FHHM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 760

FHHM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 760 (1 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7961
Re:FHHM
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar

Date: 1 April 2021
Place:Adelaide

The decision under review is affirmed.
.....................[Sgnd]...................................................
Senior Member K Millar
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) of Migration Act 1958 – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – Direction No. 79 – primary considerations – nature and seriousness of conduct – cumulative effect of reoffending - risk to Australian community – best interests of minor children – expectations of Australian community – other considerations – strength, nature and duration of ties - extent of impediments if removed - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
SZFYW v Minister for Immigration and Citizenship [2008] FCA1259.
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
XFKR v Ministerfor Immigration and Border Protection [2017] AATA 238.
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181.
Secondary Materials Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member K Millar
INTRODUCTION

FHHM is 31 years old, and a citizen of New Zealand. He first came to Australia in 1993 and was granted a Class TY Subclass 444 Special Category (Temporary) visa on 13 April 1999. He has not left Australia since.
FHHM was convicted of grievous bodily harm on 13 October 2017 and was sentenced to a term of imprisonment for three years and three months. As a result, on 20 November 2017, his visa was cancelled under s 501(3A) of the Migration Act 1958 (“the Act”).
FHHM sought revocation of the cancellation of his visa, and on 29 November 2019, a delegate of the Minister decided not to revoke the cancellation of FHHM’s visa.
This matter has previous been before the Tribunal (differently constituted). It was remitted by the Federal Court for reconsideration on the basis that, having found that the best interests of FHHM’s children weighed heavily in favour of revoking the cancellation of his visa, the Tribunal erred in reducing the weight of this consideration by reference to other findings of fact.
The Tribunal has proceeded to review the matter afresh on the circumstances as they are at the time of its decision.[1]
[1] SZFYW v Minister for Immigration and Citizenship [2008] FCA1259.
BACKGROUND
FHHM’s mother (Mrs P) and father separated when he was young, and his mother re-partnered when he was approximately 18 months old. He lived with his grandparents and an uncle as a child. His mother and stepfather moved to Australia in 1997, and his grandparents followed leaving FHHM in the care of other family members.
FHHM came to Australia in 1999 and lived with his grandparents. At 12 years of age he moved to live with his mother, stepfather and siblings. He has five living siblings, and one brother who died as an infant. He states he was subject to violent physical discipline from his stepfather, and feeling like he was treated differently to his stepfather’s biological children. He reported to the psychologist at Acacia prison he had been knocked unconscious on several occasions.[2]
[2] G324
At 14 years old, at the end of Year 10, he left school and also left home to escape the violence. He started work in an engineering workshop, and lived with his aunt and her children for part of this period and also with friends from rugby.
FHHM met his former partner, Ms TT at his cousin’s birthday, and she fell pregnant with their daughter a couple of months after they met. FHHM said this was a shock as at the time he was 17 years old and playing State level Touch Rugby. FHHM moved in with Ms TT and her parents in October 2006. After Ms TT fell pregnant, FHHM left the engineering workshop and worked for a housing manufacturing company, that made doors, doorhandles and doorknobs in order to earn a higher wage.
FHHM left this job and found work in crowd control. He said dealing with intoxicated people took a toll on his mental wellbeing. He would come home angry and frustrated and find it difficult to calm down. He would argue with Ms TT about small things. According to FHHM, Ms TT suggested he use cannabis as a way to calm down, as she no longer felt able to calm him down after work.
In 2009, Ms TT fell pregnant again. FHHM separated from Ms TT towards the end of 2009, four or five months before the birth of their son, but they reconciled shortly after the birth. He said he was getting in trouble with the law and “having to put on a façade” as a bouncer. He started using drugs before their son was born. This started as occasional use but increased over the following one to two years. He started using methamphetamine when he separated from Ms TT before the birth of their son.
According to FHHM his relationship with Ms TT ended in approximately 2014 due to his heavy drug use. At this time, he was smoking marijuana every day and using methylamphetamine every second weekend. They also argued about financial matters. Ms TT says they separated in 2011 or 2012.
In 2014 FHHM said he learned his step-grandfather had sexually abused his daughter. He called a family meeting and told his family but was not believed. His mother and sister had also been abused by his step-grandfather, but did not come forward at that time, and he was disappointed that they did not support him. After this Ms TT cut their children off from the family. FHHM’s drug use increased to using methylamphetamine every other day, marijuana every day and alcohol on weekends. He had to move out of a house he was sharing with workmates and was sleeping in his car.
When his mother and sister also disclosed to the family that they were abused, the family came around and Ms TT would let the children spend time with his mother. He would see the children once or twice a month and contribute child support. He had on and off employment and lived with his aunt on occasion.
FHHM was imprisoned on 13 October 2017,[3] and was released from prison into immigration detention on 29 May 2019. He has remained in immigration detention from this date.
[3] G313
OFFENDING HISTORY
Between the period of 25 October 2007 and 12 April 2017, FHHM has been convicted of 28 offences on 15 occasions. The offences, dates of conviction and the sentence imposed are included at annexure A of this decision.
Of these offences the most serious is grievous bodily harm, for which FHHM was sentenced to three years and three months in prison. He has also been convicted of aggravated unlawful assault and assault occasioning actual bodily harm. He otherwise has committed a number of offences relating to the use of a motor vehicle, including driving without a licence, driving an unregistered car and using a mobile phone while driving. He has convictions for giving a false name, refusing name and address, and providing false or misleading personal details. He has one conviction for possession of methylamphetamine, five convictions for breaching orders, three convictions for disorderly behaviour in public, and one for obstructing a police officer.
(i)Grievous Bodily harm
FHHM was convicted of grievous bodily harm on 13 October 2017 with the date of the offence of 6 April 2016. In sentencing him DCJ Stavrianou states the offence occurred after the victim repeatedly bumped into FHHM at a nightspot.[4] Both FHHM and the victim were under the influence of alcohol, and FHHM had also taken drugs. Outside the club FHHM approached the victim and struck the victim once to the jaw using his right hand in an uppercut motion. The victim fell backwards and struck the back of his head. He suffered a fractured skull, a fractured jaw and a subdural haematoma.
[4] G277
FHHM left the scene after the offence and was not apprehended until 31 January 2017 when he was stopped by police in relation to another matter. He gave false details at the time but was later identified. During his interview with police he made full admissions, stating he regretted his actions and could still hear the victim’s head hitting the ground. He pleaded guilty at the earliest opportunity and accepted responsibility for his offending DCJ Stavrianou accepted that he had demonstrated appropriate remorse.
DCJ Stavrianou stated FHHM’s reaction was out of all proportion to what had occurred, and there was no justification for what he did. Without medical treatment, the victim’s life would have been in danger, and the injuries were of a nature such as to cause or be likely to cause permanent injury to health. Without medical treatment there existed potential for permanent injuries such as hemiplegia, visual deficits and neuro cognitive deficits. At the time of sentencing the victim suffered vertigo and headaches, and there remained issues with his vision and eyesight which required further investigation. There was an emotional, physical and financial impact on the victim.
FHHM said the victim had been nudging into him and he found it irritating as the dance floor was not compressed. When he was at the bar he saw the victim outside, face to face with his friend. He went outside and the victim “got in his face”. In response, he hit the victim. He said after that “it was really hard for him” and he was scared because he knew from the way the victim hit the ground it was not good. He says he should have helped, but instead he panicked. He went to a mates’ house and had more drinks there. He was aware of legislation that deported people to New Zealand and was fearful that such laws would apply to him as he didn’t want to lose his family. The police raided the houses of his mother, aunties, cousins and friends looking for him. He says it was a relief when he was finally caught.
(ii)Unlawful Assault with circumstances of aggravation
The offence of unlawful assault in circumstances of aggravation was committed against his ex-partner Ms TT on 31 December 2010. FHHM was convicted on 13 June 2011 and sentenced to an intensive supervision order for a period of 12 months.
The statement of material facts of WA Police records that when arguing with Ms TT, FHHM spat in her face, pulled her hair and dragged her by the hair to the main bedroom.[5]
FHHM said he cannot recall the details of this offence as he had arrived home from work on New Year’s Eve and, in trying to “catch up” with everyone else, drank a bottle of tequila in a short period of time.
(iii)Assault occasioning actual bodily harm
The WA Police statement of material facts[6] states this offence occurred on 2 April 2010 at a nightclub. Prior to being at the nightclub, FHHM had finished work as a security guard at a pub nearby and had been drinking. He was working for the same company as the crowd controllers at the nightclub. The victim had been removed from the nightclub and had walked towards the back gate. FHHM entered behind the victim, grabbed him from behind and under the arm and once outside told him to leave. The victim yelled at FHHM and FHHM hit him with his right fist, making the victim fall backwards to the floor and causing swelling and a severe cut. FHHM then kicked the victim in the face with his right boot before going back into the nightclub. The victim received stitches to his left eyebrow, a severely swollen left eye and mild concussion.
[6] G227
FHHM said he recalled a racial slur but acknowledged this did not appear in the Police facts. He acknowledged a racial slur is not a good reason to hit someone.
At the previous hearing, FHHM was equivocal in whether he accepted the circumstances of the offence,[7] but ultimately accepted the circumstances of this offence.
[7] G584 - 585
(iv)Drug Offence
FHHM was convicted of possession of a prohibited drug (methylamphetamine) in November 2012.
(v)Obstructing public officers
This offence is described by WA Police in the statement of material facts[8]. As the police were attempting to detain another person, FHHM approached them and used abusive and threatening language. He was instructed to keep back but continued to act in an aggressive manner. He was forcibly removed approximately 100 metres away from the incident location by police but continued to shout abuse. He returned to the incident location and continued to abuse police.
[8] G212
At the first hearing of this matter, FHHM disputed the police version of events, stating he had told his friends to put his hand behind his back. When police asked him to step back, he stepped back, when police asked for ID he provided it, but when he asked for it back was charged with obstruction. FHHM accepted he had pleaded guilty, but said it made sense for him at the time to accept the consequences and move on.[9]
[9] G591
It is difficult to reconcile these accounts, however while FHHM’s later recollection is different to the Police material facts, FHHM pleaded guilty of this offence at the time, and the Tribunal accepts the record made closer to the time and which FHHM accepted at the time to be accurate.
(vi)Disorderly behaviour in public
FHHM has been convicted three times of disorderly behaviour in public. One occasion was associated with obstructing police as described above. According to the police statement of material facts, one conviction resulted from incidents related to fighting in public where the alleged victim did not want to proceed with assault charges.[10] While there is only one remaining conviction, there are two statements of material facts in 2007, one was fighting in a public place,[11] and another involved a fight with another male where both parties were throwing punches.[12]
[10] G231
[11] G236
[12] G237
FHHM conceded these convictions were associated with going to nightclubs and the use of alcohol.
(vii)Breaches of orders
After being sentenced to a community-based order following the assault causing actual bodily harm, FHHM breached this order. He breached a subsequent intensive supervision order imposed as a result of the breach of the community-based order and the aggravated assault. He also breached a later bail undertaking. These breaches occurred in the period from October 2010 to October 2014.
The breach of bail related to failing to attend court to answer charges. The breach of a supervision order was a failure to attend a course.
(viii)Offences involving a motor vehicle
FHHM was first convicted for driving while unlicensed in May 2008, again in August 2008, June 2009, October 2014, April 2015, June 2015 and April 2017.
He has been convicted of driving an unlicensed vehicle and driving a vehicle contrary to a compliance notice in October 2007 and using a mobile phone while driving in April 2017.
(ix)Offences involving giving false or misleading personal details
FHHM provide a false name in 2008 when apprehended for driving unlicensed and unregistered. He refused to provide his name and address when apprehended in 2014 for driving without authority and breach of bail. In 2018 he provided false or misleading personal details when he was apprehended for driving without authority and using a mobile phone while driving, and this was when he was also taken into custody for grievous bodily harm.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a substantial criminal record, and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[13] A decision under s.501CA(4) of the Act involves an assessment and evaluation of facts for and against revoking the cancellation. If it is satisfied, following an assessment of those factors, that the cancellation should be revoked, the Tribunal is obliged to act on that view.[14]
[13] s 501CA(4) Migration Act 1958
[14] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[15]
[15] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) Migration Act 1958)
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 79, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The matters to be decided in this case are whether the Applicant does not pass the character test; and if so, having considered the matters in the Direction, whether there is another reason the decision to cancel the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
A person does not pass the character test if he or she has a “substantial criminal record”.[16] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[16] s 501(6)(a) Migration Act 1958
As FHHM has been sentenced to a term of imprisonment exceeding 12 months, he does not pass the character test.
The remaining question is whether there is another reason the decision to cancel the visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether there is another reason to revoke the cancellation of the visa, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in Paragraph 6.3, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[17]
[17] Paragraph 7(1)(b) of the Direction
Principles that inform the decision-maker
Paragraph 6.3 of the Direction sets out a number of principles that inform the decision-maker. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

While these are principles that guide decision making rather than requirements, matters that apply particularly to FHHM are that:
·      FHHM has been convicted of a serious crime of a violent nature. His criminal record also records a conviction for unlawful assault in circumstances of aggravation. This relates to an assault on his ex-partner and as a result he should generally expect to forfeit the privilege of staying in Australia.
· In being sentenced for grievous bodily harm, the sentencing judge stated that without medical treatment, the person’s life would have been in danger,[18] and the injuries were of a nature such as to cause or be likely to cause permanent injury to health without medical treatment. Untreated, there existed potential for permanent injuries such as hemiplegia, visual deficits and neuro cognitive deficits.[19] The harm that would be caused if this were to be repeated is serious, and even other strong countervailing considerations may be insufficient to justify not cancelling his visa.
·     FHHM arrived in Australia as a 10-year-old child and has lived in Australia for 21 years and may be afforded a higher level of tolerance of criminal or other serious conduct.
·     Prior to his conviction FHHM has contributed to the community through his work and through volunteering at Touch Rugby clubs for some time. He has minor children and his immediate and extended family are in Australia. These are considerations in the context of determining whether his visa should be cancelled.
[18] G53
[19] G54
Informed by these principles, the Tribunal must take into account the considerations in Part C in order to determine if the mandatory cancellation of FHHM’s visa will be revoked.
The Primary and Other Considerations
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, … whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations being:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The other considerations which must be taken into account where relevant are provided in a non-exhaustive list in Paragraph 14(1) of the Direction, these considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection[20] Colvin J, in applying the identical provision to Paragraph 8(3) in the precursor Direction 65 stated that while generally primary considerations should be given greater weight, the Direction:
… requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[21]
[20] [2018] FCA 594
[21] At [23]
An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case.

THE PRIMARY CONSIDERATIONS

Protection of the Australian community

Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and provides:
(1)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.
(2)Decision-makers should also give consideration to:
a)The nature and the 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 conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
FHHM’s criminal offending is set out above. His conduct to date includes serious conduct in 13.1(1) as the type of harm from which the Government is committed to protecting the Australian community.
The term “serious conduct” is defined in Annexure B of the Direction as behaviour or conduct of concern where a conviction may not have been recorded, or where the conduct may not, strictly speaking, have constituted a criminal offence. Such conduct may include, for example, involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law. It also includes conduct which may be considered under s 501(6)(c) and/or s 501(6)(d) criminal conduct and past or present general conduct. Section 501(6)(d) includes (among other things) the risk the person would engage in criminal conduct, harass, molest, intimidate or stalk another person or represent a danger to the Australian community or a segment of the community whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
The Minister submits that FHHM’s other conduct to date includes other incidences of family violence, separate to the convictions for aggravated assault; and a history of being involved in 30 to 40 physical fights in addition to the hundreds of physical altercations as a bouncer.
In stating FHHM’s conduct included other incidents of family violence other than the matter that resulted in a conviction, the Minister relied on a Government produced Community – Domestic Violence Assessment Report dated 15 March 2011.[22] This records:
Within the current relationship FHHM reported a number of instances and types of violence including being verbally aggressive, grabbing his partner; twisting her arm, pulling her hair, pushing her to the ground, throwing food and objects, threatening to destroy her property and breaking down a door.[23]
[22] G432-435
[23] G433
FHHM initially said in cross-examination that there had only been one incident of physical violence, although there had been other arguments. When it was put to him that this report records other incidents of violence, he said he does not remember perpetrating such violence but would “accept it” if this is what is written. It was submitted by the Minister that at the previous hearing he had accepted there had been other instances of violence as described in the Community - Domestic Violence Assessment Report.[24]
[24] G588
When FHHM’s previous agreement with this paragraph was put to Ms TT, she agreed this type of family violence had occurred on different occasions, separately to the assault for which he was charged. She maintained he was not a violent person, but that drugs and alcohol contributed to his offending, and without those he is a good person.
Given the oral evidence of FHHM and Ms TT accepting that she had been subject to other acts of family violence, the Tribunal finds this is other conduct that should be considered as it is part of his general conduct.
The Minister also submits that there is a record of FHHM stating he had been in 30- 40 physical fights, and this should be considered as part of his conduct to date. This comes from a Treatment Assessment Report from the prison created on 14 June 2018, which states:
FHHM reported that he worked for many years as a Bouncer, during which he was involved in a couple of hundred physical altercations where he and his co-workers would restrain drunk and aggressive people. He acknowledged he and his peers have also been involved in an estimated 30 to 40 physical fights with other people when they were patrons of nightclubs. As such, he admitted that he had become intolerant of certain behaviours and more likely to respond violently if he felt himself or his associates were being threatened. [25]
[25] G391
In response to this record, FHHM said that when working as a bouncer he had to put on a facade, because other people target bouncers if they have been removed from a club, or when they (bouncers) are out and about. He said he does not look to start fights.
It was submitted by FHHM’s representative that these altercations may not have been unlawful or unjustifiable, and there are several reasons a person may lawfully and justifiably get into a fight, such as self-defence, defence of others or provocation. He noted there are no incident reports of other fights recorded by WA Police despite the breadth of the summons.
The Tribunal considers this contemporaneous record of what FHHM told the interviewer should be taken at face value. When the record was put to him, FHHM did not deny the altercations but rather sought to explain the circumstances in which they occurred.
The Tribunal considers this record shows that FHHM responded to perceived threats in a physically aggressive manner at that point in his life, and that this occurred in and around nightclubs. This is part of his conduct to date.
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
FHHM has been convicted of grievous bodily harm, unlawful assault in circumstances of aggravation and assault occasioning actual bodily harm. The grievous bodily harm is a serious offence and together with other violent offences are viewed very seriously.
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
The offence of unlawful assault in circumstances of aggravation was committed against his ex-partner Ms TT. The WA Police statement of material facts outlines that while arguing with Ms TT, FHHM spat in her face, pulled her hair and dragged her by the hair to the main bedroom.[26]
[26] G224
FHHM was sentenced to an intensive supervision order for a period of 12 months. As a crime of a violent nature against a woman, this is viewed very seriously regardless of the sentence.
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
FHHM has been convicted on one occasion of obstructing public officers. As this is a crime committed against a government official in the performance of their duties, this is regarded as serious.
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
The sentence imposed for grievous bodily harm was a term of imprisonment of 3 years and 3 months. As stated by DCJ Stavrianou a term of imprisonment is a penalty of last resort and is not imposed unless the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.[27]
[27] G54
In relation to the assault occasioning bodily harm he was sentenced to a community-based order, which he breached and was then sentenced to an intensive supervision order. He was sentenced to an intensive supervision order for the aggravated assault on Ms TT. He breached both intensive supervision orders and was fined for the breach. He has also been fined for breach of bail.
FHHM has been sentenced to a number of fines and disqualification of his driver’s licence for traffic offences. He has been fined for one drug offence and fined for providing a false name/refuse name and address/providing false or misleading information.
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
FHHM has regularly committed offences over a period of over ten years, however in some periods his offending has been infrequent. Starting in 2007 and 2008, FHHM was convicted of disorderly behaviour offences which resulted from fights. The statement of police facts record these fights as being between FHHM and others, including an incident in 2008 where FHHM had punched the victim several times to the head and body and after he fell kicked him to the head.[28] The victim did not wish to make a formal complaint and a disorderly conduct charge was laid. FHHM’s behaviour escalated in October 2010, when he was convicted of assault occasioning bodily harm. This escalation was evident in the conviction for aggravated assault against Ms TT. His conduct again increased in severity with the next assault offence being grievous bodily harm. The severity of the injuries suffered by the victim has increased over time.
[28] G231
There is a trend of increasing seriousness of the offences involving violence over time, starting with disorderly conduct through assault occasioning harm, aggravated assault and grievous bodily harm.
f)The cumulative effect of repeated offending;
FHHM has been charged with a number of offences commencing in 2007, and the cumulative effect of repeat offending attracts some weight accordingly.
There is no suggestion FHHM has provided false or misleading information to the Department, he has not previously been formally warned, and there have been no crimes committed since he has been in detention; and as such the remaining criteria do not apply.
Having considered all the above factors, the nature and seriousness of FHHM’s conduct weighs heavily against revoking the cancellation of the visa.
The risk to the Australian community
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should FHHM commit further offences or engage in other serious conduct. It states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm if FHHM engages in further criminal or other serious conduct
The violent offences FHHM has committed have resulted in serious injuries to the victims. The nature of the harm has been escalating over time.
The victim of the assault occasioning actual bodily harm suffered a severely swollen left eye requiring stiches and mild concussion.[29] The victim of the grievous bodily harm suffered a fractured skull, a fractured jaw and a subdural haematoma.
[29] G227
In relation to the grievous bodily harm, DCJ Stavrianou states the injuries were of a nature as to endanger or be likely to endanger the life of the complainant. Without medical treatment, the victim’s life would have been endangered by enlargement of the haematoma and compression of the brain stem and without medical treatment there was potential for permanent injuries including hemiplegia, visual deficits and neurocognitive deficits.[30] In this case at the time of sentencing the victim suffered from vertigo and headaches, and had issues in relation to hearing and eyesight which required further investigation.
[30] G774
In relation to the aggravated assault and other conduct against Ms TT, the Minister referred to the nature of the harm of family violence given by then DP Kendall in XFKR v Minister.[31] The Tribunal finds that repetition of this conduct may cause physical and emotional harm to a domestic partner, as well as the broader social harm caused by this type of offence as described by DP Kendall.
[31] [2017] AATA238 at [45]
Traffic offences, such as driving an unlicensed car, using a mobile phone while driving and driving without a license place members of the community at risk, both of being involved in an accident and in being uninsured should an accident occur.
FHHM has shown a disregard for the law in breaching orders and giving false or misleading personal particulars with the resulting adverse effect on public order. This is also evidence in the offence of obstructing police.
The Tribunal finds that if FHHM engages in other similar criminal conduct, the nature of the harm is severe.
The likelihood of FHHM engaging in further criminal or other serious conduct
In BSJ16 v Minister for Immigration and Border Protection[32], Moshinsky J states that, when the Tribunal makes an assessment of risk, there is no statutory constraint on how this must be done “save that whatever he or she takes into account must be logical and rational”.[33]
[32] [2016] FCA 1181
[33] [2016] FCA 1181 at [68]
In this case, the Tribunal has approached this task by examining formal assessments of FHHM’s likelihood of reoffending, factors that may reduce the likelihood of further criminal or other serious conduct, and factors that may increase the likelihood of further criminal or other serious conduct.
Assessments that have been conducted are the LS/RNR (Level of Service/ Risk, Need Responsivity), the VRS-SV (Violence Risk Scale Screening Version) and the PAI (Personality Assessment Inventory).
The LS/RNR conducted 5 July 2017 placed FHHM at a high risk of general offending. The same test conducted 10 April 2019 resulted in a medium risk of reoffending.
The VRS/SV conducted in July 2017 places FHHM at a moderate risk of violent reoffending.
Dr Watts, a private forensic psychologist also administered the PAI, and the results are included in the consideration of Dr Watts’ report below, as is Dr Watts’ assessment after interviewing FHHM.
Factors that reduce FHHM’s likelihood of further offending or other serious conduct
(i) Relationship with his children
FHHM stated at hearing that he would not reoffend because he did not want to jeopardise his future with his children. The Tribunal accepts this is a genuine desire of FHHM, and that this desire would reduce his likelihood of further offending or other serious conduct.
(ii) Family Support
FHHM has a large family and is one of six children. His mother and two aunts gave oral evidence that they would support FHHM if he were to be released into the community. FHHM provided statements from family members including siblings, uncles, great-uncles and cousins in support of his character. The Tribunal accepts that his family will support him.

However, his family has not always acted as a protective factor. FHHM says he left school and home at the end of year 10 in response to violence from his stepfather. His stepfather continues to live in the family home.
FHHM identifies, as a precipitating factor for the grievous bodily harm offence, the discovery that his daughter, mother and sister had been abused by his step-grandfather; and following a family meeting in which he divulged this discovery, he did not feel supported by the family, leading to a period of estrangement.
This is a complex family, which does its best to support family members, and in FHHM’s case this support comes in particular from his mother and his aunts. However, this was also the case at the time of his offending and did not act to prevent or reduce his offending.
FHHM is now in a relationship with Ms B. While they knew each other when they were at school, this relationship has formed since FHHM has been in immigration detention. FHHM said he has found the right person, and the Tribunal accepts this relationship may be a protective factor. However, the relationship has not been tested by day to day events and living together, and while it acts as a preventative factor, it does not attract significant weight.
(iii) Employment
The owner of [company], Mr E, states he is a long-time friend to FHHM and can offer him employment on his release.[34] FHHM also has a letter of offer form his aunt and uncle’s fencing business, which was established to provide employment to family members during school holidays.[35] His aunt gave oral evidence about the business and the ability to offer FHHM work in this business.
[34] Exhibit A9
[35] Exhibit A2, at 21
FHHM said he intends to take the scaffolding job but would work for his aunt and uncle if he did not get his tickets in time. He wants to go into the mining industry as a fly in fly out worker in the next 5 years.
His parole report records that FHHM works well within a team, attends shifts in a timely manner and completes tasks to a high standard. He is reported to show initiative by taking on extra work without prompting and assisting his co-workers.[36]
[36] G64
FHHM identified that the environment in which he was working as a bouncer contributed to his offending. The employment opportunities he plans to pursue are outside of this industry and will reduce the likelihood of further criminal or other serious conduct. FHHM’s work ethic and the availability of work if he were to be released into the community also act to reduce the likelihood of reoffending.
(iv) Community Support
Support is available to FHHM from various community organisations including an organisation called Break the Psychol (“BTP”), an organisation which supports those at risk of suicide or affected by suicide which runs weekly sessions.[37] FHHM says he will receive support from this organisation as well as volunteer to help others.
[37] G87, G89, G112; Exhibit A2, at 20
He has letters of support from members of the sports clubs in which he is involved. Involvement in sports activities and in the sports activities of his children and cousins is clearly important to FHHM and to the children involved. His leisure and recreation activities have consistently been assessed as low risk.[38]
[38] G391, G425
The combination of these factors indicates that FHHM has connections with members of the community that are willing to offer support and options for social and sports activities that reduce the likelihood of him reoffending.
(iv) Rehabilitation courses
FHHM was referred to a domestic violence program prior to his imprisonment, has undertaken rehabilitation while in prison, and has attended courses while in immigration detention. While the majority of his rehabilitation in prison relates to the Medium Intensity Program, as this also contains an assessment and recommendations it is addressed separately below.
FHHM was referred to a Relationships Australia Men’s Domestic Violence program in 2011 but failed to complete this course, attending 24 of the scheduled 48 hours. The report from his attendance states he started to talk about issues in his relationship which “alerted facilitators to the fact that he was using entitlement and ownership as a form of power and control”.[39] FHHM said he didn’t finish the course because he was struggling with work, but had no other excuse. This Tribunal considers that FHHM’s lack of participation in this course shows he had not addressed the risk of family violence, and the various forms this can take, in his personal relationship as other rehabilitation programs relate to his use of physical violence in general.
[39] G431
FHHM said he sought counselling in prison but was told that because he had a routine down, he didn’t need it. The records of the prison state he attended the prison counselling service seeking counselling as he thought this would work in his favour in his immigration case. He reported that he was currently coping well. As FHHM did not identify any treatment needs the case was closed.[40] Seeking counselling without recognising a need for this support does not indicate FHHM had insight into the causes of his offending.
[40] G125, G126
While in prison he also attended six session program The Case for Christ.[41] He voluntarily attended 12 Alcoholics Anonymous and 14 Narcotics Anonymous meetings, [42] and completed the Medium Intensity Program.[43]
[41] G85
[42] G416
[43] G324 - 328
The Parole Review Board recorded that FHHM also completed accredited education and training in courses called Introduction to Workplace Health and Safety, Foodstars Level 1 and Apply Workplace Health and Safety Concepts.[44]
[44] G353
FHHM has undertaken the following courses while in immigration detention:
·     Managing Anger course of 10 session completed August 2020
·     Dads Connecting with Kids course of 10 sessions completed August 2020
·     Yongah Hill Immigration Detention Centre Men’s Groups
·     Yongah Hill Immigration Detention Centre Lifeskills group
The course certificate show topics covered, and the Tribunal accepts he has received education on these topics.[45]
Grant of parole and post sentence supervision
[45] Exhibit A2, at 28-58
FHHM relies on not being referred as a high-risk serious offender and the Parole Board not making a post sentence supervision order in November and December 2020 respectively.[46] The reasoning behind these decisions is not included. As FHHM was released to immigration detention and was recommended for low supervision on release from prison as a result,[47] it places little weight on this information to show the likelihood of him engaging in further criminal or other serious conduct.
[46] Exhibit A2, at 26, 27
[47] G426
FHHM was granted parole on 29 May 2019.[48] In granting parole, the Parole Board has regard to his successful completion of the Medium Intensity General Offending Program with reported gain, participation in voluntary programs, the salutary impact of his first term of imprisonment, the parole plan and the conditions of parole further reducing the risk to the safety of the community.
[48] G410
His parole expired on 12 January 2021, and he is no longer subject to the conditions of his parole. These conditions included not being in possession of a prohibited drug including cannabis, attend for random urinalysis for illicit substances, not to consume alcohol or enter licenced premises (with some exceptions), comply with random breath testing, comply with mental health treatment as directed by a medical practitioner, to attend programs and counselling as directed, to engage in employment, training or job seeking, and not to change address without the permission of a parole officer. This indicates the view of the Parole Board that some conditions were required to reduce the risk to the safety of the community.
Conduct in prison and in immigration detention
While in prison FHHM was reported on one occasion for being abusive during a routine check when a torch was shone in his face.[49] The officer described abusive language and states FHHM approached him in a threating way, but also that he returned to his cell. FHHM received a written warning for his actions. It was noted he was unwell at the time, was reported to be one of the hardest working prisoners in the kitchen and had no previous warnings.[50]
[49] G338
[50] G341
Since being in immigration detention there is one recorded episode of FHHM becoming abusive and aggressive, where he was escorted out of medical.[51] This was a result of not receiving treatment in a timely way.
[51] G782
The Minister submits these incidents show a tendency for FHHM to act out in disproportionate measure to day to day frustrations. However, the Tribunal does not agree that shining a torch on a person while sleeping is a routine day to day frustration FHHM would face in the community.
Not receiving treatment when he wants the treatment is a possible frustration he would face in the community. While this occurred in the context of immigration detention, and while it is difficult to generalise this behaviour to other environments, it does show that FHHM may respond adversely to frustration.
The Medium Intensity Program Report
A report was included from the Medium Intensity Program dated 5 March 2019. [52] This program aims to assist inmates gain an understanding of their offending behaviour, recognise factors that contribute to their offending and develop a viable relapse prevention plan. FHHM attended 52 sessions over approximately five months, finishing the course in February 2019. The report was completed by the program facilitators and a senior psychologist. FHHM was reported to be an actively engaged group participant and receptive to facilitator feedback.
[52] G324 - 328
The assessment of the program was that FHHM used illicit substances to cope with emotional discomfort and developed a reliance on substance use to cope with uncomfortable emotions. His employment as a bouncer reinforced his use of aggression and violence to resolve problems. It is noted FHHM held strong beliefs surrounding disrespect and expectations of other people’s behaviour. His treatment areas were identified as emotional regulation, violent lifestyle and interpersonal aggression, impulsivity and substance use.
At the conclusion of the program, FHHM was observed to consider concepts and shift his thinking over time. He showed an understanding of the concepts in the program and an increased understanding of underlying beliefs that led to anti-social behaviour and the use of violence. He made shifts in his view of substance use saying he wanted to remain abstinent on release, but also maintained views permissive of substance use. He demonstrated insight into potential high risk areas and strategies to mitigate risk however his ability to use the skills is said to depend on his emotional regulation. He acknowledged his pro-social network, and his children as a main protective factor, and not wanted to be deported from Australia.
FHHM is reported to recognise his use of illicit substances to manage emotions and said he would cease using illicit substances if he were to remain in Australia.
The report identified that FHHM had made improvements and at times presented insight into his violent lifestyle and factors that perpetuated aggression, but this insight was inconsistent and appeared to correlate with his ability to emotionally regulate. He displayed limitations on his ability take another’s perspective as he required time to reflect on opinions different to his own. He displayed difficulties challenging beliefs that supported violence, holding beliefs around respect and righteous anger and acting in revenge for perceived disrespectful behaviour.
The report recommended that to reduce the risk to the community, FHHM should be subject to regular random urinalysis to act as a deterrent to substance use, abstain from alcohol, engage in community programs or counselling, and engage in employment and pro-social leisure pursuits.
Of these recommendations, the Tribunal finds he has made plans for employment and pro-social leisure pursuits in furthering his interests in sport.
Report of Dr Watts
Dr Watts is an Adjunct Professor in Clinical Psychology at Canberra University and the director of a private psychology practice. He provided a report and gave oral evidence to the Tribunal about the risk of FHHM reoffending.
Dr Watts interviewed FHHM for two hours on 5 January 2021 and had a further interview with him on 10 February 2021 for 35 minutes. Dr Watts administered a Personality Assessment Inventory (PAI) which included scales to measure exaggeration of negative feelings and whether they were reasonably forthright. FHHM returned valid profile with no evidence of distortion.
Dr Watts reports that he reviewed the documents provided to the Tribunal, however at hearing was not familiar with at least one of the disorderly conduct offences.
Dr Watts assessed FHHM as returning results on the PAI with a very high score on the drug scale and a moderate elevation on the stress scale, with the elevation on the drug showing that the use of drugs was likely to have had ill effects on his functioning. He returned results to show he is wary and sensitive in personal relationships and others are likely to see him as tough-minded, sceptical and somewhat hostile.
Dr Watts reports the PAI showed FHHM had elevations on Antisocial Behaviour Scale, and a high elevation on the Negative Relationship scale, and his profile had elements of disinhibition and suspiciousness.
The aggression scale was not elevated, which Dr Watts considered surprising given that, according to his analysis, an early attachment disturbance is likely to have made FHHM a hostile man with limited trust in others. Dr Watts explained that disturbance in early attachment, as occurred with FHHM, can result in a person being more reactive and emotional. He said in a typical course of attachment disorder the person rebels in their youth and as the person gets older, they realise that alcohol does not resolve problems.
He said FHHM has started this process and made progress, with the courses he has undertaken making him open to change. In Dr Watts’ view the early attachment disturbance explains results that show FHHM as toughminded, sceptical and somewhat hostile. Dr Watts said the focus of treatment and counselling in prison was on consequential thinking and not on the underlying cause, which he sees as the attachment disturbance.
Dr Watts reports there was some evidence of the cognitive component of depression, associated with rumination and feelings of hopelessness, but not to a clinical degree. There were elevations on antisocial behaviour and negative relationship scale, which has elements of disinhibition and suspiciousness.
Dr Watts reports that drugs were used by FHHM to escape from feelings following the breakdown of his relationship and the discovery of sexual abuse of his daughter and the drug use resulted in his disorderly behaviour.
At hearing, Dr Watts was referred to results of the LS/RNR assessment. He stated that the assessment of FHHM presenting medium risk of reoffending and a very high likelihood of drug problems is largely a matter of actuarial risk. When pressed, he said there are some factors in the LS/RNR assessment that respond to a change in circumstances. This is shown by the reduction in the alcohol/drug problem attribute in the LS/RNR assessment to low on 10 April 2019,[53] from very high as assessed on 14 June 2018.[54]
[53] G415
[54] G391
He remained of the view that FHHM had made gains in emotional regulation, violent lifestyle, impulsivity and substance abuse.
In regard to substance use, Dr Watts said FHHM was using substances to cope with his emotions, and that anything that lowers frontal lobe function or leads to disinhibition may be problematic. Alcohol and methamphetamine increase reactivity whereas marijuana is more calmative. He said his view is that small doses of alcohol have a positive effect and larger doses a negative effect, and if FHHM were to use alcohol to deal with emotional issues this would increase risk but saw 1 to 2 drinks as being okay. He said low level drinking was not a problem unless it was “the thin edge of the wedge” and escalates.
Dr Watts assessed FHHM as being a low risk of reoffending if he remains substance free. He makes this assessment on the basis of FHHM’s presentation, his ability to understand the link between his drug use and emotional reactivity, his statement that he has stopped his addiction, his ability to articulate the impact of the courses he has attended, and as Dr Watts considered his presentation and attitude show genuine changes.
It was put to Dr Watts that, despite the LS/RNR accounting for progress made on drug and alcohol issues, with the risk having reduced from very high in 2018 to low in 2019, the result was that FHHM was still considered a medium risk of re-offending. Dr Watts concurred that FHHM is assessed as a medium risk of reoffending using the LS/RNR scale. On reviewing the information showing FHHM has been in 30 to 40 physical fights, Dr Watts thought this was in the course of his employment as a bouncer, however the Tribunal is not satisfied this is the case as the physical altercations as a bouncer were reported separately.
Dr Watts was not aware of the contents of at least one of the disorderly behaviour charges linked with fighting, however this was some time ago in 2007/2008 and Dr Watts said this would have marginal effect on his assessment. He agreed that if FHHM had been involved in 30 to 40 fights this may change his assessment; both because he would fall within the high-risk category, and because this would show a different pathway to his offending, indicating a need for further cognitive assessment. He said he would need more context before forming a view, however agreed it did start to elevate the risk if alcohol was involved in these fights.
While accepting that formal assessment shows FHHM is a medium risk of reoffending, Dr Watts’ view that FHHM is a low risk of reoffending is based on his clinical impression, and the basis for this impression is “ …based on the change of attitude in regard to the offending, the courses he has undertaken and, to some degree a general maturing of attitude”.[55] It was not clear to the Tribunal the basis of the opinion that FHHM had changed his attitude towards the offending or had generally matured as Dr Watts has not assessed FHHM over time. It is difficult to reconcile Dr Watt’s opinion with the testing he conducted that showed FHHM had elevations on the drug scale and the stress scale, minor elevations on scales that suggest he is wary and sensitive in relationships, elevations on the antisocial behaviour scale, and a high elevation on the negative relationship scale with elements of disinhibition and suspiciousness. This is concerning given his history of aggression when under the influence of alcohol, and his history of family violence.
[55] Exhibit A3, at 6
FHHM gave evidence that he does not intend to abstain from alcohol, and Dr Watts’ opinion that he was low risk as long as he maintains a drug free life.[56]
[56] Exhibit A3, at 6
The Medium Intensity Program follows a 52 session program over a period of a little under four months, whereas Dr Watts assessed FHHM for approximately two and a half hours in two sessions. He has not observed FHHM over an amount of time sufficient to allow a first hand observation of his general maturing, or the effect of rehabilitation he reports. The Medium Intensity Program was endorsed by the senior psychologist and is the primary form of rehabilitation undertaken by FHHM. It was provided after FHHM participated in NA and AA in prison but before the additional courses FHHM completed in immigration detention. The courses in immigration detention, while addressing anger management and drug and alcohol use are not a targeted rehabilitation program. The Tribunal prefers the report of the Medium Intensity Program to that of Dr Watts where these differ.

As a result, the Tribunal finds that FHHM has shown emerging gains but remains at a contemplative stage of change in relation to his drug and alcohol use and has emerging gains in his ability to manage his aggression. He has an intention not to further offend supported by his desired to be with his children and not be deported. The Tribunal finds this is consistent with the medium risk of re-offending provided by the LS/RNR.
Drug and alcohol use
The Medium Intensity Program recommended FHHM abstain from alcohol and undergo regular random urinalysis to act as a deterrent to drug use. Dr Watts’ opinion was that FHHM is a low risk of reoffending as long as he maintains a drug-free life. It follows that this likelihood of FHHM abstaining from drugs and alcohol is a significant factor in assessing the likelihood of further offending or other serious conduct.
FHHM gave evidence that he is not an alcoholic and did not consider himself to have a problem with alcohol, at the same time as acknowledging as an objective fact that alcohol contributed to most of his violent offending. FHHM said that he has matured and better understands his limits with alcohol, and it is no longer a challenge for him to restrain his consumption. He could not say he intended to abstain from alcohol altogether but said he wanted to consume alcohol more responsibly, such as with friends at dinner. FHHM said working in a hospitality and nightclub environment was more influential to his offending than consuming alcohol, reiterating that alcohol was not that big a factor for him. He last drank alcohol the day before he was incarcerated.
FHHM’s comments on consuming alcohol are is consistent with the assessment on 10 April 2019 from Correctional Services which records that FHHM expressed a desire to drink alcohol and claimed it has never been a big problem. He was reported to be resistant to possibly having to engage with a private psychologist and pay for this service.[57]
[57] G418
FHHM’s view that alcohol was not a problem was supported to a small extent by Ms TT. When asked whether FHHM had a drinking problem, she replied “yes… yes and no ... he didn’t always drink but when he did drink he would usually just not come back. He didn’t always have a drinking problem, he went through little phases. ... When he did drink he would do silly stuff. He wasn’t always a drinker, he went through little phases.”
When discussing the grievous bodily harm offences, Ms TT said “all the drugs and alcohol he used definitely contributed to all of that. Without all that he is a good person. I don’t think he is a violent person.”
While Ms TT expressed some ambivalence as to whether FHHM had a drinking problem, she did recognise it contributed to his offending.
FHHM also said it was easy to address his drug use in prison and in detention as drugs were not as readily available. He said that drugs had not been an issue since he was incarcerated. This is supported by the Parole Review Report, which states FHHM has not tested positive for illicit substances. [58]
[58] G351
FHHM said he needs support in the community to overcome his use of drugs. He says he has approached an organisation called “Holyoake” for drug and alcohol rehabilitation but was told they cannot assist him whilst he is in detention, and that he needs to approach them when he is released. He also stated he would receive support from BTP.
The Tribunal found FHHM’s plans to engage in further rehabilitation vague and unconvincing. It is not satisfied he intends to engage in specific drug and alcohol counselling given he does not intend to abstain from alcohol and does not see this as a problem despite it being a factor in his offending. His plans to abstain from illicit drug use in the future rely on a period of abstinence while in prison and immigration detention and support from BTP. While FHHM has made progress in his attitude toward other illicit drugs, his ability to abstain in the community is untested, and his commitment to receiving specialist rehabilitation and counselling uncertain. Failing to address his alcohol and drug issues further as well as any underlying process increases the likelihood of further criminal or other serious conduct.
Counselling
The Medium Intensity Program recommended that FHHM engage in community programs and/or counselling to further address his emotional regulation issues. Dr Watts identified an early attachment disturbance and said the prison courses are not focused on issues such as this, and FHHM would need to seek out counselling for this issue. FHHM does not have plans to engage in counselling for emotional regulation.
Likelihood of other driving offences
FHHM said he had made plans to prevent reoffending, and that he plans to get his driver’s license to prevent reoffending by driving unlicensed. As he is reported to now be eligible for his license, the Tribunal accepts that will prevent one aspect of his offending.
Conclusion
Having considered the available information and evidence on the risk of FHHM re-offending, the Tribunal concluded he has a medium likelihood of reoffending.
The Tribunal finds:
·     If FHHM engages in further offences involving violence, such as the assault casing harm or grievous bodily harm, the nature of the potential harm is death or serious injury.
·     If he engages in further acts of family violence the nature of the harm is physical, financial and emotional harm to the victim.
·     He has a medium likelihood of engaging in further criminal or other serious conduct.
Having considered the nature of the harm to individuals or the community should FHHM engage in further criminal or other serious conduct, which is serious, together with the medium likelihood of him engaging in further criminal or other serious conduct cumulatively, this factor weighs heavily in favour of not revoking the cancellation of FHHM’s visa.
The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Of the matters in 13.2(4) that require consideration, there is no evidence before the Tribunal to suggest FHHM has abused or neglected any of the children, or that any child has suffered or experienced any physical or emotional trauma resulting from his conduct. It follows that 13.2(4)(g) and (h) do not apply in relation to any of the children.
FHHM has two children in Australia. He identifies his children, as well as his niece, nephews, cousins and the children of his current partner as minor children who would be affected by a decision not to revoke the cancellation of his visa.
There are certain considerations which apply to both of FHHM’s children, and some which are specific to each child. The children identified by FHHM in each family unit have been considered in that family unit, and where the interests of these children differ, this is identified within each family unit.
Factors common to both of FHHM’s children
FHHM acknowledged Ms TT has always been the primary carer for the children, and a sole parent at times. He has never been the primary carer of the children.
While he has generally maintained contact with the children, there have been lengthy periods where they have had less physical contact.
While in prison, they would visit him once a fortnight, and this continued in immigration detention until COVID related restrictions on visitors were introduced.
Ms TT and the children moved to New Zealand to be closer to her father for a period of approximately 20 months from December 2016 until August 2018. FHHM consented to the children leaving the country
Before the children moved to New Zealand, FHHM would see the children once or twice a month. He said the arrangement was that Ms TT would take the children to see his mother, and he would visit them there or Ms TT would drop them to him if he was not using drugs. His contact with the children has been disrupted by his drug and alcohol use, periods of homelessness, and periods of imprisonment and immigration detention.
FHHM said he has otherwise generally been involved in the life of his children, other than a period of approximately 8 months when he says Ms TT did not want the children involved with his family while his family denied the abuse of their daughter. There have been periods where FHHM’s contact with the children has required the support of other family members such as his mother due to his drug use.
Ms TT said FHHM’s relationship with the children has come a long way in the last two years. If the cancellation of FHHM’s visa is revoked, the children will stay with her, and they will take one step at a time in progressing the relationship. On being asked about positive male role models, she said her stepfather who she lives with is a positive role model for the children. Ms TT facilitates contact between the children and FHHM’s family, including joining his family with the children for New Year celebrations.
Ms TT said FHHM had never been solely responsible for the children and agreed that there was a bit to do before he had them for longer periods of time. She is willing to facilitate the children visiting FHHM if he were in New Zealand, however given the distance, she would also want to travel with them. She is also restricted financially which would impede her ability to facilitate visits.
FHHM’s daughter
FHHM’s daughter BM is 14 years old. FHHM provided a statement that she is struggling with friends, family and her teachers, and has been suspended from school on many occasions. He says she has spoken about moving in with him and his partner when he is released. He stated he speaks to her every day.
FHHM acknowledges that if he is released from immigration detention, he will need a couple of weeks living with his parents to spend time with the children. Ms TT agreed there is a bit of work to do before he has large periods of time caring for the children.
FHHM said BM feels like her mother and aunties pick on her and she does not have respect for her mother, aunties or grandmother. He said she feels cast aside at home. He says he is there for her and she can confide in him about anything, including in personal matters like boys. He says he is not a person who judges her, he gives her the benefit of the doubt and lets her says what she wants without getting into trouble, however there are limits when it comes to respect. He encourages her to behave by giving her incentives, such as buying a phone for her birthday; and explains to her that there are consequences for misbehaving, such as not listening to her teachers.
FHHM said if he is released from immigration detention, BM has already planned her room in his fiancée’s house as she is planning on spending a lot of time at home with him and his partner. She wants him to be there for her sports, to help her train for her rugby state championship competition and to watch her graduate from school.
BM wrote to the Tribunal on 11 January 2020[59] and 15 March 2021[60]. In her letter dated 11 January 2020, she says she can’t cope with FHHM being in immigration detention in the first place, let alone being deported to New Zealand. She says this would hurt her so badly she would never speak to anyone. She says her dad has been there for her when she felt down and when she needed him the most. She states she needs her parents in her life so she can get good grades again and her life will be complete. [61]
[59] Exhibit A8
[60] Exhibit A1
[61] Exhibit A8
In her letter of 15 March 2021, BM says she feels she can be open with her dad and he does not judge her. She wants him to watch her succeed in sports and at school and have him home with her. She wants to be in his arms and does not like being away from her best friend. She says she can’t wait for him to be home and to be a bridesmaid at his wedding. She stated she has had ups and downs in her relationship with her father, but in the end he is always there for her. [62]
[62] Exhibit A1
FHHM states he is particularly concerned about BM as he heard she had been experiencing suicidal thoughts.[63] He said he was aware of this as his brother rang and told him. FHHM has not discussed this with BM himself but asked his mother to bring this up with her. When asked, BM told FHHM’s mother she had been joking around. This was reported back to FHHM by his mother. He found this concerning but thinks they are on top of it.
[63] Exhibit A2, at 1
Mrs P, FHHM’s mother, also said BM has talked about suicide, and that she worries about BM given the issues with FHHM. Mrs P tells BM it is not her fault and it is okay to be emotional, but we have to learn to manage our emotions. According to Mrs P, FHHM’s incarceration has had a big impact on BM. She states BM wants to live with her father and will be adversely affected if he is deported. Mrs P has not sought counselling for BM or had discussions with Ms TT about BM’s suicidal thoughts as she believes BM is open with them. Mrs P has a friend at church who works in mental health and she had taken BM to see her friend. Mrs P attributes BM’s trouble at school to her being unable to control what is happening with her father.
Ms TT said that the separation from FHHM has been more significant for BM than for GJ, her brother. BM has been emotionally up and down over the last two years and wants her dad when their relationship is restricted by his imprisonment and then his detention. This is having an impact on BM’s school life and her relationship with Ms TT.
At the beginning of last year BM’s school made contact with Ms TT to tell her that BM said to a classmate she was suicidal. Ms TT talked to BM who brushed it off and did not bring it up again. Ms TT does not consider BM to be suicidal. Ms TT strenuously rejected the suggestion she was not taking the suicide threat seriously. She said BM had brushed it off and told her she had not made such a threat, but that did not mean she did not take it seriously.
Ms TT said she was making arrangements through the school for BM to see a specialist, which she thought was a psychologist. Ms TT acknowledged this was for BM’s learning issues and behaviour at school and not for her mental health.
Ms TT strenuously rejected the proposition that BM was “moving on a dark path”, stating she did not share that view of BM, and that while BM is having issues she is not living a dark path.
Ms TT said that at this point in time when BM has problems, she talks to FHHM, Ms TT’s sister or Mrs P. She said BM had issues with bullying in the last half of last year, although this has not been an issue this year. She said BM is not bullied at home. BM’s financial needs are currently being met.
Ms TT and Mrs P are the people who spend the most time with BM. Ms TT was an impressive witness, readily acknowledging the importance of the relationship between BM and FHHM and the difficulties BM has been experiencing. The Tribunal considers Ms TT’s evidence regarding BM, in particular where this is also the evidence of Mrs P, to be the most reliable regarding BM’s current needs and state of mind. Both Ms TT and Mrs P, while concerned for BM, did not consider her at imminent risk and are taking steps to address her needs. The Tribunal does not accept submissions that FHHM is required to be physically present for BM to “…move off the dark path she is travelling and make her way towards a happy, healthy and productive life.”
Allegations were made by Ms B that Ms TT’s current living arrangement was not appropriate, with 14 living in the house and FHHM’s daughter being bullied at home. Ms TT rejects these allegations, stating she lives with her stepfather, siblings and children, with 8 in the house most of the time and 9 when one of her siblings who is a fly in fly out worker is home. BM has her own bedroom. The Tribunal prefers Ms TT’s direct evidence of BM’s circumstances and finds her living arrangements are suitable.
BM has faced significant challenges in her life, with FHHM stating she was abused by his step-grandfather at 5 years of age. Following disclosure of this abuse, due to the lack of support from the family FHHM did not have contact with her for a period of approximately 8 months, she has also lived separately from him in the time she spent in New Zealand, and when he had less contact due to his drug use.
The family are concerned about BM’s mental wellbeing and conduct at school. BM’s mother and grandmother have talked with her about expressing suicidal thoughts and FHHM considers they are on top of it. Despite him stating BM can talk to him about anything, he has not asked her about her suicidal thoughts and instead asked his mother to raise this with her. Ms TT is following the recommendations of the school in accessing specialist assessment to assist with her schooling.
FHHM has been involved in BM’s life, although there have been periods when he has had less physical contact. He has intermittently played a parental role for BM that has strengthened over the last two years.
FHHM is likely to play a positive role in her life until she is 18 years in approximately three years and eight months if he continues to support Ms TT, does not abuse substances and refrains from offending.
FHHM’s past conduct has resulted in his separation from BM, which is stated by his family members and Ms TT to have had an adverse effect on her. BM’s clear view is that she wants to spend more time with FHHM and does not think she will cope if he is deported. Further separation from FHHM will cause her real and significant distress. She will continue to be supported by Ms TT and Mrs P who are the main carers in her life.
The Tribunal accepts it would assist BM to have her father physically present in her life, and that BM’s best interests are for FHHM to remain in Australia.
FHHM’s son

AH also has a learning disability, Ms P said FHHM assists his brother when he can. AH also has the support of the family and lives at home with his parents. The medical report states he is approved for NDIS funding. FHHM has been in prison or immigration detention for a considerable period, and it is not suggested that AH’s care has been compromised as a result. The Tribunal accepts that if FHHM is removed from Australia this will have an adverse effect on AH as he will miss his brother and he and Mrs P will lose the benefit of any assistance FHHM can provide.
Statements were provided from three of FHHM’s siblings; VP, SG and AP.
His brother VP states he talks to FHHM often and has visited him in prison.[77] VP states they are a close family and the family would feel sad if FHHM were to leave. He considers it would place strain on the family as FHHM is always there for them. FHHM set a good example by working and keeping busy, and he coached VP’s team at the Junior State Touch Tournament. The Tribunal accepts that VP would feel sad if the cancellation of FHHM’s visa is not revoked, both at the loss of FHHM’s physical presence and due to the effect on their mother. He would lose the potential benefit of FHHM coaching VP’s team.
[77] G563
His sister SG states they will not cope well if FHHM leaves Australia as he is the oldest brother and plays a bit part in their lives.[78] She contacts him and asks for advice and has been in frequent contact over Facetime since he has been in immigration detention. The Tribunal accepts SG will feel loss if FHHM leaves Australia.
[78] Exhibit A19
His brother AP said he would see FHHM five times a week before he went to prison and they remain in contact weekly on the phone or by Facebook.[79] AP says if FHHM is deported this will leave a role in the family no one can replace.
[79] G517
The Tribunal finds all of FHHM’s immediate family will suffer feelings of loss if the cancellation of his visa is not revoked. His brother AH will lose the potential of FHHM being involved in his life and in being a potential accessible kidney donor when he requires a kidney transplant. His brother VP will experience distress and the loss of FHHM’s involvement in his sport. His mother will suffer significant distress.
Ms B
FHHM and Ms B knew each other through school. They lost contact in 2015 as Ms B said FHHM was not stable at the time, and she was uncomfortable with this and she had her children to consider. They resumed communication when FHHM was moved from prison to immigration detention in 2019 and they now speak to each other daily through messaging and video calls. She said FHHM has changed since 2015, is more stable and clear headed and knows what he wants. They want to get married and purchase a second home, as she is currently building a home. The home she is building is solely in her name and she said at hearing they would need a bigger home if she and FHHM were to be married and live together.
Ms B said that if FHHM’s visa remains cancelled and he has to return to New Zealand, she will not be able to follow him there, as the father of her children will not allow her to leave the country with them. She said if he is deported this will lead to the end of the relationship.
The Tribunal finds non-revocation would have an adverse effect on Ms B and end her relationship with FHHM, including their plans to be married and purchase a house. Ms B said it would be heartbreaking for her and her children and would change all the plans she had. She says it would be quite devastating.
The Tribunal find that if the cancellation of FHHM’s visa is not revoked this will cause Ms B considerable distress and change her plans for the future.
Ms TT
Ms TT, FHHM’s former partner, provided a statement and gave oral evidence to the Tribunal.[80] Her evidence in relation to their children has been considered separately above, but this decision now considers separately the effect on Ms TT of cancelling FHHM’s visa.
[80] Exhibit A21
In her statement, Ms TT says she will have extra pressure on her if FHHM is not in Australia, particularly with the current behaviour of their daughter. She states FHHM does his best to help her out over the phone at the moment when their daughter is acting out. Ms TT says that FHHM not being present to also address this behaviour may affect her relationship with their daughter, who may start to resent her as Ms TT is always having to be the “bad” parent.
Ms TT says that if FHHM is deported, she and the children will not return to New Zealand as she says she suffered with lack of family support when she returned to New Zealand.
Ms TT states that she was shocked when FHHM was arrested as he is not a violent person in her view. This can be contrasted with his conviction for assaulting her on 1 January 2011 and her acknowledgement of other acts of family violence towards her.
Ms TT continues to have the support of FHHM’s family, with their daughter staying with Ms Paul on alternate weekends and in school holidays. FHHM says now she is older, his daughter goes to his mother when she wants and his mother will pick her up. The Tribunal finds Ms TT is supported by FHHM’s family in regard to caring for the children.
Ms TT did not provide evidence at the previous hearing of this matter. She said that if she were asked last year about how the cancellation of FHHM’s visa would affect her, she would have said she felt indifferent. However, she now acknowledges the children need him and she would facilitate his relationship with hem. At the time of the previous hearing she did not want to be involved, but she has seen FHHM’s relationship with the children progress over the last year. Ms TT has financially provided for the children but says FHHM’s mother helps her quite a bit for FHHM.
The Tribunal accepts Ms TT would benefit from FHHM’s support and physical assistance in parenting their children. She will continue to have financial support as he has arranged a job with her father if he returns to New Zealand.
The Tribunal finds that the impact on Ms TT is that she will lose the support of FHHM in parenting their children, and that this is particularly difficult at this time with her current concerns for their daughter.
Extended family
FHHM’s aunt, Ms TM, who is a permanent resident of Australia provided statements in support of FHHM and gave oral evidence to the Tribunal.[81] FHHM has lived with her and her two children several times while in Australia and was living with her when the offence for which he was imprisoned was committed and started living with her because a lot was happening in the family. He has cared for both of her children, and she say he was there for her when her husband was not as they had separated. FHHM has assisted his aunt by talking to her daughter and encouraging her daughter in her netball. His aunt states she misses him.
[81] Exhibit A26
Despite their separation, his aunt and her ex-husband run a fencing business together to provide employment for family members. This has been operating for 8 to 9 months. They have offered FHHM a position to lead a team and help family members get off the ground and be employed. They currently have one full time employee and four casual employees.
The Tribunal accepts FHHM has a strong tie to his aunt. The impact on his aunt of not revoking the cancellation of FHHM’s visa is the loss of his involvement and potential assistance with her children and her distress at not having him in Australia.
Another aunt, Mrs AM, also provided statements and gave oral evidence to the Tribunal.[82] This aunt described FHHM as like a son to her as when he was little she babysat while his mother was at work. She describes her eldest son and FHHM as having been brought up together as they are similar ages and they remain close. She said it would be heartbreaking not to be able to see FHHM and give him a hug.
[82] Exhibit A5
FHHM provided statements from his uncles Mr P and Mr M about his character and the effect cancelling his visa will have on his children and extended family. The Tribunal also has before it a statement from his cousin, and accepts they are close and that FHHM assisted him when he was depressed.
The Tribunal accepts that FHHM is part of a large and close extended family, and his removal from Australia would have an adverse impact on all members of his extended family in that they would miss his physical presence and involvement in their lives.
Members of the community
Where it is raised, the Tribunal must consider the applicant’s social ties with other Australians.[83]
[83] Okoh v Minister [2021] FCA 84 at [46]
In his original request for revocation, when asked “what hardship would your removal cause to members of the Australian community?”, he wrote, “Besides my experience in rugby and touch to be honest not much as I love to coach and help the younger generation of touch footy players be better on and off the field”.[84]
[84] G79
FHHM provided statements from friends, which in general attest to his character and the adverse effect cancellation will have on his children or immediate family. However, the Tribunal infers that if his visa is cancelled it will have some effect on the ability of his friends to have in person contact with him and they will miss him. They will be able to maintain contact through electronic means, and access the support he provides in his way, as has been the case while he was in prison and while he is in immigration detention.
FHHM’s grand-uncle states FHHM has volunteered in a variety of different ways. He has assisted families, helping to cook and feed large groups and attending funerals. The Tribunal accepts that members of the community will lose his potential to assist in this regard.[85]
[85] Exhibit A17
Mr F provided a statement that FHHM assisted his grandfather to do yard work on one occasion and refused payment. Mr F states FHHM supported him during his partner’s battle with cancer, including providing care for his son who has autism. The Tribunal accepts Mr F will lose the potential support of FHHM in caring for his son if the mandatory cancellation of his visa is not revoked. [86]
[86] Exhibit A15
In 2017, a friend Ms DP said FHHM supported her son following a motorcycle accident which assisted her son during bouts of depression.[87] A statement from her son, Mr MP, confirms this was the case, and FHHM would visit and listen to music.[88] The Tribunal accepts that if the cancellation of FHHM’s visa is not revoked Mr MP will lose his support and physical presence which would assist him through his depression.
[87] G116
[88] Exhibit A14
FHHM provided statements in support from people associated with Touch Rugby, where he volunteered his time playing, coaching and volunteering.[89] The Tribunal accepts that members of this community will lose the opportunity to have him return to the club and continue to volunteer.
[89] E.g. G119, G120
FHHM states he will both volunteer and receive support for BTP (Break the Psychol), as group which is described as a support for people at risk of suicide or suffering the effects of suicide. The Tribunal accepts that if his visa remains cancelled, this will deprive others involved with this group of the opportunity offering support to or being supported by FHHM.
FHHM also is involved with the church community and a letter was provided from Pastor M who states he has known FHHM since he as a child.[90] FHHM reportedly left the church but has re-engaged with the church during his time in prison. The effect on members of the church community if FHHM leaves Australia is not specified.
[90] G106
The Tribunal finds there is an adverse effect on other members of the community through the loss of the potential for FHHM to volunteer in the community and provide support to his friends. The Tribunal infers his friends will suffer some feelings of loss.
Having taken into account FHHM’s ties with his immediate family, his extended family, Ms B, Ms TT and other members of the community, the Tribunal is satisfied this factor weighs strongly in favour of revoking the cancellation of his visa. When this consideration is added to the significant weight in favour of revoking the cancellation due to the length of time he has lived in Australia, this consideration weighs strongly in favour of revoking the cancellation of his visa.
Impact on Australian business interests
The impact on Australian business interests that is an employment link will generally only be given weight where non-revocation would compromise the delivery of a major project, or delivery of an important service in Australia.[91]
[91] cl.14.3(1) of the Direction
Mr F states that prior to his incarceration, FHHM and Mr F were working on patenting a water safety product that Mr F believes will save Australian lives. He states he fears that if FHHM’s visa is cancelled the product will not be achieved due to a non-disclosure agreement.[92] Mr F did not give evidence to the Tribunal, and this was not pursued at hearing. The Tribunal finds this is speculative and there is insufficient information to show there will be an impact of Australian business interests if FHHM and Mr F do not pursue patenting this product.
[92] Exhibit A15
Mr E states he will employ FHHM as a scaffolder if he is released from detention. It is not suggested Mr E’s business cannot operate without the assistance of FHHM, and the Tribunal does not consider this has an impact on Australian business interests.
FHHM has been offered fencing work with his uncle’s fencing business on his release. His aunt states they established the business to employ family members as her ex-husband is a fencer. They want FHHM to lead another team. The business has been profitable while FHHM has been in prison and immigration detention, and there is no suggestion the business will not operate if he is unable to work.
None of the potential projects or employment offers to FHHM would compromise delivery of a major project or delivery of an important service, and this consideration is neutral.
Impact on victims
This consideration addresses the impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for cancellation has been afford procedural fairness.[93]
[93] cl.14.4(1) of the Direction
There is no information before the Tribunal about the impact of a decision not to revoke the cancellation on the victims of the grievous bodily harm and assault occasioning actual bodily harm.
The only victim who gave evidence was Ms TT. FHHM’s children, being family members of a victim, provided letters to the Tribunal seeking the revocation of the cancellation of his visa. FHHM argues that Ms TT would be adversely affected as she will lose the benefit of his physical support with the children.
The Minister argued the effect on Ms TT should not be taken into account in considering the impact on victims, as her views are taken into account in the nature of the ties to Australia and the children’s interests are taken into account n in the best interests of the children.
There may be a different effect of a decision to revoke on a person as a family member to with their perspective and as a victim of crime. Where the impact on the person as a victim of crime has not been specifically raised in evidence, and the person has only given evidence on the effect on them as a family member of the non-citizen, this should not be considered as identical to their experience as a victim of a crime.
As there has not been specific evidence led on the impact of a decision not to revoke on Ms TT as a victim of crime, and there is no evidence from other victims, this factor is neutral.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
FHHM is relatively young and is in good health. He lists his previous employment as crowd control, warehousing, drainage and removalist. There is no suggestion he is currently unable to work or could not access social medical or economic support in New Zealand. There are no substantial cultural or language barriers.
He said he has made plans in case he has to return to New Zealand and has a job with Ms TT’s father in his scrap metal business.
FHHM will be required to re-establish himself in New Zealand without the support of his usual family networks which will cause some hardship. He submits that being separated from his children and partner will be a source of stress, and this may impede his ability to establish himself and maintain a basic standard of living. While the Tribunal accepts this separation will be a source of stress, given the social, medical and economic support available to him in New Zealand, and as he already has a job, it does not accept this would impede his ability to establish himself and maintain basic living standards.
The Tribunal finds that he would face minor impediments in re-establishing himself in New Zealand, and this factor should be given slight weight in favour of revoking the cancellation of his visa.
CONCLUSION
Of the primary considerations, the protection of the Australian community weighs heavily in favour of not revoking the cancellation of FHHM’s visa, and the expectations of the Australian community weigh considerably in favour of not revoking the cancellation. The best interests of the children weigh heavily in favour of revoking the cancellations of the visa.
Of the other considerations, the strength nature and duration of FHHM’s ties weighs heavily in favour of revoking the cancellation of FHHM’s visa and the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.
Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.
The Tribunal considers the two primary considerations of protection of the community and the expectations of the community outweigh the best interests of the children, the strength, nature and duration of FHHM’s ties to Australia and any impediments he will face re-establishing himself in New Zealand. This means the decision not to revoke the mandatory cancellation of his visa is affirmed.
DECISION
The decision under review is affirmed.

310.

311.

I certify that the preceding 309 (three hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

   ……………[Sgnd]……………………

Administrative Assistant Legal

Dated: 1 April 2021

Date of hearing: 22-24 March 2021

Advocate for the Applicant: Hamish Glenister, William Gerard Legal Pty Ltd

Advocate for the Respondent: Sam Cummings, Sparke Helmore
ANNEXURE A – Applicant’s Offending History

Court Court Date Offence Offence Date(s) Court Result

Perth Magistrates Court 25 Oct 2007 Disorderly behaviour in a public place 21 Oct 2007 Fine: $500

Joondalup Magistrates Court 14 May 2008 No driver’s licence (fines suspension) 9 May 2008 Fine: $250; mdl disqualified s 51: 3 months; mandatory - concurrent

Unlicensed vehicle (owner/driver) Fine: $200

False name (driver) Fine: $200

Drive vehicle contrary to compliance notice (drove) Fine: $600

Perth Magistrates Court 18 Jun 2008 Disorderly behaviour in public place 14 Jun 2008 Fine: $500

Midland Magistrates Court 21 Aug 2008 No authority to drive – disqualified/suspended 8 Jul 2008 Fine: $500; mdl disqualified: 9 months - cumulative

Perth Magistrates Court 30 Jun 2009 No authority to drive – disqualified/suspended 5 May 2009 Fine: $1000; mdl disqualified: 9 months - cumulative

Joondalup Magistrates Court 1 Oct 2010 Assault occasioning bodily harm 2 Apr 2010 Community based order: 12 months concurrent from 1 Oct 2010

Midland Magistrates Court 13 Jun 2011 Unlawfully assaulted with circumstances of aggravation.; criminal code (wa); 313(1)(a) 1 Jan 2011 Intensive supervision order: 12 months concurrent from 13 Jun 2011

Breach of community based order under s 62 sent ACT of 01-oct-2010 2 Apr 2010 Intensive supervision order: 12 months concurrent from 13 Jun 2011

Joondalup Magistrates Court 10 Feb 2012 Person who breaches conditional release order or community order without reasonable excuse 6 Sep 2011 Fine: $350

Breach of intensive supervision order s 69 sent ACT of 13 June 2011 1 Jan 2011 Fine: $750

Person who breaches conditional release order or community order without reasonable excuse 6 Sep 2011 Fine: $500

Breach of intensive supervision order s 69 sent ACT of 13 June 2011 2 Apr 2010 Fine: $1000

Midland Magistrates Court 20 November 2012 Possess a prohibited drug (methylamphetamine); misuse of drugs ACT (WA) 1981; 6(2) r 14 Oct 2012 Fine: $1000

Perth Magistrates Court 28 Oct 2014 Refuse name and address (driver) 12 Sep 2014 Fine: $300

No authority to drive – never held 27 Oct 2014 Fine: $200; mdl disqualified: 3 months - concurrent

No authority to drive (fines suspended) 12 Sep 2014 Fine: $300

Breach of bail granted undertaking; Bail Granted ACT (wa) 1982; 51(1) 2 Oct 2014 Fine: $200

Midland Magistrates Court 28 April 2015 No authority to drive - expired 14 Feb 2015 Fine: $350

Perth Magistrates Court 30 Jul 2015 Disorderly behaviour in public; criminal code (wa); 74a(2)(a) 31 May 2015 Fine: $500

Obstructing public officers; criminal code (wa); 172(2) Fine: $600

Perth Magistrates Court 15 Oct 2015 No authority to drive (never held) 9 Sep 2015 Fine: $500; mdl disqualified: 3 months - concurrent

Midland Magistrates Court 12 Apr 2017 No authority to drive (never held) 31 Dec 2016 Fine: $400

Provided false or misleading personal details Fine: $300

Used a mobile phone whilst driving a vehicle Fine: $400

Perth District Court of Western Australia 13 Oct 2017 Grievous bodily harm; criminal code (WA); 297 6 Apr 2016 Imprisonment: 3 years 3 months concurrent from 13 Oct 2017

Date of hearing:	22-24 March 2021
Advocate for the Applicant:	Hamish Glenister, William Gerard Legal Pty Ltd
Advocate for the Respondent:	Sam Cummings, Sparke Helmore

Court	Court Date	Offence	Offence Date(s)	Court Result
Perth Magistrates Court	25 Oct 2007	Disorderly behaviour in a public place	21 Oct 2007	Fine: $500
Joondalup Magistrates Court	14 May 2008	No driver’s licence (fines suspension)	9 May 2008	Fine: $250; mdl disqualified s 51: 3 months; mandatory - concurrent
		Unlicensed vehicle (owner/driver)		Fine: $200
		False name (driver)		Fine: $200
		Drive vehicle contrary to compliance notice (drove)		Fine: $600
Perth Magistrates Court	18 Jun 2008	Disorderly behaviour in public place	14 Jun 2008	Fine: $500
Midland Magistrates Court	21 Aug 2008	No authority to drive – disqualified/suspended	8 Jul 2008	Fine: $500; mdl disqualified: 9 months - cumulative
Perth Magistrates Court	30 Jun 2009	No authority to drive – disqualified/suspended	5 May 2009	Fine: $1000; mdl disqualified: 9 months - cumulative
Joondalup Magistrates Court	1 Oct 2010	Assault occasioning bodily harm	2 Apr 2010	Community based order: 12 months concurrent from 1 Oct 2010
Midland Magistrates Court	13 Jun 2011	Unlawfully assaulted with circumstances of aggravation.; criminal code (wa); 313(1)(a)	1 Jan 2011	Intensive supervision order: 12 months concurrent from 13 Jun 2011
Midland Magistrates Court	13 Jun 2011	Breach of community based order under s 62 sent ACT of 01-oct-2010	2 Apr 2010	Intensive supervision order: 12 months concurrent from 13 Jun 2011
Joondalup Magistrates Court	10 Feb 2012	Person who breaches conditional release order or community order without reasonable excuse	6 Sep 2011	Fine: $350
		Breach of intensive supervision order s 69 sent ACT of 13 June 2011	1 Jan 2011	Fine: $750
		Person who breaches conditional release order or community order without reasonable excuse	6 Sep 2011	Fine: $500
		Breach of intensive supervision order s 69 sent ACT of 13 June 2011	2 Apr 2010	Fine: $1000
Midland Magistrates Court	20 November 2012	Possess a prohibited drug (methylamphetamine); misuse of drugs ACT (WA) 1981; 6(2) r	14 Oct 2012	Fine: $1000
Perth Magistrates Court	28 Oct 2014	Refuse name and address (driver)	12 Sep 2014	Fine: $300
		No authority to drive – never held	27 Oct 2014	Fine: $200; mdl disqualified: 3 months - concurrent
		No authority to drive (fines suspended)	12 Sep 2014	Fine: $300
		Breach of bail granted undertaking; Bail Granted ACT (wa) 1982; 51(1)	2 Oct 2014	Fine: $200
Midland Magistrates Court	28 April 2015	No authority to drive - expired	14 Feb 2015	Fine: $350
Perth Magistrates Court	30 Jul 2015	Disorderly behaviour in public; criminal code (wa); 74a(2)(a)	31 May 2015	Fine: $500
Perth Magistrates Court	30 Jul 2015	Obstructing public officers; criminal code (wa); 172(2)	31 May 2015	Fine: $600
Perth Magistrates Court	15 Oct 2015	No authority to drive (never held)	9 Sep 2015	Fine: $500; mdl disqualified: 3 months - concurrent
Midland Magistrates Court	12 Apr 2017	No authority to drive (never held)	31 Dec 2016	Fine: $400
		Provided false or misleading personal details		Fine: $300
		Used a mobile phone whilst driving a vehicle		Fine: $400
Perth District Court of Western Australia	13 Oct 2017	Grievous bodily harm; criminal code (WA); 297	6 Apr 2016	Imprisonment: 3 years 3 months concurrent from 13 Oct 2017