Dowsett and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2022] AATA 4311

Dowsett and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4311 (11 November 2022)

Division:GENERAL DIVISION

File Number(s):2022/6749      

Re:Stephen Dowsett    

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member Andrew McLean Williams

Date:11 November 2022

Date of Written Reasons:      14 December 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets asides and substitutes the decision made by the delegate of the Respondent dated 18 August 2022 to not revoke the cancellation of the Applicant's visa with a decision that this Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).

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

Member Andrew McLean Williams

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Subclass 444) 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. 90 – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

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

XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138

Secondary Materials

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

REASONS FOR DECISION

Member Andrew McLean Williams

14 December 2022

Introduction

1. On 19 August 2021 a Delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class CB Subclass 151 Former Resident visa (“the visa”) pursuant to s.501(3A) of the Migration Act 1958 (Cth) (“the Act”), on the basis that the Applicant did not pass the character test and was serving a full-time custodial sentence.[1]

   [1]     Exhibit G34 pages 158 - 163.

2. On 17 September 2021 the Applicant requested revocation of the cancellation of his visa (“revocation request”).[2]

   [2]     Exhibit G8 pages 49 - 53.

3. On 18 August 2022, a Delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa.[3] The Applicant then lodged an application for review in this Tribunal, on 22 August 2022.[4] The Tribunal has jurisdiction to review that decision, pursuant to s.500(1)(ba) of the Act.

   [3]     Exhibit G3 page 13.

   [4]     Exhibit G2 pages 3 - 10.

4. The hearing of this application for review took place on 25 and 26 October 2022. At the hearing, the Tribunal heard oral evidence from the Applicant, in person. The Applicant was represented in these proceeding by his domestic partner, Ms Angie Parker, who also gave evidence in the proceedings by means of video conference, from Adelaide. The Applicant’s mother gave evidence, also by means of video conference from Adelaide. The Tribunal also heard evidence by telephone from the Applicant’s former employer in Adelaide, a Mr Pezos, and from Ms Yolanda Evans, who is an accredited mental health social worker.

5. The Tribunal also considered the documentary evidence submitted by the Applicant and by the Respondent, as detailed in the attached Exhibit Register, now marked as “Annexure A” to these reasons.

   FACTUAL BACKGROUND AND OFFENDING HISTORY

6. Stephen Dowsett (‘the Applicant’) is a 39 year old male citizen, from the United Kingdom. The Applicant moved to Australia with his parents and siblings in July 1998, when the Applicant was 15 years of age. [5] The Applicant has not departed Australia at any time since his first arrival.[6] 

   [5]     Exhibit G32 page 154.

   [6]     Exhibit G32 pages 153-154.

7. The Applicant completed his formal education in the United Kingdom at the age of 13.[7] After his arrival in Australia, the Applicant was not enrolled in school, and instead commenced employment; initially working in his parents’ garage business.  The Applicant has also worked in a bakery, and labouring digging swimming pools.[8] More recently, in 2020, the Applicant was employed as a general demolition labourer, by Techforce Personnel.[9]

   [7]     Transcript page 199 lines 1 - 20.

   [8]     Exhibit G19 page 122, G20 page 125

   [9]     Exhibit G28 page 150, Transcript page 107 lines 2 - 12.

8. In approximately 2002, when aged 18, the Applicant commenced a relationship with his former partner, ‘Ms J’. This relationship was to prove to be profoundly dysfunctional. Both the Applicant and Ms J were regular (apparently daily) amphetamine users.  The drugs used by the Applicant and Ms J were sourced from Ms J’s family connections, who were associated with an outlaw motorcycle gang. For a period approximating ten years the Applicant did not work and was engaged in home duties. Meanwhile Ms J worked, ostensibly in child-care.  Evidence[10] received before the Tribunal indicates that when the Applicant finally broke away from his relationship with Ms J and the influence of her family he did not have a bank account, or registration with Medicare, and the Applicant required assistance from his family in order to establish those things.   

   [10]    Exhibit A14.

9. Also in 2002, the Applicant started committing criminal offences: including ‘damage property’, and ‘disorderly behaviour’. The Applicant attended court for those offences in February and September of 2002, yet no convictions were recorded.  The Applicant was fined $50 for the damage property offence in February 2002. The Applicant stated that this offence had been an act of vandalism wherein he had scratched his signature onto a counter, in the public foyer at a police station;[11] and said that the disorderly behaviour offence arose in the context of his exiting a licensed venue: “I was just being a dick coming out of the pub, I think”.[12]

   [11]    Transcript page 49 lines 41-48; page 50 lines 1-10.

   [12]    Transcript page 50 lines 7-11.

10. In 2003, the Applicant was convicted for driving an unregistered motor vehicle   unlicenced, for which he was convicted and fined, $100.

11. In 2006 the Applicant was convicted of driving an unregistered and uninsured vehicle, without a learner’s licence. At this juncture the Applicant was convicted and sentenced to perform 40 hours of community service.[13]

    [13]    Exhibit G1, G14 pages 32 - 33.

12. In February 2008 the Applicant’s first child, a boy named ‘JMD’, was born.

13. In April 2010 the Applicant committed another disorderly behaviour offence.  The Applicant stated this charge arose out of an incident in which the Applicant had been in a public park and was asked by police to ‘move on’, and to go home. The park was located right beside the Applicant’s home, such that the Applicant argued with the officers about their direction.[14]

    [14]    Transcript page 50 lines 12-22.

14. In April 2014, the Applicant’s second son, ‘JCD’, was born.

15. On 30 November 2014 the Applicant committed his first violent offence, in which the Applicant assaulted another male person, ‘Ross’ who was known to the Applicant.  The Applicant informed the Tribunal that Ross was actually a very good friend, and they still remain on friendly terms, notwithstanding the assault in November 2014.

16. During the sentencing hearing on 15 July 2016 in the District Court at Adelaide, his Honour Judge Beazley set out the circumstances of this particular offence:

    The circumstances of the offending are, however, unusual. You had been friends with your victim for about 12 years having met each other when you were both aged about 17. Each of you had difficult relationships with your respective partners. Your victim’s relationship with his partner had only just broken up at the time of the offence. He had sent some objectively threatening text messages to the effect that he would shortly arrive at her home. He suggested that she should call the police because he was going to ‘lose his self-control in a big way’.

    His partner contacted either you or your partner, and you attended at her house. When the victim arrived in his car, you punched him to the face and then used a dog chain in a whipping motion. You waited for the police and ambulance to arrive, and explained that you had acted in that manner to prevent him from reaching his partner.

    Photographs taken at the time disclose cuts and abrasions to the nose, face, arms, shoulder and back of the victim. The police arrested you at that time.[15]

    [15]    Exhibit G7 page 45.

17. The Applicant agreed with the sentencing facts as recorded in Judge Beazley’s sentencing remarks when these were put to him when before the Tribunal; yet stated that his recollection was that he had been arrested approximately one week after the offence, rather than immediately at the scene, as reflected in the sentencing remarks.[16]

    [16]    The Applicant’s version does accord with the police version. See Exhibit R2 page 3.

18. Police records for this offence[17] specify that Ross had informed the police that he had attended at his own partner’s house and, upon arrival, had been confronted by the Applicant, who immediately punched Ross, three or four times. Ross then stated that he had pushed the Applicant away, and had stood against his vehicle, whereupon the Applicant had produced a dog chain, and had begun to swing the chain, such that Ross had placed his arm up, in order to shield his face. The Applicant then whipped Ross with the dog chain, connecting with his upper arm, forearm, shoulder blades, and knuckles.

    [17]    Exhibit R2, R1 page 3.

19. The police records reflect that police had attended the Applicant’s home and had placedthe Applicant under arrest. Next, the Applicant participated in a police record of interview on 3 December 2014. When interviewed, the Applicant informed the police that he had assaulted Ross as he believed he needed to do that in order to protect Ross’s then partner. The Applicant admitted to punching Ross, explaining that Ross had attempted to kick the Applicant in the head. The Applicant further informed the police that Ross had himself produced the dog chain from his car, and had then attempted to strike at the Applicant with the dog chain, yet the Applicant had managed to disarm Ross, before using the same dog chain to assault Ross by whipping him. The Applicant disagreed with the extent of the injuries caused to Ross when these were put to him by the police, stating “I didn’t hit him that hard”.[18]

    [18]    Exhibit R3.

20. Ross provided a victim impact statement, which now appears in the material before the Tribunal.[19]  Ross said he had been left with a permanent scar on the right side of his nose, as well as three or four scars on his left upper arm, and shoulder. Ross was unable to work for one week, and subsequently lost his employment. Directly after the offence Ross did not have a home to live in and had to move back into his parents’ house. He was not able to see his children for two months and had gone to the Family Court to seek custody and had a care arrangement which was difficult, as his mother was wheelchair bound, and his father was her carer. Ross expressed the view in the victim impact statement that he would not like to see the Applicant imprisoned, and he did not wish for the Applicant to be separated from his own children, in the same manner as had happened to him.  Ultimately, on 15 July 2016 His Honour Judge Beazley sentenced the Applicant to imprisonment for 16 months and six days, yet wholly suspended for an operative period of two years

    [19]    Exhibit R3, R5 pages 13 - 18

21. On 1 April 2015, the Applicant was convicted of “Forge a prescription to obtain drugs” as well as for “Utter a forged prescription”, for which the Applicant was fined $50 and placed on a good behaviour bond for a period of 18 months. No conviction was recorded. In relation to this offence the Applicant told the Tribunal:

    My friend’s sister was a doctor. And he was stealing her prescription pad and getting all kinds of medications. And then one day he come round my house and said I need you to take this prescription. And he goes, it’s only for Diazepam. And I said okay. And at the time, I actually had my own proper prescription from my doctor for Diazepam and Temazepam. So, I didn’t really think too much of it.

    And I walked in there for him, put it over the counter. They go, said, yes, come back in 10 minutes. I went back in 10 minutes, and I was standing at the counter. And I remember my friend in the corner of my eye, I opened it up, they’re all going. And I was just like, what the fuck’s going on? What do you want, type of thing? And I went over there, and he goes, get in the car, the police are coming. I said what? I said what the fuck have you done? And he turned around and he goes, they’ve already - they know that it’s an illegal script. They’ve already rang my sister, and my sister’s rang me saying what have you done with my prescription pad? And yes...”[20]

    [20]    Transcript page 50, lines 24 - 40.

22. On 17 April 2016 the Applicant was involved in a domestic incident with his then partner, Ms J. The police ‘apprehension report’,[21] recorded Ms J’s version that the Applicant was at her house and JMD and JCD were each present, along with Ms J’s son from a prior relationship, JRJ. The Applicant and Ms J were discussing ending their relationship and also custody issues relating to their children. An argument ensued, and Ms J got her car keys and went to leave. The Applicant is alleged by Ms J to have grabbed her by the throat with both hands and squeezed tightly making her unable to breathe. Ms J then scratched the Applicant’s arm to stop him. JRJ came into the room and told the Applicant to leave Ms J alone. Ms J started recording events on her telephone and the Applicant threatened to chop Ms J’s head off. Ms J then left the house and went to the police station to report.

    [21]    Exhibit R2, R1 page 9.

23. Whilst under cross-examination before the Tribunal, the Applicant explained that his 13 year relationship with Ms J had been an exceedingly tempestuous and toxic one and that both of them had been daily users of methamphetamine, and that Ms J’s family were involved in a bikie gang, and were the suppliers of their methamphetamine, and substantially able to control the Applicant.  The Applicant explained the dynamic in these terms:

    Yes, all right. Now, give me a bit of background about how - this is [Ms J],isn’t it?---Yes.

    All right. Why did you make those threats at the time, what was going on?---Obviously, the relationship had basically ended.

    Yes?---She turned around said, “You’re not seeing your kids. You’re never going to see your kids ever again.” Throughout all of the 14 years, we broke up many times but I’d always been pulled back in by her family, “You can’t leave the children. You can’t leave her.” So, I was almost guilt-ridden, I suppose, but I agreed - I did want to stay for my children. With absolutely everything that was said there, I remember thinking that this is - this is the last time I am doing this. I’m not breaking up with you every three, six months and getting bashed by your family. This is the last time that I’m - I literally thought, “How am I going to get out of this? How am I going to get the fuck away from her and get the fuck away from her family? How am I going to do it?”

    All right. Now, when you made these threats to [Ms J], and she said that “You’re not going to see your kids ever again”, were you drunk or were you high at the time?---Yes, on methamphetamine.

    All right. So, when you said those things, you were high?---Yes.

    Now, just explain to me the relationship between this incident and the other incident that you talked about where you got up on the roof. Was this before or after the getting on the roof?---That happened - and I think it was that night they come over to my house. I’m pretty sure it was either that night, or 10 the very next day.

    All right. So, they probably came over because you made these threats and [Ms J] told them?---Yes, [Ms J] told her sister and her sister told John told - - -

    His boys?---Yes.

    All right, understand?---When I - when I said that, I’m not - I’m not going to turn around and say that I didn’t say none of that. I 100 per cent said it all but, as I say, I - I was thinking how can I get out of this? Right, as in out of the relationship. I’m done with doing this every three, six months. And the only thing that I could think of was, if I turn around threatening to chop her head off - I knew that she was recording, I knew that. If I threatened to cut her head off, yes, the boys are going to be pissed and they’re probably going to come over. If I threatened to chop her mum’s head off, being the President’s mother-in-law, I’m probably asking for trouble but, at the same time, I know that they’re not going to let me come back to the house and that’s - that’s the option that I chose to get out of the relationship.

    All right. So, that was your thinking at the time?---Yes. I mean, without saying that that’s - that was the right thing to do because, obviously, I know full well it’s not, I am grateful I did say that. It got me out of the relationship and it got me away from all the bikies. It got me away from all of the drugs. I felt like that that was my only way - the only thing I could do or say to finally just stop with the relationship and that day, or the next day, is when I turned away and said “No more meth. You say that you’re going to take my children away from me because you know that I’m a drug addict, every day heavy user.” I chose my children. I chose family - I chose to - I chose to better myself. I chose to change. I wanted to change.

    All right. So, that was the factual background to the threats you made to [Ms J]  that gave rise to those charges?---Yes.

    Then the next day was when they came round and you got up on the roof and your friend got stabbed in front of his daughter. All right, I understand all of that.[22]

    [22]    Transcript, page 55, line 30 – 46 to page 56 lines 1 to 47.

24. The Police recorded they attended the house later that same day and arrested and charged the Applicant with aggravated assault.[23] The Applicant admitted to police he had an argument with Ms J, yet denied having assaulted her by means of an attempted choking. The Applicant admitted to threatening to cut Ms J’s head off, and to blow up the house, however claimed “I was just angry and said it in jest”.[24]

    [23]    ExhibitR2, R1 pages 9.

    [24]    Exhibit R2 page 10.

25. The later sentencing court stated the offending on 17 April 2016 entailed the following:

    At the time your relationship with your former partner was strained. You had an argument with your partner and in the presence of her child you said 'I will chop your mum's heads off, I will chop your held off. I will get a chopping block and saw her head off. I'll cut her fucking head off, I'll cut your fucking head off, don't try me I'll do it'. As a result of that offence an intervention order was served upon you.[25]

    [25]    Exhibit G1, G6 page 40.

26. The account relied upon by the court during sentencing does not state that the choking occurred - which the Applicant also denied during the Tribunal hearing: 

    MEMBER: Well, the key difference is on the police version you also choked her, as well as - - -? ---Yes, yes. I didn’t do that. The police - the police turned around and said that there is no - and I was being honest with them from day dot. I’ve only ever agreed to what I did. I’ve never choked [Ms J] and with two hands. Especially, exactly as the police said to me, there were no marks. There’s no scratch marks. There’s not even a red mark. So, I was sort of thankful that the police pointed that out because I was insisting and I’m - I only ever agreed to what I know that I did.[26]

    [26]    Transcript page 58 lines 19 - 26.

1. The Applicant agreed with the sentencing court’s summary was accurate, yet claimed that a child (that he later named as Ms J’s son JRJ) - was not present, but rather ‘in the vicinity’, and would have been able to hear what was going on.[27]

   [27]    Transcript page 55 lines 21-31; page 57 lines 15-17.

2. The Applicant stated the threats had been made at a time when his relationship with Ms J had ended, and she had told him the Applicant that he was not going to see his children ever again.[28] The Applicant also stated that he had been high on methamphetamine at the time.[29]

   [28]    Transcript page 55 lines 30-37.

   [29]    Transcript page 56 lines 1-5.

3. On 15 July 2016 the Applicant was sentenced in relation to the November 2014 incident in which the Applicant had used a dog chain to whip his friend Ross, and the Applicant was convicted of “intentionally cause harm – aggravated offence - other”. His Honour Judge Beazley’s sentencing remarks state, in part:

   “[Counsel] referred to the fact that you had no history of violent offending and that is a significant matter. The events of that night involve a combination of factors which are unlikely to be repeated.

   She submitted that while you had good intentions in trying to protect your victim’s partner, you undoubtedly had used excessive force. You should have acted differently. You appreciate now that you ought to have awaited for the police to arrive. You have now taken responsibility for your conduct.

   I turn then to sentence. Your offending remains serious, despite the factors to which I have referred. A person must never take the law into his own hands. You are extremely fortunate that the victim was not more seriously injured.

   I do take into account the fact that he has forgiven you. Sentencing for these matters is difficult. This was not the usual senseless type of attack seen on the streets between strangers. You thought that you were protecting the victim’s partner.

   Against that, you are not some immature youth and you ought to have known better.[30]

   [30]    Exhibit G1, G7 page 46.

4. There is a statement of agreed facts regarding the victims’ injuries:

   There was recorded bruising on the right maxilla facial bone and a right orbital floor blowout fracture with mild inferior rectus muscle instruction into fracture sight. There were also multiple fractures of his nasal bone leaving it in many pieces. The victim was referred for plastic surgery to have the orbital blowout fracture treated. [31]

   [31]    Exhibit R3, page 21.

5. During sentencing, His Honour Judge Beazley noted that, given the nature of the offence, a term of imprisonment became inevitable. The Applicant was then sentenced to 16 months and 6 days imprisonment with a fixed parole date after serving 10 months. The sentence was then also wholly suspended, upon the Applicant agreeing to enter into a bond to be of good behaviour, for a period of two years. The court imposed further conditions on the bond that included that the Applicant be placed under the supervision of community corrections officers for the first 12 months.

6. On 28 September 2016 the Applicant contravened the intervention order that had been imposed on 15 July 2016 by his being within 100 metres of Ms J, and attending a primary school that their son attended.[32]  The Applicant had spoken to his son, and was asked to leave. The Applicant initially did leave, but then returned and threatened Ms J, who had then contacted police.

   [32]    Exhibit G1, G6 pages 40 to 41.

7. During the Tribunal hearing the Applicant was asked about the 28 September 2016 breach of the 15 July 2016 contravention order.  The Applicant said:

   …I was riding my bicycle past the school. I wasn’t on the school grounds, or anything, and then have my partner spoke to me. Not I spoke to her. Victim must leave, which I initially went to do so, and she turned around and said something. Yes, and that’s basically how that went. I’m not - I’m not denying that they breached me for that. I’ve always agreed with, “Okay, yes, that’s a breach. If she comes up to me within this 100 metres, yes, I’ve got to move on.” Understandable. Obviously, that is what I did but because - yes, she drove up in her car to the school, leaving her mum’s house. She saw me towards the right of the end of her road and, yes, she come over and proceeded to start an argument and I was like, “I’m out of here.”[33]

   [33]    Transcript page 61 lines 4-14.

8. On 4 October 2016 the Applicant’s third son, JCJ was born.

9. On 18 July 2017 the Applicant appeared in the District Court at Adelaide before her Honour Judge Davison for breaching the bond to be of good behaviour that had been imposed on him on 15 July 2016 as one part of the suspended sentence in relation to the offence in which the Applicant had previously whipped his friend Ross, using a dog leash. The breach that now brought the Applicant back before the Court on that date was described by her Honour Judge Davison in the following terms:

   “You have now breached this bond by failing to be of good behaviour by committing an offence of failing to comply with bail agreement and by not complying in relation to your conditions of supervision. It seems that your behaviour whilst you were being supervised has been extremely problematic. You have been rude and abusive towards community corrections. You’ve filmed and followed the community corrections officer as well. This behaviour is very troubling.

   Your behaviour in relation to the community corrections officer included speaking very loudly, swearing and calling her names. As a result, you were given what is called a ‘stalking caution’.

   The first supervisor who wrote a report considered that you are no longer suitable to be on a community-based order as the staff were unable to carry out their duties effectively. It was as a result of your behaviour towards Community Corrections that you breached your bail agreement.

   Fortunately for you, a further report has been prepared that acknowledges your threatening and intimidating behaviour towards your caseworker but also acknowledges that at that particular time you had been engaged in some significant personal issues, including a Family Court matter and were seeing your general practitioner and other professionals in relation to stress and anxiety.

   Your main issue is that you seem to have been unable to accept that you simply cannot reschedule appointments at Community Corrections as they already have a very full diary in relation to other people. It has been observed, however, that when you did attend at your supervision appointments and attend other programs, you did benefit in relation to those engagements.

   You come before this court with a limited criminal history. The most serious offence that you committed in the past was the one for which you were placed on this bond. You are a person who would benefit from being supervised in the community rather than being required to serve that term of imprisonment.

   In the circumstances, I consider that there are proper grounds to excuse your breach of the bond. I am, however, going to extend the period for which you should be under supervision by an additional six months. Therefore, I vary the bond so that you be under supervision for a period of 18 months.[34]

   [34]    Exhibit R3 pages 5 - 6.

10. When before the Tribunal the Applicant sought to explain the conduct that saw him re-sentenced by Judge Davison on 18 July 2017 in the following terms:

    Okay. I remember my bond being extended for a period of 12 months. One of my - the probation officer at the time, I just switched probation officer to a lady called [M] and she said to me, “You know, you’ve got to come in here today and sign.” I turned around and said, “Oh, no, I didn’t.” I said, “I didn’t know that I had a new person either. I’ve never met her.” And she turned around and she goes, “Well, you’ve got five, six minutes to get here.” I said, “All right”, I said, “I’ll be there in about three or four minutes” as my - I could take a shortcut across the bridge from my parents’ house. I got on my bicycle and rode all the way there. Puffed opt, got in the door and the receptionist turned around and said, “Are you here for [M]” “Yes.” She goes, [M’s] gone home.” I said - I went, “Are you sure?” I said, “I just got off the phone from her.” And she said, “Come in right now.” I said, “I’ve actually still got another minute or so to see her.” I said, “She told me to come down now”, so I have. She turned around and went, “No, [M] went home a couple of minutes ago.” So, I was just like, “Well, that’s not right.” I said, “I’m here to sign in” and I said, “And she’s gone home.” I said, “That’s not acceptable.” “Well, it is what it is, the next time you’ll get in sooner.” I was a bit aggravated about that, like not very happy, and I thought - I left thinking, “Damn, that’s going to be a breach for not signing in and I’m here like” - and

    I got to the end of the road and halfway up the road is my probation place and I started getting worried, like, “This is going to go against me. This is going to really bite me in the arse that I’m not doing what I say that I’m supposed to be doing.” I’m getting more and more agitated and I thought, “Right, she hasn’t gone home. She can’t have gone home.”

    That’s just - that’s just a given, right, she can’t have. I got here in three minutes, and she gave me five. She can’t have gone home. So, I stood around at the end of the road for about - approximately about half an hour and the doors opened of the probation place, I could see it from the end of the road. They opened and I saw the receptionist come out, and then the second receptionist come out, and a ginger headed lady and I’m thinking, okay, I know that the two receptionists - the other receptionist - I don’t who this other lady is, I’ve never met [M] before.

    So, I’m recording on my phone thinking “When is [M] going to come out?” And then I see the receptionist locking the door for the day, like they’re going home and that’s end of day, and I thought, “Fuck, maybe this [M’s] gone home. Maybe they are right.” And they got in their cars and the receptionists do a U-turn. I know where they live. They live at the top of the road, they’re lovely, and this ginger headed lady come down while I was recording on my phone and I remember going like this, as she’s getting closer, and I commented and said, “This is only other lady that’s come out of here” and put my phone down.

    When I got back to doing my remarks with my lawyer, my lawyer turned around and said that she’s saying that I was recording her car, her numberplate, and this and that. I turned around said, “I’ve never met [M]. I don’t - I don’t even know what she looks like.” And then he’s proceeded to say, “Right, she’s got ginger hair” and I went - I said, “Hold on”, and I’ve grabbed my phone, I said, “I think I might have her on record” and he goes, “You know that you’re not allowed to do that, right? You’re not allowed to  stand on their premises and do that.

    …

    …I don’t think that I was swearing, or calling her names, for that fact that I’d never met her before. As well as, the day that I went to court, without making this behaviour acceptable, because I know that it’s not, it’s just little bits that aren’t quite the truth. When I gave my lawyer the recording, as -which was stated that I was recording - - -

    You were filming?---Yes, filmed - recording because you’re not allowed to do it on their site.

    MEMBER: Why were you filming? I mean that’s a bit weird, isn’t it?---I - I was really agitated, really upset, that - the fact that I’d just been called by [M] herself to come down and sign. She goes, “You’ve got five minutes to get her.”

    And you got there in three?---Got there in three.

    But why did you feel the need to film? What were you trying to prove? What evidence were you trying to - - -?---What I was trying to prove is, when I got there and the receptionist turned around and said, “She’s gone home.” I’m now getting breached for not being there to sign, not doing my community corrections order.

    Why didn’t you just say to the receptionist, “Would you please make a note of my having attended this office at this time”?---She turned around and said, “That’s not for me to do. This is for [M].” And I turned around and said, “Well, that’s not really acceptable.” I said, “She gave me five minutes.” I said, “As you can see”, I said, “I’m puffed out.” I said, “I got her in three.” I said, “I left my parents’ house like immediately straightaway.” I said, “I’m - - -“ - I said - I said, “I’m just here to sign.” I said, “If I can just sign the piece of paper”, I said, “I’ll be happy with that” And she goes, “No. ”She goes, “We’re putting it down as a failure to attend”, is what she said. And I said, “But I’m here.” [35]

    [35]    Transcript page 61 lines 43 - 47, page 62 lines 1 - 46 and page 67 lines 6 - 40.

11. On 13 February 2018, the Applicant was convicted in the District Court of South Australia and sentenced for the following offences, which included breaches of the good behaviour bond previously imposed on 15 July 2016:

    ·“Intentionally cause harm – aggravated offence – other” breached order no further penalty;

    ·“Other than programs-contravene term of intervention order” and sentenced to 2 months 3 days imprisonment, (cumulative);

    ·“aggravated assault (no weapon) against child or spouse” and sentenced to four months and 15 days imprisonment, (cumulative); and

    ·“Breach of bond” - Found proved.

12. On 14 August 2018 an application was brought to enforce the bond breach for contravening an intervention order and failing to comply with a bail agreement. The Applicant was convicted and fined $200.[36]

    [36]    Exhibit R3 page 3.

13. On 20 November 2018, the Applicant again appeared before her Honour Judge Davison in the District Court at Adelaide.  On this occasion her Honour noted the following:

    Stephen Michael Dowsett, on 15 July 2016 you entered into a bond in the District Court to be of good behaviour. You have now breached that bond by committing the offences of contravening an intervention order and failing to comply with a bail agreement.

    On that occasion you had been sentenced by his Honour Judge Beazley to a term of imprisonment of 16 months and six days with a non-parole period of 10 months. The offences that you committed at that time were aggravated causing harm with intent to cause harm, the aggravated feature being that you used an offensive weapon. The circumstances of the offence are set out in the sentencing remarks of Judge Beazley.

    You breached that bond by failing to be of good behaviour by committing an offence of failing to comply with a bail agreement and not complying with your conditions of supervision.

    On 18 July 2018, I considered that there were good reasons to excuse your breaches and extended the period for which you should be under supervision by an additional six months. The offences that you have now committed, the breach of the bond were dealt with in the Elizabeth Magistrates Court and you were fined $200 in relation to both of the offences.

    On 13 February 2018, you were sentenced in this court by her Honour Judge David to a term of imprisonment of six months and 18 days that was suspended upon you entering into a bond to be of good behaviour for 12 months. In addition to this, you were ordered to be under the supervision of Community Corrections and that you submit to any saliva, breath, blood or urinalysis as directed.

    You have now breached this bond by returning a number of positive samples in your urine to cannabinoids or THC. At the time her Honour placed you on that bond, she described her decision as being finely balanced, and the reason why she had given you another chance was because of the progress that you had made. She urged you to continue with that progress.

    I now have before me a pre-sentence report that was prepared by your supervisor. You have been reporting to her for some time. You have a good rapport with her. She deals with your substance abuse issues in some detail.

    You had a serious addiction to methylamphetamine when you met your ex­ partner. At the height of its use, you reported that you and your partner would use approximately 7 to 8 g of the drug a week. When your relationship with her ended you reverted back to using cannabinoids in high amounts. At one stage, you were using about two bags a week.

    You have now, of course, returned positive tests on five occasions since 8 May 2018 for cannabis. Recently you were subject to a test on 9 October 2018 when you returned a positive result and explained it on the basis of having consumed a cake laced with cannabis at a party.

    You have regularly expressed your desire to cease using cannabis but you appear to have been struggling with this. I have now received a report that most recently shows that you had no cannabis in your system.

    You have in the past struggled with mental health issues. As a result, you have been taking medication. Your issues were explained by [Counsel], in submissions, as your mind racing at night, and you take antipsychotic medication in an attempt to stop the racing thoughts.

    You have had some employment over the past few years but are currently in receipt of a Newstart Allowance. You would no doubt benefit from a sustained course of employment.  I note that you do possess a Certificate 2 in Civil Construction and hold numerous associated licences.

    You appear to have some insight in relation to the issues that you have. You have regularly conversed with your Probation Officer in relation to your poor problem solving and your emotional dysregulation. You know that you must disassociate from your criminal peers and you know that you have anger management issues.  You have, during the course of your bond, used your behaviour in a way where you have attempted to stand over the Probation Officer when things have not gone your way.

    To your credit, however, you do regularly visit your General Practitioner and you have recently re-engaged with two of your children on unsupervised access visits. You feel very positive about this and are looking forward to it continuing. In the past your probation officer has considered that you should continue on supervision, as it has been of assistance to you.

    You have received numerous chances from this court in relation to your behaviour. However, I recognise that there are differences in your breaches in respect of the bonds. The bond that you entered into before Judge Beazley has now expired. This, of itself, is no reason why it should not still be called into effect. However, in relation to your breaches, I am of the view that whilst they are not trivial there are proper grounds to excuse your breaches in respect of that matter.

    I consider that to bring into effect the term of imprisonment of 16 months and six days with a non-parole period of 10 months is disproportionate in respect of offending that you committed for which you were fined $200. I, therefore, decline to take any action in relation to that bond.

    In relation to the bond that you entered into on 13 February 2018, whilst I do not consider that the breaches are trivial, I do consider that you have made good progress in other respects and that there are, therefore, proper grounds to excuse your breaches.  I am, however, going to extend the bond by a further 12 months and order that you be under supervision of Community Corrections for that entire period.[37]

    [37]    Exhibit R3 pages 1 - 3.

14. The Applicant’s most recent and most significant offending occurred on 9 September 2020.  The Applicant had heard of the presence of a male person in his local community who had been charged with child exploitation offences.  That person had been bailed to reside at a specified residence known to police, pending subsequent court appearances on those child exploitation charges. The Applicant was able to identify the address, and then proceeded to go there, in order to bash the occupant. 

1. When sentenced on 14 July 2021, Magistrate Wells described this offending as follows:

   This is the factual basis of the assault: You punched the victim in the face four times. He attempted to close the front door but you grabbed the edge of the door with one hand. You grabbed a small black tray and struck the victim on the forehead with it. He tried to close the front door but you forced it open and punched him again in the head two times. I sentence you on the basis that these were glancing blows which were thrown in the doorway through the opened door.

   You damaged property by smashing the victim’s car windscreen and throwing a brick through the front window of his home.

   The victim had previously been charged with offences relating to possessing child exploitation material. Those charges are not yet finalised.

   You breached your bail on two occasions, on 29 September and 13 October. You were on home detention bail from 20 September. That home detention bail agreement prohibited you from taking illegal drugs. You returned positive urine tests to the metabolite of cannabis.

   Mr Dowsett, given your criminal history and the serious allegations in these matters, you were very fortunate to have been granted home detention bail. Home detention bail is a serious undertaking. The community expects people on home detention bail to adhere to the conditions. General deterrence is critical. Home detention bail cannot be treated as an inconvenience to be obeyed when you feel like it.

   The trespass, violence and damaging property is appalling offending. It was unprovoked and unnecessary. The victim was unaware and unprepared for your sudden attack. He suffered a sustained beating involving a series of punches to the head. I hope you are aware that punching someone in the face or the head is inherently dangerous. Violence is serious. Violence can cause physical pain but it can have significant psychological and emotional consequences. I consider your offending is towards the upper end of the scale of seriousness for the offence charged.

   I take your criminal history into account. You have a disquieting criminal record.  You have numerous minor behavioural crimes in your past as well as traffic charges. You have a relatively serious prior violent crime from 2014. You were dealt with in the District Court on 15 July 2016 and you received a suspended gaol term. I have read the sentencing remarks of his Honour Judge Beazley and I take those remarks into account. That offence involved you punching a friend in the face and whipping him with a dog chain. That was in the context of a domestic dispute where you were protecting the victim’s partner. She had asked for your help. The victim in that matter has forgiven you and that was influential in the sentence imposed by Judge Beazley.

   You then breached that suspended sentence bond. You returned to the District Court just under two years later charged with aggravated assault and breaching an intervention order. You received another suspended gaol term. I have read the sentencing remarks of her Honour Judge David and I take them into account. That was an aggravated assault on your de facto partner and a breach of an intervention order, as well as a breach of bond for the previous offending. The assault on your then partner was a verbal assault and did not involve physical violence. It was a nasty, lurid and violent threat in the presence of a child.

   Until these offences I am sentencing you for today, there was no further criminal behaviour.

   Mr Dowsett, you have been treated leniently in the past. Judge Beazley suspended the sentence. He focused on your prior good character, your efforts towards rehabilitation, the unusual nature of the crime and your genuine apology to the victim as well as his forgiveness. Judge Beazley commented that a person must never take the law into his own hands.

   Unfortunately, you have ignored that warning. Your behaviour in these current matters is a disturbing echo of that earlier crime. You breached that suspended sentence bond imposed by Judge Beazley. You were again treated leniently by the District Court. Judge Davison’s sentencing remarks with respect to the breached bond on 18 July 2017make it plain that you were treated mercifully. You breached that bond by not obeying your bail conditions and not complying with Correctional supervision. Her Honour Judge Davison warned you that you would be required to cooperate with Community Corrections and said if you continued to be disobedient and troublesome you would probably end up in gaol.

   In February 2018 Judge David sentenced you for the verbal assault against your partner and other associated matters. You were again sentenced in a compassionate and lenient way. Her Honour’s sentence, with respect, focused appropriately on rehabilitation, including re-engagement with Community Corrections plus psychological treatment and therapy. She also focused on your study and the licences you had obtained as well as your work. Her Honour Judge David said she was satisfied that you were unlikely to reoffend. That observation was based on the positive steps you had made towards longer-term rehabilitation and stability.

   Her Honour’s optimism was, in hindsight, regrettably misplaced. You have continued to offend in a violent way. Indeed, this current offending is arguably more serious. There is no cogent explanation as there was when you attacked your friend in November 2014. Your continued preparedness to use violence means I am bound to conclude that you are a continuing risk of reoffending. Personal deterrence is undeniably required. Your behaviour was another example, broadly, of taking the law into your own hands. There is a very strong public interest in sentencing courts making it clear that vigilante-style behaviour, or acting as some sort of community enforcer, undermines the criminal justice system and cannot be tolerated.

   I do accept, Mr Dowsett, that there is a community distaste for child pornography. There is nothing wrong with being unhappy or angry about the prevalence of people accessing or using child pornography. Your feelings were valid. Your behaviour was not.

   I take into account the time you have spent in custody. You have spent 12 days in custody on these matters and then you were released on home detention bail on 22 September 2020. You continued on home detention bail until I remanded you in custody on 11 June this year. I accept that home detention was difficult for you because you were not able to live at home, given your house was close to the victim’s home.

   With respect to sentencing, I am not prepared to give you much credit for your time on home detention bail given the breaches; however, I will take that into account.

   I take your personal circumstances into account. You are 37 years old. Your family came from the UK. You are a Londoner who grew up in difficult circumstances. You came with your family to Australia about 15 years ago and you then worked in the family business here. You had a relationship with your now ex-partner and you have four children aged between 13 and four. You have not seen those children since this incident. I accept that that is very distressing for you. There are no Federal Court orders regulating your contact with those children but you expect to follow that up when you are able to. You have a new partner and you have been in a relationship with her since 2019. You have one child with her and you have three stepchildren.

   I have received and I take into account the references and documents from Yolanda Evans, Chris Hughes, [Ross] (who was the victim of the 2014 assault), Angie Parker and Paul Pezos, your employer. There are some encouraging signs. You have been seeing Ms Evans, a social worker, regularly. You have been focusing on anger management and impulse control. You are looking more deeply into your past. Your therapy involves addressing childhood trauma. You are looking at old, unhelpful attitudes towards violence. It appears that only now are you starting to recognise some of the ingrained personal problems you have been enduring, and you are starting to change. I am encouraged by your willingness and ability to focus deeply and seriously on personal change and meaningful rehabilitation.

   You are currently appropriately medicated. I take into account the letter from Dr Webster. You have a history of mental health problems, including bipolar disorder, and you have had some psychiatric intervention in the past. You have succumbed in the past to drug use and you have lived on the fringes of the outlaw motorcycle club subculture through your family. You are not a member of any club.

   You were assaulted and threatened and you suffered a suicide attempt in 2016 and later in 2017 and 2018. You found it very difficult when your children were withheld from you. I note your offending in this case took place when you were not taking your medication. You were unemployed, you had no money and you could not afford the drugs you should have been taking.

   I take your work history into account. You are a skilled labourer in the demolition industry. You are clearly a hard worker, you are reliable and trusted and you have been the manager of eight employees. You are the sole income provider in your family. I accept a gaol term would have a significant impact on you and your immediate family, especially at a time when you have really begun to find a new stability.

   I turn now to the specifics of your sentence. On file AMC-21-4182, on count 1, the criminal trespass, you will be convicted and imprisoned for five months. I reduce that to three months because of your early guilty plea. On counts 2 and 3, I use s 26 and impose one penalty. That relates to the assault and the property damage. You will be convicted and imprisoned for one year and two months. I will reduce that to 10 months because of your early guilty pleas. Those two terms are cumulative.

   With respect to the breaches of home detention bail on file AMC-21-1677, I again use s 26. You will be convicted and imprisoned for one month, which I reduce to three weeks because of your early guilty pleas. That, too, is cumulative.

   Your total gaol term is 13 months and three weeks.

   I now fix a non-parole period. In fixing the non-parole period, I consider afresh the nature of your offending, your criminal history, your guilty pleas and, in particular, your steps towards a better understanding and long-term rehabilitation. I acknowledge the work you have done in recent times.

   The non-parole period is fixed at six months and three weeks. I will reduce both the head sentence and the non-parole period by one month and two weeks. That is for the time you have spent in custody and the time you have spent on home detention bail.

   Your head sentence is then 12 months and one week. Your non-parole period is five months and one week. They both run from 11 June 2021.

   The pre-conditions for a home detention sentence are satisfied. I have received and read the home detention report. I have had regard to the assessment of your risk or reoffending, your criminogenic factors, your mental health problems, your current status in custody including the High-Risk Assessment Team monitoring and your issues relating to self-harm. I take into account your past history of drug abuse and your positive work on anger management. I note your previous unsatisfactory interactions with the DCS. Those matters are a cause for concern although I do accept that during your most recent home detention bail period you were described as generally nonproblematic. I take into account your prior response to Community Corrections supervision.

   I accept you would have your partner’s support on a home detention sentence. You also have your employer Mr Pezos’s ongoing support. Your house is suitable, and you are considered suitable. I take those conclusions into account. Despite those indications, I am not prepared to order that you will serve a gaol term on home detention.

   To do so would mean that general deterrence and personal deterrence are inadequately addressed. Your offending is too serious. This was an unprovoked attack against a history of prior violence over many years. In my view, a home detention sentence would undermine public confidence in the administration of justice. You will serve your gaol term in custody.[38]

   [38]    Exhibit G1, G5 pages 34 - 38.

   Applicant’s Evidence Before the Tribunal

2. The Applicant has provided a statutory declaration dated 28 June 2022.[39]  In it, the Applicant acknowledges and takes full responsibility for all of his prior criminal conduct and other actions, and acknowledges his struggles with drug addiction.  The Applicant also reveals that, until being served with visa cancellation papers, he had no idea whatsoever,[40] that his actions gave rise to any risk of deportation.  As became clear to the Tribunal during the process of the Applicant giving his evidence, the Applicant has very limited education, and what at least appear to be cognitive deficits.

   [39]    Exhibit G1, G17.

   [40]    Exhibit G1, G17, paragraphs [29], and [48.5].

3. The Respondent Minister submits,[41] that, when giving his evidence before the Tribunal, the Applicant demonstrably lied under oath and gave evidence that was variously evasive, vague, or otherwise argumentative, to the extent that ultimately, the Applicant should not be accepted by the Tribunal as a witness of credit.  Clear examples of the problem, so it is submitted, are instanced by the Applicant’s oral evidence in relation to his drug taking, post 2019;[42] and when the Applicant was tested,[43] factually, when under cross- examination in relation to the circumstances of the assault on 9 September 2020.  Ultimately, when caught out in a lie in relation to the giving of his evidence about the 9 September 2020 assault, this resulted in the Applicant making a late statement,[44] in admission of same, at the conclusion of the Tribunal hearing.     

   [41]    Transcript page 175, lines 41 to page 176 line 15; page 228 line 42

   [42]    Transcript, page 75 line 2, to page 82 line 45.

   [43]    Transcript, page 83 line 2 to page 85 line 36; page 87 line 37 to page 97, line 42, noting, in particular, Transcript pages 96-97 lines 36 to 2 and contrasting that with the substance of the Applicant’s confession, see footnote 44, immediately below.

   [44]    Transcript page 225, lines 2 – 39.

4. Ultimately, the Tribunal determines that the Applicant did considerably embroider his evidence, in a manner that does detract from his credibility.  That is a factor that has been taken into account by the Tribunal in the formulation of these reasons.

   Evidence of Ms Angie Parker

5. As well as acting as advocate for the Applicant during the Tribunal proceedings, Ms Parker is the Applicant’s fiancé and domestic partner. Ms Parker has provided a series of statements in support of the Applicant.[45] In part, these reveal Ms Parker to have had a tumultuous and disjointed early life, and problems of her own in consequence of two prior domestically violent and dysfunctional relationships; and issues arising in consequence of her own methamphetamine dependency. These are all matters that arose well prior to Ms Parker meeting the Applicant.

   [45]    Exhibit A15, Exhibit G1, G26, G27.

6. Ms Parker met the Applicant in January 2019 when they were each attending an in-patient drug addiction withdrawal program, conducted by DASSA Withdrawal Services. A relationship formed between them.  In part, Ms Parker states:

   Unlike my previous relationships described above, my relationship with Stephen has always been one of love and mutual respect. He has never once been physically nor verbally abusive towards me and has been nothing but supportive. We are each other’s greatest support. Throughout our time living together, I never once saw him be violent or abusive towards others.[46]

   [46]    Exhibit G1, G27 page 146.

7. On 30 June 2020, Ms Parker gave birth to a son by the Applicant, RLJD.  As will be recalled, the Applicant was arrested and charged in relation to his most recent offending in relation to his bashing of a male person charged with child exploitation offences only a few weeks after the birth of RJLD, on 9 September 2020.  This was to result in his eventual sentencing on 14 July 2021 to a head sentence of 12 months and 1 week imprisonment.  In relation to the impact of this term of imprisonment Ms Parker has expressed:

   The day that Stephen was sentenced to 12 months' and one week imprisonment was devastating because I did not know how I would cope without him being by my side each day and I was devastated to think that he would miss out on watching our son grow - including missing his first birthday, seeing him take his first steps and missing out on a lot of other "firsts". Even though I felt like my whole world was torn apart, I quickly realised that there was nothing that I could do to fix the situation other than to remain strong for Stephen and my family and to count down the days until his release.

   It has been an incredibly difficult period for me throughout Stephen's time in prison. I have been left to parent on my own, which is incredibly difficult. It has also been difficult for me to cope financially because I have to support my family without any input from Stephen's income. It has taken a huge toll on my mental health and I have had to be medicated for my depression and anxiety. I often wake in a panic, hyperventilating and crying uncontrollably. I have difficulty sleeping without the aid of medication because I do not know how I will cope without Stephen for the next period of time and I know how much it is impacting him being away from our family.

   I had no idea when Stephen was sentenced to prison for the above crimes that there was a risk that his Australian visa could be cancelled - nor did we. As far as I knew, Stephen was an Australian like anybody else because he had lived here for so long. I did not understand that there was still a risk that he could be deported as a result of his criminal convictions. When Stephen told me that he had received a letter and that his visa had been cancelled without any opportunity to explain the situation to DOHA, I was beside myself with fear. I did not understand what any of this meant and was instantly worried for my mental health as well as Stephen's. It all felt surreal. I felt like I was living in a nightmare that I will never wake up from. I felt, and still feel, deeply broken by Stephen's visa cancellation. I feel like my heart has broken into a million pieces. I constantly feel sick, anxious, sad and lost at the thought that I may have to live the rest of my life with Stephen. I get angry that so many Australian Citizens are going to be affected if he is deported. Not only will it affect me but it will affect our son, my children, Stephen's children, Stephen's parents and members of his extended family. I am deeply worried about how I will be able to cope bringing up our son and the rest of my children alone. I am extremely worried of how our son and the rest of my children will cope without Stephen in their life. The toll it will have on all of them, particularly [RLJD], to have to say goodbye to the person we all love so deeply is utterly devastating.

   It will not be possible for me to live in the United Kingdom with Stephen if he is deported because I cannot take my children with me and I simply cannot leave them behind. This means that Stephen and I would have to maintain a long distance relationship which I do not think will work. We need each other for daily support. I am incredibly worried about Stephen's ability to cope with the daily struggles of life in the UK without me by his side and also without our son and the rest of his family. Selfishly, I am also concerned about my own mental health and my ability to stay clean without Stephen by my side.

   If Stephen is deported once released from prison, I feel I will live alone for the rest of my life. Stephen is my forever person. It took me a long time to find him after going through much trauma in previous relationships. He is all I have ever wanted. I felt that my life was complete when I met him, we had our son together and we became engaged and I feel that everything I deserve when it comes to a future with Stephen will be taken away if he is deported. My children will have to live a life without a father. It will be highly detrimental to their wellbeing. I will also be financially impacted, as I will have to support the children without Stephen's financial support. I also worry that my mental health would be severally in jeopardy of deteriorating to a point where I may not be able to care for the children and this would be a disaster for them given the fact that neither of [their fathers] have the capacity to, nor wish to, care for them. There is nobody else who can care for [RLJD].[47]

   [47]    Exhibit G1, G27 pages 147 – 149.

1. When giving her oral testimony, Ms Parker advised that she has the responsibility for six children at home under the age of 16.[48] Ms Parker also informed that the Applicant’s oldest son from his prior relationship with Ms J, JMD, now aged about 14, has commenced living with her: notwithstanding family law court orders requiring JMD to live with his mother, Ms J.  Previously, JMD had run away from living with Ms J, and had instead been ‘couch surfing’, and living in an unstable environment where he did not feel safe, in situations with lots of domestic violence, and wherein he had also ceased attending school.[49] Since commencing to live with Ms Parker, JMD has resumed his schooling, and things have started to improve. JMD will listen to - and take parental instruction from - the Applicant:

   [48]    Transcript, p. 18, line 19.

   [49]    Transcript, page 9.

   Is [JMD] attending school?---He has started this week, so it took me a long time to get him enrolled into school, into a - like a different alternative program because his mother was just not complying. It took a long time for the school to get her - get hold of her and to get him - the paperwork signed but, yes, he’s finally started this week in a flow program, which is an alternative schooling. He goes two hours a day, four days a week and about week four, or week five, he’s going to start going on Tuesdays, he’ll go for  the whole day from 10.30 until 2.30. So, yes, he has started that full-time schooling.

   All right. And so far - - -?---So, he hasn’t gone to school - - -

   So far, has he complied with the arrangements at school?---Yes, yes.

   It’s only been a week but he has started to comply?---Yes. Yes, he has.

   All right. And, behaviourally, how is he going in your place?---Yes, he’s good. He’s good. You know, we have - nothing out of the ordinary. Like he can be a bit defiant and sometimes he will - obviously, he’s been left to his own devices for a long time to be able to do whatever he wants, whenever he wants, and so the boundary - to try and put the boundaries in places, it’s been not the easiest. I’ve - you have to call Stephen and get - because sometimes he’ll just go out and I don’t know where he is and I’ve had to get - call Stephen to call him and say, “You can’t just leave the house. You have to - you have to talk to Angela. You have to ask her. Like you’re a child and she needs to know where you are.” So, we had some teething problems but, overall, he - he’s been okay.

   All right. And what’s your assessment of [JMD’s] relationship with his father?---He has a really strong relationship with his father. So, he listens to Stephen, like he doesn’t listen to anybody else. He wants to see them. The reason he’s back in school and attending is because Stephen has said that he has to.

   All right?---I don’t have the capacity to get him to listen like that.

   How often would [JMD] speak to his father?---Multiple times a day.

   All right. So, by telephone, obviously?---By - by telephone and by FaceTime.

   Okay?---They speak in the morning. They speak - yes, they speak multiple times a day.[50]

   [50]    Transcript page 9 lines 46 –to page 10 line 41.

2. In relation to JMD, in his own statement[51] of evidence before the Tribunal, the Applicant expressed the following:

   Only last week, I spoke to [JMD] and he told me that he could not cope living in the same home as his mother anymore. He said that [Ms J] and her partner are still regularly using drugs in front of the children and that he is often violent towards her. The Police have apparently been called to the house on multiple occasions over the last few months.

   Even though [JMD] was worried about his younger brothers, he ran away from home a few weeks ago and has been couch surfing with friends. He asked me when I am coming home because he wants to come home to Angie, [RLJD] and I.[52]

   [51]    Exhibit G1, G17.

   [52]    Exhibit G1, G17 page 113. .

3. There are statements[53] in support of the Applicant now before the Tribunal from JMD and also from the biological children[54] of Ms Parker, all of whom regard the Applicant as their father.  These statements are very supportive, and indicate that the Applicant is the best father figure that these young people have ever had.

   [53]    Exhibit G1, G23, Exhibit A5.

   [54]    Exhibit G1, G24, G25.

   Evidence of Ms Yolanda Evans

4. Ms Yolanda Evans is a Social Work Counsellor in Adelaide. Ms Evans had worked with the Applicant previously and has provided two brief reports, dated 1 August 2022,[55] and another, which is undated,[56] together with an e-mail dated 31 May 2021.[57]

   [55]    Exhibit A2.5

   [56]    Exhibit G1, G29 page 151.

   [57]    Exhibit G1, G13 page 90 – 91.

5. Ms Evans worked with the Applicant in a clinical context in 2020 and in 2021, up until 31 May 2021.[58]  Her recollection is that she had a total of 15 sessions with the Applicant.[59] Ms Evans was asked about the sessions she had with the Applicant:

   All right. And what sort of issues and topics did you do, explore with him?---What we did a lot of was building empathy. So, looking at something from the perspective of the other person, and the effect that something might have on another person. We did a lot of processing his own trauma. He’d experienced some of his own traumas in his life, so that may have contributed 40 to his outlook. So, we looked at processing that as well as basic CBT base strategies for managing, like, triggers, and feelings of anger.

   All right?---So, some people call it anger management, other call it behavioural change in terms of the therapeutic lingo. But, yeah, basically it was around building empathy and managing your own emotions.[60]

   [58]    Transcript, page.143, line 20.

   [59]    Transcript page 145 line 15.

   [60]    Transcript page 145 lines 36 to 46.

6. During the giving of her evidence, the following exchange took place between Ms Evans and the Tribunal:

   And you know, this case is one of those watershed moments, do we return this man to the community, or do we deport him?---Yep. 

   And one of the key things I need to look at is future risk?---Yep.

   And I’m dealing here with an index event where he turned up at the door of a stranger and violently assaulted him, and that’s quite concerning, obviously?- --Yes, it is.

   And that’s one of the reasons that this gentleman came to see you, and I need to have some sense of comfort about what risk he might be to the community in the future?---Yes, absolutely. And I can certainly see why in that what he’d done was deeply concerning. So, what I did was - so, are you guys familiar with cognitive behavioural therapy?

   Yes?---Okay. So, my main focus was cognitive behavioural therapy, which essentially looks at the relationships between our thoughts, our emotions, and our actions. So, if you like - I’m sort of distilling it down on a very basic level, but if you think angry thoughts that fuels your anger and you are more likely to make a rash decision. The other thing I worked really intensely around was impulse control. Because it seemed like loads of things that had previously gotten Stephen into trouble was capacity to control impulse. So, with someone with problems with impulse controls, whether it was controlling the impulse to do something quite dark and violent, or whether it was controlling the impulse to, you know, not (indistinct), but the thought process is not - like the need to control that is not dissimilar, am I making sense so far? 

   Yes?---So, what we might look at is instead of going thoughts, feelings, actions, taking it backwards and looking at, okay, before you take an action, actually stopping, observing the thoughts, and taking some perspective.

   Yes?---So, with every action. So, because Stephen doesn’t have a super high level of formal education, I can remember one of the things we did was we called it the stop principle, where we imagined a stop sign. So, you stop, like stop all the thoughts, take a breath. So, it’s an acronym, observe your thoughts before you engage with them or do anything about it, and then a key perspective taking question.

   Yes?---With people who struggle with empathy, my starting point isn’t what the other person is feeling, but it’s whether or not this is going to end badly for you and the people that you care about. Once the person has gotten the hang of that, we then look at taking responsibility. So, okay, let’s look at the perspective of the effect it has on the community and the other person. Is this, like - you know, do you have some responsibility to control your actions? So we start with the real basics of essentially will this land me and the people that I care about and have to provide for in hot water? Then once the person - and Stephen got the hang of that quite easily. We then worked really hard on what do you need to do to be a productive member of society? So what do you need to do to step up and take responsibility aside from just stopping and not doing the thing that’s not going to help you or the other person in this case? Stephen was starting to make quite good progress in terms of - because a lot of people that struggle with impulse control sort of either struggle to maintain employment or struggle to keep a job because they stomp off in a snit or something like that, basically. Okay, going with the really lower level stuff I realise - because some of the people you see it’s far more significant or serious than that. So we actually looked at applying that principle and applying the CBT principle that we looked at to how do you manage on a job? So we went a bit deeper and looked at regardless of what they were 12 or 15 months ago, what are his personal values? Like, what does he - what kind of life does he want to create for his family? His main values were around creating a better life for his children than he’d had himself, as well as giving back to the community. So we looked at - and he also talked a lot about not having really felt any self-pride before and wanting to build his own sense of pride and self-esteem, which usually you do by behaving better. So, again, to put it really bluntly, so we actually looked at then, okay, when he does feel triggered at home what he can do to cool down and turn it around. He was actually doing quite well at his job, and I think that actually helped him to see himself different and his relationship to the community differently. So he was far more motivated. And I think he - while what he did was significant, I think that needs to be outweighed by the fact that what he’s doing to change is now motivated by different things; and that’s care for his family and his community. My other concern on a risk level is - and I think I probably put something to this effect in the letter - in terms of risk to the wider community. Okay, if you sent him back he’s got a number of children who are then at more risk of following in his footsteps with him absent.

   Yes, I’ve seen that comment made in your report?---So in terms of the broader approach to community, I think his children are more at risk of falling into light crime and antisocial behaviour without him.

   No, I’ve already noted that you’ve made that observation about the broader ripple effects, if Stephen is to be deported. I get the distinct impression that Stephen Dowsett is a man who has poor impulse control. I have a distinct impression that he is a man that reacts inappropriately and violently, even in response to relatively minor triggers. How can I be confident that the 15 or so sessions he’s done with you will be sufficient to overcome that kind of risk?---Look, that’s a great question. So, I think - I don’t think it’s as simple as he’s done, like, you know, some sessions; he’s good now. I do think - I would respectfully disagree that it’s as simple as he has an impulse control problem in terms of that seems to imply that he’s - like, if you had an impulse control problem up until five days ago, it’s impossible for you to not have it any more. I don’t know if he still has an impulse control problem. I would strongly recommend that he continues treatment, whether it’s with me or someone else. And that could be a condition of him remaining in the country.

   How long do you think that treatment regime needs to continue for? Is it a lifelong thing or is it a long-term thing or a short-term thing?---I mean, I wouldn’t say lifelong, no. But I would say given that people like Stephen usually have faced years and years of their own trauma that got them to this place, then I’d say another year or two.

   And are you saying that he’d need to have fortnightly therapy for at least a year or two?---I’d recommend fortnightly. And, I mean, one thing Stephen was very good at was attending his sessions.

   Did he appear motivated to participate?---Look, he did because he came in to see me. So I tend to generally not take on people who have been in trouble for a crime because often, like, it’s not compulsory but it sort of is because their lawyer has recommended it. Stephen came independently of that, and that’s what - - -

   So are you saying that your impression was he wasn’t here for a bit of window dressing?---That’s exactly right. And he stuck to it. And, you know, like, I have plenty of clients who just no-show or call me an hour before to reschedule or something like that. In the event that he needed to reschedule it would always be within, like, the timeframe of, I guess, a functioning citizen. So a few days and, like, usually for some sensible reason like a work-related reason or something like that. And he didn’t do that often at all. He pretty much showed up for every appointment unless there was an extenuating circumstance.

   It seems that Stephen Dowsett has - at least at the time he was seeing you he had some good employment. Was that the case?---Yes, yes. He was employed, I think, all of the time for this program. But, yes, he had solid ongoing employment. I had the impression - I haven’t confirmed it by calling them or anything so I couldn’t affirm in a legal sense, but I’ve been told that, like, he was a really good employee and they’re happy to have him back. So that’s the other consideration. I think it would be one thing if he was being released to unemployment, but he has ongoing gainful employment.

   Will that serve to assist as a safeguard against furthermore offending?---I think that is a massive safeguard because I think - I mean, it depends what your theory of criminology is, I guess. But I think often people really stop offending when they’ve got something to lose. I think if you have a history of intermittent or unemployment and you’re suddenly seen as a valued member of the company and you’re relied upon and you’ve got an income that you didn’t have before, there’s far more to lose and you’re far more likely to do it. I think both broadly, but also with Stephen.

   Just in that vein, in the event that Stephen Dowsett were to be allowed to remain in this country, the future prospect of deportation would hang over his head forever like the sword of Damocles. Do you think that that would serve as a factor that would - - -?---That would - yes, I think that would be a massive - I shouldn’t say a “massive”. I think that would be a significant motivator. So this is the first time I’ve been before, like, a court or a tribunal, so if I sound a bit nervous and, like, I’m not using the proper, like, professional language, I apologise. Yes, I think that would be a significant motivator because he wants to stay here. He wants to build a life. His main value system around, I guess, being a more empathetic and pro-social citizen is certainly around providing a good life for his children, and he would not wish to risk that.

   I suppose your role in your dealings with Mr Dowsett was to help him turn that lightbulb on, to make him realise that actions have consequences. Is that a fair assessment?---Yes, that’s exactly what - and I think that was the point at therapy we were at. Like, so we turned the lightbulb on, we were then looking at, “Okay, so the lightbulb is on. How do we actually employ practical strategies?” So - yes.

   From your perspective as a person who does this - who engages with clients to help them to try and make this cognitive transition - has Stephen Dowsett made or at least commenced to make that cognitive transition?---I think he has made - yes, he’s - I would say he’s actually well on the way because he was employing the skills and techniques. Like, I can think of one example  where someone got his goat at work, and he calmly went to the foreman and said, “Can I take a 10-minute smoko early?” He came back well within the 10 minutes and got on with his job. I think previously - yes.

   So you see that as being a prosocial strategy to deal with interpersonal stress  in the workplace?---Absolutely. And what we did in that session is we then built on, “Okay, so hypothetically what if the boss said no? Because you don’t always get what you want. How do you then employ that strategy?” And I can’t remember his specific response but, again, they were sensible, reasonable answers with some good ideas about how you’d do that.

   So from your perspective he was starting to apply the schools that you were trying to impart to him in other life contexts?---Yes, absolutely.

   I understand?---Where perhaps the consequences were lower stakes but they still, you know, could have had potential, yes.

   They’re related in terms of there could be adverse consequences?---Correct, yes.[61]

   …

   MEMBER: Ms Evans, I just want to postulate something and ask for your comment. The index offence in this case is – that’s the most serious offence – was one where Stephen went around to the house of a man who had been publicly named as a child sex offender who had been apprehended by the police being in possession of vast quantities of child exploitation material, in other words, pornography?---Yes.

   Stephen had become aware of this fellow living locally and had reacted by thinking, “My children are in this environment and this community,” and then he went around and very violently assaulted that man who was living at home pending a court hearing in his own matter. Now, previously, you’ve described Stephen’s parental responsibilities as a protective factor. In this particular instance, the fact of his parental responsibilities triggered his inappropriate response to his knowledge of the child sex offender living in the community and led him to violently assault that man Now, a so-called protective factor seems to have been a factor that motivated or triggered his offending behaviour.  Do you have any comment about that?---I mean, can I – yes, okay.  Can I be frank with you? 

   Yes?---I think in his head he told himself that it was about fear for his children.  And I think this is a big part of what we did in therapy.  In fact, I know it was a big part of what we spent some time on in therapy.  What we looked at was you can give yourself a reason to behave badly.  So again, if you look at the,sort of, very basic CDC model of thoughts, feelings and actions, if you think that person is a terrible person and that’s why I’m justified in the horrific act of violence, well, you can find any reason that sounds quite justifiable even to a respectable person like, “I was just looking after my children.”  We worked extensively on what that really means in terms of, like, again, first building the, “What’s in it for my children if I do that.”  Like, does the behaviour - has that actually made our children’s life better or has that put them at risk of not having a father.  That also then built on the idea of also do we have a duty to the community to leave, I guess, the judgement and sentencing of those sorts of things to the authorities and the police.  So, yes.  I would say in that instance that it obviously was not a (indistinct) factor, but I also don’t think that was his true motivation at the time.  But what I do think is his motivation has changed due to the therapy and I would like to see him continue to build on that. 

   What do you think his true motivation at the time was?---I think he has a lot of childhood trauma around not particularly great treatment.  Like, of himself as a boy.  And I think he was horrified by this man’s alleged crime and he thought that was the answer. 

   Vigilantism?---Yes.

   All right.  Well, again I come back to the question of risk.  Because risk is – I mean these cases are all pregnant with risk and I have to muddle  through them and decide who’s so risky we just can’t tolerate that risk so we’ll ship that risk off somewhere else.  What do you say about the possibility or risk of something like that happening again?  Vigilantism in the future if he were to be released into the community?---Look, again, I think the major differences are – and I realise I’ve gotten a few things technically wrong in terms of timeframes, but his gainful employment that he was starting to excel at – so he was starting to see some rewards from actually not acting rationally and controlling impulse, but also I think his capacity to develop empathy which no one had ever sort of really encouraged him to do. So I think both of those things mitigate the risk strongly.  Certainly, I mean, again it’s a little bit – I don’t want to sound too much like an idealistic social worker – I think he genuinely has developed that empathy.  Now whether a psychiatrist might disagree with me, I can’t say.  But I think that the – what you referred to as the Sword of Damocles factor is a significant mitigator. Like, I think that would strongly motivate him to never offend again.[62]

   [61]    Transcript p 146 line 10 to page 150 line 9.

   [62]    Transcript p. 152 line 43 through to page 154, line 11.

1. The Tribunal accepts the opinions expressed by Ms Evans regarding the risks of the Applicant reoffending.

   Oral Evidence of the Applicant’s Mother, Mrs Susan Dowsett

2. Mrs Susan Dowsett is the mother of the Applicant.  During her oral evidence Mrs Dowsett informed the Tribunal that three of her children, her daughters Vanessa, and Charlotte, (who lives in the United Kingdom) and son Christopher, who is a long-distance truck driver living in Adelaide, keep to themselves and have little to do with the rest of the family, including the Applicant.[63]

   [63]    Transcript, page 161 lines 10 47.

3. Mrs Dowsett also informed the Tribunal that the Applicant’s prior domestic relationship with Ms J had been an unusual and difficult one:. 

   Can you give the tribunal an idea about your - from your perspective what you were observing and what the case was there?---That I take it is you’re talking about the relationship he had with his ex-partner, the time he spent with her?

   That’s right. So, it’s during the time that - - -?---And the mental health issues evolved from that.

   With [Ms J]. And just in terms of what you observed in terms of his interactions with his siblings at that time. Was that a period of time where he just wouldn’t have interacted with his parents and siblings?---Not to much. The health wasn’t very conducive to visits. I think we all caught up every  now and then and he would - you know, come to us. You know, when we had the odd family event. But, no, it just wasn’t a place where you would wish to go. He obviously have a certain amount of paranoia going on. I don’t know, she dictated basically what he did, and that was really stay at home because she went out to work. And he was just left there. I mean the curtains were closed 24/7. He had a paranoia about people watching the house. Yes, we went down there because - you know, obviously we wanted to keep in touch, you know, all the time. But it wasn’t a very pleasant place to go. And I think we all hated him being there.[64]

   [64]    Transcript p. 162 line 45 over to p.163, line 20]

4. The dysfunctional nature of this prior relationship between the Applicant and Ms J is further elaborated by Mrs Dowsett in her further statement, A14:

   Initially we visited Stephen, [Ms J] and our grandchildren ([JMD] and step grandson Jordan) quite often but the atmosphere was becoming more and more strained. They were arguing frequently and we knew there were drugs involved. We went to the house less but I still saw [Ms J] and [JMD] on a daily basis as we were still at the same childcare centre and [JMD] had a place there too. Over time it became obvious that Stephen was suffering from a level of paranoia. The curtains were closed all the time as he thought people were watching the house. He was dishevelled. So called “friends” visited him who were obviously in their own druggie haze holding more or less a mono syllable conversation. It was time for us to leave. It was absolutely heartbreaking to see this as it was light years from how he and his siblings were brought up. Sadly, he was still in love with her. Looking back, I think it was more of a dependency on her.

5. During cross-examination by Mr Hawker on behalf the Respondent Minister, Mrs Dowsett provided some context to the events leading up to the commission by the Applicant of his most serious and recent offence in September 2020:

   Now, just moving forward in time to the period of time when he’s with Angie and the police approached or attended and spoke to you and your husband, as I understand it, in September of 2020, after the assault at the house?---Yes.

   Do you remember them coming, was it to your home address to speak to you?---Yes, it was.

   We’ve got a copy of the police’s notes at the time. They’ve recorded a summary of the discussion?---M’mm.

   Can I just ask you about that. I’ll read out what I’ve got in front of me so you know what I’m looking at?---M’mm.

   This is in the police notes, it says, “Susan stated that about a week ago” and this is referencing Stephen?---M’mm.

   I’ll replace it with his name so it makes more sense to you?---Yes.

   It says that:

   About a week before them attending your house, that Stephen had told you that someone nearby had pawned property at Cash Converters.

   ?---Yes.

   And that child pornography had been sighed on one of the items pawned. And that he said he was sick of people like this getting away with it. Do you recall that conversation with the police?---Yes, more, or less. Yes.

   Can you just give the tribunal an idea of how the conversation went, what 5 was said between you and the police?---They obviously mentioned that Stephen was involved in something. And I don’t know an altercation. And - you know, they asked us what - you know, Stephen was like. You know, whether he considered himself a vigilante or anything like that. And how does he deal with injustices. And really that was the lines they took. 

   What did you say to them when they were asking you these sort of questions?---When they asked me I disagreed - you know, about the vigilante. I’d say and obviously considering the crime, he would feel as anyone felt, you know, a grave injustice - you know, had been done.

   And - - -?---That’s it really. You know, he - you know, we - I think we and I think most people would feel that the paedophiles and that should not be out on bail. It’s - I know he hasn’t been - well, he hasn’t been charged, but there again they did have evidence that we think didn’t warrant him being on bail. And that’s really what I told them. It was he just thinks the same as most people.

   What was the conversation in that sort of week leading up to the police coming to you, that you had with Stephen about Cash Converters?---He was really annoyed and we just told him, that he had to let it go really. Because there’s nothing you can do. It had to stay in the hands of the police and the law to be dealt with and he had to think of his family. Because if he did anything stupid obviously it would have an awful effect on his family. The children, his partner, Angie. And obviously us and his siblings.

   How did he respond when you said basically to let it go and think of your family?---He agreed - you know, because we did say it a few times. Because he did get - you know, why, why, why - you know, why do they do it. And, you know, it was always the response, well, because unfortunately that’s how it is. And, you know, nothing you do is really going to alter the fact. You’ve just got to wait until he gets his desserts.[65]

   [65]    Transcript page 163, line 20 to page  164, line 37.

   Evidence of Mr Paul Pezos

6. Mr Paul Pezos of ‘Techforce Personnel’ is a former employer of the Applicant. He has provided letters in support of the Applicant dated 17 September 2021,[66] and 31 August 2022.[67] The Applicant worked for Techforce up until the point when he was most recently imprisoned.  In relation to his employment, Mr Pezos spoke highly of the Applicant:

   Yes, how was he?---Yes, great. We had no issue with Stephen, you know, he was reliable, punctual, you know, they are the key things for us and, you know, sets a good standard. But like I said in my letters, you know, if the opportunity came up, we would definitely be looking at employing him again.

   Yes?---You know, we had good feedback from the client, there was a couple clients that he worked for.

   Yes?---So yes, no issues whatsoever with him

   …

   All right. But you didn’t have any adverse reports about him and you found him to be a good employee?---Yes, probably one of the better ones that we’ve had in a long time.

   Right, notwithstanding his criminal history?---Sorry?

   Notwithstanding his criminal history?---No. [68]

   [66]   Exhibit G1, G28 page 150.

   [67]   Exhibit A2

   [68]    Transcript page168 lines 35 – 45 to page 169 lines 10-15.

7. Mr Pezos informed the Tribunal that, in the event that the Applicant is not to be deported, that the Applicant will be immediately re-employed by Techforce:

   MEMBER: All right. Now in the theoretical event that Stephen was not deported and was allowed to stay in Australia, would you employ him immediately?---100 per cent.

   And would it be fulltime work?---Yes, fulltime, we call it casual ongoing, that’s how we call it.

   Yes, it’s a casualised industry but you’d be – he’d be working - - -?---It’s an ongoing basis, correct.

   Yes, he’d be working a full working week?---That’s right.

   All right, do you experience labour shortages?---Yes.

   And do you have a high staff turnover?---Not too bad, not too bad, depending on what season we’re at, quality of people, like I said, skill shortage people wanting to be at work and not just coming to us because they’re with the, you know, Centrelink.

   Yes, yes, and what about the pipeline of work into the future, is there enough  work to employ people?---Yes, there is.[69]

   [69]    Transcript page 170 lines 1- 20.

   ISSUES

8. Revocation of the mandatory cancellation of visas is governed by s.501CA(4) of the Act. Relevantly, this provides that:

   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.

9. I am satisfied that the Applicant made the representations required by s.501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[70]

   [70]    Minister for Home Affairs v Buadromo [2018] FCAFC 151.

10. There are therefore two issues before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·if not, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.

    Does the Applicant Pass the Character Test?

11. The character test is set out 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 defined by 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”.

12. On 15 July 2016 the Applicant was sentenced to 16 months and six days imprisonment, which was wholly suspended for a period of two years upon payment of a sum of $500 and the Applicant entering a bond to be of good behaviour. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[71] On 14 July 2021 the Applicant was further sentenced to a head sentence of 12 months and one week imprisonment, referable to the assault by the Applicant on the male person whom had been charged with child exploitation offences.

    [71]    See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

13. The Tribunal therefore finds that, because of s.501(7)(c), the Applicant has a “substantial criminal record”, and cannot pass the character test. In these circumstances, the Applicant cannot rely on s.501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

14. 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 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[72]

    [72]    On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

15. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.

16. Those principles are:

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

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

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

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

17. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

18. Paragraph 8 of the Direction sets out four ‘Primary’ Considerations that the Tribunal must take into account. These are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

19. Paragraph 9 of the Ministerial Direction sets out four ‘Other’ Considerations which must be taken into account. These are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

20. These are “other” considerations, as opposed to merely secondary considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[73]

    “...Direction 65 [now Direction 90] 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.”

    [73] [2018] FCA 594.

    Primary Consideration 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

21. When considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm arising in consequence of criminal activity, or other serious conduct by non-citizens. Decision makers are required to have particular regard for the principle that entering or remaining in this country is a privilege, that Australia confers on non-citizens in the expectation that they are, and have been, law abiding; that they will respect important institutions; and that they will not cause or threaten harm to individuals, or to the Australian community.

22. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Ministerial Direction requires decision makers to give consideration to:

    a)The nature and seriousness of the Applicant’s conduct to date; and

    b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

23. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision makers must have regard for a number of further factors. These are set out, as sub‑paragraphs (a) – (g) inclusive, of paragraph 8.1.1(1) of the Direction.

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)    violent and/or sexual crimes;

    (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    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;

    (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)    the cumulative effect of repeated offending;

    (f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

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

1. Paragraph 8.3(4) in the Ministerial Direction then sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. These include:  

   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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

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

2. The Applicant has four minor biological children in Australia, all sons; JMD aged 14, JCD aged 8, JCJ aged 5, and RCJD aged 2; as well as four minor stepchildren CJP, a boy aged 16, APP-T, a girl aged 14, SRC, a girl aged 9, and HB-C, a boy aged 8.  In the Applicant’s Statement of Facts Issues and Contentions, Ms Parker makes the point that:

   Mr Dowsett has fulfilled a day-to-day role as their Stepfather. They all call him dad; on Father’s Day they celebrate Mr Dowsett as their father they do this via sending him Father’s Day cards, making him gifts at school, they call him to wish him a happy Father’s Day something they do not do with their biological fathers. They all don’t have a current relationship with their biological fathers and to them Stephen is the only current father role model in their lives. All of the said children’s biological fathers have drug and alcohol addictions which has led them to not being able to be present in any of their lives to date. Prior to Mr Dowsett’s arrest in September 2020 he took on the role and responsibilities as their father figure which involved taking children to and from school, financially supporting them. attending all extra-curricular commitments helping them with their homework, attending all sporting commitments of the children, being [APP-T’s] netball and [CJP’s] football. He never missed a game. He would help wash the teams’ uniforms when it was our families turn to do so. While Mr Dowsett was on Home Detention at an alternative address, [CJP] chose to live with Mr Dowsett instead of Ms Parker because of how close their bond was, Mr Dowsett assumed the full-time role for the ten months while on home detention being [CJP’s] full time parent. Since being incarcerated he has still managed to keep a close bond with all of them via zoom visits, face to face visits in the prison and daily calls.

   …

   Mr Dowsett if given the chance to live a lawful residence in Australia would enable the above said children to experience a positive father role model. Mr Dowsett would allow them to experience a non-domestic violent relationship which they did not get from Ms Parker’s previous toxic relationships and to be able to get a positive idea of what a healthy relationship is like. Mr Dowsett would give them the day-to-Day stability and support that they do not receive from their biological fathers. Mr Dowsett would give the said children financial support that they wouldn’t have without his income and only havening [sic] the support of their mothers Centrelink income. Mr Dowsett would support them in becoming the best versions of themselves by being present in their lives and whatever they endeavour to do with the future. Mr Dowsett would allow them to feel the love and support from a father figure that is a consistent one.[102]

   [102] Exhibit A1 pages 9 -10.

3. In final submissions, Ms Parker engaged in the following exchange with the Tribunal regarding the best interests of the children:

   MS PARKER: I would say that it weighs heavily in Stephen’s favour to revoke that decision. On the grounds that, Stephen has a very strong 20 relationship with all of the children. [JMD] is not - essentially, he is not my child, he is with me on the grounds that he believes Stephen is coming home. He is hard to handle, not all the time, but he is not the easiest of childs [sic] to handle, hence the reason he didn’t live at home, and he does what he wants when he wants and trying to correct that behaviour - - -

   …

   MEMBER: Sorry, just the vision there for a moment momentarily froze, I was just concerned we’d lost our connection. I guess the point you’re making about [JMD], he’s what, he’s fourteen, isn’t he?

   MS PARKER: He’s fourteen - - - 

   MEMBER: That’s a difficult age for boys.

   MS PARKER: He’s essentially been left to do what he wants, when he wants, with his mother. And essentially, with the time difference, how can any of the children sustain a meaningful relationship with him, like they have now, on the phone? Like it’s not going to be very easy because when we’re going to bed, they’re getting up, and work life, school life, it’s just not going to sustain a proper relationship. I have [RLJD] who does have a very strong connection with his father, yes, he’s not been there - - - 

   MEMBER: How old’s [RLJD]?

   MS PARKER: He’s two and a half.

   MEMBER: He’s the little one, he’s the youngest. It seems to me the point you’re trying to make about [JMD] is, [JMD]  is fourteen, fourteen is a difficult age for boys, and girls, and [JMD’s]  sort of at a cross-roads where he can go off the rails and he needs the guidance of a father?

   MS PARKER: He does need the guidance, he’s - yes, because he doesn’t listen to me, he does, but he doesn’t. Like at the end of the day, he listens to  me because Stephen tells him to, and without Stephen I feel that he will likely just - I don’t know what he’ll likely do. But his friends are in trouble with the police on a regular basis, pretty much, that [JMD] is not there yet, but he is well on the way to that kind of path - - -

   MEMBER: So, he’s on the cusp of making bad decisions, and I should attach particular weight to that factor, that [JMD]  needs the intervention of a guiding male hand?

   MS PARKER: Yes, and I personally don’t think if Stephen isn’t returned  home, whether I can continue having [JMD]  live with me because of the trouble he does give me sometimes. I don’t think I can handle the stress and the mental - I don’t have the mental capacity to do it without Stephen’s - with me. Essentially, his mum has told him he is not allowed to return home, he has contacted her, she’s put her hands up and said you’re not my responsibility, I don’t get paid for you.

   MEMBER: [JMD’s] at a point where if he doesn’t live with you, and he can’t live with mum, he could end up as a ward of the state, is that right?

   MS PARKER: Yes, that’s where he’s heading if Stephen doesn’t come home, yes.

   MEMBER: All right, now you’re littlest one is two, and I’ve heard evidence that he has a good relationship with his father, albeit it’s a telephone relationship.

   MS PARKER: We’ve made it that he very much does. So Stephen, when he was in prison, and yes, there wasn’t always visits available because of COVID but Stephen still made the effort to have video visits with him, he would ring every day he was able to. Since he’s been - and so when we would essentially drive in to see Stephen, and we hadn’t seen Stephen for about three months when he first got incarcerated because of COVID, but [RLJD] new who he was because of his voice, and so he knows who his dad is. And he sees his dad everyday now, he has phone contact with him, he has forged those phone calls. He very much knows who his dad is, and I think it would be very- honestly, he asks for his dad to ring him, so if he’s not able to do that, I think - it’s a long time for him, for me to go to England and I don’t have the funds.

   MEMBER: I understand that. What about your biological children for which Stephen is the role of stepfather, do they have another father-figure that they can turn to?

   MS PARKER: My oldest two don’t. My oldest two [CJP] and [APP-T], they don’t have anything to do with that and haven’t since they were about four or five, that relationship is non-existent. My younger two children, they have a relationship with their father that is still going through the family courts, and that consists of one half an hour phone call. That is just a voice phone call because he is still on drugs, and the courts have ordered that, but there is no contact apart from that. And we’re going to trial on that in February, but I don’t think it looks like he will have anything but that. So Stephen essentially, is the only father figure, especially for the older two, he’s the only father figure in their life.

   MEMBER: Okay, how much contact does he have with them? 

   MS PARKER: Who Stephen?

   MEMBER: Yes, with your other children?

   MS PARKER: He has as much contact with them as [RLJD] has with them, so even when he was in prison, I was taking the older two in to see him. When Stephen was on home detention, my son [CJP], he had got himself into some trouble at school and he was excluded (indistinct), and so he went lived with Stephen because he responds well to Stephen. He can be - with his ADHD  he needs that male figure in his life, they all respond well to Stephen, like their grades when Stephen is around are exceptional. He gives them the stability that they didn’t have before I was with him, before I was with him my life was utter crap, and so was my kid’s. And now they’re in a life where they’re not subjected to domestic violence, they have structure and stability, and Stephen helped me create that for my children, because I just didn’t have the skills to do so.

   MEMBER: So what you’re really saying is you and Stephen together, can give proper role models to the children that they didn’t previously have? They can see how a relationship is supposed to work, previously they were seeing how a relationship should not work.

   MS PARKER: Yes, yes.

   MEMBER: All right, I understand that. Now what about Stephen’s other two children, he doesn’t see much of them, does he? The ones who still live with their mother.

   MS PARKER: Okay, so, they live with their mum, she has made it very difficult - obviously when court orders were in place, and before he had offended, he saw them when he was sent to see them, once a fortnight, he didn’t get the phone call, but he saw them once a fortnight. When she found out that obviously he had offended, and that he was on home detention, she allowed him to see them for Christmas, he did see them for that Christmas. But after that she said that unless you can produce a thing to show me (indistinct), you’re not seeing the children. And that relationship will become nothing but a memory, they will never - she will not allow them to have any relationship with them, if he is deported.

   MEMBER: All right, now since you’ve been in immigration detention,

   Mr Dowsett, you haven’t seen or spoken to those two children, have you?

   MR DOWSETT: I tried to call, I think on the first week, at the prescribed time, to speak to them. I rang by the telephone and she answered the phone, [Ms J] answered the phone, I said, hi, I said, can I speak with the boys please? She’s turned around and goes, “You’re not supposed to be fucking calling me.” And just put the phone down on me.

   All right. So, she’s running interference, and you’re not having much of a relationship with those children, but will that improve if you stay in this country, or not?---Once I get out - I think if I was to get out, I can go back to the family courts and say, hey, she’s not abiding by the final orders.

   All right?---Which was done - I just want the final - again - - - 

   How old are those two kids now?---[JCD] is seven - eight.

   Yes?---And [JCJ] will be five.

   All right. So, yes, they’re still of an age you could go to the courts and get some court-imposed help?---Yes.

   MS PARKER: Essentially, [JMD] has lost that relationship with his father because his mum will not allow him to go there because of her partner, and  because she’s not getting paid for him. And [RLJD] will lose that relationship with his siblings because [Ms J] won’t allow it to happen.

   MEMBER: All right. I understand all of that. All right, well, yes, I understand. So, you’re saying that this is a factor that ought be assessed as  weighing very heavily in favour or revoking the visa cancellation decision?

   MS PARKER: Yes, yes.[103]

   [103] Transcript, page 209 line 19 to page 213 line 1

4. The Respondent Minister submits[104] that, although it is clearly open for the Tribunal to find that it is in the best interests of these eight minor children that the visa cancellation decision be revoked, less weight should be attached to the five children of Ms Parker, by reason that:

   (a)The children live with their mother who fulfills the primary parental role (paragraph 8.3(4)(e) of the Ministerial Direction);

   (b)The Applicant’s relationship with the children has been marked by a lengthy absence since July 2021 by reason of his incarceration in either prison or immigration detention (paragraph 8.3(4)(a) of the Ministerial Direction);

   (c)In the context of the Applicant’s criminal history and history of drug abuse the Minister contends that it is doubtful that the Applicant can be a positive role model in the future (paragraph 8.3(4)(b) of the Ministerial Direction);

   (d)There is no independent evidence of the effect of any separation from the Applicant would have on the children (paragraph 8.3(4)(d) of the Ministerial Direction), and nor is there any obvious impediment to the Applicant having contact with the children by means of telecommunications, in the event that he is deported to the United Kingdom.

   [104] Exhibit R1, paragraph [45].

5. The Respondent also contends,[105] that lesser weight should now attach to the interests of the Applicant’s three eldest biological children with his former partner Ms J in circumstances where Ms J performs the primary parental role, and court orders provide Ms J with sole parental responsibility, and because the offences committed by the Applicant against Ms J (which included threatening her in the presence of her child) would have had a negative impact on them.

   [105] Exhibit R1, paragraph [46].

6. The Applicant has also declared 13 nephews and nieces in Australia, yet the Respondent Minister contends that there is insufficient evidence before the Tribunal in relation to any of them to enable the Tribunal to find that revocation of the visa cancellation decision is a matter in the best interests of these nephews and nieces.[106] The Tribunal agrees that there is insufficient evidence to consider the interests of the 13 nephews and nieces.

   [106] Exhibit R1, paragraph [47].

   Consideration: Primary Consideration 3

7. The Tribunal notes the letters in support from JMD and from two of Ms Parker’s biological children, APP-T, and  CJP each of whom regard the Applicant as their father figure; as well as the evidence from Ms Parker, who speaks of the importance of the Applicant in the lives of all of the children. 

8. Other than for the submission made by the Respondent Minister in relation to the 13 nephews and nieces, the Tribunal remains unpersuaded by the other submissions from the Respondent as to why less weight should now be attached by the Tribunal to the best interests of minor children in Australia.  The evidence is assessed as showing that the Applicant can still be a positive role model in the lives of his children and step-children, even notwithstanding his prior drug use, prior offending and past struggles with drug addiction.  The Tribunal assesses that a future relationship between the Applicant and the children that is confined by circumstances to electronic communications with the Applicant in the United Kingdom would not be a regime that is conducive to the best interests of the children.

9. Taking into account the best interests of the children mentioned above, both separately, and in conjunction with one another, the Tribunal assesses that this Primary Consideration now weighs very heavily in favour of the revocation of decision resulting in the cancellation of the Applicant’s visa.

   primary consideration 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

10. Paragraph 8.4(1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Serious conduct in breach of this expectation by a non-citizen, or an unacceptable risk of that by a non-citizen ordinarily gives rise to a community expectation that the Government will not then allow the non-citizen to remain in Australia

11. Paragraph 8.4(2) of the Ministerial Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns, or the offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

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

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

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

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

    (f)worker exploitation.

12. Paragraph 8.4(3) of the Ministerial Direction provides that the above expectations of the Australian community apply, regardless whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

13. Paragraph 8.4(4) of the Ministerial Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

14. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Ministerial Direction.

1. The Respondent Minister submits,[107] that in observing the norm specified in paragraph 8.4(1) and in accordance with the guidance contained in Principles 5.2(2), (3), (4) and (5) of the Ministerial Direction, the Australian community would expect that the Applicant should not continue to hold a visa, in light of his offending in Australia.  Overall, the Respondent Minister submits that Primary Consideration 4 weighs “heavily” against revocation, even if the Tribunal concludes that the Applicant does not pose a measurable risk of causing physical harm to the Australian community.

   [107] Exhibit R1, paragraph [51].

2. Ms Parker on behalf the Applicant observes that the Applicant has lived in Australia continuously for 24 years and 3 months,[108] and suggests, inferentially, that the length of time spent by the Applicant in Australia should now be taken into account during deliberations regarding this Primary Consideration.

   [108] Transcript, page 214 line 1

   Conclusion: Primary Consideration 4

3. Considering all relevant factors, Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.  

   Other Considerations

4. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

   International non-refoulement obligations

5. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant, such that neutral weight attaches to it in relation to this deliberation. 

   Extent of Impediments, if Removed

6. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

7. The Applicant is a 39 year old man who has declared health conditions of depression, anxiety, prostatic hyperplasia and sleep apnoea. The Applicant has limited formal education.

8. Ms Parker on behalf the Applicant engaged in the following exchange with the Tribunal:

   MEMBER: All right. But then we start to talk about the extent of impediments if removed.

   MS PARKER: Yes.

   MEMBER: And that’s all the hardship and difficulties that Stephen would face.

   MS PARKER: Yes.

   MEMBER: Now, do you want to unpack that a little bit for me? I mean, I know the sorts of things you’re going to say, but just highlight what you think I should focus on.

   MS PARKER: I know that that it is stated in - I don’t know where I put it. Just a moment. I can’t find it. I know that it was stated in the Minister of (indistinct) in part of her conclusion, that she stated the impediments would be substantial for Stephen.

   MEMBER: All right.

   MS PARKER: If he was removed back to the - in fact to his home country. Obviously - - -

   MEMBER: All right. So, the things you are going to talk about, he’s got one sister over there who he has no real contact with, any other family over there are either so elderly or so distant that he has no real practical relations - - -

   MS PARKER: He has no relationship with them at all.

   MEMBER: - - - to have a relationship or rely on them. He has lived here  over half of his life, so, although he was born there, it’s now an unfamiliar country. He’s got a whole raft of mental health issues, and he would have to renavigate, or learn to navigate a brand-new health system.

   MS PARKER: Yes.

   MEMBER: Which could be a real challenge.

   MS PARKER: Yes, and he would also have his - - -

   MEMBER: I suppose his mental health problems are going to be compounded by the fact that he already has a good promise of employment, over there he has nothing, and it could take him quite some time to find a job, and in that intervening period his mental health could get worse and worse.

   MS PARKER: Yes.

   MEMBER: What else?

   MS PARKER: And I believe that I - so, I essentially have done - I do a lot for Stephen. I support him in the way of I have power of attorney for him, I act on his behalf in a lot of situations, like when I talk to people, like the bank, or Centrelink, or employment, I do a lot of acting on his behalf. Prior to me doing that it was his mum. Stephen, essentially, I don’t think if he was to go back to the UK would be able to reintegrate on his own and survive, and actually be able to do it on his own.

   MEMBER: All right.

   MS PARKER: Essentially, I think that, obviously, yes, I don’t believe that it is possible for him to reintegrate successfully.

   MEMBER: All right. One factor that was not known to me until this hearing, in fact, until earlier this afternoon, was that Stephen has only year 7 education.

   MS PARKER: Yes.

   MEMBER: I mean, I don’t mean to be critical, but that makes you functionally illiterate.

   MS PARKER: Yes. Comprehension issues, that’s why we advocate on his behalf, because he doesn’t comprehend things.

   MEMBER: All right.

   MS PARKER: He can read, and he can write, we’re not saying that he can’t do those things, but comprehending actually what is written, we do the interpretation for him to help him understand in a way that he can understand, which makes living hard.

   MEMBER: Well, yes. Look, it really means that Stephen is reading and  writing at a year 7 level.

   MS PARKER: Yes.

   MEMBER: Which means that even things like filling in government forms to get welfare - - -

   MS PARKER: I do that for him.

   MEMBER: All that becomes challenging.

   MS PARKER: I do all of that for him.

   MEMBER: All right. So, that means that having to go to a new country and engage with a new welfare system and a new healthcare system is going to be significantly more challenging - - -

   MS PARKER: Yes.

   MEMBER: - - - than for a person who, you know, has a better education.

   MS PARKER: Yes.

   MEMBER: All right.

   MS PARKER: And that’s what I was getting at with he won’t survive with someone like me, or his mum by his side to help him every step of the way.

   MEMBER: All right.

   MS PARKER: He can do things once he’s learnt them, essentially. Like, he can do a job, he can be employed successfully, but he’s actually gaining that employment, or gaining a bank account. Like, he can’t seem to do that on his own, because he just doesn’t have the skills to do it.

   MEMBER: You know, I do note from the material that when he left his last relationship he walked out of that relationship with not so much as owning a Medicare card.

   MS PARKER: Yes, he didn’t have anything, and his mum and his sister had to help him through that to get all those things.

   MEMBER: All right.

   MS PARKER: And so, essentially before I came along, the job that I do now for Stephen is supporting him on everyday stuff, his mum and his sister did.

   MEMBER: All right. Well, it sounds to me like you’re advocating that I should attach far more weight to this consideration than the minister is.

   MS PARKER: I’m saying very heavily.[109]

   [109] Transcript page 215 line 26 to page 218, line 19]

9. The Respondent Minister submits,[110] that, although the Applicant has now lived in Australia for a lengthy period and will be apt to face at least some difficulties in re-establishing himself in the United Kingdom, the Applicant did spend his first 15 years in that country: such that there will be no language or cultural barriers.  Also, there is no suggestion that the Applicant could not access appropriate healthcare support in the United Kingdom, and the Applicant will have access to the same social, medical and economic supports in the United Kingdom as do all other United Kingdom citizens. In light of same, the Respondent Minister submits,[111] that this Other Consideration should only weigh ‘slightly’ in the Applicant’s favour.   

   [110] Exhibit R1 paragraph [55] – [57].

   [111] Exhibit R1 paragraph [58]

10. Having heard and now considered all of the evidence, the Tribunal is left with the distinct impression that the Applicant’s mental health condition; lack of education; and what at least appear as cognitive deficits will, when taken in combination be apt to cause the Applicant to struggle considerably in the United Kingdom in the absence of the scaffold provided by his having a stable domestic relationship and connection with immediate family, including his own children and stepchildren, in Australia.

11. The Tribunal observes that the Applicant emerged from his prior relationship with Ms J without either a bank account or registration with Medicare, and was then reliant, in a child-like manner on others to re-establish these basic necessities of everyday living.  In that context the Applicant is unlikely to have the necessary skills or fortitude to be able to navigate social welfare and medical services in the United Kingdom; or to easily secure employment or accommodation, and it becomes amply foreseeable that this may result in an immediate decline in the Applicant’s mental health, and a slide back into dependency on illicit substances, particularly methamphetamines.  Viewed in this light, additional weight must be attributed to this other consideration, as a factor in favour of revocation of the visa cancellation decision.

12. This Other Consideration (b), therefore weighs moderately in favour of revocation of the mandatory cancellation.

    Impact on victims

13. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore not relevant and weighs neutrally as part of this deliberation.

    Links to the Australian Community

14. In consideration of this Other Consideration, paragraph 9.4 of the Ministerial Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

15. The Applicant came to Australia at the age of approximately 15 and has now lived in Australia for 24 years. He commenced offending only a few years after moving to Australia.

16. The Applicant has contributed to the Australian community in a positive sense through his initial employment working in his parent’s garage, as a baker, and as a labourer.  The Applicant has family members in Australia including his parents, five siblings, his partner, four children and four step-children, and some other more distant relatives.

17. The Respondent Minister accepts that this Other Consideration weighs in the Applicant’s favour, yet submits[112] that it does not outweigh the heavy weight that the Tribunal should give to the primary considerations that weigh heavily against revocation of the visa cancellation decision.

    [112] Exhibit R1, paragraph [64]

18. In the Tribunal’s view the Applicant has been in Australia for a long time and has established roots and connections with this country that must be taken up as factors that weigh in favour of revocation of the visa cancellation decision. The Applicant’s social and familial links, and the impact on his family of his removal from Australia, are matters that weigh heavily in favour of revocation of the visa cancellation decision.

    Impact on Australian business interests

19. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Conclusion: Other Consideration (d)

20. Overall, the Tribunal is am satisfied that the Applicant’s links to the Australian community weigh moderately heavily in favour of revocation, with the otherwise heavy weight attaching to this other consideration having been somewhat attenuated, by reason of no weight attaching to the consideration of potential adverse impact on Australian business interests.

    CONCLUSION

21. The Tribunal is required to weigh all of the Considerations in accordance with the Ministerial Direction. 

22. In accordance with the elaboration of reasons given above, the Tribunal attaches the following weight to the various ‘Primary’ and ‘Other’ Considerations as specified in the Ministerial Direction:

    Primary Consideration (1)   Protection of the Australian community

    Viewed ‘very seriously’.  Heavy weight against revocation of the visa cancellation decision

    Primary Consideration (2)   Family violence

    Viewed ‘very seriously’. Moderate weight against revocation of the visa cancellation decision

    Primary Consideration (3)   Best interests of minor children

    Very heavy weight in favour of revocation of the visa cancellation decision.

    Primary Consideration (4)   Expectations of the Australian community

    Heavy weight against revocation of the visa cancellation decision.

    Other Consideration (a)      International non-refoulment obligations

    Weighs neutrally.

    Other Consideration (b)      Extent of impediments if removed

    Moderate weight in favour of revocation of the visa cancellation decision

    Other Consideration (c)      Impact on victims

    Weighs neutrally.

    Other Consideration (d)      Links to the Australian community

    Moderately heavy weight in favour of revocation of the visa cancellation decision.

23. Application of the Direction therefore favours the revocation of the cancellation of the Applicant’s visa.

24. Consequently, the Tribunal now exercises the discretion to revoke the cancellation of the Applicant’s visa.

    Decision

25. The decision under review is set aside and substituted.

I certify that the preceding 136 (one hundred  and thirty six) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean-Williams

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

Associate

Dated: 14 December 2022

Date of hearing:

25 and 26 October 2022

Advocate for the Applicant:

Ms Angie Parker

Solicitor for the Respondent

Mr Matthew Hawker

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G Documents (G1 to G35 pages 1 to 186)	R	-	1 September 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1 to 14)	A	-	21 September 2022
A2	Applicant’s Support Letters including -     A2.1 –Letter of Support from Rebecca Tonkes (1 page) -     A2.2 - Letter of Support Jonathan Crowley dated 21 September 2022 -     A2.3 – Letter of Support of Sara Browney dated 16 September 2022 (1 page) -     A2.4 – Letter of Paul Pezos dated 31 August 2022 (1 page) -     A2.5 – Letter from Yolanda Evans  dated 1 August 2022 (1 pages)	A	-	21 September 2022
A3	Letter from Dr Jared Anderson dated 31 August 2022 (1 page)	A	31 August 2022	21 September 2022
A4	Letter from Suzanne Wilson dated 20 September 2022 (1 page)	A	20 September 2022	25 September 2022
A5	Letter of [JMD] (Undated) (1 page)	A	-	8 October 2022
A6	Letter of Support from Belinda Sanders dated 25 September 2022	A	25 September 2022	18 October 2022
A7	Applicant Summonsed Material (303 pages)	A	-	18 October 2022
A7(a)	Extract from Exhibit A7 - pages 28 to 34	R	-	25 October 2022
A7(b)	Extract from A7 - Facsmilie	R	-	25 October 2022
A8	Applicant’s Anger Management Program Workbook (38 pages)	A	-	18 October 202
A9	Applicant’s Reply (9 pages)	A	-	18 October 2022
A10	Letter of Support from Victoria Hughes dated 14 October 2022	A	14 October 2022	18 October 2022
A11	Applicants Rehabilitation Certificates (3 pages)	A	-	18 October 2022
A12	Statement of Applicant (Undated) (4 pages)	A	-	18 October 2022
A13	Screenshots from communication from SANE to the Applicant (3 pages)	A	-	18 October 2022
A14	Letter of Susan Dowsett (undated) (9 pages)	A	-	20 October 2022
A15	Letter of Angie Parker dated 11 October 2022 (4 pages)	A	11 October 2022)	20 October 2022
A16	Photographs (x 12) of House	A	-	20 October 2022
A17	Evidence re Son’s School (10 pages)	A	-	20 October 2022
A18	Letter of [APP-T] (undated) (1 page)	A	-	20 October 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 17)	R	11 October 2022	11 October 2022
R2	Respondent’s Tender Bundle (R1 to R3 paged 1 to 49)	R	-	11 October 2022
R3	Respondent’s Further Tender Bundle (R4 to R5 paged 1 to 78)	R	-	19 October 2022