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

[2022] AATA 212

Du Toit and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 212 (14 February 2022)

Division:GENERAL DIVISION

File Number:          2021/8864

Re:Christiaan Du Toit  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:14 February 2022

Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

...............[Sgd]..................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – whether the Applicant’s conduct constitutes family violence – best interests of the Applicant’s minor daughter – expectations of the Australian community – extent of impediments if removed to South Africa – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 48-year-old man who first arrived in Australia on a tourist visa in 2000 – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)

CASES

Apire and Minister for Immigration and Border Protection [2014] AATA 193

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

JFSQ and Minister for Home Affairs [2019] AATA 616

Kohli and Minister for Immigration and Border Protection [2017] AATA 1326

MJNN and Minister for Home Affairs [2019] AATA 3205

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143

Subasinghe and Minister for Home Affairs [2019] AATA 751

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(a)(iii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

14 February 2022

BACKGROUND

1. The Applicant is a 48-year-old man who is a citizen of South Africa. In 1996 he permanently departed South Africa for England. He resided in England where he met his former wife, an Australian citizen, until 11 December 2000 when they relocated to Australia. The Applicant arrived in Australia on a tourist visa but was subsequently granted a partner visa in approximately 2002 (R1/195-196).   

2. On 17 March 2021, the Applicant was sentenced by a Judge to an effective term of two years imprisonment after the Applicant pled guilty to five offences including “aggravated home burglary and commit” and “criminal damage or destruction of property” (R2/145).

3. As a result, the visa that the Applicant held at the time, a Class BB Subclass 155 Five Year Resident Return visa (Visa), was cancelled on 22 April 2021 under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (R1/197) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.

4. In a request dated 23 April 2021, the Applicant, through his legal representatives, requested revocation of the Cancellation Decision on 14 May 2021 and 17 May 2021 (R1/55-57; R1/111 and 113). He provided further information to the Department on 26 May 2021 in response to a natural justice letter (R1/106-107). He made further representations and submitted evidence in support of his revocation request on 3 August 2021(R1/108-109).

5. After considering the Applicant’s representations, on 19 November 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (R1/18). This is the Reviewable Decision currently before this Tribunal.

6. The Applicant was notified of the Reviewable Decision in a letter dated 22 November 2021, emailed to his legal representatives on the same day (R1/8-9).

7. On 22 November 2021, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (R1/1-7). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.

8. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

   
   

   84-day period started running from 22 November 2021, meaning that I must hand down a decision on or before 14 February 2022.

   ISSUES

9. The issues that I need to determine are:

   (a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

   (b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).

   THE HEARING AND THE EVIDENCE

10. I heard this application on 2 February 2022 at the Perth Registry of the Tribunal.

11. The Applicant was represented by Ms J Edis of Putt Legal. The Respondent was represented by Ms B Griffin of The Australian Government Solicitor.

12. The Applicant gave oral evidence at the hearing and was cross-examined. The other witnesses were the Applicant’s:

    (a)friend, LW, who was one of his former partners;

    (b)fiancée, CG;

    (c)fiancée’s mother, KG; and

    (d)the Chaplain from the Applicant’s prison (Father B) who conducted his Alcoholics Anonymous (AA) meetings and who is the Applicant’s AA sponsor.

13. I admitted the following documents into evidence at the hearing:

    (a)Applicant’s bundle of documents labelled A1 to A37, comprising pages 1 to 135 (Exhibit A1);

    (b)Signed statement from the Applicant’s 16-year-old daughter, S, dated 23 December 2021 (Exhibit A2);

    (c)Pathways Program Completion Report dated 13 January 2022 (Exhibit A3);  

    (d)Section 501G Documents, labelled G1 to G35, comprising pages 1 to 230 (Exhibit R1); and

    (e)Supplementary Documents, labelled SG1 to SG36, comprising pages 1 to 148 (Exhibit R2).

14. The following written submissions were filed by the parties prior to the hearing:

    (a)Applicant’s Statement of Facts, Issues and Contentions dated 24 December 2021 (ASFIC);

    (b)Statement of Facts, Issues and Contentions of the Respondent dated 12 January 2022 (RSFIC); and

    (c)Applicant’s submissions in reply dated 24 January 2022.   

    LEGISLATIVE FRAMEWORK

    Migration Act

15. Section 501(3A) of the Migration Act provides that:

    (3A)The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and

    (b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

16. Section 501(6)(a) of the Migration Act provides that:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or

    (Original emphasis.)

17. A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:

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

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

    (Original emphasis.)

18. Section 501CA of the Migration Act further provides, in part:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    (2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

    (a)would be the reason, or a part of the reason, for making the original decision; and

    (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

    (3)As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

    (4)The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

    (Original emphasis.)

    Direction No 90

19. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

    (1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

20. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.

21. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).

22. Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­ time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

23. Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The 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 measureable [sic] 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 non­citizens 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 non­citizens 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 measureable [sic] risk of causing physical harm to the Australian community.

24. Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must take into account the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).

25. Specifically, para 8 of Direction No 90 provides:

    In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

    (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;

    (4)expectations of the Australian community.

26. Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims;

    d)links to the Australian community, including:

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

    ii)      impact on Australian business interests

27. Guidance as to how a decision-maker is to apply the considerations in

    
    

    Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:

    (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

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

    (3)One or more primary considerations may outweigh other primary considerations.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

28. The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).

29. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.

30. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).

31. As noted in the “background” section above, on 17 March 2021, the Applicant was sentenced by a Judge to an effective term of two years imprisonment after the Applicant pled guilty to five offences including “aggravated home burglary and commit” and “criminal damage or destruction of property” (R2/145). He was sentenced to terms of imprisonment of two years for the aggravated home burglary offence and three months for the criminal damage and destruction of property offence, to be served concurrently. The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act.

32. The Applicant conceded that he does not pass the character test due to his “substantial criminal record” (ASFIC, para [3]).

33. Accordingly, I must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).

    IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

    Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)

34. Paragraph 8.1(1) of Direction No 90 provides that:

    (1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

1. Paragraph 8.1(2) of Direction No 90 then provides:

   (2)Decision-makers should also give consideration to:

   a)the nature and seriousness of the non-citizen's conduct to date; and

   b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

   Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)

2. Paragraph 8.1.1(1) of Direction No 90 provides:

   (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

   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, , [sic] 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).

3. I will first consider the nature and seriousness of the Applicant’s offending (Direction No 90, para 8.1.1(1)).

4. The Applicant’s History for Court – Criminal and Traffic (R2/145-148) shows that he has been convicted of the following offences:

   (a)10 traffic and driving offences between October 2007 and September 2017 including seven convictions for “no authority to drive (fines suspended)”, two convictions for “unlicensed vehicle (owner/driver)” and a speeding conviction, for which he received fines.

   (b)A conviction on 14 May 2009 for “threats to injure, endanger or harm any person” which was committed on 9 January 2009, for which he received a spent conviction and a conditional release order (CRO) for nine months. The Applicant breached the CRO, although no penalty was imposed when the breach came before the Magistrate’s Court on 29 October 2009.  

   (c)A conviction on 26 February 2015 for “without lawful excuse trespassed on a place” committed on 4 November 2014 for which he received a $400 fine. 

   (d)Eight convictions for “failed to furnish a return; Taxation Administration Act 1953 (Cth)” with an offence date of 6 November 2018 for which he received a $7000 global fine.

   (e)Five convictions on 17 March 2021 which formed the basis of the Applicant’s current sentence of imprisonment and the cancellation of his Visa. These offences were committed on 9 July 2020 and comprised:

   (i)“aggravated home burglary and commit” for which he received a sentence of two years’ concurrent imprisonment;

   (ii)“being armed or pretending to be armed in a way that may cause fear” for which he received “no further punishment”;

   (iii)“criminal damage or destruction of property” for which he received a $750 fine; and

   (iv)a further conviction of “criminal damage or destruction of property” for which he received a concurrent sentence of three months’ imprisonment.   

5. The facts of these convictions were described by the sentencing Judge as follows (R1/36-37):

   At 7 pm on 9 July, you went to [address omitted], that was a place where [L] lived. Mr [L] had been operating a massage business from his home. Your partner was a client. She had, in fact, attended, at least, once before. It’s apparent from the material that she was suffering from a migraine and she was in urgent need of a massage because she felt that it would offer her some relief from her pain.

   So she made an appointment and she attended his home for a massage. You, at some point, took the view that there was something suspicious about the time that she was spending with Mr [L] and you made the decision. This is after numerous communications from you to her and her imploring you to calm down, in effect. You made the decision to attend to Mr [L’s] house. You knocked on the door. It was opened by someone who you didn’t know and who didn’t know you. You demanded to see [L].

   You were told he was not there. You pushed past the person that opened the door. In doing that you entered without consent. You were holding a hockey stick. You held it close to the person that opened the door and you said, “Where the fuck is he? I’m going to kill [L].” You were again told he wasn’t there which was the fact. Mr [L] had left some time earlier. You then went to the kitchen area where there was a man, [P], who’s aged 60.

   You repeated, “Where’s [L]? I’m going to kill him.” You did that while holding the hockey stick in a threatening manner. You held it near Mr [P’s] face and you said, “If he’s here and you’re lying to me II [sic] will fuck you up bad.” You then struck, using the hockey stick – hockey stick you struck a wood panel in the kitchen causing a small hole. You then moved to the lounge room still making comments like, “Where’s [L] I will kill him. If you’re hiding him II [sic] will fuck you up.”

   You struck a massage table with force that caused the hockey stick to break. You then left the house through a wall way and you took the opportunity to kick a wi-fi modem which was on the floor. You left through the front door from where you came.

6. The types of crimes or conduct described as being “viewed very seriously” by Direction No 90 include violent crimes and acts of family violence (para 8.1.1(1)(a)(i) and (iii)). However, these sub-paragraphs are not exhaustive and do not limit the range of offences that can be regarded as serious or very serious. The offences committed by the Applicant on 9 July 2020 are somewhat difficult to categorise. They did not involve actual violence against a person. However, the Applicant’s behaviour was threatening and violent in nature and evidently caused the occupants to be fearful that violence would be inflicted upon them. Indeed, the sentencing Judge described P as “feeling terrified thinking that he was going to be killed” (R1/39). His Honour further stated (R1/38):

   I start with the nature of your conduct and the degree of harm that was likely or was suffered. Those two people that were in that house did not know you and you did not know them. This must have been a shocking experience for them. Literally, a mature man with a hockey stick making threats, shouting, using that hockey stick to damage the kitchen wall in the way that you did. That fact that you were armed reveals that you were capable of causing harm and revealed to those occupants that – or they were in a position where they were – could draw their own conclusion that that was what you were seeking to do.

7. I also take into consideration the numerous references by the sentencing Judge to the seriousness of the Applicant’s offending on this occasion (R1/46-50). His Honour also remarked, “[h]ome invasions, which involve forcible entry into residential premises known to be occupied at the time accompanied by threatened or actual violence are generally significantly more serious than home burglaries which lack those characteristics” (R1/47-48).

8. A consideration of these factors tends to suggest that the Applicant’s offending on 9 July 2020 should be viewed as serious.

9. I have also considered the sentencing Judge’s remark that in addition to the Applicant attending the premises because he thought L had wronged him, his Honour also stated that “in doing so you were also exercising a measure of coercion and control over your partner at that time”. However, his Honour then stated that the Applicant was “completely oblivious” that his conduct was “sending a clear message” that he would control how his partner would receive treatment for her migraines (R1/50). I note that the definition of family violence in para 4(1) of Direction No 90 includes “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family”. Below, I discuss whether the Applicant’s conduct on this occasion constitutes family violence under the separate primary consideration of family violence, as well as the conclusions that can be drawn from several ex-parte violence restraining orders taken out against him which he did not contest. I conclude below that there is insufficient information or evidence from independent and authoritative sources (which is required by para 8.2(2) of Direction No 90) to indicate that the Applicant has been involved in the perpetration of family violence.

10. The Applicant’s “threats to injure, endanger or harm any person” offence committed on 9 January 2009 involved the Applicant telephoning the former partner of a woman he had known for several weeks. He spoke to the man aggressively and stated, “pull your head in or it’s going to get chopped off” (R2/109). There are no statements of material facts or sentencing remarks before me concerning the “failed to furnish a return” offences. However, in his evidence the Applicant explained that they arose because he was not good at paperwork and failed to submit tax returns and business activity statements over a three-to-four-year period (transcript/49; A1/2, para [25]). His “without lawful excuse trespassed on a place” offence involved the Applicant driving onto private property consisting of huts available for hire, entering the main house and staying the night there (R2/107). I find that these offences are far less serious than his 9 July 2020 offences.

11. This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45]; and MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]). The Applicant committed ten driving and traffic offences over a ten-year period between 2007 and 2017. The Applicant explained that these offences arose because of his “roller coaster life” and because he was poor with paperwork including paying his speeding fines and attending to his car registrations. He further stated that he forgot to update his address when he moved which “made things worse” (A1/2, para [25]). The Applicant’s driving and traffic offences are, however, less serious than many driving offences because, for example, they did not involve reckless or dangerous driving. However, their repeated nature over a 10-year period does tend to suggest a disregard for, or negligence towards, lawful authority.

12. With respect to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90), on 9 July 2020 the Applicant was sentenced to an effective term of two years imprisonment. As I have mentioned above, this was comprised of a two-year concurrent sentence of imprisonment for the “aggravated home burglary and commit” offence and a three-month concurrent sentence for one of the “criminal damage or destruction of property” offences. The sentencing Judge was satisfied that, “the seriousness of the offending, the decision that [the Applicant] made to attend that house with a hockey stick, to use the words that [the Applicant] used, notwithstanding the mitigating factors, this offending, in my view, is too serious to suspend” (R1/50). Even though the Applicant received far less than the maximum terms of imprisonment of 20 years and 10 years respectively, I regard a two-year sentence that was not suspended as reflecting the seriousness of the offending. I have observed above that the Applicant’s other offences were not serious, which is also indicated by his receiving fines rather than sentences of imprisonment.

13. The Applicant has a relatively short criminal history, comprising eight criminal convictions, 10 driving convictions and eight tax-related convictions. His first criminal conviction was the “threats to injure, endanger or harm any person” offence in 2009, and he breached the CRO for this offence later in 2009. From that time, his convictions were traffic and tax related until the 9 July 2020 criminal offences. There is some frequency in his tax and traffic offending, but the Applicant has only committed criminal offences on two occasions. Additionally, although his 9 July 2020 criminal offences are his most serious offences, I do not regard there to be an overall trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90).  I consider that there is some cumulative effect of repeat offending because the Applicant has attended court and received fines on numerous occasions. However, I note that his current sentence of imprisonment imposed on 17 March 2021 for the 9 July 2020 offences is his first sentence of imprisonment. I therefore find that any cumulative effect is minimal (para 8.1.1(1)(e) of Direction No 90).   

14. I must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 90). There is an incoming passenger card dated 18 February 2015 before me. On this card, the Applicant crossed the box marked, “no” to the question, “[d]o you have any criminal conviction/s?” (R1/194). When asked to comment on this by the Department on 20 May 2021, the Applicant submitted that he did not disclose the 2009 “threats to injure, endanger or harm any person” offence because it was a spent conviction and he therefore did not think he had to disclose it. He also stated that he was “shocked” to see this conviction on his criminal history. Further, the Applicant submitted that he had only attended court on one occasion and that his driving/traffic offences were in the form of infringement notices that arrived in the mail (R1/106). I accept the Applicant’s explanation that he had “nothing to hide”, and that he was not attempting to mislead immigration officials because he believed that the 2009 conviction was non-disclosable.

15. Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.

16. I find that the nature and seriousness of the conduct on 9 July 2020 (including the offences that formed the basis of the Applicant’s Visa cancellation) was serious. However, the Applicant’s other offences (including driving and tax offences) are of a low to moderate level of seriousness. On balance, I find that para 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.   

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)

17. Paragraph 8.1.2(1) of Direction No 90 provides:

    (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

18. Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:

    (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

    i)       information and evidence on the risk of the non­citizen re-offending; and

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

    Nature of the harm (para 8.1.2(2)(a) of Direction No 90)

19. Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).

20. Should the Applicant commit similar offences to the 9 July 2020 offences, particularly “aggravated home burglary and commit” and “being armed or pretending to be armed in a way that may cause fear”, the associated harms to members of the community are potentially serious and could include psychological harm to victims. As the sentencing Judge observed, people are entitled to feel safe in their own homes (R1/38). Additionally, because of this offending, one of the victims felt fearful, hopeless, struggled to leave the house and to attend work. He also felt withdrawn from friends and family and needed to “engage professional help” following the incident (R1/39). Offences against property, including those involving property damage and trespass can also result in financial detriment, and indirectly contribute to increased insurance premiums.

21. Additionally, driving offences can potentially be very serious and can result in physical and psychological injuries to innocent road users. Licensing rules exist to ensure that persons driving cars are appropriately qualified and safe to do so.  Although the Applicant has driven unlicensed, and has repeatedly driven with no authority to drive, he does not appear to be a dangerous or negligent driver. Nevertheless, given that an underlying objective of these laws is road safety, further contraventions of such laws could have serious consequences.

    Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)

1. Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).

2. There is no formal psychological risk assessment before me. However, when the Applicant was assessed by prison treatment assessors in July 2021 he was assessed as being a medium risk of general offending and a low risk of violent offending (R2/12-13). The treatment assessment report also states that, “According to the JSR [Judge’s sentencing remarks], alcohol was a factor in [the Applicant’s] decision to commit the offences and that if he can properly address his alcohol consumption and reliance on it to cope with life stressors, it will reduce the prospect of him re-offending in the future”. Indeed, the sentencing remarks state that the Applicant had consumed a bottle of wine and a six pack of beer before driving to the house to commit the 9 July 2020 offences and that he had not been taking his prescribed medication for bipolar disorder (R1/37).

3. The sentencing Judge noted that the Applicant had experienced past trauma, having been sexually abused as a child, witnessing his mother being a victim of domestic violence, and finding the body of his father who had taken his own life when the Applicant was aged 19. After his father’s suicide, the Applicant was diagnosed with post-traumatic stress disorder (PTSD). He had been diagnosed with depression in 2004 but was subsequently diagnosed with bipolar disorder in 2007.

4. According to the sentencing Judge, the Applicant attempted suicide in 2013 and 2016 and had been hospitalised for suicidal ideation in 2020 (R1/41). However, prison medical notes record these suicide attempts as being in 2015 and 2020 (R2/16). His Honour further noted that the Applicant’s “life has been affected by mental illness”, that “the consumption of alcohol has complicated [the Applicant’s] ability to address mental health issues” and that the Applicant would “typically … consume a bottle of wine each evening” (R1/42).

5. To the Applicant’s credit, he started attending alcohol treatment shortly after the offending and resumed contact with his general practitioner to ensure he was taking medication for his bipolar disorder and obtained a referral to a clinical psychologist (R1/43). Correspondence from South West Community Alcohol and Drug Service confirms that prior to his prison sentence commencing, the Applicant attended seven counselling sessions between September 2020 and March 2021 (A1/113). Additionally, he attended South West Counselling appointments between June 2020 and September 2020 (A1/111).

6. In his written statement, the Applicant reflected upon his alcohol misuse and described the steps he took to address his alcohol misuse issues after the offending (A1/2-3):

   28.Now being sober for almost 1½ years and having had time to reflect, I realise looking back, I always used to reach for the bottle to “feel better”, to get rid of any hurt or sadness or worries I had but, in doing so, I never dealt with anything properly.

   29.I knew I had to quit alcohol after my offence. I saw my GP on 16 July 2020 to get proper help. I started with the South West Community Alcohol and Drug Service from September 2020, until I went to prison. Since being placed into custody, I have been attending weekly AA sessions with Father [B]. And I have been in touch with the South West Community Alcohol and Drug Service recently so that I can resume their program as soon as I am released. I will continue to see Father [B] at AA meetings on ‘the outside’.

   …

   31.The Judge who sentenced me is right: I must stop consuming alcohol. That is the only answer. It actually makes everything much simpler. Complete abstinence is the key.

   32.I feel really motivated and committed to my rehabilitation. I can’t remember the last time that I felt this healthy and positive. I am looking forward to working with a psychologist. And I feel confident about the “Relapse and Recidivism Prevention” plan that I personally mapped out.

7. In a letter of support for the Applicant dated 14 June 2021, Father B confirmed that the Applicant attended weekly AA meetings in prison and that the Applicant “has responded in a very positive way to the program” and that he was impressed by the Applicant’s “positive attitude and determination to rebuild his life and be a productive member of society” (A1/108). Father B also confirmed that he had no hesitation in agreeing to be the Applicant’s AA sponsor when he is released from prison. This would involve ensuring that the Applicant continued with the program in the community, receiving counselling from Father B, and providing him with support including 24 hour a day access by phone (transcript/102; A1/109). The Respondent expressed a concern that Father B was not aware that the Applicant had committed any offences before the 9 July 2020 offences. I found Father B to be an impressive individual. He is a recovering alcoholic himself and joined AA 43 years ago when he was “at the point of self-destruction” (transcript/101). He has been the prison chaplain for 20 years and much of his work is alcohol and drug counselling. He has been active in AA for 43 years and uses his experience to help and guide prisoners. I am of the view that Father B will be a strong and stable support for the Applicant and therefore, I am not concerned with Father B’s statement in his letter of support that the Applicant had been “crime free” prior to committing the 9 July 2020 offences. In my view, Father B’s dedication, experience, commitment to helping the Applicant and ongoing relationship of trust with the Applicant outweigh any lack of knowledge of previous offending.    

8. The Applicant also completed the intensive Pathways Program in prison on 7 December 2021. The Pathways Program is an intensive 100-hour structured program for persons who have a history of offending behaviour together with substance use problems. In the program completion report for the Applicant, the program’s facilitators reported that the Applicant successfully completed the program and made significant gains across his treatment needs which included substance use, emotional regulation, and communication/ relationships (A3/2, 5). The facilitators further noted that the Applicant had developed a relapse and recidivism plan which focuses on his continued abstinence from alcohol, further substance abuse counselling in the community, spending time with his partner, and communicating and reengaging with his children (A3/5). In this regard, I note a letter dated 2 December 2021 from South West Counselling confirming that the Applicant contacted them on 19 May 2021 and has been waitlisted for counselling (A1/112). The Applicant was able to reflect on the gains he made during the Pathways Program and stated that the program “truly opened my eyes to the destructive cycle that I was in at the time I committed my offence” (A1/3, para [33]).   

9. The sentencing Judge ordered that the Applicant be eligible for parole (R1/51). His earliest eligibility date for parole is 16 March 2022, however the Prisoners’ Review Board (PRB) has not yet considered his parole. It is therefore uncertain as to whether the Applicant will be granted parole. If he is, it is likely to be subject to conditions including that he is required to attend programs and counselling which may further assist with his abstinence from alcohol, rehabilitation and reintegration into the community.

10. Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. When sentencing the Applicant for the 9 July 2020 offences, the sentencing Judge noted that the Applicant was remorseful and that he had texted his partner’s masseur to try to apologise to him and to his house mates for his “disgusting, childish behaviour” (R1/42-43). The sentencing Judge also commented that the Applicant’s conduct in seeking alcohol treatment and counselling shortly after the offences were committed was also indicative of his remorse (R1/43).

11. In his evidence, the Applicant explained that his relationship with his partner at the time was experiencing difficulties and that they had been attending relationship counselling. He said that he was concerned that the massage “was a bit suss” due to the amount of time his partner was absent and because he had been unable to contact her. He had also heard from his partner’s son that the masseur had a reputation for selling drugs and feeling “paranoid and insecure”, he decided to confront the masseur to ask him what was going on (A1/2). I do not regard this explanation by the Applicant as an attempt to minimise his offending, but rather an attempt to explain his state of mind at the time of the offending. As noted by the sentencing Judge, the Applicant had trust issues in relationships after suffering a “serious psychological breakdown” from an unexpected end to a relationship in approximately 2016 (R1/41). I note that emotional regulation and communication in relationships were treatment needs of the Applicant that were addressed in the Pathways Program. The Applicant’s Pathways Completion Report stated that he had identified that he had trust issues in relationships due to infidelity in past relationships which he had used alcohol to regulate. However, he had changed this negative core belief by instead identifying that he could obtain help, which he had done through engaging in counselling (A3/4).        

12. The sentencing Judge noted that at the time of the offending the Applicant had not been taking his medication for his bipolar disorder. The Applicant’s evidence was that after a period of recommencing his medication, he stopped taking his medication whilst in prison towards the end of 2021, which he stated was based on the advice of the prison doctor. The Applicant’s evidence in this regard is supported by prison medical records which record the Applicant’s medications being reduced and his not requiring bipolar medications. For example, a notation by a mental health worker dated 22 April 2021 states that the Applicant was “doing well from a mental health perspective”, that there were no symptoms of bipolar disorder and that he was “not requiring antipsychotic medication” (R2/65). A notation dated 6 July 2021 from a prison psychiatrist states that “the most appropriate diagnosis now is some sort of personality disorder” (R2/37-38). The Applicant appears willing to seek medical advice about his mental health when needed. His plan is to see his family doctor as soon as he is released so that his mental health can be properly re-assessed. He is also willing to re-commence his medication if his doctor advises he should. He is booked in to see a clinical psychologist on 5 April 2022 whom he was referred to see by his general practitioner in September 2020. The Applicant attempted to see the clinical psychologist prior to going to prison, but he was not able to obtain an appointment due to her limited availability (transcript/54, 73-75). Even though the Applicant ceased taking his medication, he did so under medical advice and supervision, and I am reasonably satisfied that he is managing his mental health in a responsible manner.

13. I find that the Applicant is genuinely remorseful, and that he has insight into the reasons for his offending, including his alcohol misuse and his issues with emotional regulation in relationships, and that he is following medical advice regarding his mental health. This is a protective factor that will lower the likelihood of his reoffending.

14. Additionally, the Applicant is in a stable relationship with his fiancée, CG. He has also moved away from the area where the 9 July 2020 offending occurred. Although their romantic relationship only commenced in September 2020, and although there is a significant age difference, I am of the view that their relationship is genuine based on the evidence of the Applicant, CG, and her mother, KG. The Respondent suggested to the Applicant that the Applicant proposed marriage to CG because he thought that being engaged to an Australian citizen would increase his chances of having his Visa reinstated. The Respondent referred to the timing of the proposal which was three days after the Applicant’s Visa was mandatorily cancelled (transcript/66). However, I accept the evidence of both the Applicant and CG that it took the Applicant several weeks to receive permission to obtain art supplies and materials to decorate a canvas with “Will you marry me?” on it, which was held up when the Applicant proposed during a prison visit. Additionally, CG’s mother gave evidence that she was initially concerned about the age difference, but when she saw the Applicant and her daughter together, they were “obviously like two peas in a pod” and that “they’re exactly the same person … they have the same goals, they have the same mindset” (transcript/96). The Applicant and his fiancée have a plan for their future together. They renovated an old bus which they intend to live in together and to travel in when the Applicant finishes his parole. The Applicant’s fiancée is very supportive of the Applicant and visits him in prison weekly. She is familiar with his treatment plans and has been helping him to organise ongoing alcohol treatment in prison so that he has continuity with his treatment (A1/46, para [18]). His fiancée’s mother, KG, has also offered to “fully support” the Applicant if he is released into the community, including providing emotional and family support to “keep him on the straight and narrow” (transcript/97; A1/55, para [6] and [8]). I find that the Applicant’s fiancée and her mother are pro-social people and that their support for the Applicant is likely to assist him to reintegrate and not to reoffend if he is released into the community.   

15. Additionally, the Applicant is also motivated to reconnect with his adult daughter, CD, and to continue his relationship with his 16-year-old daughter, S, and his fiancée, and appreciates the impact of his offending on them. The Applicant stated (A1/3, para [35]):

    CG, S and CD are the most important people in my life. Without them, I have nothing. I hope I get a chance to make up for having let them down and put them through all this stress. I want nothing more than to live a happy and healthy life in this amazing country I have called home for the past 21 years and to be a positive member of the community, with my two girls and my beautiful partner by my side.

16. This motivation is also likely to assist the Applicant to abstain from alcohol and not to reoffend.

17. The current sentence of imprisonment is the Applicant’s first, and his evidence was that it was a shock to him. The Applicant thought, on the advice of his lawyer, that he would get a suspended sentence. However, prison seems to have had a salient effect on the Applicant and, except for being out during muster in September 2021 (R2/3), he has displayed good behaviour in prison and is a minimum-security prisoner (R2/90-91). He is currently undertaking the trusted position of House Cook, where he is responsible for budgeting and the daily preparation of meals for 12 prisoners. His individual management plan states that his work is above average and that he completes his duties to a high standard (R1/182; 188). In his written statement dated 15 December 2021, the Applicant stated (A1/3, para [34]):

    In a strange way, spending time in prison may have been the best thing for me – because it is exactly what I needed in order to break the cycle and force me to reassess how I was coping with trauma in my life. If only this time in prison did not cause such heartache and grief to my fiancée and children. Not to mention the cancellation of my visa.

18. As I stated above, prison treatment assessors assessed the Applicant as a low risk of violent offending and a medium risk of general offending. He was assessed as not needing treatment for violent offending due to “Low Risk/Need” (R1/116). However, I find that this risk has likely been further reduced by the following factors which, in my view, suggest a low likelihood of any reoffending. In summary, these factors are:

    (a)the Applicant’s remorse and insight into his offending;

    (b)the deterrent effect of his first term in prison including separation from his fiancée and daughters and the cancellation of his Visa;

    (c)his seeking counselling including for his alcohol addiction shortly after committing the 9 July 2020 offences;

    (d)his engagement with AA in prison;

    (e)his successful completion of the Pathways Program with treatment gains in all identified areas (including emotional regulation and relationships) and the completion of a relapse and recidivism prevention plan; and

    (f)support from pro-social persons in the community including his fiancée and her mother, as well as continued support from Father B who will be the Applicant’s AA sponsor.

19. Considering the nature of the harm I outlined above, I do not regard the low likelihood of his reoffending in a similar manner as being so serious that even countervailing considerations may be insufficient to justify not revoking the Cancellation Decision (para 5.2, Direction No 90).

20. I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs slightly against the revocation of the Cancellation Decision.

    Summary on para 8.1 of Direction No 90

21. I have found that para 8.1.1(1) of Direction No 90 weighs moderately against, and para 8.1.2 weighs slightly against revocation of the Cancellation Decision. Thus, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs slightly to moderately against the revocation of the Cancellation Decision.

    Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)

22. Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

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

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non­ citizen, the following factors must be considered where relevant:

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

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.       the extent to which the person accepts responsibility for their family violence related conduct;

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

    iii.     efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non­citizen's migration status, should the non-citizen engage in further acts of family violence.

1. Family violence is defined in the interpretation section of Direction No 90 at para 4(1), which provides, in part:

   family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

   a)an assault; or

   b)a sexual assault or other sexually abusive behaviour; or

   c)stalking; or

   d)repeated derogatory taunts; or

   e)intentionally damaging or destroying property; or

   f)intentionally causing death or injury to an animal; or

   g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

   j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.

   (Original emphasis.)

2. Paragraph 8.2(2) of Direction No 90, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a)). The Applicant has not been convicted of family violence offences, and so his 9 July 2020 offences do not fall within this category.

3. However, according to para 8.2(2)(b) this primary consideration will also be relevant where “there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence”.

4. The parties disagreed about whether the Applicant’s conduct on 9 July 2020 constituted family violence. The Respondent submitted that it did. The Applicant disagreed. The foundation for the Respondent’s submission was a remark made by the sentencing Judge. His Honour had observed that as well as attending the premises to confront the masseur, L, the Applicant was “also exercising a measure of coercion and control over [his] partner at that time”, although the Applicant was “completely oblivious” that his conduct was “sending a clear message” that he would control how his partner would receive treatment for her migraines (R1/50). This remark is suggestive of the broad definition of family violence in para 4(1) of Direction No 90 which includes “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family”.

5. However, I do not regard this comment by the sentencing Judge alone as being sufficient to constitute “evidence from independent and authoritative sources” of family violence. His Honour seemed to be expressing an opinion as to the possible unintended consequence of such behaviour. In the absence of other evidence suggesting or referring to family violence, such as in the statements of material facts or witness statements, I am not satisfied that this consideration is relevant, as provided for in para 8.2(2)(b). I also observe that the witness statement of the Applicant’s former partner in relation to his 9 July 2020 offending stated that, “I have seen [the Applicant] very angry before and lose his temper but he is never violent” (R2/129).

6. I also note the Applicant’s evidence at the hearing when he was asked about whether he intended to coerce or control his former partner. The Applicant’s evidence was that his intention was to confront L to find out if there had been infidelity by his partner, and to find out if L was supplying his partner with drugs. His evidence was that he did not go to the house to stop his former partner from getting help with her migraines and that he did not realise his behaviour could have such an effect (transcript/55).

7. I am therefore of the view that there is insufficient evidence, such as a family violence conviction or information or evidence from independent and authoritative sources, upon which I can be reasonably satisfied that the Applicant’s conduct on 9 July 2020 constituted family violence.

8. The Respondent also referred to the existence of several ex-parte restraining orders as being indicative of family violence. Restraining orders were taken out against the Applicant in 2010, 2014, 2015, 2019 and 2020 (R2/113-122). He did not obtain legal advice after receiving any of them. He did not breach any of the orders, and it does not appear that any conduct which may have formed the basis of any of the restraining orders resulted in any criminal charges or convictions.

9. There is no evidence of the basis for any of the restraining orders other than that provided by the Applicant. The Applicant was asked about these restraining orders under cross-examination, however the dates of the restraining orders put to the Applicant (which were 2009, 2014, 2015 and 2019) do not accurately correspond to the actual dates on the restraining orders.

10. The Applicant’s evidence was that the 2010 restraining order was taken out by his ex-wife, but that three or four days later they returned to the courthouse or police station and it was withdrawn. It appeared, from the Applicant’s evidence at the hearing, to be in part due to a disagreement over parenting their daughters.

11. He stated that the 2015 restraining order followed a separation after a brief relationship that did not end amicably and that the restraining order was only for a three-month period.

12. The 2019 restraining order was a disagreement with a work colleague whom he had a verbal argument with over work the colleague believed the Applicant did not do. The Applicant said they both spoke with the Magistrate, shook hands and that his recollection was that it was withdrawn or revoked (transcript/50-51).

13. The 2020 restraining order was taken out by the Applicant’s former partner from the 9 July 2020 offending and was issued on 22 September 2020 (R2/113). In his revocation submissions, the Applicant stated that when this relationship ended, he had many arguments with his former partner by text message and that they also had verbal altercations at her house. This led to her obtaining the restraining order against him (R1/72; transcript/51).

14. The Applicant thought that the conduct that formed the basis for the restraining orders was often that he would speak loudly with his “harsh accent” when he was under the influence of alcohol (transcript/50). 

15. The Respondent submitted, with respect to the restraining order in 2020 protecting the Applicant’s former partner, that “[t]he fact of the order indicates family violence has occurred” (RSFIC, para [60.1]).  The existence of this restraining order does not alter my finding above that there is insufficient information or evidence upon which I can make a finding that the Applicant’s conduct on 9 July 2020 was family violence. There is no evidence in relation to this restraining order such as a statement from the Applicant’s former partner indicating or referring to family violence, or a transcript of the evidence given during the ex-parte restraining order proceedings. The only available statement from the Applicant’s former partner, which I have referred to above, stated that the Applicant was “never violent” (R2/129). Additionally, there is no evidence that she felt coerced or fearful. Indeed, according to her statement to police, the Applicant’s former partner stated that she told him he was “out of line” after the 9 July 2020 incident (R2/128).

16. With respect to the restraining orders generally, the available evidence suggests that the conduct that led to these restraining orders included verbal arguments and misunderstandings with former partners and individuals including a work colleague. There is no evidence, other than the Applicant’s evidence, before me regarding the conduct that led to these orders being sought or imposed. There is insufficient evidence upon which I can be reasonably satisfied that the conduct that led to the restraining orders being taken out by the Applicant’s former partners indicates that the Applicant was involved in the perpetration of family violence.  

17. Therefore, I find that the circumstances set out in para 8.2(2) for this primary consideration to be relevant have not been met. Therefore, this primary consideration is not applicable. 

    The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)

18. Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.

19. Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paras of 8.3 provide:

    (1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

    (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

20. Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:

    (4) In considering the best interests of the child, the following factors must be considered where relevant:

    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.

21. The Applicant has a daughter, S, who is approximately 16 and a half years old.  She is the biological daughter of the Applicant and his former wife, K. The evidence suggests that S has a close relationship with the Applicant who has been present in her life since her birth. Although in a letter dated 14 May 2021, S said that her father “was not around much” when she was aged four to 10, she stated that subsequently as she became a teenager, they “developed a stronger relationship”. S described spending time with her father during school holidays and described them camping and fishing together and him teaching her “fundamental life skills” including changing tyres, mechanics, fixing engines, cooking welding, using tools and fishing. In her letter S stated that, “[c]amping and fishing was a pastime my dad and I loved and enjoyed doing together and I miss them a lot” (R1/86). Prison records show that S has visited the Applicant numerous times in prison (R1/120-121). I find that S has a close parental relationship with the Applicant (para 8.3(4)(a) of Direction No 90).

22. S turns 18 years of age in June 2024 and so there are approximately 18 months until she turns 18. Despite the short duration of time until S turns 18, I find that the Applicant is a loving and involved father who is likely to be a positive role model to S in the future (para 8.3(4)(b) of Direction No 90).

23. The Applicant’s prior conduct has not had a direct negative impact on S. However, if the Applicant were to reoffend, any subsequent separation from the Applicant due to prison or deportation is likely to have a negative impact on her (para 8.3(4)(c) of Direction No 90).

24. S and the Applicant enjoy spending time together in the outdoors undertaking practical activities such as camping and fishing. Maintaining contact by telephone or other electronic means would be a poor substitute for S being able to spend time undertaking practical activities with her father. In her letter dated 14 May 2021, S stated that “[a]s I continue to grow and learn, I would like my father to be able to watch me as I do”. She also stated that she wanted her father to watch her graduate from high school at the end of 2022, and to walk her down the aisle if she eventually marries, which he would not be able to do if deported. The Applicant also gave evidence that he had planned with S that when he and CG eventually travelled around Australia in the old bus, that he would pay for S’s airfare so she could join them and stay with them during holidays (transcript/25). In another letter dated 23 December 2021 (A2), S said that she could not imagine being able to go to South Africa if the Applicant is deported there, and that she could not imagine having money for a very long time to pay for an airfare. The Applicant also gave evidence that he did not want S to come to South Africa because it was unsafe there (transcript/46). The Applicant stated that he fears that S’s mental health would be “dramatically affected” if he were deported and that “it would scar her for life” (A1/3, para [43]). There is no other evidence to corroborate this, however the evidence does support a finding that S would likely suffer emotional detriment if her father was deported. I find that separation from her father would have a detrimental effect on S if the Applicant was returned to South Africa (para 8.3(4)(d) of Direction No 90).  

25. S’s mother currently fulfils a parental role in relation to S.  However, given that S is close to her father and enjoys practical and outdoor activities with him, her interests are best served by having her father physically present and involved in her life. I note that in her statement dated 14 May 2021, S stated that “[t]he time I spent with my father during school holiday periods was particularly important to me and when [his] sentence is served, I believe that they will still be of great importance” (para 8.3(4)(e) of Direction No 90). 

26. S has stated the view that her father should not be deported (R1/86). She stated that, “I am told that my dad is going to be banned from Australia permanently unless he wins this appeal. Please don’t let that happen”. S expressed the view that deporting her father would be like “punishing him again, and punishing me too” and that she “[she] would basically lose [her] dad forever” (A2). Given S’s maturity as a 16 and a half-year old I give strong weight to her views (para 8.3(4)(f) of Direction No 90).  

27. There is no evidence that S has been or is at risk of being abused or neglected by the Applicant in any way (para 8.3(4)(g) of Direction No 90). Similarly, there is no evidence that S has suffered any physical or emotional trauma arising from the Applicant’s conduct, other than the emotional detriment of being separated from him while he has been in prison and her worry that he may be deported (para 8.3(4)(h) of Direction No 90). The evidence suggests that the Applicant is a loving and involved father who is likely to be a good role model to his daughter in the future.

28. After considering and weighing the factors in paras 8.3(4)(a) to (h) of Direction No 90, I find that revocation of the Cancellation Decision is in the best interests of S and that her interests weigh strongly in favour of the revocation of the Cancellation Decision. 

    Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)

29. A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.

30. These expectations are set out in para 8.4 of Direction No 90, which provides:

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

    (2)In addition, 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 offences is 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.

    (3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

    (4)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.

31. Thus, I must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

32. As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them. In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:

    … Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).

    Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:

    195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.

    196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...

    (Original emphasis and footnotes omitted.)

1. Further detail about the Australian community’s expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f), which includes acts of family violence, and crimes against women of a violent nature. The Applicant has not committed any of the types of conduct listed in those sub-paragraphs. Above, I explained that there is a lack of information or evidence from independent and authoritative sources to indicate that the Applicant’s conduct on 9 July 2020, or the existence of ex-parte restraining orders, indicated that the Applicant was involved in the perpetration of family violence.

2. Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, although I have found above that the Applicant is a low risk of reoffending, the community’s expectations as stated apply regardless.

3. Above, I found the Applicant’s most recent offences committed on 9 July 2020 to be serious. However, I found the Applicant’s other offending including his tax offences and driving/traffic related offending to be far less serious. The Applicant’s most recent conduct, particularly his “aggravated home burglary and commit” and “criminal damage or destruction of property offences” for which he was sentenced to concurrent terms of imprisonment, is serious conduct in breach of the expectations of the Australian community that non-citizens will obey Australian laws while in Australia. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).

4. On balance, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.

   Other considerations (para 9(1) of Direction No 90)

5. Paragraph 9(1) of Direction No 90 provides:

   (1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   a)international non-refoulement obligations;

   b)extent of impediments if removed;

   c)impact on victims;

   d)links to the Australian community, including:

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

   ii)      impact on Australian business interests

   International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)

6. I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90). I note that the Applicant’s legal representative did not advance any submissions or claims of non-refoulement on his behalf.

7. The Applicant has not directly made any claims or submissions concerning non-refoulement. He did, however, state in his evidence that South Africa was not a safe country, and that consequently, he did not want his daughters or fiancée to visit him if he was returned there (transcript/46). He referred to high levels of “crime and violence” (A1/4, para [52]) and “murders and chaos … going on there” (transcript/65). Although there is no country information before me, these fears are general in nature and the Applicant would be in the same position as any other citizen or resident of South Africa.  

8. Consequently, with respect to this other consideration of Australia’s international non-refoulement obligations, I therefore find that it is not applicable. 

   Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)

9. Paragraph 9.2(1) of Direction No 90 provides:

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

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

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

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

10. The Applicant is 48 years of age. He has a history of mental health issues, including two suicide attempts (R2/16). He suffers from depression and PTSD. He was diagnosed with bipolar disorder in the past, but prison medical records noted above indicate the diagnosis is more likely a personality disorder (R2/37; 70). As I have mentioned above, he is not taking any medication for mental health following advice from the prison doctor and supervision from mental health staff in prison (transcript/53-54). As I also noted, the Applicant has planned to reengage with his general practitioner and clinical psychologist regarding his mental health when he is released from prison. Thus, there is some uncertainty as to the correct mental health diagnosis for the Applicant and whether he will require medication after release from prison.

11. The Applicant is of the view that his “depression and PTSD will definitely worsen” if he is removed from Australia (A1/4, para [51]). Although there is no corroborating medical evidence, given the Applicant’s history of self-harm, mental illness and his desire not to be separated from his fiancée and daughters, particularly S, I find that there is a likelihood the Applicant’s mental health will be detrimentally impacted by any separation, and at the very least that he will suffer emotional detriment.

12. Regarding the Applicant’s physical health, he is currently taking anti-inflammatory medication for Ross River virus and Panadol (transcript/54). His medical records also show that in March 2021 he suffered an injury to his right shoulder or upper arm, and a tendon injury to his right hand in approximately April 2021 (R2/79-84). It is unclear whether these injuries have resolved. Further medical records show that, between August 2021 and December 2021, the Applicant was being treated for urethral issues. A specialist’s letter dated 3 December 2021 states that he may require surgery after his release from prison, or more urgent surgery if his problems continue (R2/85-87).  

13. As I noted above, the Applicant left South Africa in 1996 and travelled to England. He resided there until he came to Australia on 11 December 2000 when he was 27 years of age (R2/196). In his written statement dated 15 December 2021, the Applicant stated that, “the culture there [in South Africa] is completely different from when I left” and that “I wouldn’t belong there” (A1/4, para [52]). I find that these statements are more indicative of the length of time the Applicant has resided outside of South Africa, and of the initial emotional difficulties he would likely have in adjusting to life in South Africa if he is returned there. I find that although he has not resided in South Africa for approximately 26 years, there are no language or cultural barriers that would impede the Applicant if he is removed to South Africa.

14. There is no evidence of the social, medical or economic support that would be available to the Applicant in South Africa, although he would likely to be entitled to the same as those available to other South African citizens.

15. There is no evidence to suggest that the Applicant would not be able to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of South Africa). The sentencing Judge for the 9 July 2020 offences observed that the Applicant “has a strong work history”, that he was a qualified boilermaker and that he had generally been employed and was employed at the time of sentencing (R1/42). This work history and experience is likely to assist him to find work if he is returned to South Africa.

16. The Applicant’s father died by suicide when he was 19 years of age. His mother, sister and brother reside in South Africa. The Applicant stated that he has not maintained a relationship with his family members in South Africa. His evidence was that (A1/4, para [53]):

    I have very limited connections with my family back in South Africa. Maybe for a birthday here and there we spoke, or otherwise we saw each other twice when I went to South Africa for funerals. That was it. There is no love or ongoing connection. Nothing.  

17. The Applicant did, however, telephone his mother in South Africa from prison on 1 May 2021 (R1/140). The Applicant’s evidence was that he wanted to let her know he was in prison and that they also talked about his daughters (transcript/68-69). I accept the Applicant’s explanation that he has not maintained a relationship with his family in South Africa because there is no evidence of any other contact or communication with his mother or siblings and it is likely that he has only seen them on the two occasions that he has travelled back to South Africa in the last 20 years.

18. Overall, there are likely to be some impediments that the Applicant would face establishing himself in South Africa and maintaining basic living standards. He has a minimal support network there, is no longer familiar with the country and he is likely to suffer emotional detriment (and possibly exacerbated mental health issues) if he is returned there. However, there are no language or cultural issues, and the Applicant will be assisted in finding employment due to his qualification as a boilermaker and work history. Therefore, I find that this consideration weighs only slightly in favour of revocation of the Cancellation Decision.

    Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)

19. Paragraph 9.3(1) of Direction No 90 provides that:

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

20. There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant.

    Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)

21. Paragraph 9.4 of Direction No 90 provides:

    Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.

22. This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.

    Strength, nature and duration of ties to Australia

23. Paragraph 9.4.1(1) of Direction No 90 provides that:

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

24. Further, paragraph 9.4.1(2) of Direction No 90 provides that:

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

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

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

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

    b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

25. The Applicant has resided in Australia for approximately 21 years, having arrived in Australia on 11 December 2000 when he was 27 years of age. His first driving/traffic offence was for “unlicensed vehicle (owner/driver)” on 28 October 2007, and his first criminal offence of “threats to injure, endanger or harm any person” was committed on 9 January 2009. As these offences were committed approximately seven and eight years after his arrival in Australia, it cannot be said that he began offending soon after arriving in Australia. 

26. As I noted in the “extent of impediments if removed” section above, the Applicant is a qualified boilermaker and has a continuous work history in Australia. His daughter S also wrote that the Applicant “has done countless good deeds and contributed to many people’s lives positively”. S described how her father had helped one of her friends who was suffering abuse and being exposed to drug use at home, and that “she was cared for by my dad” who provided her with clothes, meals and accommodation when needed (R1/86). I also note that the Applicant took eight months off work to help one of his former partners renovate her home so that she could rent the front of the house out as a bed and breakfast to make some extra money (transcript/26). I therefore find that he has made positive contributions to the community.     

27. The Applicant has an Australian citizen fiancée and two Australian citizen daughters. I have already discussed that the Applicant’s daughter, S, would be negatively impacted if he were removed from Australia. He is currently estranged from his eldest daughter whom he wishes to reconnect with upon his release from prison. Nevertheless, these relationships are indicative of strong ties to Australia.

28. He also has the support of his fiancée’s mother and grandmother who have expressed strong support for him and who both regard him as part of their family.

29. His fiancée, CG, stated that, “I wouldn’t be able to live, if [the Applicant] wasn’t here with me” (R1/84, para [17]). In another statement dated 21 December 2021, the Applicant’s fiancée explained how she and the Applicant had planned a life together and that it would be “heartbreaking” if he were returned to South Africa (A1/49, para [18]).

30. CG’s mother also wrote the following in her statement dated 21 December 2021 (A1/55, para [10]):

    … I must emphasise that [the Applicant] will be terribly missed as part of our family – and family is everything. I want to have my family around me, not several thousand kilometres away. If he were returned to South Africa, my daughter CG will have to make a heart-wrenching decision whether to move with him, or to stay here in Australia and effectively abandon their relationship. Either outcome would break my heart (and hers) and destroy our family.

31. CG’s grandmother described the negative impact that deporting the Applicant would have on her in a statement dated 21 December 2021 (A1/57):

    11.It may seem a very selfish reason for me wishing [the Applicant] to be given back his visa, but I think you should be aware of the impact his deportation would have on me. I have a heart condition (HOCM) and whilst my husband has been deceased for nearly a decade, I rely on my immediate family for emotional support especially. I consider [the Applicant] to be part of my immediate family. If [the Applicant] and CG were to go to South Africa it would devastate our family.

    12.If [the Applicant] is deported, it would mean possibly never seeing him (or CG) again. I am an aged pensioner, so there is no way I could afford airfares to South Africa and also my health would prevent me from going too. Please consider the destruction that a senseless deportation order would have on us.

32. The Applicant’s friend, LW, who is also one of his former partners, gave evidence in support of him at the hearing. In a statutory declaration dated 23 December 2021, LW described the impact on her if the Applicant was deported (A1/61, para [31]):

    If [the Applicant] is deported, I will be personally devastated and adversely impacted. [The Applicant] is always here for me and has provided me immense support throughout the years. Despite us living some kilometres away, he is one call away and if I need his assistance, he will make a trip to Perth to support me. This will not be possible if he is deported. He is one of my closest friends and keeping in contact solely by phone calls is just not comparable.

33. I also note statements in support of the Applicant staying in Australia from other friends that were made in December 2021. These friends are JE, who has known the Applicant for five years (A1/63-64) and AD, who has known the Applicant for over 15 years (A1/65-67). I find that their support is also indicative of the Applicant’s ties to Australia.

34. In summary, the Applicant’s ties to Australia are strong. He has resided in Australia for approximately 21 years, has two Australian citizen daughters, and an Australian citizen fiancée. He has strong support from friends, and from his fiancée’s mother and grandmother who have provided evidence about the detriment they would suffer, and that his fiancée would suffer, if he were deported.

35. On balance, I find that para 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.

    Impact on Australian business interests

36. Paragraph 9.4.2(3) of Direction No 90 provides that:

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

37. This consideration does not arise on the material before me and is therefore not relevant.     

    CONCLUSION

38. The Applicant does not pass the character test under s 501 of the Migration Act.

39. I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.

40. In relation to the protection of the Australian community, I found:

    (a)the nature and seriousness of the Applicant’s offending conduct weighed moderately against the revocation of the Cancellation Decision; and

    (b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct weighed slightly against the revocation of the Cancellation Decision.

41. Overall, I concluded that the protection of the Australian community primary consideration weighed slightly to moderately against the revocation of the Cancellation Decision.

42. With respect to the remaining primary considerations, I made the following findings:

    (a)the family violence primary consideration was not applicable because the circumstances set out in para 8.2(2) of Direction No 90 were not satisfied;

    (b)the best interests of the Applicant’s 16-and-a-half-year-old daughter, S, weighed strongly in favour of the revocation of the Cancellation Decision; and

    (c)the expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.

1. I made the following findings with respect to the other considerations:

   (a)the consideration of international non-refoulement obligations was not applicable;

   (b)the extent of impediments if removed weighed slightly in favour of the revocation of the Cancellation Decision;

   (c)the consideration of impact on victims did not arise on the material before me and was therefore not relevant; and

   (d)the Applicant’s links to the Australian community weighed strongly in favour of the revocation of the Cancellation Decision. The impact on Australian business interests did not arise on the material before me and was therefore not relevant.

2. Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.

3. Despite two of the primary considerations (the protection of the Australian community and the expectations of the Australian community) weighing slightly to moderately and moderately against revocation of the Cancellation Decision, I find that they are outweighed by the other considerations that weigh strongly in favour of revocation of the Cancellation Decision, being the best interests of the Applicant’s 16-and-a-half-year-old daughter, S, and the links to the Australian community other consideration. Although the extent of impediments if removed other consideration only weighed slightly in favour of the revocation of the Cancellation Decision, it further adds to the weighing exercise being in the Applicant’s favour.

4. I therefore find that there is another reason why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.

   DECISION

5. The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.........[Sgd]............................................................

Associate

Dated: 14 February 2022

Date of hearing:	2 February 2022
Representative for the Applicant:	Ms J Edis, Putt Legal
Representative for the Respondent:	Ms B Griffin, The Australian Government Solicitor