 – 2 years.
The Applicant then had a relationship with Ms A. Ms A was a citizen of both New Zealand and Australia. Her grandfather who lived in Adelaide underwent heart surgery and she and her family came to Australia. He followed about a month later in April 2005 when aged about 20 years. By that stage the Applicant had two convictions for disorderly behaviour and shoplifting.
The Applicant lived with Ms A and her family. She fell pregnant. The Applicant returned to New Zealand for a month in 2006 and then returned to Australia where his daughter, Child 1, was born in in April 2006. She is now 14 years of age.
Following Child 1’s birth, the Applicant continued to live with Ms A and her family. The Applicant was employed. The Applicant and Ms A subsequently separated. He could not explain why and said he had a strong bond with Ms A. He said it came down to a decision by the ‘mother-in-law’ that he was not the right person for her daughter. He said the decision to separate was a shock. Child 1 and her mother returned to New Zealand. The Applicant conceded there was an occasion when he pushed his ‘mother-in-law’. They had a family Christmas function and he had been drinking. Ms A’s father was at another function where he had been in an altercation. When he returned home, he brought his problems home with him. The Applicant and the father had an altercation. He said people were separating us “and I may have advanced towards my mother-in-law”. The Applicant later explained that he was told the next morning that he pushed his mother in law who was in a doorway. He said he suffered a fractured jaw from the incident with the father.
Following that incident, the Applicant said that his relationship with his ‘mother-in-law’ changed. She said, “[he] was not good for her daughter” and he was considered to be a troublesome person. About 7-8 months later, Ms A said their relationship was at an end and she, Child 1 and the ‘mother-in-law’ returned to New Zealand. The Applicant believed that Ms A’s mother had a lot of influence over that decision.
The Applicant continued to reside with the remainder of the family for 2 – 3 months. He was employed as a factory worker. He was heartbroken about the end of the relationship. His life went downhill. He found comfort in friends and turned to alcohol and he experimented with methylamphetamine. He stopped going to work. He returned to the house and his bags were packed and left outside the house.
His mother-in-law gave him a car, but he only had a learner’s licence. He went to live with those friends. The methylamphetamine took away the pain of separation but he eventually became depressed. He moved in with a friend who was a builder/tiler and through that friend he was able to obtain work.
The Applicant described a transient lifestyle, including living in shelters in the city. He then obtained accommodation in the city through the church and attended morning and afternoon religious and counselling sessions. His friend found alternative accommodation and the Applicant’s life improved. He continued to work in the building/tiling industry.
In late 2008 to early 2009 he was engaged with a company through Centrelink and qualified for an open mining course. He was trained to work in workplace safety, working at heights or on a drilling rig.
The Applicant was referred to dishonesty and driving offence convictions in Adelaide in 2008. He said that his separation from loved ones and his partner gave rise to the making of bad decisions. The dishonesty offence related to the theft of knee pads which he needed for work. He did not have the money to pay for them at the time. He said this was a poor decision which he regrets. He was young and not in the right state of mind. They were not wealthy and were struggling financially.
The Applicant could not remember the July 2008 drink driving conviction. It was a sad time of his life when he was trying to overcome the separation by drinking alcohol and taking drugs. He was not in control of his thinking. He said he was heavily affected by alcohol and methylamphetamine. He agreed the offence was potentially dangerous. It was a poor decision.
In respect of the offence of driving while disqualified, he said his licence was disqualified having been caught earlier driving without a licence. His learners permit was suspended when he committed the driving offences.
In 2009, the Applicant met Ms B. She had family in Tenant Creek who were involved in the mining industry working with the Northern Lands Counsel about 100 miles north of Tennant Creek. He and Ms B had just come from broken relationships. They formed a relationship and relocated to Tennent Creek.
Ms B had family in Tennant Creek who offered them a place to stay. There was no mining work available, but he was offered work in the kitchen at the mine which he declined. He wanted to work in the processing plant and nowhere else. He was working in a food barn supermarket, a pizza shop in the evenings and a scrap metal yard on weekends.
Ms B had three children from a previous relationship, but they remained in Adelaide where they attended school and lived with Ms B’s sister. At one point in time they moved to Tennant Creek and lived with the Applicant and Ms B for 7 – 8 months until the Applicant’s arrest for the offence of unlawfully causing serious harm. He provided financial support and stability to the family and helped get the eldest child into school.
He described Ms B’s family as being Indigenous Australians. He said they had a lot of issues, including with alcohol and abuse. When the children joined them, they sought a more stable and quieter house. There was a history of violence with Ms B. He referred to an altercation near the pizza shop. A police officer who lived nearby could hear the yelling and arguing. The Applicant said he was intoxicated. He could not recall if a DVO was in place at the time but a DVO was put in place which required him not to be intoxicated in Ms B’s company.
At that time, in 2009 to 2010, the Applicant said he was intoxicated every second or third day before employment, twice a week during employment and on weekends. He would get himself into a highly intoxicated state. The reason was depression, sadness and finding it hard to better himself. He said he was not surrounded by the best people.
On 23 June 2010, the Applicant was convicted for throwing stones or projectiles at vehicles, unlawful property damage, disorderly behaviour and conduct contravening DVO. Those offences, he explained, occurred in moments of anger, frustration, intoxication and poor decision-making and taking it out on the community. He said that every morning when he woke up in a police cell he was in shock for what he had done, and thought “here I am again”. He strongly regrets his offending and apologises for doing so.
The Applicant was referred for the first time to rehabilitation counselling in Alice Springs for three months. At this time, Ms B was pregnant with the Applicant’s son, Child 2, who was born in August 2010. In rehabilitation, the Applicant attended mandatory group sessions each morning and afternoon and one-on-one counselling sessions every day. They went on excursions into town. During counselling he learned Aboriginal-style painting. He found counselling therapeutic, particularly with respect to dealing with drugs and alcohol and the impact his offending has on families and the community.
At the end of that 3-month period, he said he did not adopt a strategy preparatory to his return to the community. He believed that he was cured. He did not then understand that he needed to continue with the counselling. Instead he returned to his previous lifestyle which resulted in his reoffending.
The Applicant’s rehabilitation was from February to April 2010, after which he and Ms B remained for some time in Alice Springs and abstained from drinking alcohol. They subsequently returned to the Tennant Creek. He could not obtain employment in the mines and he returned to alcohol use.
Four months after completing the residential rehabilitation he committed the offence at the pizza shop in August 2010. When asked to explain what occurred he said he was intoxicated. He said that two weeks prior, Ms B told him the proprietor had been rude to her.
On this occasion he was drinking with other family members. Ms B suggested they go to the video/pizza shop. The Applicant, Ms B, her cousin and Ms B’s three children then aged 4 years, 8 years and 9 years all went to town with the intention of getting the children DVD movies and then going to the pizza shop. He remembered Ms B’s previous exchange with the pizza shop proprietor and so he went to the pizza shop to find out what was said.
The Applicant did not know if the children were present at the time of the pizza shop incident, but from memory he went to the pizza shop with one of Ms B’s cousins. The altercation took place, but the Applicant had difficulty explaining what followed. He said the proprietor must have seen them approach and called for the police. He said his memory is blurred and blacked out. His memory was very poor. He said he could not remember what occurred. He remembered getting arrested and taken to the police station.
The Applicant said a tragic incident took place. He said he had since been imprisoned and had learned the consequences of that offending. He shocked himself with what happened. In response to the Tribunal, he said this was a pizza shop in which he worked prior to going to Alice Springs. He did not know the victim. They had not previously worked together. The Applicant did not recall that the victim had an arm in a brace, nor could he recall hitting or kicking him. The Applicant could not explain his lack of memory. When asked if it could be because of the amount of alcohol he consumed his response was “it’s just blank”. He remembered earlier having been seated and drinking wine and he did not feel that intoxicated. However, when he stood up, he realised he was intoxicated. The pizza shop was about 1 km from their home. His memory became very blurred at the halfway point to the pizza shop.

The Applicant said he could recall the Sentencing Judge’s description of the offence. When asked for his reaction to those comments he said he felt bad; that he felt sorry for the victim and was asking himself how and why this happened. The Applicant remembered a psychologist and his explanation of the Applicant’s previous lifestyle, which was caused by stress and pressure.
Counsel referred to the Sentencing Judge’s finding that the Applicant intended to inflict serious harm. The Applicant was asked to comment. He said it was an impulse. Ms B’s cousin said the Applicant was going there to slap the victim. This was not something the Applicant remembers. He said he may have been talking in that manner because of the demeanour and general violence in the community. The Applicant said it was a confusing time for him, living in two worlds. In one world violence is not accepted, and in another world, it is accepted, namely in the Aboriginal community. When asked again why the incident took place, he said he was intoxicated and not thinking.
The Applicant was told of the victim’s injuries five weeks after being in prison. The victim had come out of a coma. The Applicant said he was shocked and did not think the injuries were that serious. He said he was empathetic and praying for the victim to get better. As for the long-term effects on the victim, he said he learned this from the victim impact statement. The Applicant said he decided to take responsibility for his actions, plead guilty and show remorse for the victim and those affected, which he did by writing a letter to the victim and his family expressing his sincere apology.
When sentenced to imprisonment for 6 years and 9 months with a non-parole period of 3 years and 6 months, he was also dealt with for breach of bond and a suspended sentence.
The Applicant was asked about programs undertaken in prison. He undertook Men’s Group, Life Skills, and the Violent Offender Treatment Program that ran for 12 – 15 months. The Applicant outlined the learnings from the courses. He prepared a timeline of his life and offending. The psychologist explained the change in his life’s pathway and to commit to that changed pathway; he needed to continue with counselling and change his friends and environment to contribute to that successful change. He described ways he learned to deal with and release stress and minimise negativity.
The Applicant also undertook other programs between 2010 and 2015, including Drug and Alcohol, Mens Behaviour Group, Quick Smart and Quit Smoking. In describing the impact that the drug and alcohol program had on him, the Applicant said the drug and alcohol program taught him that alcohol does not solve issues and is a bad outlet. He learned not to bottle things and that he needs continued counselling to reinforce the process and see the dangers ahead and deal with it.
The Applicant’s son, Child 2, was born shortly after he was imprisoned. The Applicant has never met him. The Applicant said he was limited in what he could do to reach out and, when released on parole, he was not permitted to leave the Northern Territory or to return to Tennant Creek. He believed Child 2 lives in Adelaide and has been adopted by another family. He could not say with any degree of certainty where Child 2 was living and was vague about his attempts to contact Child 2. He did recall speaking to Ms B’s sister. The Applicant said he spoke with Ms B by telephone. She was in Adelaide. The Applicant told her he was in Anglicare housing in the Northern Territory and she said she would come and visit, but that did not occur.
The Applicant had difficulty recalling the names of Ms B’s other children but finally agreed they were those children named in his personal details form. He has had no contact with them since being taken into custody following the pizza shop offence.
The Applicant said that, upon his release from prison, he intended his relationship with Ms B to continue. However, the Applicant received information from Ms B’s elder brother who was also in prison with him at the same time, that she had given birth to another child and had a new partner. At that time the Applicant said he contacted Ms B and confirmed that they were to remain friends and keep in contact for the benefit of Child 2.
The Applicant did not know when Child 2 had been adopted but understood the family moves between aboriginal communities and that Child 2 attends school in Adelaide.
The Applicant said he was privileged to be accommodated at a rehabilitation residential unit called Oranda House. Initially, he worked from the prison and then was able to work in town while residing at Oranda House. It was a transition to returning to the community. This decision was made through the prison reintegration section. The Applicant was working for the local showground as a groundsman for a total of approximately 2 years.
Oranda House provided activities, gymnasium, lounge facilities and a library. He had early morning group sessions each day before going to work, and also one-on-one counselling. He described the environment including interactions with others as very helpful and reinforced that jail is not a good place to be.
The Applicant received parole in 2015 and he ceased time in the rehabilitation centre in late 2014. The Applicant was asked to explain why he ceased his placement at Oranda House. The Applicant was seen sitting in another female client’s room which was permitted. He was by an open doorway watching a movie and, as a result, he was exited from the program. He said the reason was unfair and the head of the prison agreed. He was paroled about a month later. That female person was his current partner, Ms JC.
The Applicant was referred to his response to a Notice of Intention to Consider Cancelation of his visa[10] and the decision made in July 2013 not to cancel[11]. Notice of that decision contained a warning about possible reconsideration of his visa cancellation should he reoffend. The Applicant explained his understanding of that warning and the possible consequence should he reoffend. He said he did have that warning and its consequences cemented in his head. Now he is fully aware and fully committed.
[10] Exhibit A, G 3 N, pages 65 – 67.
[11] Exhibit A, G 3 J, pages 55 – 56.
The Applicant was referred to his guarantee, contained in his response to the Notice, which promised not to pose a danger to anybody in the Australian community and that he would become a part of his son’s life and not reoffend. The Applicant also agreed to a number of parole conditions[12], including that he does not purchase or consume alcohol.
[12] Exhibit A, G 6CL, pages 733 – 744.
The Applicant met his current partner, Ms JC, at Oranda House. She was released 2 months before the Applicant. They lived in separate accommodation until several months after their release when they obtained housing with Central Australia Affordable Housing, where they lived together for at least 12 months from mid-2015. Ms JC fell pregnant with the Applicant’s daughter, Child 3, who was born in 2016.
The Applicant explained his involvement with Ms JC’s other children. He and Ms JC contacted her daughter’s (Child 5 and Child 6) carers and rebuilt the relationship with her children. Both daughters would then come and stay with the Applicant and Ms JC at their home. They were permitted to first visit and then to stay over after about 5 – 6 months. This period of rebuilding trust was ongoing through to 2017.
The Applicant’s daughter, Child 3, was born in May 2016. He described a strong supportive relationship with Ms JC at that time. The Applicant was still working as a groundsman at the showground in Alice Springs.
The Applicant said that, consistent with the terms of their parole, neither he nor Ms JC drank. The Applicant said that there was an incident when he drank outside the parole date, but he was on bail.
The Applicant was asked about an incident between he and Ms JC just before Christmas 2016. He gave a lengthy explanation. Ms JC borrowed the car and went for a drive with her sister to an outstation. Ms JC’s father contacted the Applicant and picked him up in his car and they drove to meet Ms JC as she returned to town. There was an issue about who was caring for their daughter, Child 3. The Applicant believed Child 3 had been left at the outstation in the care of other children without adult supervision. They drove past each other on the road. Both cars stopped. The Applicant had a heated conversation with Ms JC. The Applicant then drove his car back into town. Ms JC was upset. She had been left on the roadway. There was a further incident in the town. Ms JC returned to the town and was “ranting and raving”. He drove to a petrol station. Ms JC’s father was parked there too. There was further conflict when Ms JC arrived at the petrol station. The Applicant approached police and asked them to arrest Ms JC because she was drunk. They did not arrest her. She accused the Applicant of having hit her. The rear window of the car was smashed. Once they were in the car together, the Applicant and Ms JC struggled with the gearstick. There was an accident with the side barrier of the roadway. The left side of the car was smashed. Ms JC escaped through the car window. He limped the car home. The next day police attended, and the Applicant was arrested for domestic violence and aggravated assault charges. The charges did not proceed but the Applicant spent 3 months in prison.
After his release from prison, he lived in another Anglicare house in Alice Springs. He was on bail for the incident that occurred before Christmas 2016. Conditions of bail included a curfew, no drinking, the Applicant was not to be in the presence of Ms JC and was to maintain employment.
On the evening of Child 3’s first birthday, in May 2017, he gave family members money to purchase alcohol to celebrate the birthday. He hoped to spend some time with Child 3. By 10.00pm the Applicant became upset. He was permitted to see Child 3, but no one assisted the Applicant for that to occur. He then drank alcohol and was intoxicated. He drank 6 – 8 cans of VB. He then said he drank 10 – 12 cans. The Applicant got in his car and drove up and down the road. He hit a tree. He vaguely remembered being arrested. He remembers waking up in the cell but could not remember exchanges with police, including threatening to shoot someone. The Applicant was convicted of refusing to provide a blood sample, damaging the road surface, driving without due care, and breaching his bail agreement. He was fined and disqualified from driving for 12 months but was not imprisoned.
He agreed that, from the December 2016 incident when he was imprisoned, until sometime after June 2017 when he was sentenced in the Alice Springs Local Court for the May 2017 offending, he was not living with Ms JC. The Applicant subsequently returned to live with Ms JC. He said there was not much drinking. There were issues with the children and Ms JC’s family members residing with them. It became stressful. He explained that only residents of Alice Springs were permitted to purchase alcohol. Family members were using Ms JC to purchase alcohol for them. Police would attend to make sure alcohol was not being purchased for others. It was stressful asking people to leave. Her family members were disrespectful.
The Applicant received warnings about the family members’ presence and loud noise. He said they warned Anglicare housing about the family and Anglicare provided security for them.
The Applicant was asked to explain the violent offending that happened on 1 December 2017. His explanation was long winded. He said his memory was vague. Ms JC and her family were present. The Applicant purchased alcohol for a family member. They drank. He was affected by alcohol and was depressed. He had little memory and relied on Ms JC’s recollection of the events that occurred.
Ms JC told the Applicant that he was intoxicated. He was in a weird state, listening to music on his mobile phone. Ms JC said he was mumbling. The Applicant said he felt something was wrong. He saw Ms JC over the road at the neighbour’s house. He went across the road.
When asked by counsel, he said he could not remember putting his hands towards Ms JC’s neck. He said he could only speak about the event because Ms JC explained it to him. He said, when over the road at the neighbour’s house, he got angry. His explanation of the events and what happened were poor. His memory was blank. He saw photos of the damage to the neighbour’s property. He had no memory of threatening the neighbour.
The Applicant was remanded in custody. He originally pleaded not guilty. Ms JC gave evidence at his trial. She wanted to dispute some of the things she said in her statement. However, the Applicant eventually pleaded guilty and was sentenced to 6 months of imprisonment. Rather than being released early, and because the Applicant had been notified about his visa cancelation on 23 February 2018, he asked to complete his sentence in custody in Alice Springs to remain close to Ms JC and continue to see her rather than be placed into immigration detention.
The Applicant said that he had been assigned a skin name by Ms JC’s family. It is symbolic of kinship and relates the Applicant to other members of the family and community. He became a brother-in-law, father, brother and was able to connect with people of all ages. It is a big responsibility in a cultural manner. It connects a person to the country and dreamtime. The connection acknowledges the relationship that the Applicant shares with the community through his daughter, Child 3. He is of European-Maori descent. When with Ms JC’s family, he identifies as a member of the community.
If he left Australia and returned to New Zealand, the Applicant said that he has family there who will assist him. He will have support from his family. Having to cope with separation will be difficult and will have an effect on his family left in Australia.
It will be difficult for Ms JC to relocate to New Zealand. Her children are in the care of others. Ms JC’s criminal conviction may be an issue. She will have difficulty communicating a request for character waver with the New Zealand Minister for Immigration and applying for a passport. The process will be difficult for her. Her eldest daughter may be able to join her but not necessarily the other children. The Applicant has made some inquiries about the process.
The Tribunal asked the Applicant about evidence he gave that the family went bush for 3 months in the latter half of 2017 to attend a funeral, noting that from December 2016 until after court in 2017, he lived away from Ms JC either in jail or in separate housing. He said when out bush, the Applicant, Ms JC and Child 3 were together. Ms JC’s other children were not with them.
He further explained that, for the first 3 months of 2017, he was in jail with no contact with Ms JC or her other children. He then lived in separate accommodation but was not seeing Ms JC. He did not see the other children during that period. When he returned to reside with Ms JC, he saw the other children before going bush. He could not say when in 2017 he saw Child 7.
Child 3 communicates with the Applicant in detention. He sees her everyday via FaceTime. There had been periods of communication with Child 4, Child 5 and Child 6 but not Child 7 when in jail or immigration detention. He last saw Child 7 in 2017 when he met his foster father. The purpose of the meeting was for Ms JC to see and engage with Child 7. The Applicant did not have much involvement with Child 7. He was unclear about what was proposed for Child 7 in the future should the Applicant’s visa be reinstated.
Ms JC (the Applicant’s partner)
The Tribunal received letters from Ms JC dated 27 February 2018, 15 February 2019 and 29 August 2020, various documents relating to allegations of domestic violence and DVOs, together with her oral evidence.
Ms JC met the Applicant at the end of 2014 when they both attended the residential rehabilitation program Drug and Alcohol Services Australia (DASA) in Alice Springs. In July 2015, they moved in together and in May 2016 Ms JC gave birth to their daughter, Child 3.
She said that relationship was alright, and he looked after and supported her. He took her to her appointments, he worked and provided financial support and put food on the table.
They lived together for 4 – 5 years.
Ms JC had four children by prior relationships namely Child 4, Child 5, Child 6 and Child 7
Child 4 has engaged with the Applicant and they have a good relationship. They would see each other about once a year. She thought Child 4 is now approximately 18 years of age[13] and lives in Melbourne. It is intended that he will return to Alice Springs but will live by himself.
[13] Child 4 is in fact 20 years of age at the time of hearing.
Child 7’s relationship with the Applicant is good. Child 7 is shy and still young. He is about 7 years of age and lives in Adelaide. The Applicant has met Child 7 three times, the last was when Child 7 was four years of age. That occurred when she had access to Child 7.
Child 6 has a relationship with the Applicant. It is very strong. They would take her to the park or go for a ride with her and take her camping. Child 6 lives with a carer in Alice Spring. Ms JC sees Child 6 all the time as did the Applicant when they were living together. He helped with parenting Child 6, including taking her shopping. There were no problems with Child 6 when Ms JC had the Applicant’s help.
Child 5 currently lives with Ms JC. She too has a good relationship with Child 5 and, like Child 6, is very close to the Applicant. The Applicant would take them shopping, swimming or into town.
Ms JC said that she wants the Applicant released back into the community because she cannot raise her daughter, Child 3, on her own without her father. Ms JC also needs him too. He looks after and supports them. He will also help with the other children. He will also keep the children on the right track by talking to them. Child 5 and Child 6 are not on the right track at the moment. They are “running amuk” and “running around town”. The Applicant will help with the care of them.
If released, he will live with Ms JC. They are still in a relationship.
Ms JC was referred to her letters in which she referred to trouble with her family imposing on her. She was not sure the Tribunal would understand but they call it ‘black magic’. They threaten her at night[14].
Cross-examination of Ms JC
[14] The Tribunal notes the relevant letters were produced at G 3AI, page 134 and G 15, pages 1201 and 1202.
In cross-examination, Ms JC said they were both at the same rehabilitation centre at the end of their respective prison sentences at DASA. It was a privilege to receive that placement. Only people who behaved well in prison were given that opportunity. She completed courses and received counselling to assist her return to the community. She also was trusted to work in the community. The Applicant was also given the opportunity to work in the community.
The Applicant had to leave the program. There was a rumour that Ms JC and the Applicant were walking around holding hands. He was seen in her room watching a movie. The door was open. A person saw him there and told the boss. He was not doing anything wrong. Nonetheless, the boss of the prison wrote to the parole board and said the Applicant conducted himself well in the prison after which the Applicant was granted parole. By that time Ms JC was already on parole.
The Applicant would visit Ms JC at her Anglican House and, subsequently, they moved in together in newly built flats. Theirs was a two-bedroom flat. Her daughters Child 5 and Child 6 could come and stay whenever they wanted to, subject to the consent of their carer. They could stay overnight. That was when both daughters came to know the Applicant.
Their daughter, Child 3, was born in in mid-2016. At this time Ms JC was not drinking alcohol, however, about 3-5 months after the birth Ms JC started drinking again. She said, “my family drinks and they come around and humbug me,” namely they caused her trouble. It stressed her and she then drank alcohol because of that stress.

The Tribunal is satisfied that the Applicant will be able to establish and maintain himself to the basic standards generally available to other citizens in New Zealand.
The only impediment will be the emotional difficulty the Applicant will face being removed from Australia, and in particular, Ms JC and Child 3, in addition to those other members of Ms JC’s family to whom I have referred.
Having regard to that emotional difficulty, it is appropriate to attribute moderate weight in favour of the revocation of the Applicant’s visa cancellation.
Other Consideration (f): The Applicants skin name
The Applicant has also raised in evidence that Ms JC’s community have conferred upon the Applicant a skin name[27]. That skin name has been given to him in recognition of him being the father of Child 3. The Applicant does not identify as an Indigenous Australian, however, Ms JC’s community identifies the Applicant as Indigenous for the duration of time he has spent with them and because of Child 3.
[27] Exhibit A, G 3N, page 66.
The Indigenous community gave him a skin name, but he has not yet had a ceremony. Once the Applicant has gone through that ceremony, the skin name will be his for the rest of his life. He will be accepted as a member of that community[28].
[28] Exhibit I, Transcript of first hearing, 18 March 2019, pages 107 and 123.
Conclusion: Other Consideration (f)
The Tribunal accepts that the Applicant having been given a skin name by Ms JC’s Aboriginal community is indicative of him being accepted into Ms JC’s community, particularly as a consequence of the birth of Child 3.
Other than attributing to him a skin name, the Applicant has not entered into ceremony and become a full member of that community. The Tribunal accepts, however, that were the Applicant to return to the community, he would continue his relationship with Ms JC with the likely consequence that he would enter into ceremony and be formally accepted by that community as a member. Accordingly, the Tribunal attributes slight weight in favour of the revocation of the Applicant’s visa cancellation in recognition of that community relationship.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then 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, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs heavily in favour of non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration B weighs heavily in favour of the revocation of the Applicant’s visa cancellation;
(c)Primary Consideration C weighs heavily in favour of the non-revocation of the Applicants visa cancellation; and
(d)The Tribunal is reminded that Primary Considerations should generally be given greater weight than the Other Considerations. The combined weight of Primary Consideration B together with the Other Considerations is such that none of them, alone or combined, outweigh the heavy weight that the Tribunal has attributed to the Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
.................[SGND].....................
Associate
Date: 09 April 2021
Dates of hearing:  3 – 4 November 2020 and
8 December 2020
Advocate for the Applicant:  Mr Hamish Glenister, William Gerard Legal Pty Ltd
Advocate for the Respondent:  Mr David Brown, Australian Government Solicitor

[2021] AATA 1037

9 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Relationship to Applicant	Child initials	Birth month/year	Relevant to application under review?
Child 1	Biological child	TD	July 2006	Yes
Child 2	Biological child	DD	August 2010	Yes
Child 3	Biological child	AD	May 2016	Yes
Child 4	Stepchild (Biological child of Ms JC)	LC	February 2000	Primary Consideration B does not apply to Child 4 as he is now 21 years old. The interests of Child 4 are considered in Other Consideration (b): Strength, nature and duration of ties.
Child 5	Stepchild (Biological child of Ms JC)	BC	April 2003	Yes – Primary Consideration B still applies to this child who is under 18 years of age at the time of publication of this decision.
Child 6	Stepchild (Biological child of Ms JC)	GC	August 2007	Yes
Child 7	Stepchild (Biological child of Ms JC)	IC	June 2012	Yes
Child 8	Stepchild (Biological child of Ms B)	LB	Unknown	No
Child 9	Stepchild (Biological child of Ms B)	JB1	Unknown	No
Child 10	Stepchild (Biological child of Ms B)	JB2	Unknown	No