Filipovich and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4697

Filipovich and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4697 (24 November 2020)
Division:GENERAL DIVISION
File Number: 2020/5343
Re:Michael Luciano Filipovich
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 24 November 2020
Date of Written Reasons: 25 November 2020
Place:Brisbane

The decision under review is affirmed.
........................[sgd]................................................
Senior Member Theodore Tavoularis
CONTENTS
Introduction and Background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A

Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence

Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C

Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES

Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2019] AATA 162
R v Saunders [2017] SASCFC 86
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Tavoularis
25 November 2020
INTRODUCTION AND BACKGROUND

Mr Michael Luciano Filipovich (“the Applicant”) is a 31 year old citizen of New Zealand.[1] Movement details appearing in the material indicate the Applicant arrived in Australia on 30 January 2003 and has departed Australia once (on 14 December 2004) since his first arrival.[2] He returned to Australia on a final basis on 11 January 2005 and has not departed Australia since that time. He has resided in Australia on a Special Category Class TY Subclass 444 (Temporary) Visa (“the Visa”).
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1.
[2] Exhibit G1, s 501 G Documents, G2, page 162.
The Applicant has a serious and lengthy history of committing crimes in Australia. His 12 year criminal history in this country first saw him before lawful authority on 5 March 2007. The Applicant’s offending in Australia has caused him to be dealt with by sentencing judicial officers on 11 separate sentencing occasions dealing with his commission of some 20 individual offences.[3]
[3] Exhibit G1, s 501 G Documents, G2, pages 32–34.
While the Applicant was in criminal custody, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or “Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”), decided on 6 November 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[4]
[4] Exhibit G1, G4, pages 220-226.
By a document dated 21 November 2019, the Applicant notified the Minister’s Department of a request for the revocation of the decision to mandatorily cancel his visa.[5] By letter dated 3 December 2019, the Respondent acknowledged receipt of the Applicant’s representations about revocation of the decision to mandatorily cancel his visa made on 6 November 2019.[6]
[5] Ibid, pages 46-47.
[6] Ibid, G8, page 257.
The delegate of the Minister decided on 31 August 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[7] The Applicant lodged an application with this Tribunal on 3 September 2020, seeking a review of the abovementioned decision dated 31 August 2020 not to revoke the cancellation of his visa.[8] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[9]
[7] Ibid, page 29.
[8] Ibid, G1, page 3.
[9] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded before me on 10 and 11 November 2020. The hearing received oral evidence from: (1) the Applicant; (2) Dr Donna Eshuys, Clinical Psychologist; (3) Darrin Grant Merrit, his former employer; (4) Ms Nardine Ames, his aunt; (5) Bianca Milligan, long-time friend of the Applicant; and (6) Ms JA, the Applicant’s mother.
The Tribunal also received written evidence. This written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] I will address each of these grounds in turn.
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant concedes the following:
“2. It is conceded that:
(a) the mandatory cancellation of the Applicant’s subclass 444 visa on 14 September 2018 [sic][13] was required by, and in accordance with, s 501(3A) of the Migration Act 1958 (the Act); and
(b) for the purposes of s 501CA(4)(b)(i) of the Act, the Applicant does not pass the ‘character test’ prescribed by s 501(6).
3. In those circumstances, the sole issue before the Tribunal is whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked. If the Tribunal is satisfied that such a reason exists, it is compelled to exercise its discretion to revoke the mandatory cancellation of the Applicant’s visa.”[14]
[Footnote in original omitted]
[13] This date is incorrect. The correct date is 6 November 2019.
[14] Exhibit A1, Applicant’s SFIC, page 1, paragraphs 2 and 3.
I have had regard to the Applicant’s offending history. The following custodial terms have been imposed on him:
·Two months on 26 November 2012;
·Three months on 11 April 2014;
·Two years on 23 August 2019; and
·Six months on 23 August 2019 (to be served concurrently with the immediately preceding sentence of two years).[15]
[15] Exhibit G1, G2, pages 32-33.
As the abovementioned custodial terms constitute ‘a term of imprisonment of 12 months or more’, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. I therefore find that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act.
Pursuant to my finding that he does not pass the character test, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
The submission put on behalf of the Applicant, in terms of ascertaining whether “another reason” to revoke the mandatory cancellation decision may exist, is put thus:
“4. The Applicant contends that, having regard to:
a) the Applicant’s limited risk of reoffending;
b) the best interests of minor children in Australia; and
c) the duration and strength of the Applicant’s ties to Australia,
there is another reason why the mandatory cancellation should be revoked.”[16]
[16] Exhibit A1, page 2.
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[18]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[19] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Initial concessions made by the Applicant
With specific reference to the capacity of paragraph 13.1 of the Direction to allocate weight to the relevant factors appearing in that paragraph, the Applicant’s SFIC records the following initial concession:
“21. The Applicant accepts that, prima-facie, this primary consideration could never weigh in favour of a revocation decision. That is because past criminal (or other serious) conduct on the part of a non-citizen is antecedent to considering whether to revoke a mandatory cancellation. In those circumstances, in the Applicant’s submission, the relevant enquiry is the extent to which this primary consideration weighs against revocation.”[20]
[20] Exhibit A1, page 6.
With specific reference to the nature and seriousness of the Applicant’s criminal conduct, his SFIC makes the following further concession:
“22. The Applicant accepts that his past conduct, particularly his convictions for:
a) grievous bodily harm; and
b) contraventions of domestic violence orders (including breaches of conditional release orders),
cannot be described as anything other than serious. Further, it is accepted that the Applicant’s conduct resulting in his conviction for public nuisance on 11 April 2014 was also serious.”[21]
[21] Ibid.
In its SFIC, the Respondent makes the following contentions about Paragraph 13.1 of the Direction:
“46. The Minister contends that Primary Consideration 1 weighs heavily against the revocation of the mandatory cancellation of the Applicant's visa. The Applicant's offending has been very serious, and appears against a backdrop of repeated offending. The Applicant's ability to abstain from offending (as well as the drivers of that offending, most notably, alcohol) has not been tested since his incarceration and detention.
47. Accordingly, the Minister submits that the protection of the Australian community favours the non-revocation of the cancellation of the Applicant's visa. This consideration ought to weigh heavily against the Applicant's application for revocation.”[22]
[22] Exhibit R1, page 13.

As mentioned earlier, the Applicant has found himself before lawful authority for sentencing on 11 separate occasions that dealt with the commission of some 20 offences. That offending was committed in the following realms:
“(a) grievous bodily harm;
(b) wilful damage;
(c) multiple contraventions of domestic violence orders;
(d) multiple breaches of bail and probation orders;
(e) trespass;
(f) public nuisance; and
(g) assault or obstruct police officers.”[23]
[23] Ibid, page 7, paragraph [22].
In his SFIC, the Applicant’s offending is summarised thus:
“7. The Applicant has committed 20 criminal offences over a near 11-year period between February 2007 and November 2017. Those offences included:
a) one offence involving actual physical violence:
i. grievous bodily harm on 25 February 2020;
b) two property-related offences;
i. wilful damage on 25 February 2017; and
ii. trespass on 3 November 2012;
c) five offences relation to contravention of domestic violence orders or release conditions;
i. contravene domestic violence order on 14 October 2017, 7 April 2014 and 4 August 2013;
ii. breach of release conditions (x 2) on 18 December 2011;
d) five offences of commit public nuisance occurring on 7 April 2014, 3 November 2012, 22 May 2011, 12 December 2010 and 16 February 2007;
e) four offences involving the obstruction of police officers occurring on 7 April 2014 (x 2), 3 November 2012 and 12 December 2010;
f) three noncompliance offences:
i. breach of bail on 15 November 2017;
ii. breach of probation on about 8 September 2014;
iii. contravene direction or requirement on 6 October 2011.”[24]
[24] Exhibit A1, pages 2-3.
The approach taken on behalf of the Applicant towards his offending is one of viewing the circumstances of his commission of each offence on a mostly isolated basis. The difficulty arising from such an approach is that the cumulative effect of the nature and extent of the Applicant’s offending history is liable to be missed and to otherwise be accepted as “minor” because such an impression can be taken when the offending episodes are viewed in isolation. Such an approach is, in my view, misplaced and renders a decision-maker liable to a misapplication of the relevant factors in paragraph 13.1.1(1) in evaluating (and allocating weight to) the nature and seriousness of the offending.
I think the Respondent’s approach is the correct one. One should not cavil with a “minor” descriptor of much of the Applicant’s criminal history. The critical element is that the Direction does not compel the evaluation or examination of each offence in a criminal history in isolation. A contextual approach is to be preferred, such that an Applicant’s offending history is approached on a cumulative basis and, the assessment of the nature and seriousness of the conduct, ought to be based on such a cumulative approach.
In this regard, I think the Respondent’s observation of “five salient features of the Applicant’s criminal history” is both apt and well-made:
“24. The Minister respectfully draws the Tribunal's attention to five salient features of the Applicant's criminal history as a whole:
(a) the Applicant's most recent offending involved extreme violence, with life-changing consequences for his victim;
(b) the Applicant's long criminal history should be viewed cumulatively and as demonstrative of a pattern of behaviour;
(c) it features multiple breaches of bail, probation, release conditions domestic violence orders;
(d) it features multiple instances of assaulting or obstructing government officials in the course of their duty; and
(e) the Applicant has been sentenced to multiple terms of imprisonment.”[25]
[25] Exhibit R1, page 8.
Viewed holistically, the nature of the Applicant’s offending is, to my mind, such as to immediately attract the attention of the relevant Principles contained in paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.
I have had regard to both (1) the abovementioned concessions on behalf of the Applicant about the nature and seriousness of his offending, and (2) the cumulative approach to the offending adopted by the Respondent. Over and above these two elements, I am of the view that the most accurate picture of the nature and seriousness of the Applicant’s offending can be derived from an application of the relevant factors contained in Paragraph 13.1.1(1) of the Direction.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are the following:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)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;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)....
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The material contains a reference to the circumstances of the Applicant’s offending resulting in his respective convictions for (1) grievous bodily harm[26] and (2) wilful damage.[27] That reference appears in the Respondent’s Statement of Facts, Issues and Contentions sourced from an agreed statement of facts about the circumstances of that offending at the time the Applicant entered a plea of guilty.. Those recorded (and agreed) circumstances make for sobering reading:
"It was at this stage that the defendant decided to confront the complainant. The defendant and [name redacted (male)] drove to the complainant's house and parked on the corner of the complainant's street. They both walked up to the complainant's house. [name redacted (male)] waited in front of the next door neighbour's house. The defendant climbed the side fence and from the back yard threw a number of large rocks at the house causing the kitchen window and rear sliding door glass to break (Count 1).
The complainant's ex-partner [name redacted (female)], who was residing with him, was woken up by the noise. She woke the complainant up and they walked into the lounge room and observed rocks and broken glass on the floor. [name redacted (female)] opened up the front door and noticed a man squatting down near her Window. She told the complainant that there was a guy outside.
The defendant started to run away down the street and the complainant chased him. As the defendant approached the corner of Glen Street and Lorebury Drive he fell over onto the road near where his vehicle was parked.
The complainant approached the defendant who got up from the ground. The complainant tried to restrain the defendant, not realising who he was. A scuffle then ensued between the complainant and defendant and they exchanged blows.
The defendant picked up a tyre lever and struck the complainant once across the right hand side of his face (Count 2). The complainant then tried to restrain the defendant. He was unable to do so and the defendant freed himself from the complainant and ran off.”[28]
[26] Pursuant to s 320 of the Criminal Code Act 1899 (Qld) (“the Criminal Code”).
[27] Pursuant to s 469(1) of the Criminal Code.
[28] Exhibit R1, page 8, paragraph [23].
At the core of this offending is alcohol. This central element features not just in the violence perpetrated by the Applicant against his victim. It also features in the entirety of the temporal “transaction” leading up to what the Applicant actually did. The sentencing Judge[29] took into account the circumstances leading up to the Applicant’s commission of the offence:
“HIS HONOUR: Stand up, please. Michael Luciano Filipovich, you are to be sentenced for one count of wilful damage for which the maximum penalty is imprisonment for five years. You are also to be sentenced for one count of grievous bodily harm, for which the maximum penalty is imprisonment for 14 years. You have pleaded guilty to each of these offences on a previous occasion. The circumstances of the offending are set out in Exhibit 2, which is an agreed statement of facts. Essentially, there has been a history of antagonism between yourself and the complainant who went into a relationship with your former girlfriend. This escalated significantly on the evening in question.
On 24 February 2017, you had an altercation with him [the victim] at the Caboolture Sports Club where you both had been drinking and you approached him wanting to talk to him. He told you to fuck off and then without warning punched you to the right side of your face with a closed fist. This caused you to momentarily lose consciousness and fall backwards onto the floor. The complainant was subsequently convicted of assault occasioning bodily harm in respect of this incident and sentenced for it in the Magistrates Court.
The evening was far from over, however, and that is what brings you before me. You were in a rage after this occurred. You were taken home by your mother and a friend, and you variously attempted to get back to him at his home by driving a vehicle. But it would not start, fortunately, due to an immobiliser. You then smashed the windscreen of the vehicle in a rage. Ultimately, your mother, for reasons which appear somewhat clouded, has gone to the residence of the complainant, and he has threatened her with a golf club. She has then returned, and he has apologised. And your friend has then told you what happened involving your mother, and then you have gone to the residence and thrown rocks through the kitchen window, causing a glass sliding door to break.
…What is clear is that you, in a very cowardly way, crept around the side of the complainant’s house and smashed glass by throwing rocks through it into the house. The complainant was alerted to your presence, and you ran away down the street. The complainant chased you and ultimately caught up with you, and a physical fight ensued. The complainant struck you to the head with a number of solid blows, and in what the prosecution accepts as a excessive use of force scenario, you grabbed a tyre lever and swung it towards the upper body of the complainant. You struck him once across the right-hand side of his face.
He suffered a number of jaw fractures and immediate pain. He required surgery, and surgical plates and screws were used to fix the fractures which were left in suture. He also sustained cuts and bruises to his face and abdomen and to his back; however, it would appear that these may have been caused by the consensual fight and therefore are not a consequence of the offending that is before me. He also seems to have suffered a broken nose although, again, it is unclear whether this was due to the blow which brings you before the Court.”[30]
[29] His Honour Judge Everson DCJ, District Court of Queensland.
[30] Exhibit G1, G2, page 36.
To my mind, the inherent seriousness of the Applicant’s violent offending against this victim derives from the extent to which an abuse of alcohol had caused him to lose control of his moral compass and to otherwise prefer and seek irrational solutions to problems that are presented to him through the ordinary course of his life. There are several examples of how alcohol has disoriented him and caused him to pursue a violent and potentially fatal solution to, in this case, the abovementioned complainant. As will be seen from Judge Everson’s sentencing remarks, there were several factors that, had they been handled better and more rationally by the Applicant, would have resulted in none of the abovementioned very serious offending. For example:
·the complainant/victim took up with the Applicant’s former girlfriend in a relationship. While there is nothing remarkable about this, the Applicant nevertheless allowed a “history of antagonism” between himself and the complainant to become a contributory ingredient to the subject offending;
·while at the Sports Club, that “history of antagonism” clearly compelled the Applicant to want to “talk to” the complainant in an effort to, in the Applicant’s mind, square some sort of ledger. Contact then ensued with the result that the complainant struck the Applicant to the right side of his face with a closed fist;
·things cascaded from there in an appalling way due to the Applicant’s disoriented state of mind, which was motivated only by “getting square” with the complainant. The Applicant went into “a rage” and, very dangerously, sought to operate a motor vehicle in circumstances where he was clearly incapable of doing so. Although nothing ensued from him trying to start the motor vehicle, one does not require a broad imagination to contemplate the potential consequences of the Applicant operating a vehicle while intoxicated;
·when the Applicant’s mother sought to confront the complainant at his residence, he apparently threatened her with a golf club. Upon hearing this from her, there is little to suggest the Applicant’s rage subsided or that any measure of self-control returned to him. Instead, the Applicant took it upon himself to show up at the complainant’s residence and throw rocks through glass windows of that property;
·the unregulated “get square” mentality that had gripped the Applicant then caused him to creep around the side of the complainant’s house and further smash glass fittings on the property by physically throwing rocks through those apertures into the residence;
·unsurprisingly, the complainant assumed a responsive posture, culminating in his pursuit of the Applicant, his capture of the Applicant, and then the physical melee which ensued between the two of them; and
·the physical melee, in and of itself, had significant potential for a catastrophic outcome. The complainant struck the Applicant to the head “with a number of solid blows”. It was then that the Applicant very seriously injured the complainant by striking him with a tyre lever once across the right side of his face.
Were the Applicant in control of his capacity to manage an adverse situation, none of the cascading and contributory elements towards the ultimate act of very serious violence would have ensued. The Applicant would have simply accepted that another man was in a relationship with a woman with whom the Applicant had previously had a relationship. That should have been the end of it. But it was not. The Applicant allowed his resentful and unresolved feelings towards the complainant to fester, to affect him and to ultimately compel him to consume copious amounts of alcohol as a means of dealing with those feelings of resentment. The Applicant’s choice in resolving issues in this way has resulted in the very serious offending matrix for which he received head custodial terms of two and a half years.
In the final analysis, the Applicant has absolutely no excuse for what he did to the complainant, or, put another way, for allowing himself to be put into a position to have done so. This is, to my mind, from where the inherent level of seriousness behind the Applicant’s offending originates. Excuses, exculpatory factors and contributory or provocative behaviour by the complainant are one thing. What the Applicant did to the complainant is something else. As observed Judge Everson:
“He suffered a number of jaw fractures and immediate pain. He required surgery, and surgical plates and screws were used to fix the fractures which were left in suture. He also sustained cuts and bruises to his face and abdomen and to his back; however, it would appear that these may have been caused by the consensual fight and therefore are not a consequence of the offending that is before me. He also seems to have suffered a broken nose although, again, it is unclear whether this was due to the blow which brings you before the Court.”[31]
[31] Exhibit G1, G2, page 36.
In the final analysis, it is the sentence that tells the story of the level of seriousness of the offending. Judge Everson said the following in sentencing the Applicant:
“In circumstances where you have seriously injured someone with a weapon, namely, a tyre lever, even allowing for the fact that the blow was constituted by the use of excessive force in the context of a consensual fight, the fact remains that a sentence of imprisonment is an appropriate punishment. I will moderate this taking into account your mental health issues such as they are and for the fact that your criminal history, although showing you to be someone who is not of good character, does not include offences of violence per se. In respect of count 2, the count of grievous bodily harm, you are convicted and sentenced to imprisonment for two years. In respect of the count of wilful damage, you are convicted and sentenced to imprisonment for six months to be served concurrently with the other sentence. I set a parole release date of 23 April 2020.”[32]
[My underlining]
[32] Ibid, page 38.
The Applicant’s virtual complete loss of any capacity to rationally resolve difficulties while under the influence of alcohol has spawned both the sequence of offence leading to the offending and the offending itself. I am of the view that, at best, an application of this sub-paragraph (a) militates in favour of a finding that the Applicant’s violent conduct has been at least serious, more likely very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
The parties adopt different approaches to the extent to which this sub-paragraph (b) can be attached to the Applicant’s conduct towards women, especially in a domestic context. The Applicant takes a narrower approach, suggesting that although domestic violence orders were imposed on him, the extent of the “violence” or wrongdoing is limited to the Applicant’s repeated breach of those orders. The Applicant makes the following contention in relation to this sub-paragraph (b):
“While it is admitted that the Applicant has had domestic violence orders imposed on him and has been found guilty of contravening those orders, there is no evidence available that indicates that the Applicant’s conduct towards women has been ‘marked by the use of usually harmful or destructive physical force’ (definition of ‘violent’ per Merriam-Webster).”[33]
[33] Exhibit A1, page 7.
The Respondent, on the other hand, makes the following and more generic contention:
“29. The Applicant's criminal history also discloses a number of breaches of domestic violence orders. The Applicant has claimed (and there is nothing to contradict) that these breaches did not involve physical violence. However, the nature of domestic violence may be complex and is not limited to outward expressions of physical violence. As Senior Member Puplick explained in Mendoza and Minister for Immigration and Border Protection:
"The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically."
30. The Minister respectfully adopts the comments of SM Puplick, noting that they were made against a backdrop of consistent dicta to the same effect from other members of this Tribunal. The Australian community has no tolerance for any form of domestic violence. In this context, the Applicant's three separate breaches of domestic violence orders should cause the Tribunal serious concern.”[34]
[34] Exhibit R1, page 9.

The material before the Tribunal does not tell us about the basis upon which the domestic violence order had been originally imposed on the Applicant by his former girlfriend, Ms CA. Suffice it to say that Ms CA did obtain a domestic violence over the Applicant.[35] It is also safe to presume that the Applicant’s mother was a named person in that order. In terms of some context around both the domestic violence order and its repeated breaches by the Applicant (with particular reference to his mother), regard should be had to the relevant sentencing remarks of Mr Vasta SM:
“BENCH: Mr Filipovich, I take into account your plea to these charges…It’s 3pm. I understand that you’ve come home from your girlfriend’s place, where you’ve drunk three-quarters of a bottle of vodka and had five beers. It’s asking for trouble, being around to the next [sic] partner’s place. You’ve arrived home, you’re angry and you’re smashing stuff and behaving in a very aggressive manner towards your mother. You’ve then gone outside, where a Telstra person’s just trying to go about their business, doing their job, and threaten them with a one metre fence paling. The police arrive. You push past police. There’s a struggle with them.
You’re only 24 years of age, but it’s your fifth public nuisance. On the last occasion, you committed a public nuisance, trespass, obstruct police. You were sentenced to two months’ imprisonment. You were also given the benefit of a probation order in September of last year for breaching a domestic violence order and this is the fourth time that you’ve breached such an order. You need to wake up to yourself and realise that we won’t tolerate this sort of behaviour.
…
Yes. Well, clearly it’s not working and this behaviour was atrocious towards your mother that day…
…
Mr Filipovich, you know, we’ve given you an opportunity to try and work through probation to address your issues and I do think that with your history, a term of imprisonment is inevitable. I’ve taken into account that you’ve previously been given suspended sentences. You’ve previously been given probation and I do think that a term of imprisonment is within range and should be imposed.
I do so impose one penalty for all offences. You’re convicted and sentenced to three months imprisonment. That will be suspended after you’ve served one month for an operational period of 18 months. What that means is you spend one month in jail, you’ll come out and if you commit any further offences in the next 18 months, you’re staring down the barrel of having to serve the remaining two months.”[36]
[35] In one of her written statements, the Applicant’s mother speaks of the child of the relationship between Ms CA and the Applicant [Child S] also being a named party on the subject Domestic Violence Order. She said “…a lot of the breaching that are named on here Is the cause of Michael’s ex-girlfriend, Ms CA, the mother of Michael’s son [Child S].”
[36] Exhibit G1, G2, page 40.
The unrelated state of the Applicant’s issues with alcohol and its propensity to cause him to very seriously offend was not lost on Mr Vasta SM, who observed:
“Now, while you’re in custody over the next month, have a think about where your life is going, why you’re drinking three-quarters of a bottle of vodka in the middle of the day at your ex-girlfriend’s house. Have a think about your criminal history, the opportunities that have been given to you through probation and realise that you have a problem and that you need to address it a little bit more strenuously than how you have been addressing it. I also order that the machete is to be forfeited.”[37]
[37] Ibid, page 41.
The machete was, according to the evidence of the Applicant’s mother, “a weapon” that was found by police when they were called to intervene in the abovementioned incident that came before Mr Vasta SM. The Applicant’s mother said the following about the Applicant’s conduct in the above incident:
“…At that time a service person [the abovementioned Telstra person] had come around to do a job at the house. I was in the middle of telling him I had to go to the hospital when Michael [i.e. the Applicant] turned up angry. Michael got the story all wrong and wouldn’t listen to me and was going off at the service person not knowing what was going on. This must have scared to person and he left the house and called the police in which I do understand why he did so. The police turned up and things went bad from there. They ended up arresting Michael due to the fact he was drunk, angry and abusive. He gave them a bit of a hard time and then searched his room, finding a weapon in which the police said that Michael was going to cut my hands off with it. This was a joke to me as I know Michael would never ever do anything like that, not to me or anyone. Michael was angry with me for calling him while he was having troubles with his g/f and he was verbal with me. And because there was a dvo on him already due to one of the ones the police put on him regarding [Applicant’s ex-partner] they used the breach and he was arrested and sentenced. This came as a bit of a relief for me as Michael did have problems he needed to sort out and this was the only way I thought would help him.”[38]
[errors in original]
[38] Ibid, page 145.
The Applicant’s contention that any adverse weight against the Applicant for this sub-paragraph (b) must be ameliorated because the Applicant “has never been violent towards” his mother ought be rejected. It is plain from concerted campaigns run by governments over a number of years that the Australian community has absolutely no tolerance for any form of domestic violence. I will later deal with the impact of the Applicant’s repeated breaches of domestic violence orders and how those breaches are demonstrative of him having failed to develop any measure of respect for lawful authority. For present purposes, the comments of the majority in the Full Court of South Australia Appeal Court case of R v Saunders [2017] SASCFC 86 are pertinent:
"The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection."[39]
[39] At [27], per Stanley J (with whom Peek and Hinton JJ agreed).
I find that an application of this sub-paragraph (b) to this aspect of the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” The Applicant’s criminal history is replete with at least four convictions for “Assault or obstruct police officer” pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld). Those convictions date from December 2010, November 2011, November 2012 and April 2014.
There can be no question that a police officer does constitute a “government representative or official due to the position they hold or in the performance of their duties.” As such, this sub-paragraph (c) makes it clear that any such offending must be regarded as “serious”. The seriousness is inherent in the direct challenge to lawful authority represented by such offending. At a slightly lower level, such offending is also indicative of the extent to which a factor(s) compelling an Applicant to offend have got the better of him, such that not even the boundary of lawful authority is sufficient to constrain the conduct giving rise to the offending.
There is no requirement to particularise the circumstances of such offending. To my mind, the four relevant convictions necessarily attract an application of this sub-paragraph (c) to this aspect of the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a person’s offending. The Applicant’s offending history before lawful authority for sentencing purposes runs from March 2007 until August 2019. Custodial terms are not imposed until November 2012 (when two months of custodial time was imposed on him); then April 2014 (three months); and then August 2019 (two and a half years).
As mentioned, it is broadly accepted that sentences involving a term of actual imprisonment are the last resort in any reasonably applied sentencing regime. The logical corollary of that observation is that any sentence must be viewed as a reflection of the objective seriousness of the offences involved.[40] In terms of the allocation of weight to the nature of sentences imposed on a given Applicant, this Tribunal has previously said “"Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of [a given] visa.”[41]
[40] See PNLB and Minister for Immigration and Border Protection [2019] AATA 162 at [22], per SM Poljak.
[41] Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50], per DP Kendall.
For the instant application, Judge Everson’s sentencing remarks amply demonstrate how an imposed sentence is demonstrative of the objective level of seriousness of a given offence/offending. When sentencing the Applicant upon his respective convictions for grievous bodily harm and wilful damage, Judge Everson relevantly observed that:
"The purposes for which I am imposing the sentences [i.e. head custodial term of two years for the grievous bodily harm conviction and six months for the wilful damage conviction) are to punish you to an extent and in a way that is just in all the circumstances, to provide conditions which I consider will help you to be rehabilitated, to deter you and others from committing these or similar offences, and, quite simply, this was premeditated violent offending which warrants a sentence reflective not only of personal deterrence, but of general deterrence.
The fact that you may suffer from depression or even a post-traumatic stress disorder or even some type of personality disorder does not change the fact that this was premeditated offending where well after the incident where the complainant struck you at the licensed premises leading to you becoming momentarily unconscious, you brooded and plotted a revenge. The conduct of yourself, your mother and your friend was nothing short of vigilante conduct which warrants a sentence of denunciation.”[42]
[42] Exhibit G1, G2, pages 37-38.
I find that an application of this sub-paragraph (d) to the sentences imposed for the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The determination of allocable weight to this sub-paragraph (e) largely mirrors the exercise relating to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
The Applicant makes the following concession in his SFIC:
“…it is accepted that the Applicant committed 20 criminal offences over an 11-year period and that his offending has generally increased in seriousness over time.”[43]
[43] Exhibit A1, page 7, paragraph [23].
Dealing first with the frequency of the Applicant’s offending, this Applicant is 31 years of age. He arrived in Australia in January 2003 as a 13 year old and commenced offending in early 2007 as a 17 year old. He has an offending history in Australia (in sentencing terms) that runs from March 2007 to August 2019. His offending has found him before him before lawful authority on 11 separate sentencing occasions dealing with the commission of some 20 individual offences.
His offending history in this country thus runs for approximately 12 and a half years. This means that his offending in this country has been a very significant feature of virtually all of his adult life thus far. I have earlier outlined the nature of the sentences imposed across the evolution of his offending history in Australia. The Applicant’s commission of 20 individual offences across some 12 and a half years of offending history can surely lead to no other finding than that his offending has been of a frequent nature. There are two ways to look at his offending in determining its frequency. First, if we look at his 12 and a half year period of offending, we are talking about an average of approximately 1.5 offences per each year of that offending history.
Second, if we look at the length of his sentencing history, the nature of his offending has, since 2007, been such as to compel lawful authority to deal with his offending for virtually two thirds of the 16 years he has spent in the broader Australian community. There can be no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
I turn now to any discernible increasing trend in the seriousness of the Applicant’s offending. It can be reasonably accepted that the Applicant’s offending for at least the first five and a half years of its history derived from him conducting himself in an antisocial manner and otherwise refusing to comply with lawful requests that he moderate his conduct or otherwise comply with some type of lawful direction. Thus, for the offending episodes running from March 2007 to December 2011, his offending was punished by fines, the non-recording of convictions and the actual recording of convictions.
There is a detectable increase in the trend of the offending from the Applicant’s sixth sentencing episode that occurred in November 2012. This was the first sentencing episode that imposed a custodial term of imprisonment upon him. He received two months of custodial time for trespass, committing public nuisance and assault or obstructing a police officer. His eighth sentencing episode in April 2014 resulted in the imposition of three months of custodial time for contravention of a domestic violence order, commission of public nuisance and two convictions for assault or obstructing a police officer.
His eleventh (and final) sentencing episode in August 2019 saw him sentenced to two and a half years of custodial time for respective convictions of grievous bodily harm and wilful damage. The trend of the increasing seriousness of the Applicant’s offending is plain and obvious, not just from the nature of the sentences imposed on him, but also from the abovementioned sentencing remarks of both His Honour Judge Everson DCJ and Mr Vasta SM. There is thus a clearly discernible “trend” in the increasing level of seriousness of the Applicant’s offending from 2007 to 2019. His difficulties with lawful authority arising from his offending have been the predominant feature of his adult life in this country.
I find that an application of this sub-paragraph (e) to this aspect of the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Applicant has a criminal history that runs for 12 years. Primarily during its early phases (that is, its first five-six years) the Applicant received sentences that comprised opportunities and invitations for him to moderate his behaviour and to otherwise control his propensity to offend, sometimes quite seriously so. He received the benefit of fines, the recording of a “no conviction recorded” notation on his criminal history, probation and wholly or partly suspended sentences. The purpose of this progressive sentencing regime has been to achieve some kind of deterrent effect, such that the Applicant’s future offending is either minimised or obviated. It is difficult to escape the reality that the nature of the most recent offences he has committed (grievous bodily harm and wilful damage) are suggestive of him having learnt nothing from this progressively imposed sentencing regime. I am not able to reach any other conclusion about this particular cumulative effect of his offending.
A further cumulative effect of the Applicant’s offending has been his demonstrated and repeated failure to develop any measure of respect for the lawful authority governing the community back into which he now seeks re-admission. He has failed to respect the authority of police by openly challenging their authority, resulting in four convictions for “assault or obstruct police officer”. He has convictions for contravening at least eight lawfully imposed orders seeking to address or control his unlawful conduct, including:
·five breaches of a duly imposed domestic violence order;
·one conviction for “contravene direction or requirement” of a person in lawful authority;
·one breach of a probation order; and
·one breach of bail conditions.
These orders failed to register in the Applicant’s mind as some kind of “boundary” or barrier against his commission of further offences. It is plain from the criminal history that even though these restrictive orders were imposed, his offending continued unabated.
A further feature of his history involves a refusal to respect both the personal and property rights of others. I have earlier recounted his wanton damage to the residence of the complainant resulting in his conviction for wilful damage in August 2019. Earlier in his criminal history (in 2012), the Applicant has a conviction for “trespass – entering or remaining in dwelling or yard”. Likewise, the Applicant’s very serious and violent offending against the victim of his grievous bodily harm conviction and, to a lesser extent, the nature and extent of his conduct in a domestic context, are indicative of his refusal to respect the personal space and rights of other people to enjoy their lives free of physical menace from others.
A similar observation can be made in relation to the Applicant’s domestic violence offending. Given the Applicant’s numerous breaches of duly imposed domestic violence orders, I am of the view that a further cumulative effect of such repeated breach-type offending is that he has failed to recognise both the legal purpose behind the imposition of such orders, as well as the potential for harm that his further actual or threatened violent conduct – in breach of those orders – could very well cause.
In the final analysis, I agree with the Respondent’s following contentions about the cumulative effect of the Applicant’s offending:
“26…While the Applicant's criminal history contains no other instances of offending at the same degree of severity, it cannot be said (and is not said by the Applicant) that this offending arose out of nowhere. Rather, the grievous bodily harm occurred in the context of a long history of public nuisances, contraventions of various orders of courts and police, and obstructions of police.
…
28. When viewed cumulatively, the Minister contends that the Applicant's criminal record paints a picture of a disregard for the laws of Australia and those tasked with implementing and protecting the operation of those laws. It was the culmination of the Applicant's disrespect for lawful authority which resulted in his conviction for grievous bodily harm which, it is pertinent to note, came about in the Applicant's pursuit of "vigilante" justice.”[44]
[44] Exhibit R1, page 9.

I find that an application of this sub-paragraph (f) to this aspect of the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence of such conduct by the Applicant, and, accordingly, this sub-paragraph (g) is not relevant to determination of this application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. In terms of failing the character test, the Applicant only did so as a result of the nature of head custodial time he received at his most recent sentencing episode in August 2019. Thus, it is not possible for the Respondent to have previously warned him or otherwise taken adverse action in relation to his visa status. This sub-paragraph (h) is not relevant to determination of this application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. There is no evidence of such conduct by the Applicant, and, accordingly, this sub-paragraph (i) is not relevant to determination of this application.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (b), (c), (d), (e), and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s offending conduct can be readily characterised as at least serious, more likely very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends in its SFIC that:
“38. In the Minister's contention, the harm that would be caused to the Australian community (physical, psychological and financial) should the Applicant repeat his conduct could be extremely serious.
…
40. The harm so far has been economic (wilful damage), it has been physical (multiple assaults, grievous bodily harm and convictions for causing harm), and it has been psychological (various public nuisance offences and breaches of domestic violence orders). While the Minister notes that there is no evidence to suggest that the victims of the Applicant's offending developed any form of psychological illness, the distress inflicted by the Applicant upon his victims (including a former partner and his own mother) represents a form of psychological and emotional damage to the community.
41. In the Minister's submission, the risk of harm, should the Applicant engage in similar conduct to that for which he has already been convicted ought to be considered unacceptable. This should weigh heavily against revocation of the cancellation of the Applicant's visa.”[45]
[45] Exhibit R1, Respondent’s SFIC, pages 11-12.
In his SFIC, the Applicant’s representative said:
“28. The applicant accepts that future violent offending of the kind committed on 25 February 2017 could result in serious and permanent injuries similar to the kind of injuries sustained by the victim of our client’s offending on that night. Further, it is conceivable that such offending might result in fatal, or at least life-changing, neurological trauma. In relation to the Applicant’s domestic-violence related offending, it is accepted that future verbal arguments and confrontations with our client’s mother could cause her to experience fear. In relation to our client’s public nuisance-related offending, it is accepted that future offending could impact and/or limit other members of the community’s enjoyment of public spaces.”[46]
[46] Exhibit A1, page 8
In my respectful opinion, the Applicant cannot reasonably take any other position in relation to the specific question about the nature of harm that any future offending by him may cause to members of the general Australian community. It is simply not sustainable for any contrary argument to be made. Indeed, the Applicant is fortunate that the circumstances of his past offending – particularly that which came before the Brisbane District Court for sentencing in August 2019 – did not result in even more serious or catastrophic harm. His offending has occurred on a virtually unrestrained basis that saw him trying to impose his own ill-conceived and irrational solutions on impasses that confronted him. It is the unrestrained nature of, in particular, the offending punished in August 2019, that speaks to the nature of the harm any future victims of similar offending are likely to experience. As I have sought to explain, the Applicant’s offending derives from not just one poor choice or poorly imposed resolution, but a series of misjudgements, bad calls and the imposition of himself in situations where “vigilante” justice is sought to be imposed by him upon others.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending 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 the absence of the Applicant again being favoured by the intervention of providence and good luck in the avoidance of even more harmful and catastrophic outcomes from his offending, even if the nature of his offending committed to date were to be re-committed in future, I am of the view that any such identical offending would be unacceptable to the Australian community. On the basis of this paragraph 6.3(4), I think both the Applicant’s abovementioned concessions and the Respondent’s abovementioned submissions (about the nature of harm from any future offending) are correctly made.
The sentencing remarks of judicial officers dealing with the Applicant leave us in no doubt about what they thought about the nature of his offending and how important they thought it was to prevent the community being exposed to any future harm from this Applicant. His Honour Judge Everson made it clear that the offending that came before His Honour for sentencing was “…pre-meditated offending…” where the conduct of the Applicant “…was nothing short of vigilante conduct which warrants a sentence of denunciation.” Mr Vasta SM urged the Applicant to “Have a think about your criminal history, the opportunities that have been given to you through probation and realise that you have a problem and that you need to address it a little bit more strenuously than how you have been addressing it.”
Were the Applicant to re-offend in a similar way, there is, to my mind, a convincing likelihood that his offending will result in very significant physical, psychological and/or financial harm to a, quite conceivably, potentially catastrophic level. It is therefore reasonable and safe to find that the potential consequences flowing from further similar or identical offending by this Applicant would be, at the very least, serious to very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s written submissions
In the Applicant’s SFIC, reference is made to the report of the clinical psychologist, Dr Donna Eshuys, who, after conducting certain testing methodologies, formed certain views about the Applicant’s likelihood of not re-offending in the next 12 months and 36 months, respectively. The further contentions put on behalf of the Applicant are as follows:
“30. It is noted that our client has now accepted that his alcohol use was a central feature of his past criminal offending and, in the over two years he was on bail after the 25 February 2017 offence, took steps to address his problem drinking behaviour. Our client has also engaged in drug and alcohol intervention programs, including the DO IT program, as well as domestic violence and anger management programs.
31. It is also noted that our client has not previously faced the threat of visa cancellation and permanent exclusion from Australia, and this risk now serves as a serious and enduring incentive not to commit any further criminal offence in the event that the mandatory cancellation decision is revoked.
32. In the premises, we submit that this primary consideration weighs only moderately against revocation.”[47]
[47] Exhibit A1, age 8.
In his undated written statement, the Applicant speaks of his completion of certain courses and programs aimed at rehabilitating him from a predisposition to abuse alcohol and to consequently offend. He talks about now being in a position of recognising both physical and psychological signs indicative of him trending towards past triggers behind his offending. He now professes a belief “…that it is possible to turn your life around.” He speaks of reaching a realisation “…that a wide range of my actions can be interpreted as abusive or threatening.” His area of employment expertise is in the realm of tree lopping, and he says that if he is allowed to remain here, “…I have a hell of a lot of work opportunities.” It is worth repeating what appears in his written statement for the purposes of the instant decision:
“24. On 23 April 2020 I was release from correctional detention and taken into immigration detention at Brisbane Immigration Transit Accommodation, where I remain. Since being detained at BITA I have participated in the Man Up program (I am currently going through the course for a second time), the Do It drug and alcohol program, the Circuit Breakers program and other rehabilitation programs.
25. I have learnt a great deal from these courses. From the DO IT program I learned my triggers for alcohol and drug use, as well as other negative behaviours. I learnt that I am extremely sensitive to the health and wellbeing of my loved ones. I’m also sensitive to environments that remind me of my childhood and the trauma I saw and experienced when I was younger. I am also more attentive to the signs that I am building up—things like pacing, having a racing heart, beginning to be a bit heavy-handed. These are the things I’ve learned to watch out for. I’ve also learned that it extremely important for me to find other things to do apart from drinking—finding work, developing better and more supportive friendship groups and finding things to take my mind off drinking and using drugs. I have distanced myself from old friends who I know will try to draw me back to alcohol and drug use.
26. From the Man-Up program I have learnt that it is possible to turn your life around. From speaking and sharing with other guys, I’ve been able to find myself, look into myself and find the issues that have caused me to act out and make mistakes. Through the Man Up program I’ve identified these issues that I’ve lived with since I was young and have been able to learn clarity, purpose and that life is about growth.
27. In the Circuit Breakers program I realised that a wide range of my actions can be interpreted as abusive or threatening. One thing that really stood out to me was when one of the pages of the workbook required us to circle all the behaviours that are considered abusive, which including sexual abuse, emotional and mental abuse, physical abuse, rolling eyes, pacing/stomping, heavy-handedness. I ended up underlining everything except sexual abuse. I didn’t realise that I was an abusive person. I didn’t realise that things like slamming cupboard or venting were abusive. Those were things that I saw when I was growing up and I never thought about them being abusive—but now I know they are and am committed to improving my behaviour towards everyone I’m in contact with.
28. If I am allowed to remain in Australia I have a hell of a lot of work opportunities. I have potential employers contacting me asking if I can get back to work lopping trees. I have also expressed interest in facilitating a Man Up group in the Caboolture area, because I’ve seen how much I and others in detention have benefited from the program I want to pay that forward to others. I’ve also been asked to complete the Circuit Breakers facilitators course so that I can facilitate that program.
29. I also intend to connect with rehabilitation and counselling services in the community, including with Centacare and through my general practitioner. My mum has been telling me about Eye Movement Desensitisation Therapy for her PTSD and our GP has said he’d be happy to refer me to a psychologist on a mental health care plan to get that kind of treatment.”[48]
[Errors in original]
The Applicant’s evidence in chief
[48] Exhibit A2, A7, pages 35-36.
The Applicant was taken to the time of his release on parole in April 2020 and his subsequent immediate placement into immigration detention:
“MR MCCOMBER:[49] After you were released from prison in April this year you were taken directly into immigration detention. How have you occupied your time in immigration detention?
WITNESS: I’ve basically - basically done a very similar thing. I’ve come in. There was this, obviously not too many courses you can do. There are seven different types of booklets you can put your name down for. I’ve done the whole lot, the seven booklets. I’m also redoing them now. There’s also a course, the circuit breaker. The circuit breaker I’ve done and completed. There’s also another outside support group called Man Up, and that’s healing the man from inside out. It’s very much along the lines of cognitive behavioural theory that we do in here with the seven booklets, as well as the circuit breaker booklet.
It’s basically a contribution of all of those things put together in one course, and I’m now on my second rotation for that Man Up course. Prior to me starting my second rotation for the Man Up Support Group I was talking to the head facilitator there and he believed that I could have the opportunity, either at the end of this course, this rotation or the next rotation, to be able to facilitate my own course talking to another group of people about the same stuff, and just helping heal them from the inside out. Yes, basically raising fathers to treat their kids to make a better life for themselves, you know. So I completely 100 per cent dedicated myself to this weekly.”[50]
[49] Mr Joel McComber, Managing Director, Sentry Law – Representative of the Applicant.
[50] Transcript, 10 November 2020, page 40, lines 19-39.
The Applicant spoke of implementation of things he had apparently learnt from doing these courses and how they could, in future, assist in ameliorating triggers behind his past offending:
“MR MCCOMBER: You talked about learning some things about yourself through the circuit breakers course and Man Up courses; what types of things have you learned about yourself, or what kind of developments have you seen?
WITNESS: I’ve learned new skills, I’ve learned to recognise my triggers, obviously my warning signs, knowing when to use a time out, for example, and utilise that sort of - that skill or that tool as often as possible to prevent anything from arising or escalating into a more hostile situation.
I’ve also just learned to reflect and focus on, you know, myself, make the changes for like my actions are going to affect everyone else around me, so if I better myself I’m going to better the environment for other people I care about, at the same time as learning how to talk about situations, taking that suit of armour off and laying down my weapons before approaching a hostile conversation or something, or a potential hostile conversation, so that I go on a neutral basis and learn how to validate and recognise conflict and everything, and validate the other party so they don’t feel threatened, or they feel understood, rather than just being so plain black and white with myself. Over the years I’ve been quite straightforward and it’s - it hasn’t really worked for me because it’s put a lot of people’s defence walls up so I’ve learned within myself to take that suit of armour off and instead of coming in with a raised weapon, just put it down, put it by the door, or basically hand them the weapon, and hand them the suit of armour, so to speak, and just be like, fire away, you know, like I’m coming into the situation to diffuse it, and this is my feelings on it. I’d like to know your feelings, I’d like to know what you’d like to see out of this, you know, this situation, and where we’d like to go from there.”[51]
The Applicant’s evidence in cross-examination
[51] Ibid, page 42, lines 33-47, and page 43, lines 1-11.
In cross-examination, the Applicant was taken to the Circuit Breaker and Man Up courses he has completed while in immigration detention. He was also questioned about counselling sessions he has completed relating to management of drug and alcohol abuse, as well as anger management:
“MS HARGRAVE:[52] And then since you have been in immigration detention; you’ve completed the Circuit Breaker and Man-up courses; is that correct?
WITNESS: Yes, that’s correct. I’ve done my single rotation of the Man-up course, I’m nearly halfway through the second rotation which is, yes, the same thing again obviously. I’ve committed and completed the Circuit Breaker course which again I stated earlier on that I intended to put my name down to review that course again and go over it for a second time which the facilitators at Pacific Connect that were running the course itself. They turned around and said that they believed it would have been better using my own experience and knowledge that I’ve got from the course and everything and how far I’ve come in the time I started to when we finished. They thought (indistinct words) I’d fit a facilitator’s role a bit better than actually redoing the course. On top of that I have done the seven different booklets that have actually come through here which is about cognitive behavioural theory awareness, stress management, anger management, drug and alcohol - you know, yes, just booklets like that.
MS HARGRAVE: So since you last offended in 2017 your rehabilitation has been limited to two counselling sessions, a computer IT course and the Man-up and Circuit Breaker course; is that correct?
WITNESS: Plus the seven booklets and every education class going on about cognitive behavioural theory every Monday, Wednesday and Thursday.
MS HARGRAVE: So was that educational class part of one of the Man-up or Circuit Breakers courses or was it separate?
WITNESS: No, they weren’t part of those ones. They were part of the ones that the centre here run. And I’ve also been attending drug and alcohol sessions with a lady by the name of ‘Linda’ here in the centre. I’ve also been commencing anger management sessions with another psyche here in the centre also named ‘Darryl’ and previously since I’ve been doing them as well I’ve also had a new psyche report done by another lady named ‘Jillian’. I’ve been trying to make every step and there’s multiple sessions of drug and alcohol and multiple sessions of anger management throughout the time I’ve been here so I’ve certainly targeted that sort of area of my life to get the counselling by getting the courses and sessions involved whilst I’ve been incarcerated due to the restrictions being lifted, so to speak, of the COVID.”[53]
[52] Ms Lauren Hargrave, Lawyer, Clayton Utz – Representative of the Respondent.
[53] Ibid, page 80, lines 4-38.

The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[120]
[120] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community.[121]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[122]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[123]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[124]
[121] Afu at paragraph [85].
[122] FYBR at paragraph [42].
[123] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[124] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a work history in this country. In the Applicant’s SFIC, we are told:
“40. The Applicant submits that having regard to paragraphs 6.3(5) and 6.3(7) of Direction 79 and:
…
d) the Applicant has engaged in long periods of employment in Australia;
minimal weight should be placed on this primary consideration in determining whether to revoke the mandatory cancellation of the Applicant’s visa.”[125]
[125] Exhibit A1, page 10.
In his Personal Circumstances Form, in response to the question “List your employment history in Australia”, the following work history is provided:
“From 2017-2019 – Tree lopper/worker (contractor);
From 2015-2017 – tree lopper/labour.”[126]
[126] Exhibit G1, G2, page 73.
Darrin Grant Merrett is the principal of a tree lopping business operating on Brisbane’s north side. For the purposes of the instant hearing Mr Merrett provided both written and oral evidence. It transpires that the Applicant has a two year “permanent casual” work history with Mr Merrett’s business. It is clear from Mr Merrett’s evidence that he is aware of the Applicant’s offending history, but be that as it may, he said the following at the hearing:
“MR MCCOMBER: And I just wanted to ask you questions about a few things. I know this letter was written now over a year ago but in that letter you state that you would be open to having Michael continue to work with you in the future; does that remain the case?
WITNESS: Yes, it does.
MR MCCOMBER: And hypothetically if Michael were able to be released say in the next week or two into the community; would you be able to find work for him?
WITNESS: Yes, I have plenty of work.”[127]
[127] Transcript, 10 November 2020, page 75, lines 31-38.
In answering the question “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc”, in his Personal Circumstances Form, the Applicant said the following:
“...I interact with lots and all types of people, from the elderly to the young. From the fit to the disabled, to people from a better financial position, to people with grave financial difficulties. I’m always on the constant lookout to better the place we live and maintain a healthy lifestyle for people in need. From helping folks/people broken down, to helping the elderly cross the road also by lifting prams up stairs for mothers if ramps are not installed or access is not available. If theres a storm and its raining I’m normally the first to give my shirt to someone in need to keep warm and dry. I’ve also been known to be very active in my own personal neighbourhood/community as my family and I live in a complex so I tend to help our neighbours with yard work (mowing of the lawns) tree work (pruning) painting, odds and ends maintinence jobs, right down to changing light bulbs for our elderly neighbours.”[128]
[Errors in original]
[128] Exhibit G1, G2, page 75.
The Applicant’s at least serious, more likely very serious offending has surely breached the expectations of the Australian community. His offending history is demonstrative of a significant failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(a)as outlined above, the Applicant has made (and has the potential to make) some positive contributions to the Australian community through his employment history, particularly in the tree lopping trade;[129]
(b)save and except for periods of incarceration prior to August 2019, the Applicant lived in the mainstream Australian community for approximately 16 years prior to his removal into criminal custody in August 2019;[130]
(c)the removal of the Applicant will have a negative impact on the eight relevant minor children in Australia;[131]
(d)the at least serious, more likely very serious, nature of the Applicant’s offending to date;
(e)I do not cavil with the findings of Dr Eshuys about the Applicant’s risk of re-offending, and I have found that the Applicant’s risk of recidivism, upon any return to the Australian community remains unacceptable; and
(f)my assessment of the quite significant and broad-ranging risk of substantial and potentially catastrophic physical, psychological or financial harm to the Australian community were he to re-offend.
[129]    The Direction, paragraph 6.3(7).
[130]    The Direction, paragraph 6.3(5). Note: upon securing his release on parole, the Applicant was taken into immigration detention in April 2020.
[131]    The Direction, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
I could find no reference to any submission, written or oral, in the Applicant’s material referring to a stated fear of harm giving rise to an application of this Other Consideration (a) to the instant facts. In its SFIC, the Respondent notes “60. The applicant does not contend that this consideration is of relevance nor does the evidence available currently indicate that an assessment of this consideration is relevant.”[132] I therefore find that this Other Consideration (a) is not relevant to the determination of this application.
[132] Exhibit R1, page 16.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“65. The Minister accepts that the Applicant's ties to Australia, particularly his familial ties to other individuals entitled to remain indefinitely in Australia, should weigh in favour of the revocation of the cancellation of his visa. However, in the circumstances set out above, the Minister contends that the weight to be attributed to this consideration is diminished.”[133]
[133] Ibid, page 17.
The Applicant first came to Australia in 2003 aged 13 years. He commenced offending in Australia in February 2007 and was first dealt with by lawful authority for his offending in this country in March 2007. I have had regard to paragraph 14.2(1)(a)(i) of the Direction and find that the Applicant did begin offending “soon after arriving in Australia.” Therefore, less weight can be allocated to the Applicant on the basis of paragraph 14.2(1)(a)(i).
I reject the contention put on behalf of the Applicant that although the Applicant began residing in Australia in January 2003, he “…did not engage in any non-minor criminal offending until 4 August 2013.”[134] With respect, paragraph 14.2(1)(a)(i) is not predicated with reference to the date on which an Applicant first committed “non-minor criminal offending”. It refers to when “the non-citizen began offending” relative to that non-citizen’s date of arrival/final settlement in this country.
[134] Exhibit A1, page 10, paragraph [42(a)].
On the other hand, weight in favour of the Applicant can be found upon an application of paragraph 14.2(1)(a)(ii). I have earlier recounted the Applicant’s employment history in Australia. In the Applicant’s SFIC, we are told the following things:
·“the Applicant maintained consistent employment in the Australian community from 2005 (when he was 14 years old) until his incarceration in August 2019”;[135] and
·“having worked in Australia for most of the period between 2005 and 2019”.[136]
[135] Ibid, paragraph [42(c)].
[136] Ibid, page 11, paragraph [43(c)].
While the above two descriptions are somewhat at odds with what the Applicant recorded in his Personal Circumstances Form, I am prepared to accept that when that document is considered in conjunction with the Applicant’s other written and oral evidence, it is safe to conclude that the Applicant has spent an appreciable level of time making a positive contribution to the Australian community. Accordingly, a moderate level of weight in his favour can be allocated to him pursuant to an application of paragraph 14.2(1)(a)(ii).
I also have regard to paragraph 14.2(1)(b) of the Direction which is concerned with the strength, duration and nature of any family or social links the Applicant has with Australian citizens and/or people who can otherwise remain here indefinitely. His Personal Circumstances Form lists the following immediate and extended family members the Applicant has in Australia. They comprise:
·his mother;
·his sister;
·his stepfather;
·his grandmother;
·his uncle;
·his aunt;
·his cousin; and
·his further cousin.
The above list should be qualified by mentioning that although the Applicant now says to have “a partner” in Australia, it is not clear whether that partner is a person captured by any determination of weight attributable to paragraph 14.2(1)(b). Further, the “sister” referred to in the above list is said by the Applicant to reside in Australia. This is at odds with the written evidence of the Applicant’s mother, who in her statement appearing in the material says, “I do have another child [the abovementioned sister] who lives in London with her partner.” Thus, it is not clear whether the abovementioned list should include the Applicant’s currently stated “partner” or his abovementioned sister.
It seemed relatively clear from the evidence that the Applicant’s primary tie to a person captured by paragraph 14.2(1)(b) is his mother. In his SFIC, it is said on behalf of the Applicant that “…our client’s mother [name redacted], being a member of our client’s immediate family who has a right to reside in Australia indefinitely, would be significantly adversely effected by a non-revocation decision.”[137]
[137] Exhibit A1, page 11, paragraph [44].
In his Personal Circumstances Form (dating from November 2019), the Applicant said:
“As it stands I am a live in carer for my mother and have been for a number of years now, if there was to be a negative decision for my s 501 it would greatly impact my mother as I am my mother’s only family and support here for her and source of help to care for her needs. Due to her type of visa mum is only entitled to very little if any government help here in Australia so she has been very dependent on me and what I have to offer and do for her as I help her with showering, cleaning, anything physical, shopping, yard work, washing, cooking retriving mums medication as she struggles to deal with the public, I also tend to her driving as she also struggles to drive herself places as well as any sort of appointments as she suffers from agraphobia so I help with all her dependancy’s due to her being quite physically and mentally ill with COPD, emphesima, asthma, depression, PTSD, BPD, panic attacks, anxiety, sever back and knee pain due to an auto ammunine disease that’s eating away at her bones and joints as shown in supporting doctors reports/records for her among other physical disabilitys. Also she suffers from bipolar, a chemical inbalancement and is very suicidal on and off suicidal watch with doctor’s and the mental health system. I strongly fear that if there is a negative decision made for my s501 I will lose my only family to suicide due to the graffic nature of mums mental health history.”[138]
[Errors in original]
[138] Exhibit G1, G2, page 68.
In his written statement before the Tribunal, the Applicant notes:
“30. I’m intending to move back in with mum if I am allowed to return to the Australian community. I’m her carer. She’s not only got mental health issues, but also has got a lot of mobility difficulties. She is not eligible for NDIS because we are not protected NZ citizens, but she is getting some help limited around the house once a week from Anglicare. She is living by herself because my sister lives in Sydney and does not have a particularly close relationship with my mother.”[139]
[139] Exhibit A2, page 36.
The Applicant’s evidence is corroborated by the oral and written evidence of his mother. In her statement, she says:
“We have always been close Michael and I and he has always been there for me no matter what has gone on. He helped me look after my mother while she lived with us for 7-8 yrs. And during that time he has seen me go down mentally, emotionally, physically and spiritually. This is not fun to watch as I watched my mother go through the same thing. Over the years Michael has been the one who has taken care of the outside properties that we have lived in. he has taken care of the cars over time. and he has been the support that I have needed in dealing with what life has thrown me. Since my mother went to Perth to live with my sister. Michael has been my only support as his sister has been over in London and Europe with her partner. Over the time my health has gone down heaps and now I find it very difficult to deal with the day to day things with life. I have mental health issues that stem back to when I was 26 yrs old and still suffer from. I have server back and knee problems which interferes with my quality of life. I can’t stand or walk for too long without pain; I find it hard to do things around the house and cause of that I need home help when I can afford it. Michael moved in with me to help me out as things were getting to difficult. Having him living here with me made my life easier as he was here all the time to do more things inside and out. He also helped me out financially as I am on DSP and find it hard doing on my own in more ways than one. When I had appointments at Brisbane/Caboolture Hospital he would take time off work to take me and that would sometimes put his job in trouble. I also have trouble leaving the house. Even going to the mailbox is a mission for me. I have an assistances dog through Canine Helpers who is still in training to help me out in many ways. I have found life its self to be very difficult deal with.
Since Michael has been incarcerated this time it has affected my life and health dramatically.
…
Michael has ended up been my only life support over the years.”[140]
[Errors in original]
[140] Exhibit G1, G2, pages 144-146.
During closing submissions, the Respondent’s representative said the following:
“Turning now to the strength of the applicant’s ties to Australia. The respondent agrees that the applicant’s mother is a – the applicant does have a strong tie to this mother who, at this time, remains in Australia.
…
The respondent, however, submits that the applicant does not have any other strong ties to people in Australia.”[141]
[141] Transcript, 11 November 2020, page 131, lines 1-3 and 9-11.
With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community, most particularly, his mother, are strong and palpable. I find that this paragraph 14.2(1)(b) weighs in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs strongly in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides as follows:
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 revocation has been afforded procedural fairness.
It is contended on behalf of the Applicant that the determination of any weight attributable to this Other Consideration (d) requires a configuration of this specific paragraph towards a position of assuming that the Applicant’s removal will serve to deprive a “victim” of his offending (i.e. his mother) of certain domestic assistance and support that she would have derived and experienced as a result of the Applicant’s continued presence in Australia. Applied to the instant facts, the contention becomes one that his mother would suffer a “significant and adverse impact”. The resulting contention is that “In those circumstances, we submit that this consideration weighs strongly in favour of revocation.”[142]
[142] Exhibit A1, Applicant’s SFIC, page 11, paragraphs [47] and [48].
I respectfully disagree with such a configuration and application of Paragraph 14.4(1) of the Direction for the purposes of ascertaining any weight attributable to it. To my mind, Paragraph 14.4(1) looks for adverse impacts that could be experienced or suffered by victims or their families of a given applicant’s offending. For example, the Paragraph does capture a situation where an Applicant has committed an offence against a member of the Australian community, and the victim has clearly expressed discomfort at the prospect of again confronting that applicant in an everyday life context. By contrast, it does not, to my mind, cover a situation where the same victim expressed apprehension, displeasure or concern about financial consequences arising from an applicant’s removal. In the latter scenario, and applied to the instant facts, any adverse impact upon the Applicant’s mother and her capacity to sustain herself is relevant to an analysis of weight attributable to Other Consideration (b) involving the strength, nature and duration of the Applicant’s ties to, in this case, her.
I do not think the draftsperson of Paragraph 14.4(1) of the Direction intended this Paragraph to attract weight in circumstances where victims of offending wish for perpetrators to remain in Australia.

Even if I am wrong about how this paragraph 14.4(1) should be configured for the purposes of allocation of weight, I am also of the view, consistent with submissions made on behalf of the Respondent,[143] that any weight to be allocated to this Other Consideration (d) should, to an extent, be moderated as a result of there being other victims of the Applicant’s offending who may have differing views about the impact that revocation of the mandatory cancellation decision would have upon them. As noted in the Respondent’s SFIC:
“69. The Applicant's mother: the victim of his domestic violence offending, stated that the non-revocation of the cancellation of the Applicant's visa would have an adverse impact on her. The other victims of the Applicant's offending, however, including the victim of the Applicant's assault with a tyre iron, have not provided any information regarding the impact that revocation of the Applicant's visa cancellation would have upon them. In these circumstances, the Minister contends that this factor should be attributed limited, if any, weight.”
[143] Exhibit R1, page 18.
This position taken by the Respondent (with which I agree) is supported and augmented by the sentencing remarks of His Honour Judge Everson DCJ. While the victim impact statement referred to by Judge Everson is not in the material before me, it does not require a broad imagination to ascertain (1) the likely content of that victim impact statement and (2) the feelings of the victim of that particular offending were he to be told that the Applicant had been returned to the general Australian community:
“As for the effects on the victim, I have before me a victim impact statement which is exhibit 4, and this records the serious consequences that the facial fractures have had for the victim. And, surprisingly, this has impacted on his life in a significant way.”[144]
[My underlining]
[144] Exhibit G1, G2, page 37.
I am cautious about allocating any weight against the Applicant in circumstances where a copy of the victim impact statement is not before me. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances Form, the Applicant speaks of adverse outcomes to his mental and physical health upon his return to New Zealand. In that Personal Circumstances Form, the Applicant refers to psychological disorders and physical difficulties. In terms of the former, he says he has been diagnosed with Post-Traumatic Stress Disorder, anxiety, depression, panic attacks, chemical imbalancement, borderline personality disorder as well as alcohol use disorder, cannabis use disorder which, he says, has given him paranoid and negativistic traits.
In terms of difficulties with his physical health, he refers to being constantly on antibiotics due to an internal bleeding condition near his right side cheekbone and a resulting major infection that affected his sinus. He also makes reference to autoimmune disease symptoms that is “eating away at the bone structure behind my face”. He speaks of “…taking constant painkillers and antibiotics like Panadol, ibrufen, naproxen, panadine forte, for pain, Keflex, doxycycline, metomax, augmentin, metollopramide.”
Having regard to the above, the following limited concession is made on behalf of the Applicant about weight allocable to this Other Consideration (e):
“In terms of the impediments to return, apart from making a general submission that was supported by the applicant’s evidence and evidence of, you know, other witnesses, he would face some difficulty establishing himself in New Zealand however, it’s not submitted that he would face – or he has any quality that would make establishing himself in New Zealand especially difficult.”[145]
[145] Transcript, 11 November 2020, page 127.
The Applicant is a man of 31 years of age. He is not in an optimal state of physical or mental health. That said, none of these conditions will apparently prevent him from, on his own evidence, immediately returning to the work force as a full time tree lopper and otherwise immediately returning to his role as a primary support person for his mother. That is not to say that the Applicant’s physical and mental health difficulties should be ignored in any consideration of weight attributable to this Other Consideration (e). To the extent those conditions adversely affect him, he will be able to access medical care, treatment and governmental social support in New Zealand[146] to the same (or very nearly the same) level as that available to him in Australia. The Applicant will have access to those services and supports in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are, on balance, factors that attract a moderate measure of weight to this Other Consideration (e).
[146] Section 14.5(1)(c) of the Direction.
I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[147] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. It can be accepted that emotional hardship will confront the Applicant upon a removal to New Zealand. I accept the Respondent’s contention that “…such hardship would not have any direct bearing on the ability of the Applicant to establish himself and maintain basic living standards. There is no reason to suggest that the Applicant would not be able to obtain and undertake work in the open market in New Zealand as he has in Australia.”[148]
[147] Section 14.5(1)(b) of the Direction.
[148] Exhibit R1, page 18, paragraph [73].
While the Applicant’s lack of familial ties in New Zealand may present an impediment he would face upon removal, to the extent he may face some difficulty in re-establishing himself in that country, I consider those challenges would not be insurmountable and would only present as a short-term hardship, not precluding his successful re-settlement there.[149]
[149] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of moderate weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weigh heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: strongly weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: moderately weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the weight I have attributed to Primary Consideration B, outweigh the significant combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 244 (two hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

....................[sgd]....................................................
Associate
Dated: 25 November 2020

Date of hearing: 10 & 11 November 2020

Advocate for the Applicant:

Mr Joel McComber (Director)

Sentry Law

Advocate for the Respondent: Ms Lauren Hargrave (Lawyer)

Clayton Utz
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENC

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents

(pages 1 to 278)

Undated

11 September 2020

R1

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 19)

22 October 2020

23 October 2020

A1

Applicant’s Statement of Facts, Issues and Contentions (12 pages)

07 October 2020

08 October 2020

A2

Applicant’s Updated Bundle of Documents (pages 1 to 118)

Undated

06 November 2020

Date of hearing:	10 & 11 November 2020
Advocate for the Applicant:	Mr Joel McComber (Director) Sentry Law
Advocate for the Respondent:	Ms Lauren Hargrave (Lawyer)
Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENC	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1 to 278)	Undated	11 September 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 19)	22 October 2020	23 October 2020
A1	Applicant’s Statement of Facts, Issues and Contentions (12 pages)	07 October 2020	08 October 2020
A2	Applicant’s Updated Bundle of Documents (pages 1 to 118)	Undated	06 November 2020