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

Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4239 (7 October 2020)
Division:GENERAL DIVISION
File Number: 2020/4297
Re:Dunasemant
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:7 October 2020
Place:Brisbane

The decision under review is affirmed.
.........................[sgd]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
ETWK v Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone v Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Tavoularis
7 October 2020
INTRODUCTION AND BACKGROUND

Mr Luke Joshua Dunasemant (“the Applicant”) is a 38-year-old citizen of New Zealand.[1] Movement details indicate that the Applicant arrived in Australia on 3 January 2002 and has never departed Australia since his arrival. He has held a Special Category Class TY Subclass 444 (temporary) visa which was his visa status on arrival.[2]
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions “SFIC”, page 1, paragraph [3].
[2] Exhibit G1, section 501G Documents, G24, page 336.
The Applicant has a serious and lengthy history of committing crimes in Australia. His 15 year criminal history in this country saw him first before lawful authority for sentencing on 17 June 2004. His most recent sentencing episode in this country occurred on 6 March 2019. He also has a criminal history in New Zealand. He was first dealt with by lawful authority in New Zealand on 26 May 1998 and was last dealt with in that country for his offending on 1 March 2002.
The Applicant’s offending history in Australia has caused him to be dealt with by lawful authority on 13 separate sentencing occasions that sought to punish his commission of some 48 separate offences. His offending history in New Zealand involved his appearance before lawful authority for sentencing on five separate sentencing episodes that sought to punish his commission of some 16 individual offences. The first two sentencing episodes in New Zealand involved him being dealt with as a juvenile.
He also has a recorded traffic history, both here and in New Zealand. His traffic offending in New Zealand involved a single offence that in April 2001 saw him convicted and fined the sum of $200 for ‘failed to comply with prohibition by enforcement officer’. His traffic history in Australia is more substantial. It runs from 16 June 2002 until 1 April 2020. His traffic offending has involved offences relating to speeding, unlicensed driving, failure to wear a seatbelt, dangerous driving, failing to stop motor vehicle as soon as practicable and fail to notify change of name or address within 14 days. His driving privileges in this country have been the subject of numerous disqualifications (consequent upon the nature and seriousness of his traffic offending) and numerous suspensions (consequent upon his failure to meet payment of extant and newly imposed fines).
While the Applicant was serving a term of imprisonment (that is, in actual criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’ or ‘the Respondent’), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), decided on 14 September 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[3]
[3] Exhibit G1, G6, pages 54 to 60.
On 22 September 2018, the Minister’s Department received correspondence from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[4] The delegate of the Minister decided on 14 July 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[5]
[4] Exhibit G1, G7.
[5] Exhibit G1, G3, pages 13-28.
The Applicant lodged an application with this Tribunal on 17 July 2020, seeking a review of the abovementioned decision dated 14 July 2020 not to revoke the cancellation of his visa.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[7]
[6] Exhibit G1, G2, pages 3-8.
[7] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 21 and 22 September 2020. The hearing received oral evidence from: (1) the Applicant; (2) his former domestic partner (and mother of his two biological children and his one stepchild); (3) his mother, Ms Maria Dunasemant; and (4) the psychotherapist, Ms Esperanza Egan.
The Tribunal also received written evidence. This written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[9]
[8] [2018] FCAFC 151.
[9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[10] I will address each of these grounds in turn.
[10] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant concedes that:
(a)the mandatory cancellation of the Applicant’s subclass 444 visa on 14 September 2018 was required by, and in accordance with, s 501(3A) of the Migration Act 1958 (the Act); and
(b)for the purposes of s 501CA(4)(b)(i) of the Act, the Applicant does not pass the ‘character test’ prescribed by s 501(6).[11]
[11] Exhibit A1, Applicant’s SFIC, page 1, paragraph [2].
I have had regard to the abovementioned summary of the Applicant’s offending with particular reference to the sentencing event dated 10 August 2018 where the Applicant was sentenced in the Brisbane District Court for “robbery with actual violence/in company/used personal violence” to two years imprisonment.[12] The Applicant successfully appealed his sentence to the Court of Appeal and his sentence was reduced to 12 months.[13] As the custodial term imposed was ‘a term of imprisonment of 12 months or more’, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. I therefore find that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act.
[12] Exhibit G1, G4, National Police Check.
[13] Exhibit R2, TB1, page 6.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[14] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[15]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[14] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[15] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[16]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[16] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Initial concessions made by the Applicant
With specific reference to paragraph 13.1 of the Direction, the Applicant’s SFIC records the following initial concession:
“29. The Applicant accepts that, prima-facie, this primary consideration could never weigh in favour of a revocation decision. That is because past criminal (or other serious) conduct on the part of a non-citizen is antecedent to considering whether to revoke a mandatory cancellation. In those circumstances, in the Applicant’s submission, the relevant enquiry is the extent to which this primary consideration weighs against revocation.”[17]
[17] Exhibit A1, seventh page.
With specific reference to the nature and seriousness of the Applicant’s criminal conduct, his SFIC makes the following further concession:
“30. The Applicant accepts that his past conduct, particularly his convictions for:
(a) robbery in company with actual violence;
(b) enter premises with intention to commit indictable offence;
(c)contravene domestic violence order; and
(d)dangerous operation of a motor vehicle,
cannot be described as anything other than serious.”[18]
[18] Ibid.
In its SFIC, the Respondent contends that “the applicant’s offending should be viewed as very serious.”[19] Viewed holistically, the nature of the Applicant’s offending is, to my mind, such as to immediately attract the attention of the relevant Principles contained in paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.
[19] Exhibit R1, page 5, paragraph [21].
Having regard to the abovementioned concessions on behalf of the Applicant about the nature and seriousness of the Applicant’s offending, I am of the view that the nature and seriousness of the Applicant’s offending becomes readily apparent from a discussion of the nature and circumstances of his offending history. The following discussion about the nature and seriousness of the Applicant’s offending will be predicated on an application of the relevant factors contained in Paragraph 13.1.1(1) of the Direction. I will further particularise how the Applicant’s offending attracts operation of the relevant sub-paragraph(s) of the Direction in the assessment of the nature and seriousness of the Applicant’s conduct.
Application of Factors in Paragraph 13.1.1(1) of the Direction

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)…
(i)....
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The material discloses two instances of the Applicant committing violent crimes. On 10 August 2018, the Applicant was convicted of “robbery with actual violence/in company/used personal violence” pursuant to ss 411(1) and (2) of the Queensland Criminal Code.[20]
[20] Criminal Code Act 1899 (Qld).
The Applicant came before His Honour, Judge Burnett of the District Court of Queensland for sentencing on 10 August 2018. His Honour made the following observations in his sentencing remarks:
“In addition, you have a number of convictions or appearances that relate to shop stealing and failure to appear. This offending on the indictment represents a significant escalation in your offences of dishonesty. It introduces an element of violence that had not otherwise been evident in your criminal history. It is a troubling development in your behaviours. On the day in question here you, together with your accomplice, attended a mobile telephone shop. You had planned to attend the shop to steal phones. The plan was to shoplift the phones which is entirely consistent with some of your other convictions together with the matters I am dealing with today.
It seems that upon entering the shop following the enquiries made with the shop assistant you realised the plan was not going to work, but in any event your accomplice appears to have wanted to proceed. She took the phone when the shop assistant had momentarily departed from the showroom into a back room and you ran with her. You left the store. As she was doing so the shop assistant returned. She saw you leaving. She went to stop you. The shop assistant was pushed. You say it was your co-offender who pushed, but in any event the shop assistant fell and the two phones were stolen.
You took flight and you were able to make good your escape, but the shop assistant having called out for assistance, someone was able to grab your co-offender. She has not yet been dealt with. She is to be dealt with in a trial that starts at the end of this month. Police ultimately were able to ascertain your identity no doubt through their reasonable detection work together with CCTV evidence which was available to them.
…
People have to be able to trade in their shops and deal with people at the counters without fear that they are going to have people stealing the product that they are trying to sell. These people are simply running small businesses. The impost upon them can be significant. These phones had a value of about $3000 or a little under. That is a significant loss to a small business operator when one has regard to the way in which they have to operate with their overheads. None of that was recovered and that factor is significant. Also they should not have to be subjected to violence in the conduct of their everyday business affairs.
It is, as I say, quite troubling and it does represent a significant escalation of your offending.”[21]
[My emphasis and underlining]
[21] Exhibit G1, G5, pages 40-41.
During cross-examination, the Applicant was questioned about this offence and said the following:
“MR KYRANIS:[22] Yes, so the paragraph commences ‘in addition’?
WITNESS: Yes, okay, yes. In a sense he’s right. There is -’in addition you have a number of convictions (indistinct words) that relate to shop stealing but remember what I said, I didn’t steal the last time in 2011. They never found any items on me to prove the case. It was just me pleading guilty on the basis that I was offered a deal of three months. But it contradicts itself because it says ‘(indistinct words) otherwise they’re not (indistinct words)’ but the police accepted my (indistinct words) a statement for me not committing the violence and the robbery. They accepted that as the statement of facts. They accepted my (indistinct words), they accepted that as a statement of facts. They contradicted their whole indictment altogether. That’s why I was given a discount on the appeal. That was the crux then. That was the crux of me winning the appeal itself on that (indistinct words). I wasn’t the one that committed the violence and the robbery.
MR KYRANIS: Your co-offender did?
WITNESS: She did. You’ve got a 13A statement of me saying that. That was accepted by the police. The police attended the gaol, accepted that statement of facts towards the case. I never pursued them, they pursued me for it.
MR KYRANIS: What do you say the violence was that - or the element of violence in your co-offender’s offending in that robbery offence?
WITNESS: Pushed the shopkeeper, it wasn’t me.
MR KYRANIS: So aside from what is said about - and I’ve heard what you’ve said about the shop stealing - is the second last and the last paragraph there correct?
WITNESS: Yes, yes. From 40 onwards, that’s correct. That’s the only thing correct and that’s what the 13A was to prove. I left the store, I ran. I freaked, I ran away. I ran when she pushed the shopkeeper, that’s how it went down.
MR KYRANIS: I’m just taking some notes. In relation to the 15 summary offences, those offences were committed whilst you’re on bail for the robbery; is that right?
WITNESS: Yes, that’s correct.”[23]
[22] Mr Jake Kyranis, Senior Associate, Sparke Helmore, legal representative of the Respondent.
[23] Transcript, 21 September 2020, page 24, lines 32-45, and page 25, lines 1-18.
As I understood his evidence, the Applicant sought to re-characterise both the circumstances of the offending episode and how that offence should now be perceived by reference to items such as (1) the police “…never found any items on me to prove the case”; (2) “It was just me pleading guilty on the basis that I was offered a deal of three months”; (3) that the relevant indictment “contradicts itself”; (4) that he provided a certain “letter of comfort” to the prosecution pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld); (5) that when he took his sentence on appeal, he “…was given a discount on the appeal” and (6) that he “wasn’t the one that committed the violence and the robbery.”
Such contentions do not, in any way, ameliorate the nature and seriousness of the violent conduct towards the small business operator/victim. Such contentions are to be entirely rejected. It is plain from Judge Burnett’s sentencing remarks His Honour was well aware of the minutiae of the Applicant’s overall conduct and the nature and extent of his participatory involvement in the subject offending episode. None of the elements now propounded by the Applicant purporting to militate in favour of a finding about the nature and seriousness of this offence made any impression on Judge Burnett. Nor do they on this Tribunal.
On 7 February 2011, the Applicant was convicted of one count of common assault pursuant to s 335 of the Queensland Criminal Code. The nature of the violence redolent from this offending incident were perhaps not as serious as that experienced by the mobile phone shop proprietor, but they do nevertheless demonstrate the Applicant’s propensity to violent outcomes if presented with difficulty or stricture. The circumstances of the common assault resulted from a store attendant and a security officer urgently seeking to question the Applicant and the two females with him about some stolen property from the subject store a short time earlier.
In the Queensland Police Service Court Brief, the following facts are recorded:
“Charge 9 of 9 [CC] 335 Common Assault
That on 22^nd day of June 2010 at BIGGERA WATERS in the State of Queensland one LUKE JOSHUA DUNASEMANT unlawfully assaulted one [name redacted].
The facts in relation to this matter are as follows:
Facts of the charge 9 of 9 At about 12:20pm on the 22^nd of June 2010 the Defendant was with two female associates at Harbour Town shopping centre on Oxley Drive, Runaway Bay.
There the Defendant was in the car-park with the associated and was confronted by a Lonsdale store attendant named [redacted] (the victim) and security who asked about property they suspected him of stealing from the Lonsdale store.
The Defendant became agitated and then started yelling at [name redacted] that he was going to knock him out.
Security have intervened and the Defendant has started to kick out at security with his feet.
The Defendant has rushed [name redacted] and started kicking his legs and then his upper body with karate style kicks to his upper body. The Defendant has kicked the victim at least five times causing pain to his wrist as he tried to block being kicked.”[24]
[24] Exhibit R2, TB1, page 17.
The Applicant was cross-examined about this offending episode and again sought to suggest some kind of deficiency or shortfall in the manner of his detection and/or apprehension. He sought to characterise his offending as “only a push”. He also sought to minimise the offending on the basis that if there had been CCTV footage of the subject incident, he could well have been charged with a more serious offence. None of these contentions are of any validity in convincing this Tribunal that the subject incident is anything less than a serious one. It involved both an earlier employee and a security employee of the shopping centre pursuing the Applicant for an incident in the subject store with which he was directly involved. Those two people were fully entitled to confront the Applicant as they did. As a mature 28 year old man, he was not, in any way, entitled to react as he did.
The following transpired in cross-examination:
“MR KYRANIS: But you’re adamant that you didn’t steal those items from the three stores and you’re adamant that you didn’t kick the shop attendant and you can’t remember why you sent the police on this spree across the Gold Coast?
WINTESS: Like, they’ve got CCTV footage throughout the whole shopping centre. If I kicked him the magistrate would have sentenced me for assault or GBH or something. Like, there was only a push. That’s what I pled guilty for. I’m not downplaying what I done, I pushed him away from me but if I had done karate style kicks you’d think he’d be a bit worse for the wear. I would have been sentenced for GBH or ABH or something like that, something a bit more serious. I got sentenced on the merits of what I’d done there.
MR KYRANIS: Yes. So you don’t remember why you were (indistinct words)?
WITNESS: No, it’s been five months, it’s that along ago. All I know is I didn’t steal any items. The girls were the ones that were charged for the stealing and I was brought in on the stealing as well. But it was easier for me to plead guilty to just get it over and done with. I mean, I admit that I drove and I admit for pushing him. I don’t think it was right. I’m not saying it was right what I did.”[25]
[25] Transcript, 21 September 2020, page 23, lines 6-23.
While each of the abovementioned episodes of violent offending may be of contrasting degrees of ostensible severity, I am of the view that, at best, an application of this sub-paragraph (a) militates in favour of a finding that the Applicant’s violent conduct has been at least serious, more likely very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant’s history reveals four breaches of domestic violence orders.
The evidence relevant to this sub-paragraph (b) was sought, by the Applicant, to be conditioned by an interpretation of the Full Court’s decision in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”).[26] As I understood the submission, an interpretation of certain remarks of Judge Colvin (in HZCP) may enable an administrative decision-maker to reach a different conclusion about the factual foundation upon which a prior conviction is recorded against a given applicant. At paragraph [183] of HZCP, Judge Colvin said the following:
“In other instances, the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of a decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence. In such instances, the administrative decision-maker may reach a conclusion upon all the material before the decision‑maker to the effect that the true position is contrary to the factual foundation on which the conviction or sentence depends. There is no issue estoppel that operates. However, it is unlikely that an administrative decision‑maker would do so. The reason why that is so is due to the high degree of confidence that, in almost all cases, ought to be afforded to the veracity of factual matters that provide the necessary foundation for the conviction or sentence.”
[My underlining]
[26] Per McKerracher, Derrington and Colvin JJ.
The Respondent contends that HZCP stands for the proposition that the Tribunal is not able to contradict or go behind the Court’s findings of criminal guilt and accept the Applicant’s now propounded contention that he did not commit two of four relevant domestic violence offences. In HZCP, His Honour Judge McKerracher noted:
“78. The Tribunal’s observation that it could not contradict or go behind a conviction was correct. The Tribunal’s finding that it could not ‘examine the facts upon which the conviction was based’ is less clear because the phrase is ambiguous. On the one hand, it could merely be an extension of the (correct) legal principle just confirmed. On the other, it could be construed as an assertion that the Tribunal could not have regard to the facts as found by the court. In context, it is apparent that the Tribunal had in mind the first interpretation. The appellant’s evidence was centred on assertions that the sentencing judge’s fact-finding was wrong. In any event, the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
79. The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained. The primary judge was correct in refusing the application on this ground. Ground 1 must be rejected.”
In his Reasons, His Honour Judge Colvin added further observations relating to specific circumstances where an administrative decision-maker may reach a different factual position that is contrary to the factual basis upon which a given applicant before the Tribunal was convicted and/or sentenced:
“179. …I add some observations concerning the principles to be applied in cases where a party seeks to advance a factual position before an administrative decision-maker that is contrary to the necessary factual foundation upon which a conviction or custodial sentence is based.
180. The procedure that must be followed in criminal proceedings requires a high standard of proof after a clear statement of the nature of the charges brought against an accused person. There are many protections for the accused in the criminal trial process. Therefore, a high degree of confidence may be entrusted in the truth of the factual matters that provide the necessary foundation for a criminal conviction or the imposition of a sentence. It follows that it is a serious matter for a person convicted of a criminal offence to seek to contradict the factual matters that provide the foundation for the conviction or the imposition of the sentence.
181. In an administrative law context, some decision‑making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision‑maker must proceed (there may be others). The statutory authority reposed in the decision‑maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute…
182. In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of legislation itself demonstrates that Parliament intended the decision-maker to act on the basis of the correctness of the conviction or sentence. Where the legislative provision takes such a form, there is no opportunity to go behind the conviction or sentence and urge the administrative decision-maker to take a different view…
…
189. The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts.”
[My underlining]
At a specific level, the Applicant’s contention appears to be grounded an apparent oversight by the sentencing Magistrate[27] in relation to the email address from which certain threatening material was found to have emanated from the Applicant towards the aggrieved person/victim. In fairness to the Applicant, it is worth quoting the submissions of the Applicant’s representative in full:
[27] Mr A Simpson, Stipendiary Magistrate.
MR McCOMBER: And, Senior Member, the next relevant point appears at line 41 of page 46 where the complainant gave - sorry, where the magistrate records that the complainant gave evidence that on 28 October she received an email, the email is from an address and the address is listed as, at line 41, [email address redacted] Turning then to the applicant's - sorry, Senior Member, I'll find it immediately. At page 15 of the applicant's updated bundle there's a screenshot there from a Gmail website.
SENIOR MEMBER: Just a moment. Yes.
MR McCOMBER: And you'll see that there I have entered the email address [email address redacted] into the signing screen and it indicates that the account couldn't be found. On the following page of the applicant's updated bundle there's an email that has been sent from - sorry, following that I have registered the email address myself and sent myself an email from that email address, [email address redacted] and sent it to myself.
And on the following page, page 17 of the applicant's updated bundle, there is a printout from the Gmail website which contains a policy which indicates in highlighted sections you won't be able to get a certain Gmail address if:
‘The username you requested is already being used’
And then further down:
‘The same as a username that someone used in the past and then deleted’
And, Senior Member, the combined effect of all those three aspects of the evidence is that simply it would have been impossible for the applicant to send an email from the email address cited by the magistrate because no such email address was registered with the relevant email provider at the time of the alleged offence.
Further, there was the evidence of the complainant that that was the email address that the email came from and in my submission, Senior Member, had that evidence been available to the sentencing magistrate it would certainly have called into question the credibility of the complainant in relation to that aspect of her evidence and further would generally called into question the credibility of her evidence in relation to the phone call she said she received on 25 October 2018 at 10.39 am.”[28]
[My emphasis]
[28] Transcript, 22 September 2020, pages 86-87.

To my mind, there are two primary challenges to this contention. First, I receive with a high level of caution any evidence or submission propounded by a representative of an applicant seeking to impugn the evidence and resulting conviction respectively accepted and imposed by a sentencing Magistrate. The now propounded evidence/contention about the currency or otherwise of an email address relevant to the commission of an offence found to have been committed in October 2018 must be received with caution, especially in circumstances where no evidence was called from the relevant Google email address provider (or other independent and duly qualified witness) to corroborate what is now being urged on the Tribunal.
Second, the possibility of concoction and fabrication by the aggrieved person/victim was squarely within the thoughts of the sentencing Magistrate at the time His Honour sentenced the Applicant, as was the possibility that the aggrieved person/victim had falsely made the relevant complaint because of any impact that the Applicant’s s 13A letter of comfort had upon her:
“Now, she says she got that at – I understand from the evidence we have recalled – from on her phone, under the defendant’s name. And – but in a different email address. Now, either she was completely lying about that, and making it up to place some different address under the defendant’s name just to get square with him because of a 13A statement, or she is telling the truth. My observation of her is I believe she is telling the truth, and she believes it to have come from the defendant. It does not seem that any other person had any motivation to make it, and certainly it came under his name.
She referred to having a friend in immigration detention, but there is no suggestion that that person sent the email, or made the phone call, and I do not think she set out today, in giving her evidence, to get square with the defendant because of his 13A statement. In the end, she was convicted of an enter premises with intent. She did not seem to resile from that. She did not hide it from me. That, and she, in fact, had been convicted by her own plea of guilty to that charge.”[29]
[My emphasis and underlining]
[29] Exhibit G1, G5, page 47.
In the final analysis, I am of the view that the Applicant’s conviction and sentence for his domestic violence offending can be treated as strong prima facie evidence of the facts upon which those convictions were necessarily based. I am also of the view that the Applicant has failed (before this Tribunal) to discharge the heavy onus on him as the person now seeking to challenge those facts as to why they should not be accepted (by this Tribunal).[30]
[30] See paragraph [190] of HZCP.
I therefore agree with the Respondent’s contention that this Tribunal:
“…should place heavy weight on the conviction and sentencing remarks of Magistrate Simpson, who had the benefit of observing both the applicant and complainant give evidence and make findings as to their credibility. There is no evidence that the applicant sought to appeal this conviction through the pursuit of an appeal to the District Court of Queensland under s 222 of the Justices Act 1886 (Qld).”[31]
[31] Exhibit R1, page 7, paragraph [29].
In addition to the domestic violence offending referred to above, the Applicant has also contravened a domestic violence order on at least two further occasions. There does not seem to be any contest about whether the threatening conduct was properly communicated or otherwise made adequately apparent to the aggrieved party. Suffice it to say that the material reveals some extraordinary, threatening and menacing conduct by the Applicant. For example, the material discloses that between 7 July 2017 and 4 December 2017 the Applicant contravened an extant domestic violence order as follows:
“9. On 3 December 2017, the defendant sent a number of threatening messages to [redacted] such as:
-"I am going to kill you";
-'watch out"
-"Watch every move";
-"give me $2500 and we will call It quits";
-"your son I know where he lives"; and
-"think twice before you Jib me".
10. After sending the messages, the defendant attended [redacted]’s mother's house where [redacted] was staying. The defendant stated to the [redacted], "I want my two and a half thousand dollars", to which she shut the door of the house and told her mother to call the police. The defendant then left the area.
11. Police attended and [redacted] recounted the following incidents:
-In July 2017, the defendant sent hostile text messages to her. The defendant also punched her to the face in one Instance and took her phone for four days;
-On an unknown date In August or September 2017, the defendant sent text messages to her asking "where the fuck are you" and "what are you doing". The defendant then picked her up and they began arguing. During the argument, she jumped out of the car to get away from the defendant. The defendant caught her and grabbed her throat with two hands and applied pressure; and
-On an unknown date In October 2017, the defendant struck the aggrieved in the face multiple times.”[32]
[32] Exhibit R2, TB2, page 64.
I am therefore of the view that HZCP does not serve to reduce the cumulative level of the Applicant’s offending captured by this sub-paragraph (b), nor does it serve to commensurately ameliorate the nature of his offending in this regard. I find that an application of this sub-paragraph (b) to this aspect of the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” I have carefully perused the Applicant’s offending history and am not able to detect any offending referable to this sub-paragraph (c). As a result, this sub-paragraph (c) is not relevant to determination of this application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant’s sentencing history makes for sobering reading. As mentioned earlier, his offending history commences in New Zealand (as a juvenile) whereat he committed his first offence in September 1996 (burglary) that was dealt with on 26 May 1998. All of his sentencing as a juvenile in New Zealand was punished by non-custodial terms involving either (1) community-service type penalties (imposed at least five times as a juvenile); and (2) supervisory-type punishments such as “supervision with activity order”. This latter type of sentence was imposed on at least six occasions when he was a juvenile and three times as an adult.
In Australia, the pattern of sentencing imposed upon him has been analogous to that he experienced in New Zealand. Suffice it to say that for the scope of his offending in Australia (in sentencing terms) runs for 13 separate sentencing episodes dealing with the commission of some 48 separate or individual offences. His sentencing episode history commences in mid-2004 and runs until March 2019. Offending committed during the first seven years of that history involved the imposition of non-custodial sentences, primarily in the form of fines, with, as per usual, a specified period of custody in the event of a default in payment of that fine. From February 2011, concurrent custodial terms began to be imposed on him. For example:
·February 2011 – 12 months imprisonment for dangerous operation of a motor vehicle;[33]
[33] Pursuant to s 328A(1) of the Queensland Criminal Code Act 1899.
·February 2011 – six months imprisonment for dangerous operation of a motor vehicle;[34]
[34] Ibid.
·February 2011 – 12 months imprisonment for dangerous operation of a motor vehicle;[35]
[35] Ibid.
·February 2011 – four months imprisonment for failure to stop motor vehicle;[36]
[36] Pursuant to s 754(1) and (2) of the Police Powers and Responsibilities Act 2000 (Qld).
·February 2011 – six months imprisonment for failure to stop motor vehicle;[37]
[37] Ibid.
·February 2011 – two months imprisonment for failure to stop motor vehicle;[38]
[38] Ibid.
·February 2011 – three months imprisonment for failure to stop motor vehicle;[39]
·February 2011 – six months imprisonment for failure to stop motor vehicle;[40]
·January 2018 – four days imprisonment for failure to appear in accordance with bail undertaking;[41]
·August 2018 – 50 days imprisonment for failure to stop motor vehicle;[42]
·August 2018 – five months imprisonment for wilful damage;[43]
·August 2018 – two months imprisonment for three charges of stealing[44] and for attempted fraud-dishonest application of property of another;[45]
·August 2018 – six months imprisonment for two breaches of a domestic violence order;[46]
·August 2018 – 12 months imprisonment for enter premises and commit indictable offence;[47]
·August 2018 – 12 months imprisonment for robbery with actual violence/in company/used personal violence;[48]
·March 2019 – six months imprisonment for two contravention of a domestic violence order (aggravated offence).[49]
[39] Ibid.
[40] Ibid.
[41] Pursuant to s 33 Bail Act 1980 (Qld).
[42] Pursuant to s 754 (2) of the Police Powers and Responsibilities Act 2000 (Qld).
[43] Pursuant to s 469(1) of the Criminal Code Act 1899 (Qld).
[44] Pursuant to s 398 of the Criminal Code Act 1899 (Qld).
[45] Pursuant to s 408C(1) and s 535 of the Criminal Code Act 1899 (Qld).
[46] Pursuant to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld).
[47] Pursuant to s 421(2) of the Criminal Code Act 1899 (Qld).
[48] Pursuant to ss 411(1) and (2) of the Criminal Code Act 1899 (Qld); see Paragraph 16 of these Reasons.
[49] Pursuant to s 177(2)(A) of the Domestic and Family Violence Protection Act 2012 (Qld).
At the hearing, the Applicant sought to ameliorate his offending by giving evidence purporting to characterise his role in much of his offending as that of either being the innocent bystander or as someone who had been drawn into the orbit of the offending at the instigation of others. The following is an example of his evidence in cross-examination in relation to the stealing offences committed on a trip to the Harbour Town Shopping Centre at Runaway Bay.
“MR KYRANIS: There’s three charges of unauthorised shop goods which arise from a spree of stealing in Harbour Town from three shops there; do you recall that?
WITNESS: (Indistinct words) but I pled guilty to a number of offences on that day. They never found anything on me, like, I was arrested and I didn’t have anything so, you know, if I had stolen and I wasn’t caught. I was caught not far from the place, they would have found the things on me, the items. It was the girls that I was with that was stealing, it wasn’t me. I got done for the theft as well.
MR KYRANIS: Okay. So the first stealing is on page 26?
WITNESS: Yes, I’ve got it here.
MR KYRANIS: Canterbury. It says on page 26 that you went in the changing room of the store, removed a top from a coat hanger, you were confronted, you became aggressive then left?
WITNESS: No, I didn’t do that.
MR KYRANIS: That wasn’t you?
WITNESS: No, we were there but it wasn’t me stealing it. I got done for a theft that I didn’t do.
MR KYRANIS: Did you plead guilty to that?
WITNESS: Yes, I did.
MR KYRANIS: Why?
WITNESS: Because it was (indistinct words). Prosecution offered me three months for the driving and for the stealing offences and the common assault, I got a fine for common assault.
MR KYRANIS: There’s another stealing from Harbour Town on page 29 at Calvin Klein. It says that you removed the security tags from a pair of jeans and then removed the jeans from the store without attempting to pay; did you do that?
WITNESS: No, because like I said I was caught not far from the place. I didn’t have anything on me.
MR KYRANIS: Is it a similar case in relation to page 32?
WITNESS: There was, like - I don’t know, it’s hard to gather that there was three (indistinct words), like, there was three items stolen from different stores and there’s security and so I was able to go to three stores and steal three items and then assault a security guard. He would have been on to me from the first shop that I walked into. Like I said it wasn’t me that was committing the stealing, it was the girls that I was with in the chase. The girls were the ones that were stealing, it had nothing to do with me. I was charged irrespectively for the offences. They never found any items on me.”[50]
[My emphasis and underlining]
[50] Transcript, 21 September 2020, page 20, lines 45-47, and page 21, lines 1-36.
The Applicant’s obfuscatory approach to explaining his conduct does not square with the nature of the sentences that have been imposed on him. It is not the business of this Tribunal to look behind how or why the Applicant now says he pleaded guilty (or was found guilty) of his past offending. What is before this Tribunal is his criminal history and the recorded circumstances of how those offences came to be committed. It would be unsafe for this Tribunal to now construe the nature of his offending on the basis that the sentences imposed upon him might say one thing while his purported amelioration of his offending conduct is attempting to say another. This Tribunal will not embark on such a process.
A further example of the inherent obfuscation in the Applicant’s evidence can be gleaned from the following passage in cross-examination:
“MR KYRANIS: But you’re adamant that you didn’t steal those items from the three stores and you’re adamant that you didn’t kick the shop attendant and you can’t remember why you sent the police on this spree across the Gold Coast?
WITNESS: Like, they’ve got CCTV footage throughout the whole shopping centre. If I kicked him the magistrate would have sentenced me for assault or GBH or something. Like, there was only a push. That’s what I pled guilty for. I’m not downplaying what I done, I pushed him away from me but if I had done karate style kicks you’d think he’d be a bit worse for the wear. I would have been sentenced for GBH or ABH or something like that, something a bit more serious. I got sentenced on the merits of what I’d done there.
MR KYRANIS: Yes. So you don’t remember why you were (indistinct words)?
WITNESS: No, it’s been five months, it’s that along ago. All I know is I didn’t steal any items. The girls were the ones that were charged for the stealing and I was brought in on the stealing as well. But it was easier for me to plead guilty to just get it over and done with. I mean, I admit that I drove and I admit for pushing him. I don’t think it was right. I’m not saying it was right what I did.”[51]
[51] Ibid, page 23, lines 6-22.
The history discloses at least 13 attempts by judicial sentencing officers to punish the Applicant’s offending by the imposition of non-custodial means, be it in the form of fines, good behaviour orders and/or orders for payment of restitution. The history also discloses multiple impositions of custodial terms from February 2011 onwards. Taken cumulatively, thee custodial terms amount to something in the order of seven years, 10 months and 54 days of duly imposed custodial time. Put another way, his offending was sentenced by the imposition of custodial terms representing almost half of his 17-year period of time in this country prior to March 2019.
Accordingly, for the purposes of this sub-paragraph (d), it surely cannot be denied that the sentencing regimes imposed upon the Applicant in this country from mid-2004 to March 2019 militate very strongly in favour of a finding that the sentences imposed for the Applicant’s offending renders the totality of his offending history as at least serious, more likely very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The task involving the allocation of any weight to this sub-paragraph (e) largely mirrors that required in relation to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Dealing first with the frequency of the Applicant’s offending, this Applicant is 38 years of age. He has an offending history in New Zealand (in sentencing terms) that runs from May 1998 to March 2002. This cycle of his offending involved his appearance in five sentencing episodes dealing with the commission of some 16 separate offences, 11 of which were committed as a juvenile.
His offending history in this country runs for approximately 15 years. This means that his offending in this country has virtually dominated the entirety of his adult life thus far. I have earlier outlined the nature of the sentences imposed across the evolution of his offending history in Australia. There can be no finding other than that the commission of some 48 individual offences across a 15-year sentencing period that saw him before lawful authority on at least 13 occasions for sentencing, is to be viewed as anything other than very frequent. Looking at his history in Australia alone, he has been offending in this country for approximately 15 of the 16 years he has been here. Of those 16 years he has been in the Australian community, he has committed, on average, something in the order of three offences per year. There can be no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
I turn now to any discernible increasing trend in the seriousness of the Applicant’s offending. I accept that the earlier phases of the Applicant’s offending in this country (that is, from mid-2004 until August 2008) did involve offending predominantly of an antisocial/irresponsible nature, such as, for example the commission of public nuisance offences. However, by September 2009, the Applicant was committing offences of a significantly more serious nature, such as wilful damage (dealt with in 2009) and common assault (dealt with in February 2011). The offending history then evolves into possession of dangerous drugs (dealt with in February 2011), to multiple offences of dangerous operation of a motor vehicle (also dealt with in February 2011).
There followed further offending capable of being prosecuted on indictment, such as stealing (dealt with in April 2017 and January 2018), together with “break and enter” type offending (dealt with in August 2018). Perhaps, most serious of all, was his offending involving the repeated contravention of domestic violence orders. I have earlier recounted the threatening nature of the Applicant’s communications to the then-aggrieved spouse. Those communications can only be read in one way.
There is thus a clearly discernible “trend” in the seriousness of the Applicant’s offending from 2009 to 2019. At the risk of repeating myself, it would be fair to say that his difficulties with lawful authority arising from his offending have been the predominant feature of his adult life in this country and also featured very prominently in both his juvenile and adult life in New Zealand.
According to his oral evidence, his offending is attributable to the then-unresolved substance abuse issues with, primarily, methylamphetamine. There is no doubt that when he has been under the influence of illicit drugs and/or alcohol, his capacity to assume responsibility for his regular and lawful duties as a father and citizen, together with his capacity to distinguish between right and wrong and to better choose his associates, is severely impacted. The nature of his post-2009 offending is concerning. It involves the commission of offences that respect absolutely no boundaries, be they (1) in relation to the personal property of others; (2) the rights and responsibilities governing operation of a motor vehicle; (3) directions from lawful authority to do or refrain from doing something; and (4) the repeated breaches of domestic violence orders imposed upon him for the protection of other people. There can be no question that his sense of right and wrong has been adversely affected by the impact of unresolved issues with illicit drugs and/or alcohol.

Thus, an application of this subparagraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and, certainly since 2009, the initially consistent but increasing level of its severity, is such as to attract a finding that it has been of at least a serious, more likely very serious, nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
There are several cumulative effects redolent from the Applicant’s offending. First, his criminal history runs for some 15 years. He has been afforded (on multiple occasions) opportunities to moderate and curb his propensity to offend. He has received the benefit (on many multiple occasions, both here and in New Zealand) of the imposition of fines, good behaviour bonds, and supervisory-type non-custodial sentences. He has also received the benefit of the imposition of multiple custodial terms on a concurrent, as opposed to a cumulative, basis. Such a sentencing regime has been imposed with the specific intent that he experience some kind of deterrent effect, such that his future offending is minimised or otherwise obviated. It is not trite to suggest that he has learnt nothing from this progressively imposed sentencing regime. Any reasonably objective analysis of his offending history post-September 2009 leads to no other conclusion.
The second cumulative effect arising from the Applicant’s offending is that he has failed to develop any measure of respect for the lawful authority governing the community back into which he now seeks re-admission. He has failed to erect boundaries around the consequences arising from his conduct. Those consequences are numerous and appear in his criminal history. There are, for example, multiple instances of a failure to appear in accordance with either a lawfully given undertaking or pursuant to duly granted bail. There are also numerous convictions involving a failure to stop or otherwise deal with his motor vehicle as directed by police officers. There does not seem to be any measure of respect either for the personal and property rights of other people in the community when the Applicant feels he needs to achieve a desired outcome or when he thinks an outcome he wants is denied to him.
Perhaps the most significant cumulative effect in this second category involves a repeated failure by him to recognise the potential consequences arising from his unlawful conduct. I will explain what I mean: the commission of a “dangerous driving” or “dangerous operation of a motor vehicle” offence is one thing. All too often, over-enthusiastic drivers allow a temptation to speed or to otherwise give full vent to a vehicle’s power to get the better of them. That is one dimension of this sort of offending. The other dimension of this sort of offending is the potential for such conduct while an offender is behind the wheel of a two tonne motorised projectile to cause very serious to extremely serious to potentially catastrophic damage to other people in our community. It is not reasonable to expect the community to tolerate conduct whereby a motorist is directed to take a certain lawful step while at the wheel of their vehicle, only for that motorist/offender to suddenly drive off and cause police to chase or pursue that person through otherwise peaceful neighbourhoods, where people are going about their regular business.
A similar observation can be made in relation to the Applicant’s domestic violence offending. In present circumstances, a domestic violence order is made and the Applicant subsequently maintained a line of very threatening communication and correspondence with the aggrieved, then it is reasonable to conclude that a cumulative effect of such breach-type offending is that the person has failed to recognise both the legal import behind the order and the potential for harm that his further actual or threatened violent conduct will cause.
A third observation about the cumulative effect of the Applicant’s offending relates to whether or not his issues with illicit drugs and/or alcohol remain unresolved. In his oral evidence, he sought to suggest that his time in both criminal custody and immigration detention had forever diverted him from a propensity to abuse such substances. Be that as it may, it can be fairly found that a predisposition towards abusing methylamphetamine was front and centre in his life even though he had a parental responsibility for two biological children and one stepchild, who were reliant on his support, if not as a “hands-on” basis then certainly as a financial and non-custodial source of support. I will later deal with the psychological opinion now before the Tribunal. Suffice it to say (and as will be seen from the following discussion about that psychological opinion) it is essential for the Applicant to refrain from abusing illicit drugs and/or alcohol in order to lower his risk of re-offending. It is clear that while drugs have been part of his life, his offending has been very serious, resulting in very serious and, indeed, potentially catastrophic harm. I have little doubt that were he return to abusing methylamphetamine (or any other illicit drugs/alcohol) in the general community, he would return to a pattern of serious to very serious offending as he committed in the past.
I am of the view that the cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material discloses that when he first entered Australia in January 2002, the Applicant completed the usual incoming passenger card. This card is dated 3 January 2002, and reveals that in response to the question “If you are NOT an Australian citizen: Do you have any criminal conviction/s?” the Applicant ticked the box marked “No”.[52]
[52] Exhibit G1, s 501 G Documents, G24, page 337.
The difficulty for the Applicant in answering in the negative is that at the time of his entry into Australia, he must have been well aware of his criminal history in New Zealand that involved five sentencing episodes dealing with the commission of some 16 separate offences. I have checked the Transcript and the Applicant’s statement[53] and cannot see any reference to this incident in that material. However, in the Applicant’s SFIC, there is a short reference to it, to this effect:
“In relation to the matters prescribed by s 13.1.1(1) of Ministerial Direction 79, it is noted that:
…
f) the Applicant has not provided false or misleading information to the Department;
...”[54]
[53] See Exhibit A2, Document A1, Statement of the Applicant.
[54] Exhibit A1, Applicant’s SFIC, page 7.
The Respondent contends that: “…the applicant mislead the Department as to his New Zealand criminal history on his incoming passenger card when he declared that he had no convictions.”[55]
[55] Exhibit R1, page 9, paragraph [34].
As mentioned, the Transcript does not contain any reference to this specific sub-paragraph (g). On the one hand, an outright denial of a failure to disclose prior offending without any sort of explanation about why the Applicant ticked the “No” box must be received with caution. Whilst not canvassed in argument, it is difficult to afford any benefit to the Applicant on the basis that he, for example, may have mistakenly ticked the “No” box because he may have thought it only related to an offending history in Australia. Without any submissions to the contrary, I consider that it is more likely than not that the Applicant did mislead the Respondent in the completion of this card.
Accordingly, I find that this sub-paragraph (g) weighs in favour of a finding that his offending is demonstrative of a serious nature.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of this application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. The material does contain detailed reference to an incident involving “Detainee assaulted another detainee by punching him on a number of occasions.” It is not apparent from this material about whether the Applicant’s conduct rises to “a crime committed while the non-citizen was in immigration detention…” Out of an abundance of caution, I will refrain from dealing with this conduct pursuant to this sub-paragraph (i) and, instead, will deal with it in my commentary relating to the chapeau to paragraph 13.1.1(1) of the Direction.
The chapeau to the factors at paragraph 13.1.1 of the Direction reads as follows:
“(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 factors including: …”
[My underlining]
There are three further aspects able to be gleaned from the totality of the Applicant’s conduct which, although not directly captured by the nine factors at paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
First, as mentioned earlier, the Applicant does have an offending history in New Zealand. It runs for four years, from May 1998 to March 2002. The first phase of it, from May 1998 until April 1999, involves the Applicant offending as a juvenile, resulting in his appearing before lawful authority on six separate occasions that dealt with the commission of some 11 separate offences. The nature of the offending is eerily redolent of what transpired after he arrived in Australia. It is replete with offences that involve (1) a refusal to accept lawful authority (“escape custody”, “escape social welfare”); (2) a refusal to respect the property rights of others (“burgles x2”, “wilful damage x3”); and (3) illicit drugs (“possess pipe”). His offending as an adult in New Zealand runs from January 2001 until March 2002. This offending involves a refusal to follow lawful authority (“resist police”); and a failure to respect the property and personal rights of others (“common assault”; “wilful damage”),
Second, the Applicant has an extensive traffic history in Australia and minimal such history in New Zealand. A singular traffic offence in New Zealand was dealt with in April 2001. It involved him failing to comply with the direction of a person in lawful authority. In Australia, the Applicant’s traffic history involves the commission of some 17 individual offences. They range from exceeding the speed limit, unlicensed driving, failure to wear a seatbelt, dangerous driving, failure to stop a motor vehicle as soon as practicable and a failure to notify change of name or address within 14 days. I am mindful of not “double counting” the Applicant’s traffic history with his criminal history, because a deal of his traffic offending seems to have transposed itself onto his criminal history. For present purposes, even a brief cross-section of the nature of some of his conduct in this regard should be taken into account. The Respondent in its SFIC has referred to the following examples:
·19 April 2010 – driving through a red light, accelerating at speed in residential areas, overtaking vehicles on the wrong side of the road over double white lines then decamping from his vehicle leaving the vehicle engine running and vehicle rolling towards houses;
·22 June 2010 – failing to stop when police lights and sirens were activated, accelerating through a 40km/h roadwork site and 100km/h driving through red lights, swerving at a police vehicle, driving at speed towards oncoming traffic narrowly missing a head on collision with three vehicles and crossing a double white line driving directly towards a vehicle travelling in the other direction;
·12 July 2017 – Failing to stop when a marked police car activated lights and sirens and police ceased the pursuit when the vehicle was observed to be doing 100km/h in an 80km/h zone; and
·10 August 2018 - police attempted to intercept the Applicant’s vehicle but the applicant failed to stop after a marked police car activated lights and sirens. Police ceased the pursuit when the Applicant’s vehicle was observed to be doing 100-110km/h in a 60km/h zone. Subsequent checks revealed that the Applicant was driving a vehicle that was unregistered without registration plates visible, whilst the Applicant unlicensed and uninsured.[56]
[56] See Exhibit R1, Respondent’s SFIC, pages 9-10, paragraph [35].
The nature of both the Applicant’s offending at the wheel of a motor vehicle, together with how this Tribunal ought to receive and view such conduct, appears in the material. The learned sentencing Judge[57] noted the following:
“So far as the traffic offences are concerned, again, they in your instance particularly call for an element of specific deterrence. It is particularly concerning especially having regard to your traffic history which tends to demonstrate a general failure by you to recognise your responsibilities and the privilege that you have as a road user to drive a vehicle on the road. It seems that you have been given any number of opportunities now to recognise that, but for whatever reason despite even a period of imprisonment having been served, that message has not sunk in.”[58]
[My emphasis and underlining]
[57] His Honour Justice Burnett, DCJ.
[58] Exhibit G1, s 501 G Documents, G5, page 41.
Similarly, this Tribunal has previously noted the following about reckless and indifferent attitudes towards the management and control of a motor vehicle:
“…There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle… The catastrophic potential of losing control of a motor vehicle … is the subject of constant campaigns by governments at all levels.
…
…However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community” … But, his failure to understand right from wrong when operating a motor vehicle…can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.”[59]
[59] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43] and [45].
Third, the material discloses the Applicant’s involvement (on 16 October 2018) while in immigration detention in conduct described as “Detainee assaulted another detainee by punching him on a number of occasions”. Details of that conduct can be briefly described as follows:
“This Incident Report has been raised by Detention Services Manager…at Brisbane Immigration Transit Accommodation…on the 16^th October 2018. At 1216hrs an altercation occurred between detainee’s [the Applicant] and [name redacted]…After reviewing the footage it appeared detainee [name redacted] had provoked detainee [Applicant] by flicking the back of his head with a plastic spoon. [The Applicant] who was sitting down on the couch at the time immediately stood up and walked towards detainee [redacted] striking him approx.. 4 times to the jaw area in the doorway…”[60]
[60] Exhibit G1, s501 G Documents, G12, page 165.
In evidence in chief, the Applicant was asked about this incident and the following transpired:
“MR MCCOMBER: And then I believe there was an incident in immigration detention on 16 October 2018 involving another detainee. Could you describe to the tribunal what happened during that incident?
WITNESS: He was using people’s Facebook to (indistinct).
MR MCCOMBER: I’ll take one step back. I believe this was the one involving the fellow who hit you in the back of the head?
WITNESS: Yes. This was the build-up before it.
MR MCCOMBER: Okay?
WITNESS: He’d been using – because what happened then was that he’d just bought the phones back and so no one really had a phone (indistinct) of the phone. So I was one of the guys that had a phone in there or maybe three. There was computers there, there was five or six computers. I left my Facebook logged on and he contacted his missus through my Facebook. His missus started sending me abusive messages onto my Facebook. Then I asked him not to do it again and then he did it to some other detainees. And then I was sitting down in the chair outside and he come up and punched me in the back of the head.
MR MCCOMBER: And then what happened next?
WITNESS: I got up and said “What did you do that for?” And then I approached him and then he (indistinct) I hit him. I hit him once and then the second punch hit the wall and that’s where I did my hand on the wall.”[61]
[61] Transcript, 21 September 202, page 6, lines 44-47, and page 7, lines 1-18.
The Applicant was cross-examined about this incident and said the following:
“MR KYRANIS: The incident that Mr McComber took you to in immigration detention from 2018 - you know the one that I’m talking about, don’t you?
APPLICANT: Yes.
MR KYRANIS: It says that you - and I’m looking at page 165 of the G documents, but I don’t need you to go to it unless you want to - the detention incident reports says that after the other detainee provoked you by flicking the back of your head with a plastic spoon you stood up, walked towards him and struck him four times in the jaw. Is that accurate?
APPLICANT: No. He punched me in the back of the head.
MR KYRANIS: And what did you do in response?
APPLICANT: Well, I got up and asked him what that was for, and he threw another punch and I hit him back. I didn’t hit him four times, I hit him once. You know - let’s be really clear here - like, on the outside that’s - that’s known as a coward punch. One punch can kill. I make no - I make no - he actually concussed me, like, hit me in the back of the head. There was no - it’s a report saying he flicked me with a spoon - we only had plastic spoons here. I wouldn’t be annoyed about a plastic spoon. I (indistinct) leave him alone, I wouldn’t speak to him. But, yes, I did end up lacerating my hand on the wall, as the report says. But this is another incidence of what I was saying before - you’ve got camera footage of that (indistinct) but yet nothing gets utilised, or (indistinct).”[62]
[62] Ibid, page 42, lines 5-25.
While I note and accept the Applicant’s version of the incident, such explanation must be received with caution in circumstances where the author of the relevant Incident Details Summary records that “after reviewing the footage” the Applicant was provoked not with a punch, but with a flick from a plastic spoon. Further, the footage is recorded to demonstrate that the Applicant did not strike the victim once, but that he struck “…him approx. 4 times to the jaw area…”. While I cannot detect any manner of a formal criminal charge being proffered against the Applicant consequent upon this incident, it is nevertheless conduct involving at least some measure of violence by him towards a fellow detainee.
I am thus of the view that the chapeau to paragraph 13.1.1(1) of the Direction can be fairly applied to the abovementioned three aspects of the Applicant’s conduct to support the allocation of a strong level of weight in favour of a finding that (1) the Applicant’s criminal history in New Zealand; (2) his traffic history in Australia and New Zealand; and (3) the incident in immigration detention on 16 October 2018, on a combined basis, do constitute at least serious, more likely very serious, conduct.

Mr O’Conner confirmed the Applicant “…also has the option of returning to full time work upon his release offered by myself and the managing director mark Sinclair”. While Mr O’Conner was not called to give oral evidence in support of this letter, I nevertheless therein at face value.
In answering the question “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc”, in his Personal Circumstances Form, the Applicant said the following:
“I have worked on major constructions that have been constructed in Queensland and have worked the entire time and earned taxes that contribute to the economy.”[156]
[156] Exhibit G1, G7, page 73.
The Applicant’s at least serious, more likely very serious offending has surely breached the expectations of the Australian community. His offending history is demonstrative of a significant failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(a)as outlined above, the Applicant has made (and has the potential to make) positive contributions to the Australian community through his employment history;[157]
(b)save and except for periods of incarceration prior to January 2018, the Applicant lived in the mainstream Australian community for approximately 16 years prior to his removal in January 2018;[158]
(c)the removal of the Applicant will have a negative impact on his three minor children in Australia;[159]
(d)the very serious nature of the Applicant’s offending to date;
(e)while I do not cavil with the findings of Ms Egan about the Applicant’s risk of re-offending, I have found that the Applicant’s risk of recidivism, upon any return to the Australian community, remains largely untested and, therefore, uncertain;
(f)my finding that the risk of the Applicant again committing similar or identical offending is now only marginally lower than what it was at the time of his removal from the Australian community in January 2018; and
(g)my assessment of the quite significant and broad-ranging risk of substantial and potentially catastrophic physical, psychological or financial harm to the Australian community were he to re-offend.
[157]    The Direction, paragraph 6.3(7).
[158]    The Direction, paragraph 6.3(5).
[159]    The Direction, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
In preparing for this hearing and reading specific parts of the material, I noticed that in his personal circumstances form, the Applicant responded as follows in relation to any apprehended fear of harm were he to be removed to New Zealand:
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘yes’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
Yes I have given evidence against my co-offender [name redacted] and she has connections with [an Organised Street Gang].”[160]
[160] Exhibit G1, G7, page 74.
I cross-referenced this comment appearing in the Personal Circumstances Form against the Applicant’s SFIC. There is no reference in that SFIC to any reliance upon this Other Consideration (a). Further, I cross-referenced the aforementioned comment in the Personal Circumstances Form against the Applicant’s statement appearing in the material.[161] Again, I could find no reference to any comment or stated fear of harm giving rise to an application of this Other Consideration (a) to the instant facts.
[161] See Exhibit A2.
I have also had regard to two portions of the Transcript. First, at the end of the oral evidence of the Applicant, I took up the issue of whether this Other Consideration (a) is relevant to the instant facts with the Applicant’s representative. The following exchange transpired:
“SENIOR MEMBER: Okay. Now, Mr McComber, just before we, I suppose in a formal sense, close off the evidence of your client, can I take you, Mr McComber, please, to page 74 - or take you both - to page 74 of the G documents? And, Mr McComber, could you have a look at the bottom of page 74, and just have a quick read of those two handwritten lines, please. You read them?
…
MR McCOMBER: Yes, Senior Member.
SENIOR MEMBER: Now, is the tribunal expected to take that as some kind of submission in relation to the propounding of weight attributable to other consideration (a), or is that not propounded as part of the applicant’s case?
MR McCOMBER: Senior Member, the position is that the applicant doesn’t make any claims of non-refoulement, because it’s not alleged that the government of New Zealand is incapable of protecting him from the harm that’s suggested there.
SENIOR MEMBER: Very well.
MR McCOMBER: However, that’s not to say that it’s not relevant as consideration to an impediment - potential impediment - on his removal to New Zealand.
SENIOR MEMBER: Okay.
MR McCOMBER: Notwithstanding that it doesn’t reach the non-refoulement threshold.
SENIOR MEMBER: All right. So, if it has any relevance at all, it will be relevant for the purposes of other consideration (e).
MR McCOMBER: Yes, correct.”[162]
[162] Transcript, 21 September 2020, page 50, lines 5-45.
Second, I have had regard to the submissions made during closing submissions by the Applicant’s representative, which were to the following effect:
“The only other relevant issue, Senior Member, that we say exists is the impediment on return to New Zealand. We don't place too much weight on this issue given that New Zealand is a developed country with social services available. Senior Member, you pointed out yesterday that the applicant does have concerns for his safety stemming from his previous associate's or previous partner's ties to certain criminal elements in New Zealand.
Having said that, as I just said yesterday, there's no allegation that the government of New Zealand is incapable of protecting the applicant from that harm nevertheless we submit that the fear and anxiety that that potential threat poses to the applicant is a matter which is an impediment to his potential return to New Zealand.”[163]
[163] Ibid, 22 September 2020, page 91, lines 8-19.
I therefore conclude that the abovementioned statement appearing in the Applicant’s Personal Circumstances Form does not reach the non-refoulement threshold such as to activate an application of this Other Consideration (a) to the instant facts. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“51. Overall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community.”[164]
[164] Exhibit R1, Respondent’s SFIC, page 15.
The Applicant first came to Australia in January 2002 aged 19 years. He brought with him an offending history in New Zealand that commenced while he was a juvenile and ran from approximately mid-1998 to early 2002. He commenced offending in Australia in the middle part of 2004 (May) and was first dealt with by lawful authority for his offending in this country in June 2004. I have had regard to paragraph 14.2(1)(a)(i) of the Direction and find that the Applicant did begin offending “soon after arriving in Australia.” Therefore, no weight can be allocated to the Applicant on the basis of paragraph 14.2(1)(a)(i).
On the other hand, weight in favour of the Applicant can be found upon an application of paragraph 14.2(1)(a)(ii). I have earlier recounted the Applicant’s sound employment history in Australia. This contention is supported by certain financial documents appearing in the material.[165] It comprises income taxation returns, payment summaries and notices of assessment for certain years of income arising from the Applicant’s engagement in remunerative employment. This is confirmed in the Applicant’s Personal Circumstances Form.[166] I therefore accept the Applicant has spent time making a positive contribution to the Australian community and a moderate level of weight in his favour can be allocated pursuant to an application of paragraph 14.2(1)(a)(ii).
[165] See Exhibit G1, G20, pages 225-280.
[166] Ibid, G7, page 73.
Regard must also be had to paragraph 14.2(1)(b) of the Direction which is concerned with the Applicant’s strength, duration and nature of any family or social links with Australian citizens and/or people who can otherwise remain here indefinitely. It is clear from the evidence that the Applicant has ties with Australian citizens and/or people who have an indefinite right to remain in Australia. As mentioned earlier, he arrived in Australia aged 19 years and is now 38 years of age. He has therefore spent half his life in Australia. In addition to his two biological children and one stepchild in Australia, he also has immediate and extended family who reside here. According to his Personal Circumstances Form, those people are:[167]
[167] Ibid, page 71 (Names redacted).
“(a) Mother;
(b) Brother;
(c) Aunt;
(d) Cousin;
(e) Cousin;
(f) Uncle;
(g) Cousin;
(h) Cousin; and
(i) Cousin.”
I am mindful of the Applicant’s evidence given both in chief and in cross-examination. In his evidence in chief, he said:
“MR MCCOMBER: And in the alternative if you aren’t allowed to remain in Australia and you’re forced to be removed to New Zealand what do you see your life like – being like in New Zealand?
WITNESS: I don’t have any family there, like I don’t have – you know, I don’t have family. It’s pretty much a death sentence for me, you know. That’s the way I see it.”[168]
[168] Transcript, 21 September 2020, page 9, lines 24-28.
In cross-examination, he said:
“MR KYRANIS: You said in your evidence earlier today that you have no family members in New Zealand, is that right?
WITNESS: I have none.
MR KYRANIS: You None of your mother’s relatives live there?
WITNESS: My mum’s got relatives there but we’re not close. I don’t know them. They’re all – some of my mother’s – my mum’s got one older brother who’s got polio. Not polio, he caught it in the ‘70s when he was born, so he’s normally functioning in the brain. He lives in a what do you call it aged – like an aged care facility. He can’t even (indistinct), he can’t speak. He plays with sticks all day. And my mother’s other brother is a drugo and I don’t want to go back to that. I don’t know him, so - - -”[169]
[169] Ibid, page 18, lines 10-20.
With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community are strong and palpable. I find that this paragraph 14.2(1)(b) weighs strongly in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs strongly in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
There does not appear to be any evidence before the Tribunal that the Applicant’s continued presence in Australia would have an adverse impact on any of his victims. To make any finding about allocable weight to this Other Consideration (d) in the absence of such evidence would be to embark upon a frolic of conjecture about any such impact. I will not do so, and, accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances, the Applicant speaks of adverse outcomes were he to be returned to New Zealand as follows:
“Are there any other problems you would face if you have to return to your country of citizenship?
I would endure extreme financial hardship because of the cost of living and the hourly rate I would not be able to pay child support or even afford accomdation [sic] I have based my entire life here and have my children and no family over there.” [170]
[170] Exhibit G1, G7, page 75.
With that being said, the following limited concession about weight allocable to this Other Consideration (e) was made by the Applicant’s representative at the hearing during closing submissions:
“The only other relevant issue…that we say exists is the impediment on return to New Zealand. We don't place too much weight on this issue given that New Zealand is a developed country with social services available…”
The Applicant is a man of 38 years of age in apparently good state of physical health.[171] In response to a question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[172] I am mindful of certain mental health symptoms/condition(s) regarding the Applicant that appears in the material. He will be able to access medical care, treatment and governmental social support in New Zealand[173] for those symptoms/condition(s) to the same (or very nearly the same) level as that available to him in Australia. The Applicant will have access to those services and supports in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[171] Section 14.5(1) of the Direction.
[172] Exhibit G1, G7, page 74.
[173] Section 14.5(1)(c) of the Direction.
I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[174] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. While the Applicant contends that his lack of familial ties in New Zealand presents an impediment he would face upon a return to New Zealand, to the extent he may face some difficulty in re-establishing himself in that country, I consider those challenges would not be insurmountable and would only present as a short-term hardship, not precluding his successful re-settlement there.[175]
[174] Section 14.5(1)(b) of the Direction.
[175] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As mentioned earlier, the Applicant also has a solid employment history in Australia. He has worked as a high reach driver, a stevedore, a rigger and a dogman (crane operator) in this country. At the hearing, he described himself as “a highly skilled construction worker.”[176] He also holds a Diploma in Warehousing and a Certificate III in Driver Operations.[177] There is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in any of these fields upon his return to New Zealand.
[176] Transcript, 21 September 2020, page 9, line13.
[177] Exhibit G1, G7, page 73.
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weigh heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: strongly weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: slightly weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the weight I have attributed to Primary Consideration B, outweigh the significant combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 258 (two hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

....................................[sgd]....................................
Associate
Dated: 7 October 2020

Date of hearing: 21 & 22 September 2020

Advocate for the Applicant:

Mr Joel McComber (Director)

Sentry Law

Advocate for the Respondent: Mr Jake Kyranis (Senior Associate)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (Pages 1 - 389)

R

-

31 July 20

R1

Respondent’s Statement of Facts, Issues and Contentions (Pages 1 – 16)

R

7 Sep 20

7 Sep 20

R2

Respondent’s Tender Bundle (Pages 1 – 74)

R

-

7 Sep 20

A1

Applicant’s Statement of Facts, Issues and Contentions (Pages 1 – 14)

A

23 Aug 20

23 Aug 20

A2

Applicant's Updated Bundle of Documents (Pages 1 -97)

A

-

17 Sep 20

A3

Applicant’s reply (Pages 1 – 5)

A

15 Sep 20

17 Sep 20

[2020] AATA 4239

7 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Appeal

Date of hearing:	21 & 22 September 2020
Advocate for the Applicant:	Mr Joel McComber (Director) Sentry Law
Advocate for the Respondent:	Mr Jake Kyranis (Senior Associate)
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (Pages 1 - 389)	R	-	31 July 20
R1	Respondent’s Statement of Facts, Issues and Contentions (Pages 1 – 16)	R	7 Sep 20	7 Sep 20
R2	Respondent’s Tender Bundle (Pages 1 – 74)	R	-	7 Sep 20
A1	Applicant’s Statement of Facts, Issues and Contentions (Pages 1 – 14)	A	23 Aug 20	23 Aug 20
A2	Applicant's Updated Bundle of Documents (Pages 1 -97)	A	-	17 Sep 20
A3	Applicant’s reply (Pages 1 – 5)	A	15 Sep 20	17 Sep 20