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

[2022] AATA 35

Fehoko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 35 (4 January 2022)

Division:GENERAL DIVISION

File Number:          2021/7441

Re:Tupou Taise'Atonio Patua Fehoko  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:4 January 2022

Date of Written Reasons:      14 January 2022

Place:Brisbane

The decision under review is affirmed.

.........................[SGD]...............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – serious act of violence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

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

SECONDARY MATERIAL

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

REASONS FOR DECISION

Member Rebecca Bellamy

14 January 2022

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 25 year old citizen of New Zealand. In December 2017 when he was      21 years old, he moved to Australia. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).[1]

   [1]     Exhibit G1, Section 501 G documents, G18 pages 88 to 89.

2. On 8 December 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 15 December 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). On 8 October 2021, the Respondent decided not to revoke the cancellation.[3]

   [2]     Exhibit G1, Section 501 G documents, G23 pages 100 to 106.

   [3]     Exhibit G1, Section 501 G documents, G4 page 17.

3. The Applicant subsequently lodged an application for review in this Tribunal on 12 October 2021.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [4]     Exhibit G1, Section 501 G documents, G2 pages 3 to 8.

4. The hearing of this application took place on 16 and 17 December 2021. The Applicant gave evidence via videoconference.  The Applicant’s partner and her mother, a friend of the Applicant and Dr Emily Kwok, clinical and forensic psychologist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

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

   The Minister may revoke the original decision if:

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

   (b)the Minister is satisfied:

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

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

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[5]

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

   Does the Applicant Pass the Character Test?

7. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

8. On 16 September 2020, the Applicant was sentenced to a term of imprisonment of 14 months with a non-parole period of eight months.

9. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

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

10. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[6]

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

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

12. Those principles may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

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

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

13. Paragraph 6 of the Direction provides that:

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

14. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

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

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

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

    (4)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

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

    ii)impact on Australian business interests

16. I note that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

17. The Applicant was born in New Zealand. When he was at school, he got expelled for truancy.[7] He finished Grade 11 and enrolled in tertiary study. He left that before completion to work full-time to support his family. He held various labouring jobs such as stacking timber and unloading trucks for between four and five years.[8] When he was working, according to him, he was a hard worker and there were never any problems.[9]

    [7]     Exhibit A2, Applicant’s Tender Bundle, page 2.

    [8]     Exhibit A2, Applicant’s Tender Bundle, page 16.

    [9]     Exhibit A2, Applicant’s Tender Bundle, page 2.

18. The Applicant smoked cannabis in New Zealand from the age of 13 on a daily basis.[10] He rarely consumed alcohol because his grandfather was opposed to alcohol.[11]

    [10]    Transcript, page 14, lines 9 to 18.

    [11]    Transcript, page 15, lines 5 to 16.

19. The Applicant has a short criminal history in New Zealand,[12] commencing in 2013 when he was 17 years old where he committed “Unlawful Interfere Motor Vehicle Etc”. He was a passenger in a car that he did not steal but he knew was stolen.[13] He was sentenced to a community work order, and between 2014 and 2015 he was dealt with on three occasions for breaching the community work order. He was eventually sentenced to serve 14 days in prison. He said he breached the order because he was young and naïve and did not take life seriously.[14]

    [12]    Exhibit G1, Section 501 G documents, G9 page 36.

    [13]    Exhibit A2, Applicant’s Tender Bundle, page 2.

    [14]    Exhibit A2, Applicant’s Tender Bundle, page 2.

20. In January 2017, the Applicant commenced a relationship with “Ms C” who had daughter, “Child A”, from a previous relationship. Child A was born in May 2015[15] and her father was not involved in her life. The Applicant took on the role of father to Child A. 

    [15]    Exhibit G1, Section 501 G documents, G12, page 48.

21. In December 2017 the Applicant, Ms C and Child A relocated to Australia[16], where the rest of Ms C’s family were living. Once in Australia he stopped using cannabis. He became a social drinker, consuming alcohol once or twice per week.

    [16]   Exhibit G1, Section 501 G documents, G18, page 89.

22. The Applicant worked as a labourer from January to July 2018, then he worked as a store person until February 2020.[17] He lost his job due to the COVID pandemic[18] and he was not eligible for Centrelink as he had not been resident in Australia long enough.[19] Unemployment took a toll on his mental health and his “life just went downhill”.[20]  As a way of coping, he started drinking heavily and returned to using cannabis occasionally.[21]

    [17]    Exhibit G1, Section 501 G documents, G2, page 55.

    [18]    Exhibit G1, Section 501 G documents, G13, page 60.

    [19]    Transcript, page 9 lines 42 to 45.

    [20]    Exhibit A2, Applicant’s Tender Bundle, page 3.

    [21]    Exhibit G1, Section 501 G documents, G13, page 60; Exhibit A2, Applicant’s Tender Bundle, page 16.

23. He was drinking every day, consuming around a “12 pack” or more each day.[22] His unemployment also caused problems in his relationship with Ms C, with her feeling the strain of being the only financial provider. She did not realise he was struggling psychologically or abusing drugs and alcohol. They temporarily separated at least once during this period at Ms C’s instigation. 

    [22]    Transcripts, page 14, lines 36 to 44; A2, page 16.

24. On 5 June 2020, the Applicant assaulted a stranger on a train. The police facts,[23] record that at about 6.13pm the Applicant and several of his friends boarded a train where they sat in the same carriage as the victim who was seated by himself, using his phone. As the train approached the next station the Applicant crouched down and spoke to his friends and they all got up and walked to the upstairs compartment to leave the train. As the train came to a stop the Applicant approached the victim from behind and punched the victim in the head, causing the victim’s head to collide with the carriage window. He then punched the victim in the head multiple times. He tried to take the victim’s phone, prompting the victim to stand up and try to move away, but the Applicant punched the victim in the head several more times, causing him to fall over and drop his phone. As the victim fell, the Applicant turned around and ran, exiting the train at the station. The attack was recorded on security cameras.

    [23]    Exhibit R2, S9 pages 9 to 12.

25. On 6 August 2020 the police located the Applicant and arrested him in relation to the assault. When they conducted a search, they located a small quantity of cannabis in his pocket. When questioned he stated it was his and that he intended on smoking it.

26. According to the Applicant, he has no memory of attacking the victim on the train. He said all he remembers from that day is getting on the train very drunk.[24] After he was arrested, the police showed him photographs of the CCTV footage of the attack. He admitted to the police that it was him in the photographs. He told the police he did not clearly remember the incident as he drinks a lot of alcohol. He was shown footage of the incident and he stated, “Oh I don't really remember.” When asked why he assaulted the victim he stated, “He must have done something, I don't really know why I did it.” The Applicant was charged and released on bail.

    [24]    Exhibit A2, Applicant’s Tender Bundle, page 3.

27. On 6 July 2020 the Applicant was found in possession of cannabis. On 1 September 2020 the Applicant entered a liquor store and took two bottles of Jack Daniels bourbon valued at $76.00 each from the shelf. He approached the service desk but then quickly turned around and exited the store without paying for the items.[25]

    [25]    Exhibit R2, Respondent’s Supplementary Documents, S21 page 30.

28. On 3 September 2020 he failed to attend court in accordance with his bail undertaking.  In his absence he was convicted of affray (but not yet sentenced) for the incident on the train and was sentenced to a fine for possessing cannabis on 6 July 2020.

29. On 12 September 2020 the Applicant committed a further shoplifting offence at another liquor store.[26]  He took a box containing six bottles of Jack Daniels bourbon, with a total value of $456, and exited the store without paying.

    [26]    Exhibit R2, Respondent’s Supplementary Documents, S21 page 31.

30. On 16 September 2020 the Applicant was sentenced to 14 months imprisonment with a non-parole period of eight months for the affray offence. He was also convicted of fail to appear in accordance with bail acknowledgment, with no further penalty.

31. The learned Magistrate’s sentencing remarks included the following:[27]

    “In my view, taking into account the offence carries a maximum penalty of ten years' imprisonment, the objective seriousness was high, he was on a train, 6.15pm on a Sunday evening, the victim was unknown to him, it was an unprovoked attack, there were multiple punches to the head of the victim. There seemed to be some degree of planning in his removal of the youths from the area before he launched into the attack. He says that he was intoxicated at the time. That is no excuse. It does not diminish his moral culpability in any way and there is no evidence before me that he has done anything in respect to the matter.

    …

    I have had regard to the fact that he has no record in Australia and therefore at least in Australia he is a person of good character and I need to take that into account, but the objective seriousness of this offence is such that there is a real need for general deterrence to send a message to the community that people who travel on the trains must be provided by the courts and when  violent attacks occur, unprovoked as they did in this case, there is no other alternative than full-time imprisonment for those who commit such offences, to send the message that the community will be protected and recognise the harm that such offences out of the blue on a person just going about their day to day life, recognise the harm that those type of offences cause to our community.”

    [27]    Exhibit G1, Section 501 G documents, G10.

32. The Applicant unsuccessfully appealed the sentences.  

33. On 21 October 2020 the Applicant was arrested in relation to the two shoplifting offences, and he made full admissions. He was convicted of those offences on 20 January 2021 and sentenced to an 18 month community corrections order. 

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

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

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

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

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

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

36. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:

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

    (i)violent and/or sexual crimes;

    (ii)…;

    (iii)…;

    (b)…;

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

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

    (e)the cumulative effect of repeated offending;

    (f)…;

    (g)….

37. The Applicant committed a very serious, unprovoked, violent crime. Its seriousness was reflected in the sentence imposed, being a substantial gaol sentence, and in the sentencing remarks of the learned Magistrate. The Applicant claimed that the attack was not premeditated or planned,[28] however he has no memory of it, so he is not in a position to give evidence about his state of mind at the time. The learned sentencing Magistrate inferred from the Applicant’s actions that there was some degree of planning and I accept that there was.

    [28]     Exhibit G1, Section 501 G documents, G13, page 61.

1. The Applicant’s other offending is not as serious, but it shows a disregard for the law and court orders. The Applicant offended relatively frequently over the short period when he was abusing drugs and alcohol. His offending does not demonstrate a trend of increasing seriousness. The really significant part of his offending spree is the very serious attack on the train.  

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

2. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.

3. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following relevant factors on a cumulative basis:

   (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 re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

   Nature of harm should the Applicant engage in further criminal or other serious conduct

4. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date.

5. Should the Applicant attack another person in the way he attacked the victim on the train, the nature of harm includes very serious injury and consequential psychological harm that could be far reaching. Given the numerous blows to the head, and the fact that the victim ended up falling to the ground, permanent injury or death could realistically result. The harm is so serious that any risk of repeated offending is unacceptable. Further, an attack like that on an individual is likely to negatively impact those who care about, or are dependent on, the victim.

6. The harm from shoplifting includes financial loss, and more generally, it includes costs of anti-shoplifting measures, such as CCTV cameras, which is passed onto the consumer. 

   Likelihood of engaging in further criminal or other serious conduct

7. I accept that the Applicant’s offending in New Zealand was relatively low level and reflects a young, irresponsible attitude. His offending in Australia all occurred after he lost his job and started abusing drugs and alcohol. He attacked the victim on the train when he was so intoxicated that he has no memory of the attack or the hours following. He has no idea why he did it. Having heard his oral evidence, and observed his demeanour as he was giving it, I accept that he feels deep remorse for having done it and that he is fully aware of the likely impact it had on the victim, acknowledging that it would have changed the victim’s life.[29]      

   [29]    Transcript, page 8, lines 35 and 36.

8. The Applicant said he committed the two shoplifting offences at a time when he was not in the right state of mind.[30] It is not in dispute that he was addicted to alcohol at that time,[31] and that the items he stole were alcoholic drinks.

   [30]    Transcript, page 9, lines 20 to 38.

   [31]    Transcript, page 10, lines 25 to 32.

9. A sentencing assessment report completed on 30 November 2020 for the purpose of the sentencing proceedings on 2 December 2020 for the affray assessed the Applicant as having a medium-low risk of reoffending according to the Level of Service Inventory – Revised (“LSI-R”).[32] Since that time the Applicant has spent a little over a year in prison and immigration detention. After his first week in prison, he started attending church and he continued until entering immigration detention. In immigration detention he does bible study with his cellmate.[33] He completed a Connect program run by Corrective Services New South Wales on 15 March 2021 and a Positive Lifestyle program run by the Salvation Army on 10 May 2021.[34] More recently he completed an online drug and alcohol abuse course which took him around seven hours.[35] He has completed an assessment with Odyssey House and he is currently engaged in the following four rehabilitative programs which he attends once per week in two hour sessions by videoconference, which he described as involving:

   ·raising children;

   ·drugs and alcohol;

   ·mental health;

   ·an intensive course aimed at preventing relapse.

   [32]    Exhibit R2, Respondent’s Supplementary Documents, S33, pages 57 to 59.

   [33]    Transcript, page 17, lines 18 to 44.

   [34]    Exhibit G1, Section 501 G documents, G17, page 79.

   [35]    Transcript, page 18, lines 20 to 25.

10. The Applicant started these courses around four weeks before the hearing.[36] He enrolled in them as soon as he became aware of them.[37]

    [36]    Transcript, page 5, lines 5 to 34.

    [37]    Transcript, page 19, lines 9 to 15.

11. The Applicant claims that he has not taken drugs or consumed alcohol in prison or immigration detention[38] and there is no evidence to the contrary before me. Nor is there any evidence that he has broken any rules or caused any problems in prison or immigration detention. He said he was gainfully employed in prison and I have no reason to doubt that. I accept that the Applicant has abstained from drugs and alcohol since he was incarcerated, and that he has spent the time in prison and detention productively and pro-socially.

    [38]    Transcript, page 16, lines 14 to 19.

12. The Applicant believes he has addressed his drug and alcohol issues, although he concedes that he requires further rehabilitation. If he is returned to the wider community, he intends to see his GP to get a mental health plan and to continue with Odyssey House.[39] He will also rely on the support of his family, his church and his football club.[40]

    [39]    Transcripts, page 19, lines 17 to 25.

    [40]    Transcript, page 21, line 45 to page 22, line 2.

13. After spending almost a year in prison he does not ever want to return. Rather, he wants to work, support his partner and give his stepdaughter the stability of a nuclear family and to cause minimal disruption to her life. He believes these goals will give him encouragement and support not to reoffend. He also wants to continue rehabilitative counselling and programs.[41] He considers that he will not re-offend because he will have the support of his family and counselling, and he will try hard to better himself.[42] He also considers he is more mature now.[43]

    [41]     Exhibit G1, Section 501 G documents, G13, page 62.

    [42]    Transcripts, page 13, lines 39 to 44.

    [43]    Transcript, page 14, lines 1 and 2.

14. The Applicant has a relapse prevention plan to address his drinking problem. He said he had discussed it with Ms C,[44] although in the hearing while Ms C was aware of the existence of the plan, she did not seem to know much about it. She believes it will “prevent him from drinking and just be with us as a family”.[45] The Applicant has also spoken with Ms C about counselling.[46] The Applicant is confident that he could get work in the warehousing industry as a labourer.[47]

    [44]     Exhibit A2, Applicant’s Tender Bundle, page 4.

    [45]    Transcript page 47 lines10 to 11.

    [46]    Transcript, page 47, lines 6 to 18

    [47]    Transcript, page 6, lines 25 to 38.

15. One thing that the Applicant and the witnesses who spoke on his behalf consistently said was that he is not an aggressive person and the affray offence was out of character. There is nothing in the Applicant’s criminal history to suggest that he has engaged in previous acts of violence or aggression. I accept that the violent assault was out of character.    

16. Dr Emily Kwok, clinical and forensic psychologist, provided a report dated 15 November 2021.[48] The Applicant told her that when he had his drinking problem he could still do the usual daytime activities and look after his step-daughter: he drank after his partner came home.[49] He said when he was at school, he was bullied, leading to suicidal thoughts and self-harm as well as anger issues. When he eventually fought back against his bully, he “really hurt the bloke”. After the bullying stopped, his self-harming behaviour stopped.[50]

    [48]    Exhibit A2, Applicant’s Tender Bundle.  

    [49]    Exhibit A2, Applicant’s Tender Bundle, page 16.

    [50]    Exhibit A2, Applicant’s Tender Bundle, page 16.

17. Dr Kwok noted that the Applicant had not received any psychological counselling to learn how to manage common life stressors. She said based on the Applicant’s history, unemployment and the associated financial pressure would increase the likelihood of him relapsing to drug and alcohol use. However, in terms of positive factors he has demonstrated insight into his problems and expressed a willingness to receive treatment, he had begun to look for counselling and drug and alcohol intervention in the community, he recognised the need to gain employment, he had the support of his partner and her family and stable accommodation in Australia.[51]

    [51]    Exhibit A2, Applicant’s Tender Bundle, page 19.

18. Dr Kwok opined that the Applicant presented a low risk of reoffending if he attended treatment with a drug and alcohol counsellor. In addition, she said he would benefit from sessions with a clinical or forensic psychologist to address his poor coping and antisocial attitudes. She thought his risk of reoffending would decrease if he remained in Sydney on a permanent and stable basis so he could access consistent support from his partner and her family. She thought that returning to football training and his church community would provide prosocial support. She recommended that a drug and alcohol counsellor, and a psychologist, be located before the Applicant is released into the community.[52] Dr Kwok noted that the Applicant’s ability to remain abstinent in the community is untested.[53]

    [52]    Exhibit A2, Applicant’s Tender Bundle, page 19.

    [53]    Exhibit A2, Applicant’s Tender Bundle, page 20.

19. In terms of violence, Dr Kwok considered that the Applicant still had some unaddressed anger issues and that he needs further counselling for those.[54]

    [54]    Transcript, page 37, lines 25 to 34.

20. In the hearing, Dr Kwok said that while the Applicant would have a high risk of relapse without drug and alcohol intervention, he would not have a higher risk of offending without such intervention.[55] This seems curious given the clear link between the offending and the Applicant’s abuse of alcohol. Dr Kwok considered that if there were problems in the Applicant’s relationship with his partner, then his support system would be weakened so he would have greater difficulty staying away from problematic behaviours.[56]

    [55]    Transcript, page 37, line 45 to page 38, line 3.

    [56]    Transcript, page 38, lines 40 to 45.

21. Ms C is 24 years old. According to her, she noticed that the Applicant was drinking more than usual but she said he was never aggressive. Rather, he would fall asleep or pass out. She did not take any steps to assist him because she did not realise he had a problem.[57] When she found out about his offending, she was extremely shocked and upset.[58] She now realises that the Applicant’s drinking was a problem, and she intends to help him by keeping him away from triggers and helping him seek professional help when he needs it. She will take him to counselling and help him to see a doctor.[59] She reached out to the pastor of her church at the Applicant’s request. She was very surprised and happy that he wanted to make a connection to God.[60]

    [57]    Transcript, page 47, line 42 page 48, line 11.

    [58]    Exhibit A2, Applicant’s Tender Bundle, page 23.

    [59]    Transcript, page 48, lines 17 to 20.

    [60]    Exhibit A2, Applicant’s Tender Bundle, page 24.

22. The Applicant’s relationship with Ms C has not always been solid. There is a police report that on 16 May 2020, the police attended Ms C’s residence. She told them she and the Applicant had been in a relationship for around four years and they recently broke up. The Applicant showed up after drinking alcohol with a mate. Ms C was drinking alcohol with her family. Ms C and her family told the Applicant to leave and he refused. Ms C said the Applicant was struggling with the break-up. The police spoke with the Applicant who agreed to leave.[61]

    [61]   Exhibit R2, Respondent’s Supplementary Documents, S40 page 79 to 80.

23. In the hearing, the Applicant claimed to have no recollection of this incident.[62] Ms C acknowledged that the incident occurred but said the police report was not entirely accurate. She said she and the Applicant were moving out of their house and she was moving back to her parents’ place. The Applicant had helped her move some things and she ended up having two drinks with her family. She thought the Applicant was aware that he was expected to leave and go somewhere else because they were “on a break”. He and another family member of hers were both told to leave and they did not. However, by the time the police came, he had left.[63] Ms C said that during the time they were on a break she and the Applicant remained in contact and he continued to have contact with Child A in terms of visits and phone and video calls.[64] Ms C also said they had a break with the intention of getting back together, but they needed some space because she was working and the Applicant was not and it was hard for her to deal with all the bills after he lost his job.[65] She said the break was just until he sorted himself out and got a job.[66]

    [62]    Transcript, page 24, lines 27 to 34.

    [63]    Transcript, page 44, lines 15 to 35.

    [64]    Transcript, page 45, lines 14 to 24.

    [65]    Transcript, page 45, lines 28 to 36.

    [66]    Transcript, page 46, lines 6 to 11.

24. There is another police record relating to a call-out on 25 June 2020. It states that Ms C called the police asking them to make the Applicant leave her residence. She told the police that she and the Applicant had been in a relationship for around three years and recently separated in April 2020. She said he had no fixed residence and had been showing up at her home asking for money since the separation. Earlier that night he had attended her home and asked for money, she had refused, and an argument had ensued. She asked him to leave but he refused and continued to gather some of his belongings. Ms C’s father drove the Applicant away and dropped him off at an unknown location. Ms C spoke to police and said the Applicant had not made any threats and he was just annoying her.

25. Ms C denied any knowledge of this incident.[67] The Applicant denied that this incident occurred. He said he has always lived with Ms C.[68] However, he conceded that sometimes he gave Ms C space for a few days, although he said they were always partners.[69] He said they would have an argument and he would stay with “her aunty or something” for a few days.[70]

    [67]    Transcript, page 46, lines 1 to 5.

    [68]    Transcript, page 24, lines 36 to 41.

    [69]    Transcript, page 25, lines 19 to 24.

    [70]    Transcript, page 24, lines 10 to 21.

26. Ms C’s mother, “Mrs M”, recalled that Ms C and the Applicant had a break due to Ms C carrying all the responsibility when the Applicant lost his job. She was not sure about when that happened.[71] Mrs M recalled Ms C moving back into the family home while on a break from the Applicant in 2020 for “a good few months”, estimating that it was around “three months or so”. However, she then said that the Applicant was living with Ms C at the time. When asked for clarification she said they were living apart for a couple of weeks and the Applicant ended up moving in with them. When asked if when the Applicant moved in with them, he and Ms C were still on a break or had reconciled their relationship, she said “I would say they had reconciled their relationship”.[72] This is not consistent with Mrs M’s earlier evidence that Ms C and the Applicant were on a break for around three months. Mrs M’s earlier evidence is consistent with the police reports.

    [71]    Transcript, page 56, lines 39 to 46.

    [72]    Transcript, page 57, lines 1 to 29.

27. When Ms C was asked if she and the Applicant had broken up for a long period of time for example for a few months, she said they were going through a rough patch and technically they were still together, but they were going through some issues for a few months. She said they were living together during that time, which was roughly at the start of 2020.[73]

    [73]    Transcript, page 42, lines 31 to 48.

28. The evidence of the Applicant, Ms C and Mrs M about the status of the relationship between the Applicant and Ms C, and their living arrangements, was not consistent or given in a straightforward or clear manner. This detracts from its credibility. I think they each sought to downplay the troubles in the relationship between Ms C and the Applicant and exaggerate the strength of the relationship. I am satisfied that when the Applicant lost his job, due to the financial pressure on Ms C, the relationship broke down for around three months. There is no evidence that the Applicant and Ms C are intending to engage in relationship counselling or any other type of counselling to make their relationship more resilient to stresses and strains.    

29. A person from the Applicant’s rugby league club provided a character reference for him. He said he had known the Applicant for over three years through the rugby league team he was coaching. He describes him as an integral part of his team who was always happy to help out the younger teams and assist with barbecue duties and crowd control at the games.[74] This witness had not been aware of the Applicant’s drinking and drug problem in 2020. He knew the Applicant consumed alcohol but did not know about the drugs and did not know the severity of his alcohol consumption.[75]

    [74]    Exhibit A2, Applicant’s Tender Bundle, page 30

    [75]    Transcript, page 53, lines 16 to 22.

30. Mrs M described her relationship with the Applicant as good, saying she treats him like one of her own children.[76] She knew that the Applicant consumed alcohol, but she had not been aware that he had a drinking and drug problem in 2020.[77]

    [76]    Transcript, page 56, lines 26 to 29.

    [77]    Transcript, page 56, lines 34 and 35.

31. She said if the Applicant is returned to the community, she will likely see him every day because she looks after Child A while Ms C works, and she thinks she and the Applicant would take turns looking after Child A. She said she will be an influence on the Applicant all the time.[78] The Applicant considers Ms C and Child A to be his main support network. He said if Ms C needed space for a few days, he would have her parents’ support.[79]

    [78]    Transcript, page 58, lines 15 to 24.

    [79]    Transcript, page 25, lines 29 to 34.

32. My impression of the Applicant is that he is a humble, well-meaning, hard-working person who contributes to his local community and, at a young age, became a father to a little girl whose biological father wanted nothing to do with her. It is difficult to comprehend that he committed a violent, unprovoked, sustained attack. However, the undeniable fact is that he did. He is in the early stages of addressing the factors that predisposed him to abuse alcohol, but he has not engaged in any rehabilitative course targeted at violent behaviour. To his credit, he sought out rehabilitation programs and he has returned to productive, law-abiding behaviour in prison and immigration detention. He plans to continue his rehabilitation in the community, and he is highly motivated to avoid returning to prison. He has a supportive partner and mother-in-law and a rugby league club who will welcome him back. However, his sobriety has occurred in the context of a structured, controlled environment, and when he was struggling mentally and abusing drugs and alcohol in the community, those closest to him failed to see it. He and Ms C are relatively young and their relationship has not been without problems. Problems in their relationship will weaken a key support system. Dr Kwok assessed the Applicant’s risk of re-offending as low. On the basis of her evidence and the other matters I have canvassed, I consider that there is a low, but very real, risk of further violent offending of the kind the Applicant previously engaged in. In this case, any real risk is unacceptable.       

    Conclusion: Primary Consideration 1

1. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

2. There is no evidence that the Applicant has committed any family violence. This Primary Consideration is not relevant.

   PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

3. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ

4. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

   ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   ·     whether there are other persons who already fulfil a parental role in relation to the child;

   ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

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

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

5. The Applicant claims the best interests of Child A, Ms C’s biological daughter, are affected by his visa cancellation. Child A is six years old.[80]

   [80]    Exhibit A2, Respondent’s Tender Bundle, page 17.

6. According to Ms C, she was planning to move to Australia before she met the Applicant as her family were already here. The Applicant moved to Australia with her and Child A.

7. On the basis of evidence given by the Applicant and Ms C, I accept that the Applicant fulfilled a parental role from the time when Child A was around 18 months old until his incarceration. In that role, he has cared for her, taken her to daycare and school, helped her with homework, contributed to financially supporting her, and spent leisure time with her. I accept that Child A thinks he is her father as he is the only father figure she has known, and that there is a strong bond of love between them. When the Applicant was abusing alcohol, he managed to stay sober when he was around Child A, and he continued to attend to his responsibilities such as walking her to school. His unemployment led to the temporary breakdown of his relationship with Ms C, which must have been disruptive for Child A, however that was beyond his control. When the Applicant was in the community, he made a significant positive contribution to Child A’s life in a parental role. 

8. The Applicant currently speaks with Ms C and Child A every day and they have video calls every weekend. The Applicant described Child A as happy, well-balanced and doing exceptionally well at school. Ms C and Child A’s biological father financially support Child A. The Applicant said in his revocation request that Child A’s biological father had recently started paying child support[81] but in the hearing she said that was a mistake.[82] However, Ms C confirmed that he does pay child support.[83] Ms C said that it would be hard for her to raise Child A “alone” and she found it hard when the Applicant was incarcerated.[84] However, her parents and brother help care for Child A.[85] Currently Mrs M gets Child A ready for school, Ms C’s brother picks Child A up in the afternoon, and Mrs M looks after child A until Ms C collects her after work at 4 o’clock. Ms C’s brother lives with her parents and has a great relationship with Child A.[86]

   [81]    Exhibit G1, Section 501 G documents, G13, page 63.

   [82]    Transcript, page 28, lines 23 to 43.

   [83]    Transcript, page 48, lines 30 and 31.

   [84]    Exhibit A2, Applicant’s Tender Bundle, page 25.

   [85]    Transcript, page 48, lines 22 to 28.

   [86]    Transcript, page 58, lines 25 to 35.

9. The Applicant considers that if he were to leave Australia, Child A would be devastated. Ms C said it would break her heart and Child A’s heart if the Applicant were to be deported, and that every morning Child A asks “Is daddy coming home now”.[87] Mrs M said the Applicant’s deportation would have a devastating effect on Ms C and Child A.[88] I accept that the Applicant’s physical absence is, and would continue to be, to the detriment of Child A, although there is no evidence that she has suffered psychological harm due to his absence or that she is not well cared for. Given that, and the familial support she has, I think “devastating” may be an exaggeration.

   [87]    Exhibit G1, Section 501 G documents, G15 page 74.

   [88]    Exhibit A2, Applicant’s Tender Bundle, page 28.

10. Ms C and Child A are both able to reside in New Zealand. While Child A’s biological father resides in Australia, Ms C does not think he would object to her taking Child A to New Zealand.[89] However, Ms C does not wish to return to New Zealand and the Applicant does not expect her to do that. They both said they did not want Child A’s education to be interrupted and they pointed out that Ms C’s family live in Australia.[90] Nor do they want to have to start all over again in New Zealand.[91] Additionally, Ms C prefers the lifestyle in Australia.

    [89]    Transcript, page 49, line 34 to page 50, line 8.

    [90]     Exhibit G1, Section 501 G documents, G13, pages 64 and 65.

    [91]     Exhibit A2, Applicant’s Tender Bundle, page 25.

11. There is nothing specific about Child A’s current school that makes it preferable to other schools.[92] The Applicant said the majority of the children in Child A’s class have known her since she was four years old, meaning she has established relationships with them for around two years.[93] Ms C thinks Child A could have a good education in New Zealand, but she does not want to go back to square one again.[94]

    [92]    Transcript, page 28, lines 3 to 14.

    [93]    Transcript, page 27, line 37 to page 28, line 46.

    [94]    Transcript, page 50, lines 25 to 39.

12. I accept that Ms C prefers Australia and her family, except for her biological father, are here. However, she has only been away from New Zealand for four years so I do not accept that moving back there would be a big upheaval or that she would have to start all over again. She knows the country and culture and she must have friends and contacts there. She is in contact with her parental grandparents in New Zealand[95] and she has positive relationships and ongoing contact with her mother’s siblings and their children in New Zealand.[96]

    [95]    Transcript, page 50, lines 40 to 46

    [96]    Transcript, page 51, lines 4 to 9.

13. Dr Kwok opined that, if the Applicant, Ms C and Child A moved involuntarily to New Zealand, then it would happen against a background of stressors, for example Ms C and the Applicant would be unemployed, causing financial stress. She said psychological symptoms could increase because of the move which may impact on their parenting and the level of attention and care that they are able to provide to Child A. She added that Child A is settling into the early stages of primary school, where stability is quite important for a little girl who is learning about her social identity and where she fits into the wider world outside her immediate family, and that stability is recommended at that age.[97]

    [97]    Transcript, page 39, lines 1 to 19.

14. If the Applicant is removed to New Zealand and Ms C and Child A remain here, Child A will not have the Applicant’s physical presence in her life. While they could remain in contact via telephone and electronic means, that is inferior to having the Applicant living in the same household. That outcome could be avoided by Ms C and Child A relocating to New Zealand where they both lived until December 2017. That would involve some upheaval and separation from Ms C’s family, although in theory they could visit. Ms C is in the best position to judge which outcome involves less detriment to Child A. When Ms C was asked if, in the event that the Applicant were deported, she would have to make a decision about what was better for Child A - to go to New Zealand or stay in Australia,[98] she agreed that she would have to make that decision. My impression of Ms C is that if it comes to the crunch, she will do what is in Child A’s best interests and choose the lesser of two detrimental outcomes. 

    Conclusion: Primary Consideration 3

    [98]    Transcript, page 50, lines 10 to 15.

15. The best interests of Child A weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

16. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

17. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.

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

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

19. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185.

    Analysis – Allocation of Weight to this Primary Consideration 4

20. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia when he was 21 year old. The Applicant is now 24 years old;

    ·the Applicant commenced offending two years after arriving in Australia;

    ·the Applicant has engaged in one very serious violent offence and some relatively minor offences;

    ·there is a low, but real, risk that he will commit further violent offences;

    ·his offending, when abusing drugs and alcohol, demonstrated a disregard for the laws regulating the community that he seeks to re-enter;

    ·he was productively engaged in his local rugby league club where he was well liked and he did voluntary work; 

    ·he had a solid work ethic, having held gainful employment until the pandemic led to him losing his job; and

    ·if he is removed to New Zealand, it will adversely affect Ms C (see below) and Child A (see above).  

    Conclusion: Primary Consideration 4

21. Considering all relevant factors, Primary Consideration 4 weighs moderately in favour of non-revocation of the cancellation of the Applicant’s visa.   

    OTHER CONSIDERATIONS

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

    (a) International non-refoulement obligations

23. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.  

    (b) Extent of Impediments if Removed

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

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

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

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

25. The Applicant is a 24 year old man who is able bodied. He was born with eczema and minor asthma.[99] In relation to his mental health, Dr Kwok opined that during his period of unemployment between February and September 2020 he may have experienced psychological symptoms that met the criteria of Adjustment Disorder but she did not have sufficient information to confirm this diagnosis. She noted that this resulted in the development of alcohol use disorder and substance use disorder but she does not appear to have made a formal diagnosis about those either.[100] I accept that the Applicant is vulnerable regarding his mental health and that he needs further rehabilitation and support in relation to substance abuse.

    [99]    Exhibit A2, Applicant’s Tender Bundle, page 16.

    [100] Exhibit A2, Applicant’s Tender Bundle, pages 20 and 21.

26. The Applicant lived in New Zealand until the age of 21. I am satisfied that there are no language or cultural impediments to him establishing himself and maintaining basic living standards.

27. The Applicant has previously held employment in New Zealand, and he has been employed in Australia. In his revocation request, he said he would be a homeless 24 year old man with no prospects of life and without any hope of rebuilding his life; he would have no family support or chance of employment and he could not survive.[101] However, in the hearing he said he thought he would be able to find employment in New Zealand doing what he did previously.[102] He said his reference to not surviving was a reference to his mental health as it would be hard for him to be away from his family so he would suffer mentally.[103] I am satisfied that the Applicant has reasonable prospects of securing employment in New Zealand. Further, I am satisfied that as a New Zealand citizen he is entitled to government income support. I do not accept that he would be homeless due to lack of financial means.

    [101] Exhibit G1, Section 501 G documents, G13, pages 68 and 69.

    [102] Transcript, page 30, lines 20 to 26.

    [103] Transcript, page 31, line 45 to page 32, line 1.

28. While it is not known whether or not Ms C and Child A would relocate to New Zealand if the Applicant were deported, for the purposes of this Other Consideration, I will assume the worst case scenario for the Applicant. I accept that permanent separation from Ms C and Child A would cause emotional hardship to the Applicant and this would likely affect his mental health. According to Dr Kwok, Ms C and Child A are the Applicant’s main support system and, as he has not received psychological treatment yet, his ability to cope with common life stressors remains poor. She opined that the Applicant would likely have more difficulty reintegrating into the community in New Zealand than he would in Australia due to the absence of physical support from his partner.[104] She considers that the mental health system in New Zealand is comparable to that of Australia and the Applicant would likely be able to access treatment in New Zealand.

    [104] Exhibit A2, Applicant’s Tender page 20.

29. It appears that the Applicant has a tenuous relationship with his mother in New Zealand. According to him, she was an alcoholic, she exiled him when he decided to move to Australia, and he does not know if their relationship would improve if he moved back to New Zealand.[105] I am not satisfied that the Applicant could rely on his mother for any kind of support. 

    [105] Transcript, page 33, lines 15 to 29.

30. The Applicant is an only child, and he does not have any relationship with his father. He spent some of his childhood living with his grandparents, and also with an auntie and uncle.[106] His grandmother still lives in New Zealand. He does not currently communicate with any family in New Zealand although he briefly contacted his mother when he first entered immigration detention.[107] The Applicant said he did not think his family would provide him with any kind of support in New Zealand.[108] I accept that in relation to tangible things like money and accommodation, but as the Applicant did not report any problems in his relationship with his grandmother, I think he could re-connect with her which creates potential for emotional support.

    [106] Transcript, page 29, lines 35 to 45.

    [107] Transcript, page 29, lines 14 to 34.

    [108] Transcript, page 30, lines 9 to 18.

31. While the Applicant claimed to have absolutely no ties with New Zealand,[109] he conceded that he had friends from school and from places he had worked in New Zealand. He said he had not spoken with any of them since moving to Australia and he did not think any of them would want to see him if he returned to New Zealand because he had been away so long.[110] He has only been away for four years. I think the Applicant gave overly bleak evidence about this to support his case. I do not accept that he does not have any social or work connections who would like to see him or who would be prepared to assist him if he returned to New Zealand.  

    [109] Exhibit G13, Section 501 G Documents, page 69.

    [110] Transcript, page 33, to page 34, line 20.

32. The Applicant claims that he considers himself Australian and he believes Australia to be his country.[111] He said has never seen himself as anything other than an Australian living with Pacific Island influences. He loves his life as an Australian, upholding the values, ideals and culture like any other Australian citizen.[112] These claims are simply not plausible given the fact that the Applicant had never been to Australia until he was 21 years old. Further, for a period of around six months he did not uphold Australian values and ideals as he repeatedly broke the law. I do not accept that the Applicant could, on any rational basis, identify as Australian. I do, however, accept his evidence that he now feels like he belongs in Australia.[113]

    [111] Exhibit G1, Section 501 G documents, G13, page 65.

    [112] Exhibit G1, Section 501 G documents, G13, page 67.

    [113] Transcript, page 34, lines 28 to 36.

33. This Other Consideration does not require me to take into account hardship that the Applicant may experience in New Zealand per se. It requires me to consider the extent of any “impediments to the Applicant establishing himself and maintaining basic living standards” in New Zealand. None of the matters raised by the Applicant are of the kind that would tend to prevent him from obtaining accommodation, securing employment, financial support and sustenance, or accessing services. However, I accept that deterioration of his mental health and separation from Ms C and Child A could result in him having some initial difficulty establishing himself.      

1. I allocate limited weight in favour of revocation to this Other Consideration.

   (c) Impact on victims

2. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.

   (d) Links to the Australian Community

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

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

   ·the impact on Australian business interests.

   The strength, nature, and duration of ties to Australia

4. The Applicant came to Australia at the age of 21 and lived in the wider Australian community for four years. He commenced offending two years after arrival.

5. The Applicant was gainfully employed between 2018 and 2020 when he lost his job which was not by choice. He volunteered as an assistant coach for an under six football team for one year.[114] He did that during the period when he was abusing alcohol, although he was not consuming alcohol when he was around the children.[115] He has contributed to the Australia community through paid and voluntary work. He has also been productively involved in a rugby league club as a player who helped out with games and social events. He has recently made a connection to a church community through Ms C.  

   [114] Transcript, page 30, lines 35 to 39.

   [115] Transcript, page 31, lines 1 to 5.

6. The Applicant has two sets of aunts and uncles and cousins on the Gold Coast[116] although they are not close.[117] The Applicant claimed to be very close to Mrs M,[118] and he said he speaks with her and her husband around once a week, sometimes more.[119] However, Mrs M could only recall communicating with the Applicant once since he was incarcerated. She said it was a few months ago by video call.[120] Mrs M spoke positively about the Applicant in her evidence and said “we treat him like he’s one of our own child - our own children”.[121] I accept that the Applicant has positive ties to Ms C’s family but given his limited communication with them during his incarceration and detention I do not accept they are as strong as what the Applicant and Mrs M represented.  

   [116] Transcript, page 29, lines 1 and 2.

   [117]  Exhibit A2, Applicant’s Tender Bundle, page 17.

   [118] Transcript, page 29, lines 10 to 13.

   [119] Transcript, page 34, lines 25 and 26.

   [120] Transcript, page 57, line 38 to page 58, line 2.

   [121] Transcript page 56, lines 26 to 31.

7. I am to consider the impact of non-revocation on the Applicant’s immediate family in Australia. Ms C and Child A fall within that category. Ms C’s mother, step-father and siblings all live in Australia. If she were to follow the Applicant to New Zealand, she would be without them, living in a country that is not her first choice. I am satisfied that this would negatively impact her. She has relatives in New Zealand although that is not the same as having immediate family. If Ms C remains in Australia, she will be without her partner and the only father her child has known. In addition to the emotional impact, she will be without his practical and financial support, although she is currently managing with her family’s support. Either way, she will be negatively impacted by a non-revocation decision. I have already addressed the impact on Child A in Primary Consideration 3.

   Impact on Australian business interests

8. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests.  

   Conclusion: Other Consideration (d)

9. Overall, I am satisfied that the Applicant’s links to the Australian community weighs to a moderate extent in favour of revocation.

   Findings: Other Considerations

   The application of the Other Considerations in the present matter can be summarised as follows:

   (a)international non-refoulement obligations: not relevant;

   (b)extent of impediments if removed: weighs to a limited extent in favour of revocation;  

   (c)impact on victims: not relevant; and

   (d)links to the Australian community: weighs to a moderate extent in favour of revocation.

   CONCLUSION

10. I am now required to weigh all of the Considerations in accordance with the Direction.  

11. In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration 1 weighs heavily in favour of non-revocation;

    ·Primary Consideration 2 is not relevant;

    ·Primary Consideration 3 weighs moderately in favour of revocation;

    ·Primary Consideration 4 weighs moderately in favour of non-revocation; and

12. Any risk of repeated violent offending of the kind previously engaged in is unacceptable, and there is a risk in this case. I do not find Primary Consideration 3 or Other Considerations (b) and (d), even when combined, compelling. They do not outweigh Primary Considerations 1 and 4. Consequently, there is not another reasons to revoke the cancellation of the Applicant’s visa.

    DECISION

13. The decision under review is affirmed.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 14 January 2022

Date of hearing:

16 and 17 December 2021

Solicitor for the Applicant:

Ms Marta Mamarot

South West Migration & Legal Services

Solicitor for the Respondent

Ms Kerrie Pieri

Minter Ellison

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G24 paged 1 to 174)	R	-	22 October 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 6)	A	12 November 2021	15 November 2021
A2	Applicant’s Tender Bundle (paged 1 to 38)	A	-	13 December 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 11)	R	1 December 2021	1 December 2021
R2	Respondent’s Supplementary Documents (S1 to S44 paged 1 to 114)	R	-	1 December 2021