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

[2023] AATA 3954

Euese and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3954 (29 November 2023)

Division:GENERAL DIVISION

File Number:          2023/6749

Re:Matthew Euese

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:29 November 2023  

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

R Cameron, Senior Member

Catchwords

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No 99 – intentionally causing injury – contravention of community correction order – armed robberies of milk bars – recklessly causing injury – assaulting emergency worker on duty – theft – committing indictable offence whilst on bail – contravention of a condition of bail – other offending – violence against women including family violence – alcohol and drug use – propensity to act impulsively and violently – protection of Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor children – extent of impediments if removed – decision affirmed

Legislation

Migration Act 1958 (Cth)

Sentencing Act 1991 (Vic)

Cases

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)

REASONS FOR DECISION

R Cameron, Senior Member

29 November 2023

INTRODUCTION

1. The applicant seeks review of a decision made on 6 September 2023 by a delegate of the respondent not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act1958 (Cth) (“the Act”) (“the reviewable decision”).

   THE EVIDENCE BEFORE THE TRIBUNAL

2. There was both documentary and viva voce evidence before the Tribunal.

3. The applicant gave viva voce evidence and was searchingly cross-examined.

4. Additionally, the following witnesses gave evidence:

   (a)Pat Bollard (a counsellor who has been seeing the applicant since his transfer to immigration detention)

   (b)Annie Euese (the applicant’s mother);

   (c)Mark Euese (the applicant’s brother);

   (d)Alan Toafa (a friend of the applicant);

   (e)Robert Teo (a friend of the applicant)

5. Statements in support of the applicant, which were read and considered by the Tribunal, were also, by agreement between the parties, tendered from the following persons:

   (a)Tia Junior Euese (the applicant’s brother);

   (b)The applicant’s sister;

   (c)Haylie Heeger-Roney;

   (d)Atoana Ah San;

   (e)Maria Jones (a Parish Pastoral Worker from St Anthony’s Parish, Noble Park).

6. There were the “G” documents together with a tender bundle lodged by the respondent (hereinafter referred to as the “RTB”).

   LEGISLATIVE FRAMEWORK

7. Under s 501(3A) of the Act, the Minister (or his delegate) must cancel a visa that has been granted to a person if:

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

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

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

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

8. The character test referred to in s 501(3A)(a) is outlined in s 501(6) of the Act. Relevantly, s 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]

   [1] Migration Act 1958 (Cth) s 501(7)(c).

9. Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked.

10. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“Direction 99”).

    AN OVERVIEW OF DIRECTION 99

11. It is not necessary to reproduce the entirety of Direction 99. However, it is useful to refer to several of paragraphs of it. The paragraphs containing the primary and the other considerations required to be taken into account by the Tribunal as decision-maker will be reproduced later in these reasons when each of those relevant considerations are examined in more detail.

12. Paragraph 5.2, “Principles”, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for their full force and effect. However, several of them should be specifically referred to. It is provided that:

    (a)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;

    (b)the Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and

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

13. Paragraph 6, “Exercising discretion”, provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraph 8, “Primary Considerations”, and paragraph 9 “Other considerations”, where relevant to the decision.

14. Paragraph 7, “Taking the relevant considerations into account”, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.

15. Paragraph 8, “Primary considerations”, mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:

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

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

    (c)the strength, nature and duration of ties to Australia;

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

    (e)expectations of the Australian community.

16. Paragraph 9, “Other considerations”, provides in making decisions under s 501(1), 501(2) or 501CA(4), the following considerations must also be taken into account, where relevant, and include, but are not limited to:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)impact on Australian business interests.

    ISSUES BEFORE THE TRIBUNAL

17. There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.[2]

    [2] Document G2 of the G documents, attachments G7 and G8, contain the representations made by the applicant to the respondent that were considered by the delegate.

18. That leaves two issues for determination by the Tribunal:

    (a)whether the applicant passes the character test; and

    (b)if he does not, whether there is “another reason” why the decision to cancel the visa should be revoked.

    THE CHARACTER TEST

19. The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more in the County Court of Victoria on 17 June 2021.

    BACKGROUND AND OFFENDING

20. The applicant is a citizen of New Zealand. He was born in July 1996. He first arrived in Australia on 11 January 2006 with his parents and siblings when he was 9 years old. He has lived here ever since. Prior to its mandatory cancellation, the applicant was the holder of a Class TY Subclass 444 Special Category (Temporary) visa.

21. There are several sources of documentary evidence before the Tribunal contained in both the G documents and the RTB.

22. The applicant has a long history of offending for a comparatively young man. This offending has resulted in him appearing in several courts. He has served several terms of imprisonment. Details of his offending are found in a criminal history check report in the G documents.[3] It is appropriate given the history of the applicant’s offending and the nature of it to reproduce that history in tabular form below.

    [3] Pages 27 to 29 of the G documents.

DATE	OFFENCE	SENTENCE
17 June 2021 Melbourne County Court	Intentionally cause injury	4 years, 2 months imprisonment
17 September 2020 Dandenong Magistrates’ Court	Contravene Community Correction Order	Proven: 1 month imprisonment, concurrent
3 December 2018 Melbourne County Court	Armed robbery (4 charges)	8 months imprisonment on each count. Concurrent. Plus, convicted Community Corrections Order for 5 years commencing upon completion of imprisonment term. To perform 130 hours of unpaid community work.
3 December 2018 Melbourne County Court	Attempt to commit indictable offence	7 months imprisonment concurrent. Plus, convicted Community Corrections Order for 5 years commencing upon completion of imprisonment term. To perform 130 hours of unpaid community work.
3 December 2018 Melbourne County Court	Recklessly cause injury	6 months imprisonment. 5 months of sentence concurrent. Plus, convicted Community Corrections Order for 5 years commencing upon completion of imprisonment term. To perform 130 hours of unpaid community work.
3 December 2018 Melbourne County Court	Assault Emergency Worker on Duty	3 months imprisonment, concurrent. Plus convicted Community Corrections Order for 5 years commencing upon completion of imprisonment term. To perform 130 hours of unpaid community work.
3 December 2018 Melbourne County Court	Theft	1 month imprisonment, concurrent. Plus convicted Community Corrections Order for 5 years commencing upon completion of imprisonment term. To perform 130 hours unpaid community work.
3 December 2018 Melbourne County Court	Commit indictable offence whilst on bail (5 charges) Contravene a conduct condition of bail Unlawful assault	1 month imprisonment on each count. Concurrent.
20 March 2018 Dandenong Magistrates’ Court	Drive in a manner dangerous	Convicted and a Community Correction Order for 12 months. To perform 100 hours of unpaid community work. This condition starts on 20 March 2018 and goes for 12 months. Licence cancelled and disqualified for 6 months.
20 March 2018 Dandenong Magistrates’ Court	Intentionally damage property	Convicted and a Community Correction Order for 12 months. To perform 100 hours of unpaid community work. This condition starts on 20 March 2018 and goes for 12 months. To pay $7,000.00 compensation.
20 March 2018 Dandenong Magistrates’ Court	Intentionally damage property	Convicted and a Community Correction Order for 12 months. To perform 100 hours of unpaid community work. This condition starts on 20 March 2018 and goes for 12 months. To pay $6,882.59 compensation.
20 March 2018 Dandenong Magistrates’ Court	Unlawful assault (3 charges)	Convicted and a Community Correction Order for 12 months. To perform 100 hours of unpaid community work. This condition starts on 20 March 2018 and goes for 12 months. To pay $7,000.00 compensation.
13 March 2015 Dandenong Magistrates’ Court	Resist protective services officer. Fail to produce a valid ticket – passenger vehicle.	Without conviction adjourned to 10 March 2016.
13 March 2015 Dandenong Magistrates’ Court	Possess controlled weapon without excuse	Without conviction adjourned to 10 March 2016.

1. Concerning the applicant’s appearances before the County Court of Victoria on 17 June 2021 and 3 December 2018 the Tribunal had the benefit of each sentencing judges’ Reasons for Sentence. In each of those matters, the sentencing judge provided a helpful summary of the circumstances surrounding the offending on the part of the applicant. They will be largely relied upon for the purposes of these reasons.

   The offending that led to the applicant being sentenced in the County Court of Victoria at Melbourne on 17 June 2021

2. The offence of intentionally causing injury for which the applicant was sentenced on 17 June 2021 occurred as a result of an interaction between the applicant and another male of 28 years of age who was unknown to him. The events occurred at approximately 3.00 am. The victim sought to catch a taxi underneath the King Street Bridge following an evening of celebrations. He intended, in company with another person, to catch the taxi to a nightclub in City Road. The taxi driver, in a way that is not uncommon these days in the early hours of a morning, required the victim and his companion to pay the estimated taxi fare prior to departure, or as the trial judge described it, “upfront”. The victim took issue with this demand and refused to pay beforehand. This disagreement between the taxi driver and the victim led to the victim walking in front of the taxi and standing in front of it. At the same time as standing in front of the taxi, and it would appear refusing to move, he attempted to telephone the police and report the taxi driver. Because the victim was standing in front of the taxi driver, the taxi was unable to move forward or drive away.

3. The applicant, who was a passenger in a car driven by his brother nearby, got out of the car and from a direction of at least two or three cars behind the taxi, first jogged and then walked up to the victim. He engaged the victim briefly; it would appear for several seconds. He then punched him twice to the face. The victim fell immediately to the ground striking his head on the pavement. The victim was unable to defend himself. It was clearly a very sudden attack. A witness described the victim as hitting the road hard. The trial judge, from observing the video footage of the incident, described the victim as “forcefully going to the ground”. Approximately 5 seconds after the victim fell to the ground as described, the applicant bent down, picked him up with two hands, apparently by his clothes, moved him to the side of the road and just dropped him behind a parked car adjacent to a gutter. In a record of interview with the police subsequently conducted, in which the applicant made full admissions, the applicant admitted that the victim was totally unconscious and that he just picked him up, and using his words, “threw” him off the road.

4. Following these acts and throwing the victim off the road adjacent to the gutter, the applicant got into a car and departed the scene. In the record of interview with the police the applicant stated that he just simply went home.

5. Not unsurprisingly, in this day and age, the entire incident was captured on both CCTV cameras and mobile phone footage. The police were able to identify the applicant from the numberplates of the car driven by his brother. He was arrested at his parents’ house approximately a week and a half later. Following an interview, he was remanded in custody. He has been in custody and immigration detention ever since.

6. The victim suffered severe injuries. He was conveyed to the Alfred Hospital, and it appears, did not regain consciousness for several days. He described being in terrible pain when he did regain consciousness. The victim’s face was burning and swollen, he could not move his jaw, was scared, lacked mobility, could barely eat and was unable to shower. He stated that his time in hospital, which was for 11 days, was spent in pain.

7. Subsequently, the applicant was admitted to a rehabilitation facility. A medical specialist who treated the victim, amongst other things, recorded that he was in post-traumatic amnesia, feeling more fatigued than usual and had reduced cognitive endurance.

8. Further evidence with respect to the victim’s injuries before the sentencing judge from a treating forensic physician reported that the victim’s injuries included bleeding of the brain, (a subarachnoid haemorrhage), loss of consciousness, laceration to the back of the head requiring sutures and post-traumatic amnesia. The specialist also expressed the opinion that there was a future risk of seizures and ongoing cognitive and psychological problems.

9. The victim apparently explained to the sentencing judge, in a victim impact statement, that since the incident where he was struck by the applicant, his memory had been impaired. This memory impairment resulted in him being referred to occupational therapy. However, the victim’s ongoing cognitive impairment, certainly in the short term, did not improve. Features of the impairment suffered by the victim as at the date of the applicant’s sentencing, were described as moderate impairment with auditory memory, maths skills and problem-solving and severe impairment with visual memory and complex problem-solving. The sentencing judge observed, quite appropriately, that these impairments were a significant change for a person of the victim’s age, who, as mentioned earlier, was at the time of the incident concerned, 28. Prior to the incident he was an individual who was described as high functioning, working and driven. The judge also recorded that it was clear the victim continued to suffer from significant fatigue which had arisen as a direct result of the assault on him by the applicant. It was also stated by the sentencing judge that the victim may well have to live with a number of the problems he experienced as a result of the assault committed on him by the applicant for an extended period of time.

10. The sentencing judge quoted a passage from the victim’s impact statement which is appropriate to repeat in these reasons.

    Mostly I haven’t been like I used to be, I feel scared to do things I used to do, whatever I used to enjoy I don’t do it anymore. It’s scary, I don’t feel at home in Australia anymore, either, I’m alone here, I don’t have a family here. I’m fully lost, I am not quite sure what to do or what I feel. I can’t describe my feelings right now, I am feeling really low most of the time.

1. Further, in his victim impact statement he described difficulties with sleeping and that he had been unable to work ever since the incident due to his injuries sustained. It had cost him his job and he had been unable to take up other work. Consequent upon the loss of his employment, loans and financial responsibilities that he had could not be met. He was uncertain how he would ultimately address this question and was certainly unable to repay all of his debts. In addition to the anxiety and stress he was feeling at that time, the victim stated he was feeling hopeless, had lost his work, lost his clearance to drive and felt that he had lost his independence. Sometimes he stated he felt dizzy, and he was always tired.

2. The judge referred to what he described as “medical opinion” which stated that the victim had suffered significant cognitive problems as a result. Finally, the judge expressed the view that hopefully with appropriate treatment and therapy there would be some improvement in the victim’s condition. However, it was clear to the judge that the concerted effort to assist the victim, as at the date of the applicant’s sentencing, had not to that time had great effect.

   The offending that led to the applicant being sentenced in the County Court of Victoria at Melbourne on 3 December 2018

3. In the County Court of Victoria at Melbourne on 3 December 2018, the applicant was sentenced after pleading guilty to four charges of armed robbery, one charge of theft, one charge of attempting to commit an indictable offence, namely an armed robbery, and recklessly causing injury. The applicant also pleaded guilty to eight summary charges which had been transferred to the County Court. They were one charge of resisting an emergency worker on duty, one charge of assault, and six charges of committing an indictable offence on bail. The following summary is taken from the reasons of the sentencing judge.

4. The first offence dealt with on that occasion involved what is frequently called these days a petrol “drive off”. The applicant drove his car to a service station. His then partner filled the car with petrol and they drove away without paying.

5. The next series of offences were a series of armed robberies carried out over a period of four days where the applicant wielded a hatchet to threaten his victims who were shop proprietors working behind the counter. The first of those armed robberies took place at a milk bar in Dandenong North. The offence was conducted by the applicant in conjunction with his then partner. In short, the applicant confronted the owner of a milk bar with a small hatchet demanding money and cigarettes. The victim complied with the demand by taking several hundred dollars from the till and a quantity of cigarettes and placing them in a backpack produced by the applicant.

6. A further offence of armed robbery occurred on the very next day when the applicant and his co-offender, being his then partner, entertained another milk bar in Clayton South. Again, the applicant raised a hatchet against the victim and made a demand for money and that the victim open the cash register. She did so and the applicant took $600 from it and then ran from the shop.

7. The day after the second armed robbery had been committed, the applicant, again in conjunction with his then partner, entered a milk bar in Keysborough, produced a hatchet and shouted at the victim. The victim did not understand the applicant and activated an alarm causing a loud siren to sound which prompted the applicant and his partner to run from the shop.

8. Later the same day, again in conjunction with his then partner, the applicant entered a milk bar, climbed over the counter and pointed a hatchet at the victim. He made demands for money and, at the same time, struck the counter with the hatchet. In doing so there was a mark left on the counter. The applicant and his partner then stole between $400 and $500 together with an unknown quantity of cigarettes.

9. A day later the applicant and his then partner entertained another milk bar in Mulgrave where he produced the hatchet and demanded money. He then climbed over the counter making a further demand and stole approximately $500 from the cash register.

10. Further offending for which the applicant was sentenced on 3 December 2018 arose from a series of incidents that occurred at the “Spleen Bar” situated in Bourke Street, Melbourne. The applicant and his partner were present in the bar at approximately 3:30 am. His partner had a disagreement with a barman. Approximately 40 minutes later, the applicant demanded to be served. The barman considered that the applicant was intoxicated and refused to serve him. The applicant’s response was to stand on a chair and yell at the barman who repeated that the applicant would not be served any more alcohol. The barman in a statement made to police said that “there was a lot of yelling coming from” the applicant during the incident. He then climbed over the bar and gestured to the barman to fight. A patron of the premises observing this rising conflict intervened by standing between the pair of them in an endeavour to defuse the situation. The applicant then shoved the patron and threw punches which struck that person in the face. The applicant was charged as a result of that incident.

11. The applicant then struck the barman twice with his fist to the face. His partner then came to the other side of the bar in an endeavour to calm the applicant down. These endeavours failed and the applicant struck the barman again to his face. In his statement to police, the barman stated that he suffered a big lump on his head and concussion. The clinical notes of St Vincent’s Hospital where the victim was treated recorded him as complaining of a headache, having vomited with swelling over his right temporal region, suffering an intracranial injury including concussion.

12. Shortly after these incidents the police arrived, and the applicant and his partner ran out of the premises making their way west along Bourke Street. A police constable pursued them and caught up to the applicant. The applicant attempted to strike the constable, but he was able to raise his hands which deflected the punch so that it only grazed the left side of his neck. The constable continued his pursuit of the applicant whereupon he turned a second time and attempted to punch him. The constable then used his OC spray on the applicant which had immediate effect and he was arrested.

13. The applicant was then conveyed to a police station where a tape-recorded record of interview was conducted. In that record of interview the applicant made full admissions. With respect to his offending against the barman, the applicant stated that he was giving him “attitude the whole time” and that he got pretty angry and jumped over the bar. He described the barman as “just being a smartarse”.

14. His explanation for the offending against the police constable was that he endeavoured to hold the police at bay or hinder them so that his partner could effect an escape.

15. At the time of the offending described, the applicant was on bail so he was also charged with five offences of committing an indictable offence whilst on bail.

16. Two victim impact statements from the victims of two of the milk bar robberies were in evidence before the sentencing judge. One victim said that she feared she was going to be killed or badly injured by the applicant when she was threatened by him with the hatchet. She has suffered nightmares following the robbery. Since the event she has decided to sell the business and move away. It was explained that this is ultimately cost her a lot of money.

17. The other victim impact statement that was in evidence before the sentencing judge also demonstrated the considerable impact the applicant’s offending had upon her. These impacts included reducing the trading hours of her shop and exercising considerable caution through the monitoring of security cameras before she serves customers. She also stated that she intended to sell her shop prematurely as a result of the exposure to the applicant’s offending.

    Other offending

18. With respect to the applicant’s other offending identified in the criminal history check report contained in the G documents and referred to above, there were few other details available to the Tribunal save for several entries contained in the Victoria Police LEAP database. In cross-examination the contents of those entries in the Victoria Police LEAP database were put to the applicant and he agreed with their contents.

19. The offending which led to the applicant’s appearance and conviction in the Dandenong Magistrates’ Court in March 2018 concerned conduct engaged in by the applicant when he was driving a car on his own when he only held a learner’s permit. Apparently, he had been staying at his partner’s house and left after an argument. In his evidence he stated that some people nearby started chasing after his car. For reasons that are not altogether clear, he stopped the car in the middle-of-the-road and engaged in an argument with people present at a house near where he stopped. Some of the people with whom he was arguing then took the keys from his car. They also requested that he identify himself so that they can report the matter to the police. The encounter escalated.

20. The applicant then impulsively proceeded to kick a roller door to the garage of that house, damaging it. He then assaulted other persons present at the premises and kicked the passenger door of a vehicle also present there, causing a large dent in the door. The entry in the Victoria Police LEAP database reveals that the applicant engaged in a fight which resulted in minor injuries to his victims.[4] It is not known whether the applicant at the time of committing these offences was under the influence of alcohol and/or drugs. However, it was yet again an example of the applicant’s propensity to lose self-control, act impulsively and in a violent manner.

    [4] The relevant entry in the Victoria Police LEAP database is at pages 28 and 29 of the RTB.

21. The crimes proven in the Dandenong Magistrates’ Court on 13 March 2015 came about because the applicant travelled on a train without a valid ticket. He said in his evidence that he tried to sneak past the protective service officers. These endeavours were unsuccessful as they pursued him, and he was questioned about where his ticket was and resisted them. He was also carrying a box cutter which he used at is then workplace at a warehouse. This was the charge of possessing a controlled weapon without an excuse.

    Family violence

22. There was some evidence that the applicant had committed at least three acts of family violence against his wife, who is the mother of his two sons, from whom he is now estranged.

23. In the Reasons for Sentence of the County Court judge of 3 December 2018, there was reference to the applicant attempting suicide following an incident when he hit his partner.[5] This was put to the applicant in cross-examination, and he stated that he did not attempt suicide; he just had suicidal thoughts. However, he did readily concede that he had “lashed out” at his former wife. Further, in cross-examination he conceded that there had been three incidents of family violence that he had committed against his wife. Apart from the first incident just described, the next one occurred a couple of months later and the final one a few months after that. He described such acts as “mostly slaps”.

    [5] The relevant passage of the sentencing judge is found in paragraph 29 at page 50 of the G documents.

24. The Tribunal should observe that there was no intervention by the police with respect to these acts of family violence. Nor was any intervention order or like remedy applied for or obtained against the applicant concerning these acts of family violence.

    Factors identified which may have contributed to the applicant’s offending

25. The applicant in his evidence canvassed several factors that he considered contributed to, or provided some context to, his offending.

26. One of these factors referred to by the applicant in his evidence concerned his experiences of significant family violence perpetrated by his father towards his mother, siblings and himself, whilst he was growing up. On occasions throughout his formative years the applicant, because of this family violence perpetrated by his father, slept in a tent, a car or as he put it, just hid. Additionally, he explained in his evidence that due to his father’s continuing acts of family violence, he acted as a protector for his siblings and, to some extent, his mother. He stated that these experiences had a profound effect on him.

27. The applicant explained that he began experimenting with various drugs from approximately the age of 14 years when he commenced using marijuana. He graduated to using methylamphetamine at approximately 19 years of age. He stated that he ceased taking methylamphetamine after his first prison sentence.

28. Alcohol features prominently in the context of the applicant’s background and offending. He stated that drinking alcohol for him was a means of escape from the pressures that he felt were confronting him. He readily conceded that alcohol abuse was a significant factor in his subsequent offending. An examination of each of the sentencing judges’ reasons in 2021 and 2018 reveal that with respect to the incident at the Spleen Bar and the attack on the victim underneath the King Street Bridge, the applicant was severely affected by alcohol. It is not altogether clear on the material before the Tribunal whether alcohol or drugs played a role in the armed robberies of milk bars carried out over four days. A brief reference was made by the sentencing judge in June 2021 to the fact that the applicant was using amphetamines and was homeless at the time of such armed robberies. It seems more probable than not to the Tribunal that the applicant was using amphetamines, and probably affected by them to some significant extent, at the time of the armed robberies of milk bars.

29. The applicant’s mother, who gave evidence, stated that the applicant had a problem with drinking over some time and readily acknowledged that his offending occurred when he was under the influence of alcohol.

30. Ms Bollard, a counsellor who has known the applicant since he was in year 7 at Noble Park Secondary College when she was teaching there, gave evidence. Subsequently, she has retired from teaching and retrained as a counsellor. Two reports prepared by her in support of the applicant were in evidence before the Tribunal.[6] Since the applicant has been placed in immigration detention, she has undertaken voluntarily weekly counselling sessions with him. It was explained by her that in these counselling sessions the following issues relating to the applicant had been addressed:

    [6] The first report of Ms Bollard is undated and comprises 4 pages. The second report is dated September 2023 and comprises two pages.

    (a)Cognition skills;

    (b)PTSD related to abuse and trauma;

    (c)Domestic violence and how it impacted him as a child;

    (d)Dysfunctional family relationships and limited access to effective male role models;

    (e)Poor self-esteem and self-worth;

    (f)Limited understanding of problem-solving skills;

    (g)Cultural issues and masculinity;

    (h)Limited support and direction in school settings; and

    (i)Limited financial support.

31. She considered that the applicant’s offending needs to be seen in the context of the significant challenges that he has faced during his formative years. She identified dysfunction and violence within the family that had taken place over some years. There was, she said, previously, little structure and support in his life. Additionally, she expressed the opinion (although the Tribunal does not believe she is appropriately qualified to express such an opinion) that the applicant suffers from PTSD as a result of his childhood and adolescent experiences. It was identified by her as a significant mental trauma and anxiety that he experienced growing up. Another factor that Ms Bollard referred to in his adult years as a contributing factor was the relationship with his former partner and the mother of his children. She expressed the opinion that his partner’s flawed encouragement of him led to his introduction to amphetamines and early criminal offending.

32. Ms Bollard in her evidence stated that the applicant is not the same person that he was when she first started her counselling sessions with him. She explained the process of “unpacking” the various elements of trauma and dysfunction that he had experienced, particularly in his youth. As a result of the intensive sessions that they have undertaken, Ms Bollard considers that the applicant is not the same person he was when she commenced working with him. She expressed the view that the applicant has grown and learned a great deal. This has been assisted by him undertaking a Diploma in Mindfulness. The applicant has, in her opinion, become more aware of his own values, triggers to poor behaviour or criminality and identified the appropriate kind of person that he wants to be. In doing so, Ms Bollard in her evidence from the witness box, also stated that his two sons are a powerful motivating factor and that he has strong desires to be a good father, decent role model and make a positive contribution to their lives. He wishes to be the kind of parent that he did not have when growing up. Ms Bollard believes that the applicant is now equipped to achieve that objective.

33. Before this Tribunal, the applicant expressed deep remorse for his offending. This remorse is also consistent with the observations made by both sentencing judges in the County Court of Victoria in June 2021 and December 2018. In both of those cases, the applicant made full admissions to the police when he participated in a record of interview and made early guilty pleas to all the charges. Both the sentencing judges accepted that the applicant’s remorse was appropriate, genuine and sincere.

    Paragraph 8.1.1 of Direction 99 – The nature and seriousness of the applicant’s conduct

34. Paragraph 8.1.1(1) of Direction 99 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph are not exclusive.

35. Paragraph 8.1.1(1)(a)(i) of Direction 99 provides that, without limiting the range of conduct that may be regarded as very serious, violent and/or sexual crimes, crimes of a violent or sexual nature against women or children regardless of the sentence imposed, and acts
    of family violence, regardless of whether there is a conviction for an offence, or a
    sentence imposed, are viewed very seriously by the Australian Government and the Australian community.

36. Paragraph 8.1.1(1)(b)(ii) of Direction 99 also provides that, without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are considered by the Australian Government and the Australian community to be serious.

37. Additionally, Direction 99 also provides in considering the nature and seriousness of the non-citizen’s criminal offending, decision-makers must have regard to the following additional matters:

    (a)  The sentence imposed by the courts for a crime or crimes;[7]

    (b)  The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;[8] and

    (c)   The cumulative effect of repeated offending.[9]

    [7] Paragraph 8.1.1(c) of Direction 99.

    [8] Paragraph 8.1.1(d) of Direction 99.

    [9] Paragraph 8.1.1(e) of Direction 99.

38. The Tribunal concludes that the gravity of the applicant’s offending which has been outlined earlier in these reasons is extremely serious. There are several reasons for this.

1. The applicant has been convicted on no less than three occasions of violent crimes. Paragraph 8.1.1(a)(i) of Direction 99 specifies that violent crimes are viewed very seriously by the Australian Government and the Australian community. Clearly, the acts of violence committed by the applicant fall well within the language identified in this part of the Direction; they are demonstrably very serious.

2. From an analysis of the Reasons for Sentence of the County Court judge on 3 December 2018 when the applicant committed the armed robberies of the milk bars, four of the shop assistants who were the victims of such robberies were women. Lest it needs to be repeated, paragraph 8.1.1(1)(a)(ii) of Direction 99 provides that crimes of a violent nature against women are viewed very seriously by the Australian Government and the Australian community.

3. The applicant has committed acts of family violence. Similarly, under paragraph 8.1.1(1)(a)(iii) of Direction 99, acts of family violence are viewed very seriously by the Australian Government and the Australian community.

4. The applicant has been sentenced to a term of imprisonment on three previous occasions. As is frequently observed in cases such as this, resort to imprisonment is the most extreme or significant penalty to be imposed in the sentencing hierarchy. Imprisonment of a person depriving them of their liberty is an exercise by a court of competent jurisdiction that is a last resort. Further, the applicant was also placed on a 12-month Community Correction Order in March 2018. This is also a significant penalty.

5. Another feature of the applicant’s offending that leads the Tribunal to conclude that it is overall to be categorised as very serious, is the fact that the attack on the stranger underneath King Street Bridge for which the applicant was sentenced in June 2021 occurred within three or four months of his release from prison, as the judge observed for pretty much the same thing. It also occurred whilst the applicant was on parole and subject to the terms of a Community Correction Order. The terms of that Community Correction Order required the applicant to have treatment for drug and alcohol abuse. Yet when he attacked the stranger on that day, he was under the influence of alcohol. The Tribunal cannot help but observe the observations made by the sentencing judge in the County Court in June 2021 that it was pretty clear from the facts of the matter that the previous 9 month prison sentence served by the applicant did not teach him a lot.

6. The sentence imposed on the applicant for the attack he committed on the stranger under the King Street Bridge was significant. As noted above, he was sentenced to a term of imprisonment of 4 years and 2 months with a minimum of 2 and a half years before being eligible for parole. That is a long sentence which reflects the gravity or seriousness of that offending. The sentencing judge also, as he was obliged to do under the Sentencing Act 1991 (Vic), recorded that but for the applicant’s plea of guilty, he would have been sentenced to a term of imprisonment of 6 and a half years with a minimum term of 4 and a half years.

7. Some observations made by the sentencing judge with respect to the attack on the stranger under the King Street Bridge also underpinned the gravity of the applicant’s offending. The trial judge recorded that the nature of the assault itself, was cowardly. He also recorded that the injuries sustained by the victim were at the “high-end” and amounted to serious injury. He also stated that it was a high range injury as a crime, and he sentenced the applicant on that basis. Other observations made by the trial judge which exemplify the seriousness of the applicant’s offending include that several of his prior convictions were, as he put it, “basically king-hits in public situations.” He did not regard the applicant’s prior criminal history as minor. He also observed that they were separate incidents and separate examples of assault by the applicant punching people to the head in the circumstances of very little provocation, if any. Of concern, also, is that the trial judge in this instance made the observation, which on the material before the Tribunal is demonstrably correct, that the applicant acts out with recklessness and impulsiveness. This propensity to act with recklessness and impulsiveness particularly when there is little or no provocation has been a feature of the applicant’s offending on several occasions as outlined above, including the incident under the King Street Bridge, the Spleen Bar and the events that led to his conviction in the Dandenong Magistrates’ Court in March 2018.

8. At the time of the armed robberies of the milk bars and the incident in the Spleen Bar, the applicant was on bail. Therefore, he was also charged with committing an indictable offence whilst on bail. Such conduct demonstrates a significant disregard, or disdain, for the law and an obligation to obey it. Also, with respect to these offences the applicant was placed on a total effective prison sentence of 9 months. He was then also subject to a Community Correction Order for 5 years. Additionally, as part of that order he was required to perform 130 hours of unpaid community work. Also, he was required to have treatment for drug and alcohol abuse. Once again, as the sentencing judge was obliged to do under the provisions of the Sentencing Act 1991 (Vic), the judge stated that had the applicant pleaded not guilty, she would have sentenced him to a term of imprisonment of 3 years with a non-parole period of 2 years.

9. It is also of concern that there has been a frequency of repeat violent offending. There was a trend of increasing seriousness. Whilst the first two convictions for violence caused by the applicant led to comparatively minor, or no injuries to his victims, the most recent conviction for the incident under the King Street Bridge caused dreadful injuries to the applicant’s victim.

10. Another factor that causes the Tribunal to conclude that the applicant’s offending is very serious within the meaning of this paragraph of Direction 99 concerns the apparent breaches of Community Correction Orders by the applicant. As is evident from the applicant’s criminal history recorded above, he has been placed on several of those orders for significant time spans. When a person is placed on a Community Correction Order, the applicant would have inevitably signed an undertaking to have been of good behaviour in the future.

11. As is evident from the material, he was also required to attend the nominated Corrections Office from time to time. During his interactions with Corrections Office staff, they would also inevitably have given him a clear-cut warning of the obligation to be of good behaviour in the future and not reoffend. Notwithstanding such warnings and the terms of the Community Correction Orders that he was placed on, the applicant continued to reoffend. He betrayed the trust that the sentencing judges and magistrates placed in him and his commitments to rehabilitate. It is also conduct that reflects a disregard or degree of indifference to an obligation to obey the law. It is a further reflection of the very serious nature of his offending.

12. Another factor that the Tribunal considers does elevate the seriousness of the applicant’s most recent offending underneath the King Street Bridge, a most violent act, arises from the observations of the sentencing judge in her Reasons for Sentence on 3 December 2018. Submissions were made to that sentencing judge on behalf of the applicant, which were accepted by her, that the applicant was remorseful and regretted what he had done when he committed the armed robberies on the milk bars and the assaults at the Spleen Bar. Further submissions were made on his behalf about his positive future plans, which were once again accepted by the judge as mitigating factors calling for a much-moderated prison sentence than otherwise would have been the case. The applicant was given a very fair second chance. His subsequent actions underneath the King Street Bridge violated the trust that the court placed in him on that occasion. It is extremely disappointing indeed.

13. The applicant has also been convicted of assaulting an emergency services worker on duty and resisting a protective services officer. Paragraph 8.1.1(1)(b)(ii) of Direction 99 specifies that a crime committed against government representatives or officials due to the position they hold are considered by the Australian Government and the Australian community to be serious. It is well-known that police officers and protective services officers face considerable risks and challenges simply by virtue of the position they occupy and the duties they have to discharge protecting members of the public. The attempt to punch the police officer after fleeing the Spleen Bar is completely and utterly unacceptable. Fortunately, the constable did not sustain any significant injury. However, that constable was placed at risk simply because he was undertaking the tasks of general policing and attempting to apprehend the applicant for the significant crimes he had committed against innocent members of the public going about their business. Such offending does not reflect well on the applicant, and also is very serious.

14. Given the above considerations, for the reasons explained, the Tribunal concludes that the applicant’s offending is very serious. Having concluded that the applicant’s offending is very serious, the Tribunal concludes that very heavy weight must be placed upon this primary consideration against revocation of the mandatory cancellation of the applicant’s visa.

    Paragraph 8.1.2 of Direction 99 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

15. Paragraph 8.1.2 of the Direction 99 relevantly provides:

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

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

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

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

    (i)information and evidence on the risk of the non-citizen re-offending; and

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

16. The nature of the harm that would be potentially caused to victims in the event that the applicant were to reoffend would be serious physical and mental injury to innocent victims going about their business. It is not beyond possibility or comprehension given the trend of increasing seriousness of the applicant’s violent offending that it could result even in the death of the victim. In a sense, the applicant is fortunate that his victim of the incident that occurred under the King Street Bridge was not even more seriously injured or died. It will be recalled that that victim who was struck by the applicant twice to the face fell immediately to the ground, striking his head on the pavement. If such offending were to be repeated, as occurs from time to time all too frequently, a victim striking the head on the pavement could face irreversible long-term brain injury or even death. As it was, the applicant’s victim of the incident under the King Street Bridge suffered terrible injuries.

17. Similarly, if the applicant were to reoffend by committing armed robberies of such businesses as milk bars, convenience stores or other retail premises using a weapon such as a hatchet, particularly if he is under the influence of alcohol or drugs, there is a potential for very serious injuries to be caused to any potential victim were such weapon to be used.

18. Further offending on the part of the applicant, particularly if it involves offences of violence, would cause significant detriment to the Australian community in other respects. It would involve the application or diversion of a variety of resources including the health care and hospital systems, ambulance services, police, courts and corrective institutions. This would be a needless diversion of public resources that could be better applied to more deserving causes. One is prompted to speculate what might happen in the future if an ambulance was diverted to deal with the victim of an assault committed by the applicant and unable to attend to the needs of a law-abiding citizen who has suffered a sudden medical episode. There could be most unfortunate consequences.

19. In assessing the likelihood of the applicant engaging in further criminal conduct as required by the language of this primary consideration of Direction 99, it is apparent that further offending is more likely to occur unless the applicant abstains from using alcohol and drugs. Indeed, in submissions lodged on his behalf it was contended that the applicant had a previous drug and alcohol addiction.[10] Indeed, the County Court judge who most recently sentenced the applicant concluded that the risk of him reoffending would probably be low if he did not drink.

    [10] Paragraph 24 of the applicant's written submissions are referred to.

20. The applicant gave evidence that he intends to abstain from alcohol if he is released into the community. He did, in his evidence candidly, acknowledge that alcohol is a problem for him. His mother also considered that it was a problem that led to his offending. However, the Tribunal does note that two witnesses called on his behalf, Mr Toafa and Mr Teo (who incidentally was in the car with him on the night of the incident underneath the King Street Bridge), stated that they did not think the applicant had a drinking problem. In this context, there must be a risk that if the applicant is released into the community and socialises with long-standing friends who do not consider the applicant has a problem, that he may yield to temptation.

21. As noted earlier, it is quite apparent that the applicant reacts with recklessness and impulsiveness with little or no provocation.

22. This does raise the question of the applicant’s prospects for rehabilitation. The most recent County Court judge who sentenced the applicant described his prospects for rehabilitation as “guarded”. He observed that whilst the applicant seemed to be able to behave himself the majority of the time, situations arise where he hurts people and community protection becomes a significant factor.

23. To his credit, the applicant has undertaken several courses and programs whilst he has been in custody and immigration detention. There was evidence that he has undertaken the following programs:

    (a)Managing Emotions (Anger Management);

    (b)A 24 Hour drug and alcohol program;

    (c)A 44 Hour drug and alcohol program;

    (d)Traffic Management for Future Employment;

    (e)An online course on Mindfulness;

    (f)He has commenced recently a parenting course;

    (g)Bible Study sessions;

    (h)As noted earlier, he has been attending weekly counselling sessions with Ms Bollard which were described earlier in some detail.

24. Ms Bollard expressed the opinion that the applicant’s likelihood of recidivism is minimal. She reached this conclusion because of the steps that she says the applicant has now undertaken to address his problems. Also, she considered that he has realised that to address such problems, he needs to ask for help and support. These were steps that he did not take when he was previously released from prison. Ms Bollard also expressed the opinion that the applicant has made a very conscious effort to distance himself from situations or circumstances where, he might otherwise, relapse into offending. In short, she considers that the applicant has gained a considerable level of insight into his offending and has recognised the mistakes that he made and has a strong desire not to reoffend and also reconnect with his children and family.

25. The Tribunal acknowledges the efforts that the applicant has undertaken at rehabilitation, both through the courses and programs referred to earlier, and the intensive sessions of counselling that he has had with Ms Bollard. Whilst the applicant obviously has the best of intentions, the Tribunal observes that he has not been tested in the unregulated environment if he is released into the general community. The efforts that he has undertaken to date have been in the structured environment of both the prison system and immigration detention and with the intensive involvement of Ms Bollard. It remains to be seen whether he will be able to remain abstinent from alcohol and drugs when required to self-regulate.

26. The Tribunal repeats the language contained in paragraph 8.1.2(1) of Direction 99 which records that the government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The applicant’s offending does fall within the category of conduct identified in that paragraph that the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

27. It should be repeated that the victim of the applicant’s most recent offending, which was extremely violent, unprovoked and thoroughly unnecessary, suffered horrendous injuries. This reflected an unfortunate pattern of increasing seriousness with respect to the applicant’s violent offending. This escalation in the violent nature of the applicant’s offending occurred over a comparatively short time frame between 2014 and 2019. On each occasion the violence committed by the applicant has been more serious than the previous one.

28. The respondent contended with considerable force and effect that with the applicant’s repeat offending, a pattern has emerged where he makes full admissions to the police accepting responsibility for his offending, pleads guilty, incurs whatever penalty or sanction a court imposes, serves the sentence, is released and offends again. The point being that he has had several opportunities and sentencing leniency exercised in his favour, yet he has gone on to offend again, with increasing seriousness on each occasion.

29. Ultimately, the Tribunal considers the risk to the Australian community should the applicant commit further offences is altogether too high.

30. For these reasons, the Tribunal considers that heavy weight must attach to this primary consideration of Direction 99 against revocation of the mandatory cancellation of the applicant’s visa.

    Primary consideration 8.2 of Direction 99 – Family violence committed by the non-citizen

31. Paragraph 8.2 of Direction 99 addresses family violence committed by a non-citizen. It emphasises that the government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. This primary consideration is relevant where there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.

32. Under paragraph 8.2(3), when considering the seriousness of family violence engaged in by the non-citizen, the Tribunal as decision-maker should consider several factors identified therein. These factors include the frequency of the conduct, whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence and rehabilitation achieved at the time of decision since the person’s last known act of family violence. This also includes the extent to which the person accepts responsibility for their family violence related conduct, the extent to which they understand the impact of the behaviour on the abused and the witnesses of that abuse and efforts to address factors which contributed to such conduct.

1. There is limited evidence before the Tribunal of acts of family violence perpetrated by the applicant. The respondent refers to and relies upon one very brief reference in the reasons of Judge Wilmoth who sentenced the applicant in December 2018. In her reasons, she records that in 2017 the applicant had been admitted to a psychiatric ward in Wagga Wagga for two weeks after attempting suicide following an incident when he hit his partner. It should be repeated that the applicant, in the witness box, denied that he attempted suicide. He just conceded that he had suicidal thoughts.

2. There is no evidence to indicate that the applicant was either prosecuted by the police or the subject of any family violence order as a result of this incident. It appears this evidence emerged before the sentencing judge in 2018 and was not contested by the applicant. The fact that the applicant was not prosecuted by the police or that an intervention order was not issued concerning the acts of family violence perpetrated by the applicant on his partner, in the view of the Tribunal, does not diminish the gravity of his actions.

3. Engaging with the tasks that paragraph 8.2 of Direction 99 imposes upon the Tribunal as decision-maker, the Tribunal notes that there were three events. The applicant in his evidence candidly accepted responsibility for this act and understood the impact of his behaviour on his partner whom he subsequently married. The applicant, by reason of the steps towards rehabilitation that he has undertaken, as identified earlier, sought to address the factors that contributed to his commission of the act of family violence in striking his partner. He also appeared to the Tribunal, when in the witness box, to appreciate the cumulative effect of such acts and that they are unacceptable.

4. Hitting a woman is completely and totally unacceptable. The Australian community has long and hard emphasised the fact that domestic violence in any form will not be tolerated. Whilst the family violence perpetrated by the applicant on his partner was confined to 3 occasions, that does not in any way diminish the gravity of such conduct. Despite the relatively limited evidence about the incidents before the Tribunal, it does seem, yet again, to be another example of the applicant’s propensity to engage in reckless and impulsive behaviour without justification.

5. In the circumstances, considerable weight must be placed upon this primary consideration against revocation of the mandatory cancellation of the applicant’s visa.

   Primary consideration 8.3 of Direction 99 – The strength, nature and duration of ties to Australia

6. Paragraph 8.3 of Direction 99 states as follows:

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

   (2)  In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (3)  The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (4)  Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

   (a)the length of time the non-citizen has resided in the Australian community, noting that:

   (i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

   (ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   (iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

7. The applicant has significant immediate family ties to Australia with most of his immediate extended family being Australian citizens, permanent residents or those with a right to remain in Australia indefinitely.

8. The applicant has two children in Australia as follows:

   (a)Child A born June 2018; and

   (b)Child B born April 2020.

9. With respect to his other immediate family members, there are:

   (a)His wife from whom he is estranged;

   (b)His parents; and

   (c)His three brothers and sister.

10. The applicant also identified two nephews and a niece that he has a relationship with. The applicant gave evidence that his estranged wife has now re-partnered and has had two further children. He stated that he has no role in their lives. No other evidence was before the Tribunal concerning these children. However, it is evident that the applicant’s estranged wife lives with her new partner, the two children she has with him and the two children she has with the applicant, under the one roof.

11. There are other extended family connections who are present in Australia. In his Personal Circumstances Form lodged with the respondent in support of his application for revocation of the cancellation of his visa, details of those family connections are identified.[11] They need not be repeated for the purposes of these reasons, however he records, as present in Australia, 15 uncles and aunts, eight nieces and nephews, 27 cousins and two grandparents. There was no material indicating the nature of the applicant’s relationship with these members of his extended family.

    [11] Further details of these relatives are contained in Part 9, "Family Details", of the Personal Circumstances Form completed by the applicant. The relevant section forms part of document G8 on page 74 of the G documents.

12. Also, in the material with respect to the impact on his family members, were he not permitted to remain in Australia, the applicant emphasised that prior to his incarceration he was working full-time and living with his parents, siblings and ex-partner. In doing so, he contributed financially to the household in an amount of approximately $400 per week. It appears, although the evidence is somewhat scant, that the applicant also contributed to the rent for the family home. He indicated in his evidence that if he is released, he would endeavour to continue this arrangement.

13. Having read the statements filed on their behalf and heard the evidence of the applicant’s mother and his siblings, the Tribunal is satisfied that there is a strong family bond between them. It is apparent, that despite the several periods of incarceration that the applicant has been subjected to, that his family have remained close to him and supported him at all times. The evidence was that the applicant and his mother, not to mention siblings, generally speak every day by telephone. It was emphasised in the evidence that the applicant is of Samoan background, his parents being from Samoa, and that family connections are particularly important in this community. It is apparent that the applicant is close to his wider family that were identified in the Personal Circumstances Form that he lodged with the respondent in support of his application for revocation of the mandatory cancellation of his visa. The Tribunal acknowledges this fact.

14. The applicant’s mother has the applicant’s children stay with her usually every second weekend. When the children stay with her, she takes them to the immigration detention centre to visit the applicant. Also, in terms of contact with his children, the applicant regularly speaks to them by using the computer application “FaceTime”.

15. The applicant, it should be repeated, has lived in Australia since his arrival with his family, at the age of 9 years. He did complete year 12 at Noble Park Secondary College.  Ms Bollard gave evidence that although she did not teach him, he was a reasonably good student. The Tribunal is mindful of the provisions of paragraph 8.3(4)(a)(i) of Direction 99 that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.

16. Other matters are relevant and fall within the ambit of this primary consideration. For some time when the applicant was not incarcerated, the limited evidence before the Tribunal indicates that he was usually employed and had been, for some years, in a variety of jobs usually of a manual labour type.

17. The evidence also indicates that the applicant was a skilled rugby player and achieved considerable acclamation in that sport. He played for the Moorabbin Rugby Club from approximately 2007 to 2016. He represented Victoria and the Melbourne Rebels from under 12s to under 20s and trained in the Melbourne Rebels Development Academy from 2010 to 2015.

18. Given all this evidence, the Tribunal concludes that the applicant has significant ties to Australia. Therefore, given these comparatively strong and reasonably lengthy ties to this country, which have evolved during and since his formative years, significant weight must be placed on this primary consideration in favour of revocation of the mandatory cancellation of the applicant’s visa.

    Primary consideration 8.4 of Direction 99 – Best interests of minor children in Australia affected by the decision

19. This paragraph of Direction 99 requires the Tribunal, as decision-maker, to determine whether the non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The consideration applies only if the child is, or would be, under 18 years old at the time when the decision not to revoke the mandatory cancellation of the visa, is expected to be made.

20. Sub-paragraph 8.4(4) specifies several factors that must be considered by the decision-maker where relevant. They need not be reproduced for the purposes of these reasons.

21. As noted earlier, the applicant is the father of two sons, one presently aged 5 and the other aged 3. Those children are in the primary care of their mother (who has re-partnered) and, also as noted earlier, generally spend every second weekend with the applicant’s parents. The applicant’s mother brings the children to the immigration detention centre on one of those days when they stay with their grandparents.

22. The applicant was incarcerated when his second son was born. The evidence of both the applicant, and his mother, was that despite the relatively limited contact that the applicant has with his sons, which consists of fortnightly visits and video calls, he has developed a relationship or rapport with them. They both know that he is their father and a parental relationship, as limited as it may be, has emerged. There were some photographs in evidence before the Tribunal of the applicant with his sons which tend to corroborate this contention. Notwithstanding this, the Tribunal observes there have been reasonably long periods of absence and limited meaningful contact due to the considerable time that he has spent in both custody and immigration detention.

23. Paragraph 8.4(4)(b) of Direction 99 requires the Tribunal to consider the extent to which the applicant is likely to play a positive parental role in his sons’ lives in the future. Clearly, they are very young. There are no existing orders of any court relating to parental access and care arrangements. The applicant and his mother have both expressed strong views that he would play a positive parental role in his sons’ future. He has expressed a desire to be a solid male role model in their life. He expressed a desire to be able to guide them in the future and establish, as much as he can in the circumstances, a conventional father-son relationship. These desires on the part of the applicant were also reinforced by the evidence of Ms Bollard, who it will be recalled has undertaken weekly counselling sessions with the applicant since he has been in immigration detention. The Tribunal has no doubt that these intentions expressed by the applicant, which were also corroborated by several of the other witnesses called on his behalf, including his mother and brother, were genuine.

24. In applying this paragraph of the Direction, several things emerge. Much will depend upon the continued cooperation of the boys’ mother if he is released into the community. There was no evidence from their mother as to what their attitude might be towards the applicant having more frequent contact with them, or what specific contact she might agree to if he were released. There was no evidence from her concerning her attitude towards the applicant’s desires to play a more important role in their sons’ lives. It is apparent from the material before the Tribunal, which is comparatively scant, that from time to time the applicant’s relationship with his former partner has been fractured. Much depends on a spirit of goodwill existing on her part and between the parties to enable the appropriate foundation for a father-son relationship to be established.

25. The other issue that arises in the context of this primary consideration, once again, concerns the applicant’s issues with drugs and alcohol. Should the applicant, if he were released into the community, relapse into use of alcohol and drugs he could not, or is unlikely to, play a positive parental role in his sons’ future. More probably than not, were he to relapse, it seems that the boys’ mother would understandably deny the applicant access to them. These are imponderables.

26. As for the impact of the applicant’s prior conduct and likely future conduct on his sons, there is no doubt it has been significant. First and foremost, due to these several periods of incarceration that he has experienced, the applicant has simply been unable to see his children or has had limited contact with them. This must have restricted his capacity to develop an appropriate father-son relationship with them. Were the applicant to reoffend, in the way that he has in the past, by the commission of violence related offences, there can be little doubt that he would be subjected to a lengthy period of imprisonment that would significantly impact any relationship that the applicant may develop with his sons.

27. The Tribunal is also required to consider, where relevant, whether there are other persons who already fulfil a parental role in relation to his children. The applicant in his evidence acknowledged that, particularly given their age, they are in good hands with their mother and her new partner. The Tribunal acknowledges this concession. To some considerable extent, simply by reason of the fact that the applicant’s sons live under the one roof with his estranged wife and her new partner, the new partner will fulfil a significant parental role in relation to them.

28. There are no known views of the children, if indeed they are capable of properly forming views. However, given the photographs that were in evidence, it appears that they have an awareness of their father and get on with him reasonably well.

29. Finally, with respect to this primary consideration, there is no evidence to suggest that the children have been at risk of being subjected to or exposed to family violence perpetrated by the applicant. There is no evidence that they have otherwise suffered or experienced any physical or emotional trauma arising from the applicant’s conduct.

30. Another minor child in Australia affected by the decision is the applicant’s 14-year-old sister. Her evidence, contained in a statement lodged on behalf of the applicant, indicated that they are close. She spoke of the applicant in glowing terms as a great brother and humble friend. Further, she described him as a kind individual with a deep faith who has expressed genuine regret for his past actions. It appears, as was explained to the Tribunal by several witnesses, that in the Samoan community family relationships are exceptionally strong. This seems to be the case with the applicant and his sister. There have, however, been significant periods of absence in recent years due to the periods that the applicant has spent in both prison and immigration detention. Nonetheless, the Tribunal accepts that notwithstanding these periods of absence, the relationship between the applicant and his sister has remained strong.

31. The impact of the applicant’s offending and any likely offending in the future, were the applicant to be released into the community, on his sister has been, and would result in, protracted periods of separation. It has also probably had a negative impact on his sister in that it clearly was not particularly pleasing or satisfying to her to have a brother in prison having committed violent offences.

32. Naturally, the parental role for the applicant’s sister is discharged by his parents.

33. Were the applicant to be returned to New Zealand, the separation from his sister would have a significant effect on her. However, if this were to occur, there would be other means of maintaining contact, particularly through the use of the various Internet applications which enable a video link to be maintained.

34. The applicant’s sister clearly expressed the view that she wishes the applicant to be allowed to remain in Australia.

35. With respect to other minor children in Australia, who the applicant contends would be impacted by the decision if he were to be removed from Australia, the applicant identifies, as noted earlier, two minor nephews and one minor niece.

36. Clearly, with respect to the two minor nephews and one minor niece, the applicant has no parental role to play with them. The evidence indicates that they are well cared for by their parents. Nonetheless, the applicant contends that he has a reasonably close connection with them. On the limited evidence available to the Tribunal with respect to these children, the Tribunal concludes that there would be some limited impact upon them which is difficult to quantify. No doubt, the applicant’s prior conduct, and any likely future conduct, were he to reoffend, has already to some limited extent, had a negative impact on those children.

37. Overall, when the Tribunal takes into account the totality of the evidence before it concerning the best interests of minor children in Australia related to the applicant and affected by the decision, particularly the interests of his two sons, it considers that significant weight must be placed on this primary consideration in favour of revocation of the mandatory cancellation of his visa.

    Primary consideration 8.5 of Direction 99 – Expectations of the Australian Community

38. Paragraph 8.5 of Direction 99, “Expectations of the Australian Community”, provides:

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

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

    (a)  acts of family violence;

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

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

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

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

    (e)  worker exploitation.

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

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

1. This primary consideration and its application have been the subject of much judicial comment over several years. Mortimer J in YNQY v Minister for Immigration and Border Protection has provided guidance as to its application.[12] The judge observed:

   In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   [12] [2017] FCA 1466, 27-8 [76].

2. The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not as an independent assessment conducted by it. An examination of the language used in this primary consideration of Direction 99 reveals that the assessment of community values are expressed as norms.

3. The respondent highlights the language used in paragraph 8.5 of Direction 99 to emphasise that, in particular, the Australian community expects that the Australian government can and should cancel a non-citizen’s visa, if serious character concerns arise through conduct such as commission of serious crimes, which include crimes of a violent nature, and if crimes are being committed against government representatives or officials due to the position they hold or in the performance of their duties. The respondent also emphasises that this primary consideration specifies that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In this setting, therefore, consistently with the expectations of the Australian community as identified in this primary consideration, the community would expect that the mandatory cancellation of the applicant’s visa should not be revoked. The Tribunal agrees with these contentions on the part of the respondent.

4. The expectations of the Australian community as identified in this primary consideration arise because there has been serious conduct in breach of its terms engaged in by the applicant. There have been acts of family violence, serious crimes against women, several acts of violence with a trend of increasing severity and injury to the victims of such violence, and finally, the crimes of violence that the applicant committed against the police constable and protective services officer due to the position they held and in the performance of their duties. The pattern of violent behaviour, its increasing seriousness and the injuries and trauma caused to the victims cannot be underestimated.

5. Given these factors, the Tribunal considers there is an unacceptable risk to the Australian community, and it would expect, by nature of the concerns that have been identified, that the applicant should not be permitted to continue to hold a visa.

6. Therefore, by reason of these matters, this primary consideration attracts heavy weight against revocation of the mandatory cancellation of the applicant’s visa.

   OTHER CONSIDERATIONS

7. Paragraph 9(1) of Direction 99 provides as follows:

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

   (a)  legal consequences of the decision;

   (b)  extent of impediments if removed;

   (c)   impact on victims;

   (d)  impact on Australian business interests.

   Paragraph 9.1 of Direction 99 – Legal consequences of the decision

8. Paragraph 9.1 of Direction 99, “Legal consequences of decision under section 501 or 501CA”, provides as follows:

   (1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   (2)  A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

   (3)  International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

9. Paragraph 9.1.2, “Non-citizens not covered by a protection finding”, states as follows:

   (1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

   (2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

10. The applicant, who was represented by a legal practitioner, did not make any submissions to the Tribunal concerning this primary consideration with respect to the legal consequences of their decision. As the applicant is a citizen of New Zealand, it is difficult to see that there would be any international non-refoulement or other protection obligations owed to him. Therefore, no weight will be attached to this other consideration.

    Paragraph 9.2 of Direction 99 – Extent of impediments if removed

11. Paragraph 9.2(1) of Direction 99 provides:

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

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

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

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

12. As noted earlier, the applicant is presently 27 years of age, having been born in July 1996. He is apparently in good health. There was no evidence to the contrary.

13. As the applicant lived in New Zealand until he was 9 years of age, there are unlikely to be any substantial language or cultural barriers were he to return.

14. The applicant contends that in various ways, he will encounter some level of difficulty in re-establishing himself if he is returned to New Zealand. The fact that most of his family are in Australia, apart from some relatively distant relations, means that he will not have a social network readily available to him to draw upon if necessary. He contended by reason of this, he would in short find himself isolated in his mother country. The Tribunal acknowledges the force in this contention.

15. The Tribunal also acknowledges, as has been observed earlier, that the applicant has spent most of his formative years and those of his young adulthood in Australia, not New Zealand. This will no doubt pose some difficulties for him. However, he is a comparatively young man, fit and in good health. It is fair to say that he must have some familiarity with New Zealand and, in the scheme of things, he should be able to adapt to a life there in reasonable time. Additionally, he will have access to social, medical, mental health, economic and any other support properly available to New Zealand citizens.

16. The respondent also contended, which is indeed the case, that New Zealand is culturally, linguistically and politically similar to Australia. He would have the right to access all other government benefits and support in New Zealand which are of a similar standard to Australia.

17. Another factor relevant to this consideration is that the applicant has, when not incarcerated or in immigration detention, shown himself to be a hard worker with a capacity to find gainful employment. It seems to the Tribunal that there is no reason why he would not be able to find gainful employment in New Zealand, and when having done so, provide for himself and establish a new life.

18. In all circumstances, the Tribunal concludes that this other consideration weighs marginally in favour of revocation of the mandatory cancellation of the applicant’s visa.

    Paragraph 9.3 of Direction 99 – Impact on victims

19. No evidence was placed before the Tribunal concerning the impact of the s 501CA decision on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.

    Paragraph 9.4 of Direction 99 – Impact on Australian business interests

20. There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.

    CONCLUSION

21. Paragraph 8.1.1 of Direction 99, “The nature and seriousness of the applicant’s conduct”, by reason of the analysis contained in these reasons under that paragraph, attracts very heavy weight against revocation of the mandatory cancellation of the applicant’s visa.

22. Paragraph 8.1.2 of Direction 99, “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”, has also attracts very heavy weight against revocation of the mandatory cancellation of the applicant’s visa.

23. Paragraph 8.2 of Direction 99, “Family violence committed by the non-citizen”, also attracts considerable weight against revocation of the mandatory cancellation of the applicant’s visa.

24. Paragraph 8.3 of Direction 99, “The strength, nature and duration of ties to Australia”, attracts significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa.

25. Paragraph 8.4 of Direction 99, “Best interests of minor children in Australia affected by the decision”, attracts significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa.

26. Paragraph 8.5 of Direction 99, “Expectations of the Australian community”, attracts very heavy weight against revocation of the mandatory cancellation of the applicant’s visa.

27. No weight is attached to paragraph 9.1 of Direction 99, “Legal consequences of the decision”.

28. Paragraph 9.2 of Direction 99, “Extent of impediments if removed”, attracts marginal weight in favour of revocation of the mandatory cancellation of the applicant’s visa.

29. No weight is attached to paragraph 9.3 of Direction 99, “Impact on victims”.

30. No weight is attached to paragraph 9.4 of Direction 99, “Impact on Australian business interests”.

31. Paragraph 5.2, “Principles”, of Direction 99 provide the framework within which the Tribunal as decision-maker should approach its task in this application. That paragraph is referred to in its entirety for its full force and effect. However, the substance of several of the sub-paragraphs of the “Principles” should be referred to in substance:

    (a)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;

    (b)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, that raises serious character concerns.

    (c)In some circumstances, the nature of the non-citizen’s conduct, all the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

32. The Tribunal has placed very heavy weight against revocation of the mandatory cancellation of the applicant’s visa, on the primary considerations 8.1.1 “The nature and seriousness of the applicant’s conduct”, 8.1.2 “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” and 8.5 “Expectations of the Australian community”. Considerable weight against revocation of the mandatory cancellation of the applicant’s visa has been placed on primary consideration 8.2 “Family violence committed by the non-citizen”.

33. Significant weight has been placed by the Tribunal in favour of revocation of the mandatory cancellation of the applicant’s visa on primary considerations 8.3 “The strength, nature and duration of ties to Australia” and 8.4 “Best interests of minor children in Australia affected by the decision”. Marginal weight in favour of revocation of the mandatory cancellation of the applicant’s visa has been placed on the other consideration 9.2 “Extent of impediments if removed”.

34. The Tribunal considers that the weight that it has placed on the primary considerations 8.1.1, 8.1.2, 8.2 and 8.5 collectively outweigh the weight placed on primary considerations 8.3 and 8.4 and the other consideration 9.2. Particularly guided by the principles, the Tribunal considers that the applicant’s risk of reoffending is simply unacceptable. There is a distinct and real risk that the applicant will not abstain from alcohol. The Tribunal is far from convinced that if he is released into the community, the applicant will so abstain. If he does not abstain from alcohol and, for that matter, drugs, the risk of offending is heightened.

35. The harm that would be caused if the offending were to be repeated, may be so serious that even the relatively strong countervailing considerations raised by the applicant are insufficient to justify revoking the mandatory cancellation of his visa. The applicant has been afforded considerable leniency on several previous occasions by the courts and has not subsequently conducted himself in an appropriate way by reason of his further offending. He betrayed the faith that those courts placed in him. As the trial judge observed in the June 2021 reasons for sentence, it has been clear that previous sentences imposed on the applicant by the courts did not teach him a great deal.

    DECISION

36. By reason of the foregoing matters, the Tribunal is not satisfied there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.

37. Accordingly, the Tribunal affirms the reviewable decision.

178.    I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 29 November 2023

Date of hearing:

23 November 2023

Advocate for the Applicant:

Solicitors for the Applicant:

Advocate for the Respondent:

Ms Madhu Warnakulasuriya

Warna Legal

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore