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

[2021] AATA 164

Farrell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 164 (11 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7711

Re:Tata Tom Farrell

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:11 February 2021

Place:Sydney

The decision under review is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation – protection of the Australian community – where offences involved domestic violence – where criminal offending very serious – where a real risk the Applicant will reoffend – best interests of minor children in Australia affected by the decision – where Applicant’s children present during offending – where interests of the Applicant’s minor children favour revocation – expectations of the Australian community – where offending of such a serious nature the Australian community would expect non-revocation – strength, nature and duration of ties – extent of impediments if removed – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

SECONDARY MATERIALS

Direction No. 79 – 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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

11 February 2021

Introduction

1. In a letter dated 24 April 2020, the Applicant, Mr Farrell, was notified by the Department of Home Affairs that his Class TY Subclass 444 Special Category visa had been cancelled on 19 March 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the “character test” defined in s 501(6)(a) of the Act, as he had a “substantial criminal record” according to s 501(7)(c).

2. The Applicant had a “substantial criminal record” because he had been sentenced to 12 months’ imprisonment on 28 February 2020 when he was convicted of Assault Occasioning Actual Bodily Harm (DF)-T2 and Contravene prohibition/restriction in AVO (Domestic).

3. The Applicant applied for revocation of the mandatory cancellation of his visa which was refused on 19 November 2020. He has applied for review of that reviewable decision in the Tribunal. The Applicant was legally represented in relation to his application to revoke the mandatory cancellation decision but was not represented in the Tribunal.

   Issues

4. Section 501CA(4) of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under s 501(3A) of the Act. They are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:

   (i)The Applicant made representations in accordance with the invitation issued under s 501CA(3) as required by s 501CA(4)(a) of the Act;[1]

   (ii)the Applicant passes the character test (as defined in s 501(6));[2]

   and

   (iii)if not, whether there is another reason why the cancellation decision should be revoked.[3]

   [1] Migration Act 1958 (Cth) s 501CA(4)(a).

   [2] Migration Act 1958 (Cth) s 501CA(4)(b)(i).

   [3] Migration Act 1958 (Cth) s 501CA(4)(b)(ii).

5. At the beginning of the hearing, the Respondent contended that (i) and (iii) were in issue. Given that the Applicant was not represented, for certainty I address each of those issues.

   Does the Applicant pass the character test?

6. I begin with the issue of whether the Applicant passes the character test because in this case, as a matter of fact and law, the Applicant does not pass the character test as defined in s 501(6)(a) because he has a substantial criminal record as defined in s 501(7)(c), having been sentenced on 28 February 2020 to a term of imprisonment of 12 months or more.

   Did the Applicant make representations as required by s 501CA(4)(a) of the Act?

7. The Respondent was concerned that the Applicant may not have made representations within 28 days of receiving the notification of the mandatory visa cancellation as required by s 501CA(4)(a), s 501CA(2)(b) of the Act and r. 2.55(3)(a) of the Migration Regulations 1994 (Cth). However, after asking the Applicant about various documents, the Respondent’s representative said that he was instructed to submit that the third notification received on 24 April 2020 was valid notification and therefore the Applicant made representations within 28 days. The Applicant’s representative sent a completed personal circumstances form in support of a request that the cancellation of his visa be revoked on 19 May 2020. On 20 May 2020 a departmental officer acknowledged receipt of representations about the revocation decision. The Tribunal accepts that the Respondent’s concession was appropriate based on the evidence.

   Is there another reason why the cancellation decision should be revoked?

8. A decision under s 501CA(4) of the Act involves an assessment and evaluation of the

   factors for and against revoking the cancellation.[4]

   [4] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [34], per Collier J.

9. A determination under s 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act.[5] On 20 December 2018, the Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79). Direction 79 commenced on 28 February 2019.

   [5] Migration Act 1958 (Cth) s 499(2A).

10. The Preamble in Direction 79:

    Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen's visa under section 501 or to revoke a mandatory cancellation under section 501CA.

11. Part C of Direction 79 prescribes three “Primary considerations” and five “Other considerations” that are to be taken into account when considering a person’s submission seeking revocation of a mandatory decision to cancel a visa. Each relevant consideration will be addressed.

    Protection of the Australian community

12. Protection of the Australian community from criminal or other serious conduct is a primary consideration.[6]

    [6] Direction 79, para 13(2)(a).

13. Paragraph 13.1(1) of Direction 79 provides:

    When considering protection of the Australian community, decision makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

14. There are two factors to be considered: (a) the nature and seriousness of the Applicant’s conduct to date, and (b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.[7]

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

    [7] Direction 79, para 13.1(2).

15. The Applicant will be 60 years of age in March 2021. He arrived in Australia from New Zealand on 12 February 1993 when he was 31 years old. In 1995 he began a relationship with his wife whom he married in 1999. He has the following criminal record in Australia:

    ·He was convicted on 28 February 2020 of Assault occasioning actual bodily harm (DF)-T2 and Contravene prohibition/restriction in AVO (Domestic) and sentenced to 12 months’ imprisonment from 7 December 2019 to 6 December 2020, with six months non-parole ending 6 June 2020.

    ·The Applicant had contravened a Community Correction Order (CCO) commencing 15 February 2019 concluding 14 February 2021, with supervision, which had been imposed when he was found guilty of Assault occasioning actual bodily Harm (DV)-T2 on 15 February 2019. The offence was “called up” on 28 February 2020 and a CCO made for 12 months commencing 28 February 2020, concluding 27 February 2021, with supervision for the same period. The offence occurred on 27 August 2018.

    ·On 7 July 2010, the Applicant was convicted of Assault occasioning actual bodily harm (DV)-T2 and sentenced to imprisonment for 6 months, suspended on entering a s 12 bond with 6 months supervision from NSW Probation Service “Anger Management”.

    ·On 25 October 2004 the Applicant was convicted of Destroy or damage property <-$2000 T2, fined $500 and court costs of $63, and convicted of Common assault-T2 for which he was fined $500 and issued with a s 9 bond with 12 months supervision of the NSW Probation Service.

16. The subject of each of the assaults was the Applicant’s wife. The Respondent asserted that the Applicant’s criminal offending began in 2002, referring to the Australian Criminal Intelligence Commission Check Results Report dated 9 April 2020.[8] That report does not refer to the 2002 offence. A conviction was not recorded. The offence was dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Applicant was found guilty and discharged on condition that he enter into a good behaviour bond for 12 months’ supervision by the NSW Probation Service, with counselling to address anger management and personal relationship issues.[9] There is no fact sheet or sentencing remarks for the 2002 offence.

    [8] G2: pp 25 and 26.

    [9] Respondent Tender Bundle, p 44.

17. Following are summaries of each offence, beginning from 2004.

18. The NSW Police Facts Sheet in relation to the 2004 offence included the following. The Applicant was residing with the complainant (his wife), their child and his wife’s daughter. They are currently estranged and do not reside together. About 9 pm on Sunday on 22 August 2004, the Applicant was at his wife’s residence. He woke her from a nap in the lounge area, yelled at her, pushed her around and flung her across the floor when she told him he did not live at that address and to get out. On leaving, he damaged the screen door, threatened to kill her and damaged a mounted air conditioner which caused the front of the unit to fall onto the loungeroom floor.

19. The NSW Police Facts Sheet for the 2 November 2009 offence, which came to court on 7 July 2010, included the following. The Applicant, his wife (the victim) and their two three year old boys were in their home. Between 8 and 9 pm the Applicant was standing in the kitchen with an ice-pack on his elbow to relieve pain. His wife walked in and asked him what was wrong with his arm. He became angry, swung open the freezer door of the fridge causing it to hit the kitchen wall hard. His wife became upset. A verbal argument ensued and his wife punched the Applicant on his left arm with her right hand out of frustration. He pushed her in one movement from the kitchen into the corner of the lounge room which was about 5 metres away. He grabbed the back of his wife’s head and slammed her face into the wall at least two times causing her nose to bleed. She yelled for him to stop but he continued the assault. His wife fell to her knees and the Applicant kicked her at least two times to the lower back. She yelled at him to stop. He left, crossed the road and informed the occupants of the house that his wife required help. He left the location and returned after half an hour during which the neighbours had attended and helped the Applicant’s wife and cleaned up blood on the floor of the premises. She was in bed and reported the matter to police the next morning. Due to the nature of her injures, she was conveyed to hospital for treatment. The Applicant made full admission when interviewed. The two three year old children were present at the time of the assault.

20. The NSW Police Facts Sheet set out the following in relation to the offence that occurred on 27 August 2018 and which was dealt with in court on 15 February 2019. The Applicant and his wife, the victim, resided with their adult daughter and twin 12 year old sons. The victim is a self-confessed ‘ice’ user. On 27 August 2018, the Applicant and the victim had been involved in several physical altercations resulting in the victim requiring medical attention and police attending. The Actual bodily harm assault arose from a verbal argument followed by a struggle over a vacuum cleaner and the Applicant being struck to an elbow causing him immediate pain. In response, he swung the victim around the room before opening the back door and throwing the victim down the rear porch step and impacting the ground, causing bruises to her arms and legs. She sought medical attention the next day. She did not give the Applicant permission to strike her. The conclusion was:

    Initial indications were that both parties played a role in the matter, however, due to the above investigation, police believe there is sufficient evidence to implicate the accused.

21. The transcript of the sentencing remarks on 15 February 2019 includes an exchange between the magistrate and the Applicant who conceded that his two sons were in the house at the time of the offence and would have heard what was going on and it would have been really upsetting. In response to the magistrate commenting that it could have long term effects on them, the Applicant said that he was not really sure about that. The magistrate warned him that if he reoffended “you’ll go to gaol”, and asked him if he understood that to which he said “Yes”. Before convicting and imposing sentence, the magistrate said:

    Because it is unacceptable for you to be behaving in this manner towards your partner, in her home, when the children are there, to have to experience this.

22. The 26 November 2019 offence was dealt with in court on 28 February 2020. The NSW Police Fact Sheet set out the terms of the AVO that was in force and then the facts. About 5:30 pm an argument between the Applicant and his wife arose when she asked why the Applicant was folding clean washing on a dirty floor. She said that she was going to record him as he started yelling at her. She went to the front gate which the Applicant closed. She returned to the front porch because she had left her medication inside and continued to record. The Applicant realised that and attempted to grab his wife’s phone. He back handed his wife, causing a small cut to her upper lip. Verbal abuse followed from both. The Applicant got his wife’s phone, ran towards his vehicle and threatened to smash the phone. She tried to get the phone back and grabbed his phone. The Applicant used his forearm to push his wife on her throat and against the fence. She sustained red marks on her left wrist and right forearm. She threw the Applicant’s phone over the fence. He let go to retrieve his phone. The Applicant’s wife left the location and phoned police.

23. In his statement dated 16 June 2020, the Applicant set out his version of what happened on 27 November 2019. He said that the argument began when his wife spat on his dinner plate. At that time, he was living at home, working as a truck driver and was on parole. He talked about his regret, shame and remorse.

24. The Applicant has a criminal history in New Zealand as an adult from 1979 to 1990. He failed to declare any conviction history on his passenger card when he returned to Australia from a family reunion on 9 January 2015.[10] He explained that he thought the question on the passenger card related to outstanding court matters.

    [10] G2: pp 37 and 36.

25. The offences in New Zealand do not appear to include violence. They include theft and drunkenness. His evidence was that he was mixing with the wrong crowd and drinking alcohol. A pastor told him that his life was going nowhere if he continued to do that and so he relocated to Australia. He did not reoffend from 1990 until 2002. I give no weight to his offending in New Zealand.

26. I have had regard to the factors set out in cl. 13.1.1(1) of Direction 79. All the Applicant’s offences of violence against his wife are very serious, regardless of the sentence imposed. He was sentenced to custodial sentences in 2010 (6 months suspended) and 2020 (12 months). The 2018 and 2019 offences show that the frequency and seriousness of his offending has increased. The 2019 contravention of the AVO that had been issued to protect his wife is very serious, to which is added that the offence occurred while he was subject to a CCO for earlier similar offending.

27. I accept the Respondent’s contention that the Applicant’s criminal offending should be viewed very seriously.

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

28. In considering the risk to the Australian community, cl. 13.1.2(1) of Direction 79 requires decision-makers to have regard cumulatively, to (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 available information and evidence on the risk of the non-citizen reoffending.

29. The Applicant has a history of domestic violence offences against his wife and recently contravened an AVO directed to protecting her, and a CCO. Violence of any kind is very serious and domestic violence is particularly serious. If he should reoffend, his wife would suffer violence, physical and other, and that may occur in the presence of minor children, as it has at least twice in the past. The impact of witnessing domestic violence on minor children is a significant concern.

30. The Respondent did not refer to the Applicant’s criminal history in New Zealand which ended in 1990. He committed property and drunkenness offences. He did not reoffend until 2002. His offences in Australia are of a different nature. There is an insignificant risk that in the future he would commit similar offences to those he committed in New Zealand.

31. In his Personal Details form dated 24 April 2020, the Applicant wrote that upon return to the community, he intended to live with one of his step-daughters in Sydney. She confirmed that arrangement in a letter dated 10 August 2020. He indicated that his relationship status was separated and he would not live with his wife upon return to the community and had no future plans to be together and they would stay as good friends. He is subject to an AVO. His wife’s evidence in her letter of support was that their relationship has ended. However, the Applicant intends to have contact with her to maintain contact with his two minor sons and he expressed a hope during his oral evidence that he and his wife may resume a relationship. They have had periods of separation in the past followed by reconciliation. After the 2009 offence, the Applicant stayed with a pastor for two years.

32. In his statement dated 15 June 2020, the Applicant wrote the following. The impact of the offences on his mental health “is of Disappointment and Sorrow for my actions” and the consequent hardships of losing his home, his employment, his wife and friends. He also expressed remorse and shame. He expressed similar sentiments in his statement dated 16 June 2020. Under a heading in the first statement, Efforts of Rehabilitation, the Applicant wrote that he would report to a psychologist, his doctor and his parole officer for any counselling classes.

1. The Applicant had participated in an AVO course with Corrections according to his Personal Details form. It is not clear when.

2. On 30 July 2020, the Applicant wrote the following in response to a natural justice letter. After he had brain surgery in 2000, his temper would swing unexpectedly, resulting in arguments with his wife. He retaliated violently. He did not seek the help he was meant to and repeated his mistakes. Because he was in custody for a short time, he was unable to take courses in anger management and domestic violence, but he had been attending a SMART. recovery program in immigration detention and was planning to start psychological sessions on 27 July 2020 and continue them when released into the community. He understood that his health issues did not excuse his actions and needed to commit to getting constant help after he was released to manage his temper better.

3. In her letter of support, his wife stated that his behaviour changed after the 2000 brain surgery.

4. The Applicant successfully completed the Domestic Violence Perpetrator’s Program while under supervision in 2002 and the Pacific Islander Program while under supervision in 2004.[11] He had monthly appointments with a psychologist and fortnightly counselling from the Family Violence Team between his court appearances on 17 November 2009 and 7 July 2010 following the 2009 offence.[12]

   [11] Respondent’s Tender Bundle, p 16.

   [12] Respondent’s Tender Bundle, p 21.

5. The Applicant’s treating psychologist provided a report dated 13 June 2020 in which he wrote the following. The Applicant was referred to the psychologist on 27 May 2019 and commenced psychotherapy sessions on that day. He was diagnosed with anxiety and depression and completed six sessions, the last being on 30 September 2019. The Applicant said that his wife had a very strong personality and he found her very hard to handle at times. He suffered an aneurysm about 20 years ago which had a negative impact on his mental state and his ability to handle stress. He was often lethargic and likely to get irritated quickly. The psychologist noted that the Applicant displayed anxiety mainly in relation to the repair of his marriage and was enthusiastic to see his children. The Applicant stated that he retaliated excessively towards his wife. The psychologist wrote:

   He took full ownership of his bad behaviours and is contrite about his actions. He shows a remorseful attitude towards the crime he committed and realized that he should not hurt his loved ones.

   Mr Farrell did not find it necessary to take psychotropic medications and was quite happy to attend therapy regularly to learn strategies to resolve conflicts in an amicable manner. He seemed to be functioning quite well during his last few visits last year. However, I would recommend that he continues to attend psychotherapy on an ongoing basis to learn more ways to regulate his emotion.

6. The psychologist did not indicate that he was aware that the Applicant had reoffended on 26 November 2019. In a letter dated 10 August 2020, the psychologist advised that the Applicant “is currently in a psychological intervention” with him which was conducted once a month through Telehealth.

7. In his statement about the offence on 26 November 2019, the Applicant does not mention any violence he committed against his wife during that offence, but does refer to her hitting him. He also mentions that it began when she spat on his dinner plate. That account does not reflect insight into his offending.

8. The Applicant provided numerous references and letters of support: from his two step-daughters, his biological daughter who has lived in Melbourne with relatives for many years, his two sons, one grandson, the aunt of that grandson, one of his nieces, his employer who would highly recommend him but because of strict employment constraints would not be able to offer him his previous position, and from people who have known him for some years. His sister who lives in New Zealand wrote a letter of support and mentioned that the Applicant visited New Zealand in 2015 for a family reunion and that he is one of eight siblings. He also had references from a friend who ran a boot camp, a co-worker and three pastors, two of whom appear to have met him during his period in immigration detention.

9. I accept that apart from the offences involving his wife, the Applicant is an honest, hardworking, family-orientated father and grandfather. Having supportive friends and relatives around him did not prevent him committing the offences, particularly in 2018 and again in 2019. It is not accurate to observe that his offending is out of character.

10. There is no expert medical opinion about the impact of the Applicant’s aneurysm on his behaviour. Discharge reports dated 8 November 2000 and 27 November 2000 state that on 6 November 2000 he had a craniotomy for aneurysm and on 13 November 2000 a craniotomy and excision of an arteriovenous malformation. An audiology report dated 21 November 2000 was in evidence, but no issue was raised in relation to the Applicant’s hearing, although health records during his time in immigration detention show that he wears hearing aids.

11. The Applicant’s legal representative quoted from two articles about the impact of a brain aneurysm in submissions made to the Department. The first was entitled Social and Emotional Changes by the Brain Aneurysm Foundation about social-emotional changes that some patients may experience. They included temporary loss of control over emotions which can manifest itself in anger, frustration, and lashing out at others. It stated that those symptoms will get better with time and to seek counselling if it becomes too difficult. There may be changes in relationships which often return to normal. The article listed depression and anxiety and set out symptoms, including anger and irritability, and referred to various professionals who could assist.

12. The second article was entitled Men and Depression by the National Institute of Mental Health. The Applicant’s legal representative summarised the lengthy quotation as follows. This article explains the symptoms and impact of depression on men including anger, irritability, aggressiveness, feeling anxious, restless, or “on the edge”. She submitted that the Applicant’s actions resulted from his clinically diagnosed depression and anxiety, however, he is able to manage his mental health condition through treatment with his psychologist and will do so after he is released from immigration detention.

13. The Applicant’s behaviour may have altered as a consequence of suffering an aneurysm in 2000. He suffered from anxiety and depression in 2019. They may be explanations for his behaviour but they do not excuse it. The Applicant has undertaken courses, had counselling and had psychological assistance to help him address his behaviour in the past. He was being treated by a psychologist up to September 2019 before reoffending in November 2019. Assuming that his wife does provoke him, he had not developed a response that avoided violence after four offences and three convictions.

14. The medical records during his time in immigration detention show that he was having psychoeducation counselling up to 9 October 2020 with a check in a month’s time. The Applicant has resumed psychological intervention with his psychologist from August 2020 which he plans to continue after release into the community. The health records from his period in immigration detention show that he was regularly attending SMART Recovery meetings.

15. The Applicant’s history does not instil confidence that the post-2019 offence counselling, SMART program and present and future psychological support will help him develop insight into his offending or prevent him from reoffending.

16. On 27 February 2020, a senior Community Corrections officer assessed the Applicant to be at medium risk of reoffending.

17. There is a real risk that the Applicant may reoffend in relation to his wife. Although she has been his only victim to date, it cannot be discounted that he may be violent if he enters a new relationship.

18. The protection of the Australian community weighs strongly in favour of not revoking the cancellation of the visa.

    Best interests of minor children in Australia affected by the decision

19. Direction 79 specifies that Best interests of minor children in Australia affected by the decision is a primary consideration and eight factors that must be considered when considering whether revocation is in the best interests of the child.[13] The interests of each child should be given individual consideration to the extent their interests differ.[14]

    [13] Direction 79, 13.2(4)(a) to (h).

    [14] Direction 79, 13.2(3).

20. The Applicant has an adult daughter who was born in 2002 and twin sons who were born in 2006. The evidence of the Applicant, his wife, and her adult daughters are that he also raised her two daughters from a previous relationship as his own. He has two grandsons and one grand-daughter who the Respondent accepted were minor children. The best interests of his two sons and three grandchildren are relevant.

21. The Applicant provided the following information in the Personal Details Form. The non-revocation of the visa cancellation would cause financial hardship to his family and ex-partner. He had worked as a truck driver with two different companies from 2003 to 2020. He described his love and bond with each of his sons and said that he looked after their welfare and provided what they needed, including education and guidance. There are no court orders in force in relation to the twin sons. He had not seen his sons because of the 2019 charge, AVO and being in gaol. His evidence was that he had moved back into the family home before the 2019 offence.

22. The CCO was placed in “suspense” in August 2019 owing to the Applicant’s positive response to supervision and completion of the Community Service work hours.[15] An AVO was also in force following the 2018 offence. The extent of his personal contact with his sons from the time of the offence on 27 August 2018 until he was incarcerated on 7 December 2019 is unclear.

    [15] Respondent’s Tender Bundle, p 52.

23. The Applicant’s wife wrote in support of not deporting the Applicant on the basis of mental health and not sending him away from his children and grandchildren. She did not believe it was justice for him to lose his children “that is his life”. She wrote that the boys are 14 years old and need their father in their lives; they talk on zoom every day and are very close.

24. Both of the Applicant’s sons wrote letters of support for the Applicant. Each of them misses the Applicant and the activities they shared very much and do not want him deported to New Zealand.

25. The Applicant’s legal representative quoted from a number of articles and reports about the importance of the family to the development of children and the impact of separation from parents or other attachment figures in support of revocation of the cancellation of the Applicant’s visa.

26. An article entitled The role of the family in child wellbeing, by the Australian Institute of Health and Welfare dated 2015 “explains the core function that family relationships, parenting and access to family support plays in a child’s life”. While addressing the importance of the family to good outcomes for children, that article also refers to family dysfunction, including violence, that will have health, behavioural and social repercussions for young family members, and poorer outcomes for them later in life.

27. Four articles addressed the detrimental impact of separation of children from parents, including on the development of the brain.[16]

    [16] Effects of Separation and Loss on Children’s Development by Child Development Specialist Susan Hois; and Why long-term separation from parents ‘harms kids’ by Professor Psychiatry and Neuroscience, David Rosenberg, published in “The Conversation” on 6 June 2018; What separation from parents does to children: ‘The effect is catastrophic’ by William Wan, The Washington Post, 19 June 2018; The Health Impact of Separating Migrant Children from Parents by Jessica Lussenhop, BBC News, 19 June 2018.

28. Although I accept that apart from the offences against his wife, the Applicant is a devoted father and grandfather, his two sons were present in the home during at least two of the offences. It is possible that they or the Applicant’s grandchildren may be present if he reoffends. Even if they were not present, domestic violence against their mother/grandmother would not be in the best interests of any of the children. Those matters reduce the weight to be given to the best interests of each child, although they are most relevant to the Applicant’s sons.

29. The best interests of the Applicant’s two 14 year old sons favours revocation of the visa cancellation. It is relevant that it is less than four years until they turn 18 and they have not seen the Applicant in person since he was incarcerated on 7 December 2019. They have been in regular contact with the Applicant by Zoom and could do so if he returned to New Zealand.

30. The best interests of his grandchildren favour revocation of the visa cancellation. There is no suggestion in the evidence that the Applicant plays a parental or caring role in relation to any of his grandchildren. One of his grandsons who is 14 years old according to his aunt, wrote a letter in support of the Applicant which shows they have a good relationship. More weight should be given to his best interests than to the best interests of the other two grandchildren about which little is known.

    Expectations of the Australian Community

31. Expectations of the Australian Community is the third primary consideration. Paragraph 13.3(1) of Direction 79 sets out the expectations of the Australian community:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa.

32. Paragraph 13.3(1) of Direction 79 is analogous to paragraph 11.3(1) of Direction 65 which was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.[17] The majority (Charlesworth and Stewart JJ) concluded that:

    Paragraph 11.3 (and 13.3) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[18] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[19]

    [17] [2019] FCAFC 185 (FYBR); the High Court dismissed FYBR’s application for special leave on 24 April 2020.

    [18] Ibid at [66] (Charlesworth J); [91] (Stewart J).

    [19] Ibid at [67] (Charlesworth J); [104] Stewart J).

33. Adopting the language of Stewart J, the content of the expectations of the Australian community expressed in paragraph 13.3 is:

    If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.[20]

    [20] FYBR at [101]; see to similar effect [75] (Charlesworth J).

34. The weight to be attached to this consideration is a matter for the decision-maker to decide. In this case, the expectations of the Australian community would be that the cancellation of the Applicant’s visa not be revoked because of the serious nature of the Applicant’s offending and the real risk that he will reoffend.

    Strength, nature and duration of ties

35. Of the Other Considerations to be taken into account set out at paragraph 14 of Direction 79, only two arise for consideration on the evidence in this case. The first is the strength, nature and duration of ties and the second is the extent of impediments if removed.[21]

    [21] Direction 79. Cl. 14(b) and (e) respectively.

36. Applying paragraph 14.2 of Direction 79, which relates to the strength, nature and duration of ties, the Applicant has resided in Australia since 1993. He has lived here for about 28 years. He first offended in 2002. He did not offend soon after arriving in Australia. In his Personal Details Form, the Applicant stated that was employed continuously by two different employees, from 2003 until he was incarcerated in 2019.   His last employer provided a very positive reference for him but is unable to re-employ him. The Applicant has contributed positively to the community during that period, and I infer from his arrival in Australia.

37. The Applicant listed the following relatives, in addition to his immediate family, including grandchildren, who live in Australia: two brothers, one sister, three uncles, four aunties, 11 nieces and nephews and 12 cousins plus children.

38. The letters of support were from various of those relatives, his employer, a co-worker and friends. He has the support of pastors and referred to his involvement with elders in his church while in immigration detention. Apart from his sister who lives in New Zealand, I infer that most of those people who wrote letters in support were Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The Respondent did not contend to the contrary.

39. The Applicant has very strong ties to his family and friends in Australia of varying lengths of time. Excluding his wife, those who provided letters of support for him would be adversely affected if the cancellation of his visa was not revoked.

40. The strength, nature and duration of the Applicant’s ties to Australia favours revocation of the visa cancellation decision.

    Extent of impediments if removed

41. Clause 14.5 of Part C of Direction 79 requires consideration of 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’, and taking into account particular factors.

42. The Applicant was born in New Zealand and lived there until he was 31 years old. He spent his formative years there and 13 years of his adulthood. He would have no difficulties with the language or culture. He has some family in New Zealand, including his sister who provided a statement in support of him and who mentioned that he returned to that country in January 2015 for a family reunion.

43. The Applicant’s work history as a truck driver is a readily transferrable skill that will permit him to work in New Zealand. He is concerned about finding work. I accept that his age may be some impediment to his finding work.  Australia and New Zealand have comparable social welfare systems.

44. The Applicant suffers from Asthma, COPD and sleep apnoea for which he uses a CPAP machine. He is being monitored for Prostate cancer. He uses hearing aids. The evidence suggests that the Applicant needs ongoing counselling and possible medication in relation to his mental health. I take into account that New Zealand and Australia have comparable health systems. He is a citizen of New Zealand and will have access to the appropriate health treatment provided there as it has been in Australia.

45. The Applicant was concerned about finding accommodation and being away from family and friends if he returned to New Zealand. He does have some family in New Zealand including his sister who expressly supported him. I accept that he will find it very difficult to live without his immediate family around him. However, the evidence is that there are limited impediments to his establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand.

1. While weighing in favour of revocation of the visa cancellation decision, insignificant weight is given to this consideration.

   CONCLUSION

2. I find that the considerations favouring non-revocation of the visa, the protection of the Australian community and the expectations of the Australian community, outweigh those considerations that favour revocation of the visa, the best interest of the Applicant’s sons and grandchildren, the strength, nature, duration of ties, and the extent of impediments if removed. The Applicant’s criminal offending was serious and increased in seriousness and frequency in 2018 to 2019. There is a real risk that he will reoffend against his wife and it cannot be discounted that he may reoffend if in another relationship. Any reoffending may impact adversely on his sons and grandchildren. The expectations of the Australian community would be that he not continue to hold a visa.

3. There is not another reason why the cancellation decision should be revoked

4. The decision under review is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 11 February 2021

Date(s) of hearing:	21 January 2021
Applicant:	In person (by video-conference)
Counsel for the Respondent:	Greg Johnson
Solicitors for the Respondent:	A Zinn, Mills Oakley Lawyers