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

FYZJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1255 (2 April 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0399
Re:FYZJ
APPLICANT

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

DECISION
Tribunal:Senior Member Kate Millar
Date of oral decision: 2 April 2020
Date of written reason: 8 May 2020

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s visa.

.............................................................
Senior Member Kate Millar

CATCHWORDS
MIGRATION – discretionary cancellation of applicant’s visa - failure to pass character test – substantial criminal record – applicant sentenced to 12 months or more imprisonment – exercise of the discretion to cancel – consideration of principles under Ministerial Direction 79 – Primary and Other Considerations – set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC
Suleiman v MIBP [2018] FCA 594
SECONDARY MATERIALS
Direction 79
REASONS FOR DECISION
Senior Member Kate Millar
BACKGROUND

At the hearing on 2 April 2020 the Tribunal made an oral decision and gave reasons for its decision. The following is the written record of those reasons.
INTRODUCTION
The applicant is a citizen of the United Kingdom, who migrated to Australia with his family in 2004 on a Skilled (Independent) Subclass 136 visa.
The applicant has convictions for several offences, the most serious of which are grievous bodily harm and using an electronic communication to expose a child under 16 years to indecent matter.
On 17 December 2019, the applicant’s visa was cancelled by a delegate of the Minister under s.501(2) of the Migration Act 1958 (the Act) as the delegate considered that the applicant failed the character test, and that his visa should be cancelled.
The applicant has applied for a review of this decision.
I would like to note the assistance of the representatives in this matter who have been very flexible in terms of appearances. There have been multiple directions hearings to determine how this matter would proceed considering the restrictions arising from the COVID-19 pandemic, and I am very appreciative of the assistance and cooperation of both representatives.
POST HEARING SUBMISSIONS
In closing submissions, the applicant’s representative raised whether it was possible that the applicant would be indefinitely detained if his visa is cancelled due to the difficulty in removing him due to COVID-19. In response to an enquiry from the Tribunal, she provided further submissions on his eligibility for a bridging visa after the hearing, submitting that in the circumstances of the applicant, he would be eligible for a bridging visa with the consent of the Minister.
The Minister objected to consideration of those submissions on the basis of s.500(6H) of the Act. This provides that if an application is made for a review of a decision made under s.501 and the person is in the migration zone, the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information, as set out in a written statement given to the Minister at least two business days before the Tribunal, holds a hearing in relation to the decision under review. In the circumstances of this case it is it not relevant to the facts in front of me. The applicant is a citizen of New Zealand, and would be able to return when travel is possible.
While it is not necessary to comment further, I do not regard submissions on whether a person will be indefinitely detained as information, rather than as submissions on the operation of the law. The Tribunal considers it can take notice of the COVID-19 pandemic as a matter of public knowledge.
LEGISLATIVE FRAMEWORK
Under s.500 of the Act, an application may be made to this Tribunal for a review of a decision of a delegate under s.501 of the Act, subject to certain exceptions that do not apply in this case.
Section 501(2) of the Act states the Minister may cancel a visa if he or she reasonably suspects the person does not pass the character test, and the person does not satisfy the Minister that he or she passes the character test.
A person does not pass the character test if he or she has a substantial criminal record (s.501(6)). A substantial criminal record includes where a person has been sentenced to a term of imprisonment of 12 months or more (s.501(7)(c)), or where the person has been sentenced to two or more terms of imprisonment, where the total of these terms is 12 months or more (s.501(7)(d)).
In considering whether a person’s visa should be cancelled under s.501(2), I am bound by s.499 of the Act to apply Direction No. 79 (“the Direction”).
The issues to be determined by this Tribunal are:
·     Are there grounds to reasonably suspect the applicant does not pass the character test;
·     If so, has the applicant satisfied the Tribunal that he does pass the character test;
·     If not, should his visa be cancelled.
DOES THE APPLICANT PASS THE CHARACTER TEST?
In this case, the delegate found there was reasonable suspicion that the applicant did not meet the character test on the basis of his criminal history, in particular a conviction for grievous bodily harm.
In 2009, the applicant was convicted of grievous bodily harm and unlawful damage. He was sentenced to a term of 18 months’ imprisonment, suspended for two years, required to be subject to supervision and required to attend programs as specified by his corrections officer.
The applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. It follows that there is reason to suspect that he does not pass the character test, and he has not established that he passes the character test for the purposes of s.501(2). The remaining question is whether his visa should be cancelled.
SHOULD THE APPLICANT’S VISA BE CANCELLED?
In considering whether the applicant’s visa should be cancelled, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in paragraph 6.3, must take into account the considerations in Part A of the Direction in determining if a non-citizen will forfeit the privilege of continuing to hold a visa.[1]
[1] Direction 79 at paragraph 7(1)(a).
Paragraph 6.3 of the Direction sets out a number of principles that inform the decision-maker. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
As these apply to the applicant, there is an expectation that to remain in Australia he will be law abiding, will respect public institutions and will not cause or threaten harm. The applicant has breached this expectation as shown by his criminal history including traffic offences, offences involving harm to others such as assault and grievous bodily harm and to damage to the property of others.[2] The applicant has been convicted of offences that show a lack of respect for police such as obstructing and assaulting police officers and wilfully misleading police. The Australian community would expect that the applicant’s visa is cancelled following the commission of the serious crimes of grievous bodily harm and using electronic communication to expose a child under 16 year to indecent matter.
[2] Exhibit G1, 29 – 31.
The applicant acknowledges some offences have been against women, such as the assault charge in 2016 and against a person he thought was a child in the exposure to indecent matter offence. The wilful damage was to the property of an ex-partner. Under paragraph 6.1(3) this means he should generally expect to forfeit the privilege of staying in Australia.
In considering the applicant’s matter, the harm that would be caused if this conduct were to be repeated is to be considered, as if the harm is so serious any risk of similar conduct would be unacceptable with the result that even strong countervailing considerations may be insufficient. In this case the harm was serious, with the harm resulting to the victim of the grievous bodily harm charge being, according to the sentencing judge; a crushed left heel, a badly sprained right heel, large and deep bruises and grazes and bruises to his face and a sore chest. The victim was expected to be in hospital for two weeks, however the court did not receive an update in relation to his condition.[3] The statement of material facts from Police[4] indicates the victim suffered a fracture of the left anterior spine and of the left calcaneum.
[3] Exhibit G2, 133.
[4] Exhibit G2, 162.
A higher level of tolerance may be extended to the applicant in accordance with paragraph 6.3(5) as he has been in Australia for approximately 16 years and arrived when he was a teenager. He held a permanent visa and the low tolerance afforded those on limited stay visas, in accordance with paragraph 6.3(6), does not apply. The length of time he has made a positive contribution to the Australian community and the consequences for his children and family members if his visa is cancelled is considered further below.
Paragraph 8 of the Direction sets out how to apply the considerations and states:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In applying Paragraph 8, Justice Colvin in Suleiman v MIBP [2018] FCA 594 at [23] applying an identical condition to paragraph 8(3) from Direction 65 states that while generally primary considerations should be given greater weight, the Direction:
…requires an enquiry 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.
Primary considerations
Paragraph 9 in Part A of the Direction provides the three Primary Considerations that the Tribunal must consider. These are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
Protection of the Australian community
In looking at the protection of the Australian community, paragraph 9.1 of the Direction provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)The nature and the seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The applicant’s offending history is extracted from the Australian Criminal Intelligence Commission[5] and the statements of material facts filed by Police.[6] The applicant provided a statement and gave oral evidence of events. It was submitted that due to the passage of time parts of his statement do not match the particulars provided by police. Where his statement or oral evidence does not accord with the police record, the Tribunal prefers the record of police as it is closer to the time of the offences.
[5] Exhibit G1, 29 – 31.
[6] Exhibit G1, 32-35 and G2,148 – 176.
The applicant’s representative raised concerns about statements from witnesses and victims of the offences prepared for the purposes of prosecution being before the Tribunal as they are unsigned, and the finding of what occurred is contained in the sentencing remarks. As these statements are relevant to the determination of the Tribunal, the Tribunal did not exclude them from its consideration, but accepts this is a record of those who reportedly made the statements and that they are unsigned, and the Tribunal accords them appropriate weight. In any event, in his oral evidence, the applicant accepted these statements were correct. The Tribunal has relied on the sentencing remarks and has also had regard to the statements of material facts by Police.
The applicant’s criminal record records convictions from 2006. The most serious of these is a conviction for grievous bodily harm and conviction for using an electronic carriage service to expose a child under 16 to indecent matter. He also has convictions for damaging property, assault, traffic offences and offenses against public order and for breaching conditions or bail.
The convictions for grievous bodily harm and unlawful damage are described in the sentencing remarks of [the Judge] of the District Court.[7] [The Judge] stated the applicant had been drinking at an old power station when he got into a verbal altercation with his ex-girlfriend and the mother of one of his children about some writing on a wall about his current girlfriend. The applicant kicked the victim in the back, and he fell an estimated five metres onto the concrete below. The victim said there was water and submerged objects where he fell, and he felt his ankles snap. On climbing up a ladder, the victim was kicked and fell again. The applicant then threw a rock at the victim’s chest. The applicant then went to his ex-girlfriend’s car, smashed a window using his elbow, took out the CD player, smashed it, then smashed another car window before leaving.
[7] Exhibit G2,131-147.
The conviction for using electronic communication to expose a child under 16 years to indecent matter is described in the sentencing remarks of [the Judge] again of the District Court. [The Judge] describes the offence as occurring in November 2016 when the applicant engaged in online conversations with a person he believed to be a 13 year old girl. The person was in fact a covert police officer. He complimented the child persona in her appearance and requested photographs and made comments in relation to wanting to meet, and spoke about kissing and cuddling. He spoke about wanting to take off her bathers, and that he bet she looked sexy naked.
This conversation continued after the applicant was aware that the persona said she was 13 years old. The applicant sent photos to her including one of his face, one of his naked torso and one of a penis. The child persona initiated contact with the applicant, but he continued to communicate with her. [The Judge] refers to some grooming on the part of the applicant by requesting photographs and talking about meeting.
[The Judge], states the applicant himself realised this was the wrong thing to do, stopped the communication and deleted the account. After this the child persona attempted to contact him, but the applicant did not reply.
The applicant has been convicted of failing to comply with his reporting obligations in relation to this offence by failing to declare internet accounts which require a password and username within seven days of activation. The applicant had downloaded internet accounts for Gumtree, Ubicar, Wish and Game Launcher. The statement of material facts from Police[8] stated that at interview he displayed a misunderstanding of what he was required to report. The applicant provided screen shots of the internet account Wish and Ubicar,[9] which indicate Wish is a shopping site and Ubicar involves car insurance. [The Judge] fined the applicant noting that he had not re-offended since being on the conditional suspended sentence order, he has responded well to the order, that the breach resulted from a misunderstanding of his obligations. [The Judge] stated the applicant had gained employment and is now living a prosocial life.[10]
[8] Exhibit G2, 149.
[9] Exhibit A1, 184-188.
[10] Exhibit G2, 137 – 147.
A transcript was provided by the Minister of the hearing of the breach by failing to report.[11] The State did not seek re-sentencing following the breach, which was failing to report on one occasion and failing to comply with a rehabilitation program. [The Judge], states that the applicant’s ‘attitude to the supervision has been a little indifferent, although generally you have met all of the outcomes that have been sought’[12]. [The Judge], also notes that the applicant has been given the chance to turn his life around and that he has made ‘a reasonable fist of it’. The applicant was fined for the breach.
[11] Exhibit G1, 36-41.
[12] Exhibit G1, 40.

The applicant was convicted of assault from an incident in mid 2016. The Police’s statement of material facts[13] states this offence resulted from an argument where the applicant grabbed the victim by her shoulder and pulled her towards the door. The victim fell banging her head on the floor and kicking her leg through a nearby cupboard. The applicant said the victim was his friend’s ex-partner who was staying with his friend. The victim said she was taking photographs of conditions in the house to show the house was dirty so the children would be taken away. He became angry and pushed her and told her to get out.
[13] Exhibit G2, 154.
The applicant has been convicted of a variety of traffic offences including speeding, driving without a licence driving while exceeding the blood alcohol limit and various driving while unlicensed and driving an unregistered car in a number of offences between 2006 and 2011. More seriously, he has also been convicted of dangerous driving, failing to stop after an accident and failing to report an accident as well as using a false number plate. According to Police, the applicant had a false number plate so he would not get caught driving without a licence.[14]
[14] Exhibit G2, 165.
The offence in 2005 also involved incidents of aggression although the applicant’s account differs from that of police. This resulted from another driver tooting his horn at the applicant when he was reversing out of a car park to avoid a crash. After this, the applicant drove after the driver and threw a cup of ice and coke at them. The applicant followed behind the other car, swerving violently, and then crashed into the back of the car causing damage. In an incident of unlawful damage in 2015, the applicant crossed the road in front of a vehicle, which had to brake suddenly. The applicant ran at the vehicle and jumped onto it damaging the vehicle.[15]
[15] Exhibit G2, 158.
Convictions of offences against public order and against police officers have also featured, with the applicant being convicted of disorderly behaviour in 2006 and 2015. The 2006 offence is connected to a series of offences after the applicant broke into the aquatic centre with a group of others, where his friends smashed windows. They then proceeded to get involved in an incident at a nearby pizza bar. When police attended, the applicant ran off. In being apprehended, he resisted and is reported to have been kicking and yelling while in the police vehicle. On the vehicle being stopped, the applicant spat at the police officer.[16]
[16] Exhibit G2, 171 – 174.
The 2015 conviction[17] resulted from the police being called when he was arguing with his current partner, the applicant’s fiancée. He was yelling and punched his vehicle break lights. He was arrested and handcuffed whilst continuing to swear but is reported to have calmed down when placed in the police vehicle.
[17] Exhibit G2, 156.
The offences committed by the applicant have been detailed previously, and his past offences, in particular the dangerous driving offence, assault, grievous bodily harm and the indecency offence as well as the offences against police officers, weigh heavily in favour of cancelling his visa.
The nature and seriousness of the applicant’s conduct to date
Paragraph 9.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It states that decision-makers must have regard to a list of factors and I have worked my way through each item in turn:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously
The applicant has been convicted of offences of grievous bodily harm, assault and a crime of a sexual nature.
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
The assault and the indecent matter offences are viewed very seriously. The applicant’s representative pressed that he was not imprisoned for any offences; however, the direction specifies that these offences 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;
The applicant has been convicted of offences against police, with assault of a public officer and obstructing police officers in 2006, and a conviction for misleading police in the same year.
Paragraph 9.1.1(1)(d) relates to offences committed during or after periods of immigration detention and does not apply it this case.
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
Section 501(6)(c) relates to not passing the character test, having had regard to past and present criminal conduct and past and present general conduct. The Minister has cancelled the applicant’s visa on the basis of past criminal conduct, which is considered elsewhere in this provision, and no issue of general conduct has been raised by the Minister.
e)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
That the applicant was given a suspended sentence for the indecent matter provision does not fall for consideration in this provision as it is addressed by the provision about offences against children, however that it was a short suspended sentence reflects the view of the sentencing judge of the seriousness of his offending.
The applicant was sentenced to 18 months imprisonment suspended for two years with conditions for the grievous bodily harm and unlawful damage offences. This was a violent offence, and he was given a suspended sentence followed by a period of approximately nine months on a pre-sentence order during which his compliance with various requirements was monitored and pre-sentence reports provided to the Court. The sentencing remarks note that the reason his sentence was suspended was due to his performance on the pre-sentence order.[18]
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
[18] Exhibit G2, 135.
Almost half of the 33 offences occurred in 2006, and the frequency of offending slowed but continued after this date. The serious offences occurred in 2008 and 2016. The offending history for the serious offences is quite disparate, and I do not think it could be concluded they form a trend or a pattern.
g)The cumulative effect of repeated offending;
The applicant has numerous convictions for various offences, with some of the offences arising from the same series of events. This has occurred from 2006 to 2019. His continued offending, even after being convicted of grievous bodily harm in 2009 with offences of assault and property damage, does not weigh in his favour.
Paragraph 9.1.1(1)(i) relates to providing false and misleading information to the Department, and there is nothing before the Tribunal to suggest the applicant has done so, and paragraph 9.1.1(1)(j) refers to re-offending since being formally warned, which does not apply in this case. Paragraph 9.1.1(k) refers to offences in another country, which also does not apply.
In this case, the nature of the offences of grievous bodily harm, assault against a woman, the offence involving electronic communication with intent to expose a person under the age of 16 to indecent matter, and offences committed against police weigh against the applicant and in favour of cancelling his visa.
However, this is mitigated by an overall reducing pattern of offending over time and his compliance with pre-sentencing conditions and counselling, which resulted in a suspended sentence rather than imprisonment for the grievous bodily harm offence. The sentencing remarks in the most recent breach offence refer to him having responded very well to the order and having changed to living a pro social life.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 9.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. It states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In looking to the nature of the harm should the applicant re-offend, the most serious offences being grievous bodily harm and electronic communication with intent to expose a person under the age of 16 to indecent matter. The injuries to the victim of the grievous bodily harm offence were serious and would have resulted in trauma to the person. Similarly, the offence of assault committed against his friend’s ex-partner can result in significant harm. The applicant’s inability to comply with driving restrictions and being unable to manage his behaviour on the road as shown by the dangerous driving and exceeding the blood alcohol level, is also of significant concern and the risk to the public if he repeats this behaviour is high.
In looking to the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal has the benefit of the sentencing remarks for offences, evidence of courses he has undertaken, the records of state correctional services and the report and oral evidence of Mr B, a clinical psychologist. It has also had regard to the oral evidence of the applicant, the applicant’s fiancée, Ms A and the applicant’s father.
Due to the length of time from some of the offences, the Tribunal gives greater weight to sentencing remarks and reports that are more recent, as it considers this is a more accurate reflection of the current risk of reoffending.
The Tribunal has had regard to paragraph 8(2) of the Direction that information and evidence from independent and authoritative sources should be given appropriate weight. As a result, it places the most weight on the sentencing remarks, then the records of the Department of Corrective Services together with the report and oral evidence of Mr B and then the oral evidence of the witnesses.
The most recent sentencing remarks, of mid 2019, are from a breach of the supervision order, and states he responded well to the conditional or supervision order and benefitted from alcohol and psychological counselling, his drinking has reduced significantly, and has not committed further offences other than the breach of the conditional order that was not a serious example of re-offending. [The Judge] states he has now gained employment in and is living a prosocial life.
The sentencing remarks of late 2017 state the applicant’s record during a pre-sentencing period refers to a misuse of alcohol, impulsivity, low self-control, emotional regulation difficulties, irresponsibility, decision-making difficulties and poor problem solving. The pre-sentence report of the psychologist state he has symptoms of PTSD related to being stabbed and has significant mental health and criminogenic treatment needs.
In the sentencing remarks from mid 2011 for breach of his conditions in failing to report, [the Judge] says his attitude to supervision was a little indifferent although he generally met the outcomes that were sought.[19] It states when he was unable to make contact with Relationships Australia he followed up attending a course and completed a course.
[19] Exhibit G1, 40.
The sentencing remarks from early 2009, state the applicant was complying with conditions of his order but could do better and had not complied to the standard [the Judge] expected of him, but there was some confusion and he had not re-offended. The sentence was suspended because of his positive performance on a pre-sentence order.
The Department of Corrective Service client notes cover the period of September 2017 to March 2019. These notes, generally reported weekly, records that the applicant had minimal alcohol use over the period of supervision. These case notes report his engagement with rehabilitation and counselling were positive, and that the applicant proactively sought treatment and counselling.
Of concern is a report that his ex-partner took out a restraining order in February 2018, and it is stated this followed an argument with no violence perpetrated by him. He was advised of the order and was told to abide by the order. As there is no breach offence recorded, the Tribunal infers he did so. His level of supervision was reduced from medium to low following the higher risk Christmas period in 2018.
Rehabilitation courses
The applicant has undertaken rehabilitation courses as part of his supervision and also while in immigration detention. In early 2020 he completed ‘Emotions and Emotional Disorder’ and ‘Alcohol and Human Health’. The format of these courses was on-line and were self-directed with the applicant stating he did a couple of hours a night while in detention. He said they were assessed by questionnaire and test. While these courses were done in the shadow of a visa cancellation, the applicant has persisted and completed courses. This is consistent with his reported engagement and general compliance with the requirements of his supervision order.
The applicant also completed an ‘EXCEL Substance Abuse’ program in 2018 as part of his supervision order, and the Correctional Service notes record he chose to continue one on one counselling aft this course was completed. In 2010 he completed a four-month course on ‘Family and Domestic Violence’. He failed to complete a course of this nature in 2009. In 2009 he completed a four-month course on ‘Change and Emotions’.
The applicant is reported by Correctional Services as having engaged well with the drug and alcohol course, and as acknowledging alcohol is a risk for him.
The applicant expressed disgust with himself about the indecent matter offences and said it has ruined his life and destroyed his family. He said it makes him sick that it happened. He said he feels ashamed and remorseful for his offending and that it has had an impact on a lot of people. He did show a little minimising of his behaviour, with his description of the dangerous driving offence being different in his statement to the particulars provided by Police.
Attitude towards violence
The sentencing remarks for the offence for grievous bodily harm states the applicant responded positively to the conditions of his order and engaged well pre-sentencing. The Minister relied on a report from the ‘Change and Emotions’ course in 2009, which was the first course attended by the applicant. This said, he made some treatment gains but unwittingly disclosed concerning attitudes with the roles of women and men in intimate relationships consistent with those that support domestic violence.
Following this course, an assessment conducted for the applicant to attend the ‘Families without Fear program’, which assessed his suitability for the course according to the presence of abusive behaviour, motivation to address the behaviour and the cognitive ability to engage, assessed him as suitable to attend. This also assessed him as having beliefs around power and control which may be a factor in his offending. He blamed the grievous bodily harm on his state of intoxication but also acknowledged his responsibility for the incident as 9 out of 10. He was assessed as suitable for the course.
A report on his participation in the ‘Family and Domestic Violence program’ in 2010 stated he accepted during the course of the program that he was responsible for his actions. It was considered he may have minimised the conduct of the incident but did not minimise the consequences. He is described as increasing his awareness of the impact on the victim, and this was seen as one of the greatest areas of gain he made during treatment. He stated he could recognise triggers and enact a safety plan. He was assessed as being low to medium risk of reoffending.
Mr B has provided a report, and in relation to his clinical opinions and recommendations in relation to violence, it says:
He clearly has a history of both binge and continuous alcoholism that has destabilised his life. He has a history of anger management problems that have led to legal conflict. He also has a history of generalised impulse control problems in the community. He does not engage in reckless, thrill-seeking offending behaviours. If he were to continue abusing alcohol, I would rate his general criminogenic profile for offending behaviour to be in the moderate range of risk on a severity rating scale of low, moderate and high, for coming into further legal conflict during the next 12 months.
Turning to the evidence of witnesses, the applicant’s fiancée said that her relationship with the applicant was volatile in the past with verbal abuse, which she reported as being from each of them. She said in the period 2014 to 2017 they argued quite a lot. She had two late miscarriages and suffered depression as a result. This resulted in the police being called, and in the disorderly behaviour offence. The applicant’s fiancée said the applicant is now a changed person and while in the past he would be angry and negative he now sees the positive. She said he is not selfish and puts her and the children first.
Given the applicant’s past behaviour, it could not be said that he is not a risk in terms of responding in a violent way. This risk would be heightened by any alcohol abuse. However, that risk appears to have reduced over time and with his positive engagement with counselling and rehabilitation services.
Sex offender rehabilitation
The sentencing remarks for the sex offence states the psychological report for sentencing states he does not present with any sexual deviance.[20] The sentence was suspended for sufficient time to undertake psychological counselling and/or the sex offender treatment program.
[20] Exhibit G1, 46.
A report was submitted by the applicant from Mr B, a clinical psychologist with a speciality in forensic psychology. The assessment by Mr B was conducted over a two-and-a-half-hour clinical interview. Mr B was provided with a number of reports, however these did not include the 2009 and 2010 reports from the family violence program. Mr B accepted these reports may affected his view of the applicant’s risk of violent offences. As these reports are now over 10 years old, and of the reports only the 2009 report suggested attitudes consistent with violence which was also address in the late course, I do not consider this affects the validity of Mr B’s opinion.

Mr B states he has extensive expertise in the assessment, treatment and risk evaluation of sex offenders. He assessed the applicant for paedophilic disorder as defined in the DSM-V. Mr B’s opinion is that the applicant does not have a primary paedophilic disorder. In assessing his risk of reoffending Mr B used the Risk for Sexual Violence Protocol and assessed the applicant as being low risk for sexually reoffending.
A report copied into the correctional services notes of indeterminate date states that the STATIC 99R test revealed an above average/perceptibly higher risk of reoffending. The use of the STATIC 99R test was the subject of Mr B’s report and his oral evidence. Mr B gave evidence that this tool is an early assessment tool and takes into account fixed factors. He states it does not take into account factors that have been changed or modified through therapy. His opinion was that the test he conducted was more reliable.
The Tribunal accepts Mr B’s opinion and the more recent testing he has conducted.
The Minister raised concerns about the applicant attending a sexual offender program, as Mr B said this was the general requirement for people who commit sex offences. The applicant attended one-on-one psychological counselling as this was recommended by his correctional services officer. It is noted in the record [that at that time] a sex offender community-based program was not available in Bunbury and he was referred to a psychologist. Correctional Services reports that the applicant himself called to follow up counselling, and records him reporting, practicing and using techniques taught in the counselling. Correctional Services note that antecedent offending behaviour appears to have been addressed.[21] No concerns were raised by the Sexual Offender Management unit in the two-year course of the order, and no objections were raised to him having the care of his daughter. A risk assessment was conducted for his accommodation and with his children.
[21] Exhibit A1,145.
On the basis of the opinion of Mr B and the assessments conducted during the supervision the Tribunal finds the applicant is at low risk of reoffending for child sex offences.
Alcohol Use
Mr B assessed the applicant’s risk of reoffending as moderate if he continued to abuse alcohol, and stated he believed the applicant’s offending had arisen form his alcoholism. The risk to the community for the applicant committing further violent offences increases if he abuses alcohol.
It was put to the applicant that his alcohol use has caused his offending and he accepted it ‘hadn’t helped’. He agreed that it seemed correct he was a binge drinker from when he was 16 years old until 2014/2015. He said he started getting his drinking under control after the grievous bodily harm offence, becoming a ‘social drinker‘ but then relapsed. It was apparent under further examination that the applicant’s definition of being a social drinker was not drinking as much as his friends, but still consuming significant amounts of alcohol.
In the course of his supervision order from January 2018 to March 2019, his alcohol use was monitored and was reported to be decreased, with minimal to no alcohol use reported in many supervision visits. The Tribunal regards this contemporaneous reporting over time, together with his engagement with the courses to be persuasive evidence that he is managing his alcohol intake. He is reported by Correctional Services and Mr B to have a positive attitude towards rehabilitation and intervention.
The oral evidence of his family supports this is the case and has been evidenced over a reasonably lengthy period. In particular, the Tribunal found the evidence of the applicant’s father, who did not seek to minimise any of the applicant’s offending behaviour and past alcohol abuse, convincing regarding his current alcohol use, which is reported to be one to two light beers on a weekend.
He says since moving back to South Australia his drinking is contained and described his drinking as one or two light beers on weekends. This was also the evidence of the applicant’s fiancée and the applicant’s father. The applicant’s father says he thinks the applicant has now grown up and has significantly decreased his alcohol use in the last few years.
The applicant’s active participation in rehabilitation and reports of a longer term reduction in his alcohol is a positive indication that he will continue to do so in this future, his alcohol use remains a real risk as part of his previous offending. He has previously relapsed into alcohol use and further offending. Mr B states he used alcohol to cope. Given his reduction in the last few years without relapse the Tribunal considers this risk to be real but reducing over time.
Overall risk of reoffending
Mr B rated the applicant’s risk of reoffending as fair because he will develop alternative methods of coping with treatment, he does not deny his past abuse of alcohol, and has been largely free of alcohol consumption in the 8 months prior to the report, he is motivated to participate in rehabilitation, he values his current relationships, he has moved away from negative peers, he has period where he has exhibited social responsibility, he has made significant progress in leading a pro social life and has a number of protective factors against further reoffending.
Assessment of the risk to the Australian community
The applicant has been convicted of serious offences, and Direction specifies at 9.1.2(1) the Australian community’s tolerance for further offences is low. The Tribunal accepts the future risk for a child sex offence is low, however, the overall risk of further offending is fair and dependent on his alcohol use. As his alcohol use is reported to have reduced significantly over time, the Tribunal considered the risk to be reducing.
This factor weighs in favour of cancelling the applicant’s visa, however, the steps he has taken to mitigate this risk mean that this weighs in a lesser, but still significant way in favour of cancelling his visa.
The best interests of minor children in Australia
Paragraph 9.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has five biological children in Australia, and he has younger twin brothers who are also minors. The interests of each of these children have been considered separately but have been grouped according to the family unit.
Child 1 and Child 2
Child 1 and Child 2 live with their mother, Ms R. The applicant’s eldest child, Child 1, was born in 2009. The applicant describes his relationship with Child 1 as “distant”. He has not had contact with Child 1 since before he was charged with electronic communication offence. The applicant states that following an incident where Child 1 and Child 2 were breaking things in the house and he told them off, their mother refused to let him continue seeing them.
Child 2 was born in 2006. The applicant also describes his relationship with Child 2 as distant and, as with Child 1, says Child 2’s mother refused to allow him to continue seeing her after an incident where the applicant told the children off. He has not had contact with Child 2 for three to four years. The applicant says Child 2 has tried to contact him, but because he does not want to give her false hope, he has declined to talk to her.
The applicant states he has a better chance of reconciling with Child 1 and Child 2 if he remains in Australia.
The Tribunal considers that the interests of Child 1 and Child 2 are similar in that the applicant has not played a parental role in providing care for them or had contact with them for at least three years. Given his current lack of contact, there is only a possibility that he will play a positive parental role in the future. Given the positive role with the other children in his life, the Tribunal considers it possible he would play a positive parental role in the future; however, as a mere possibility, little weight can be placed on this factor.
The applicant has not made efforts to obtain access to Child 1 and Child 2 and has resisted Child 2’s efforts to resume contact with him. The interests of Child 2 differ from Child 1 in that according to the applicant, she has been trying to re-establish contact with him, however, he has declined to have contact with her as he did not want to raise her hopes. He considers removal will harm his opportunity to establish contact with Child 2. The Tribunal considers his active refusal of contact with Child 2 means that he himself has refused the opportunity to reconnect with her, and at this time does not show high prospects for a positive parental role in the future. He has the opportunity to reconnect using other means such by telephone or messaging if he is removed from Australia.
As the biological children of the applicant, it is in the interests of Child 1 and Child 2 that the applicant remain in Australia to retain the possibility of resuming contact with him in person.
Child 3 and Child 4
Child 3 and Child 4 are the children of the relationship between the applicant and Ms A.
Child 3 was born in 2010 and has lived with the applicant and the applicant’s fiancée since September 2017. According to the applicant’s fiancée, Child 3 started living with them because she was distressed living with her mother and her mother’s partner and was crying and not sleeping. The applicant’s fiancée says Child 3 is struggling without her father, as she seeks his emotional support and advice.[22] She says Child 3 sends him drawings and texts.
[22] Exhibit A1, 13 [26].
Child 3’s mother, Ms A, gave evidence in support of the applicant retaining his visa. She said Child 3 has a close bond with the applicant. It was decided that Child 3 would move to live with the applicant as she was having problems at school and with her siblings at home. Since living with the applicant, Ms A said she has settled at school and her connection with her siblings is now fine. This is supported by Child 3’s school report[23] which is positive about her school performance and behaviour. Prior to Child 3 moving to live with him, Correction Services records show the applicant sought, and was granted, approval to move by the Sex Offenders Management Unit.[24] It is recorded in the notes that he himself also contacted Child Protection and Family Services to make a mandatory referral. The outcome is recorded as ‘no concerns indicated’.
[23] Exhibit A1, 27-28.
[24] Exhibit A1, 118 and 120-121.
If the applicant is removed from Australia, Child 3 will return to live with Ms A.
The nature and duration of the applicant’s relationship with Child 3 is significant. Her behaviour at school and with her siblings has improved since being in the applicant’s care. The applicant’s role is significant, ongoing and parental. There is no information that would show Child 3 has experienced harm in his care or suffered or experienced any physical or emotional trauma from conduct.
The applicant’s fourth child, was born in 2011. Child 4 lives with her and according to her mother has recently been diagnosed with ADHD. The applicant says that before they relocated, they had Child 4 on weekends and school holidays. He states it was arranged that Child 3 and Child 4 would take it in turns staying [with the applicant] in school holidays, and the Tribunal concludes that the applicant has Child 4 in alternate school holidays. The applicant says he keeps in touch on facetime, texts and phone calls.
Ms A said if the applicant is removed, Child 3 and Child 4 will be unable to have face to face contact with him as they cannot afford for the children to travel to the United Kingdom.
The Tribunal finds the best interests of Child 3 and Child 4 weigh heavily in favour of the applicant’s visa not being cancelled.
Child 5
The applicant’s youngest child, ‘Child 5’, was born in 2016, and is the child of his current relationship with the applicant’s fiancée. The applicant’s fiancée provided a statement in which she says Child 5 is distressed by the separation from the applicant and is acting up due to the current separation.[25]
[25] Exhibit A1, 13.
The applicant plays a primary parental role in relation to Child 5 and has day-to-day contact and positive interaction. It is in the best interests of Child 5 that the applicant remain in Australia.
Applicant’s Brother A and Brother B
The applicant has twin brothers; ‘Brother A’ and ‘Brother B’, who are teenagers.
Brother A provided a statement in which he says if the applicant is removed from Australia, it would tear his family apart, as he would also lose daily contact with the applicant’s fiancée, Child 5 and Child 3 who would have to move [interstate] to be near the applicant’s fiancée’s family. Brother A says he had a depressive phase in 2017 and that the applicant is:
one of the main reasons I’m still here today, he was able to talk me out of suicide and kept me occupied while my mind and emotions mended themselves by playing games and such and just overall looking out for me while I was mending myself.[26]
[26] Exhibit A1, 10[5].
The twins’ father, who is also the applicant’s father, gave evidence of the attachment of the twins to the applicant, and said the twins are more likely to talk about personal matters to him as a non-parental figure. He also said that the applicant spends considerable time with Brother A and Brother B on weekends and takes them fishing, and this is of assistance as their parents work long hours in the caravan park.
The best interests of Brother A and Brother B are that the applicant remain in Australia.
Overall assessment
The best interests of all of the applicant’s children weigh in favour of not cancelling his visa. The best interests of Child 3, Child 4 and Child 5 weigh heavily in favour of not cancelling his visa due to his parental role. The best interests of Brother A and Brother B weigh somewhat in favour of not cancelling his visa. Overall this primary consideration weighs heavily against cancelling his visa.
Expectations of the Australian Community
Paragraph 9.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The equivalent provision in relation to revoking the mandatory cancellation of a visa has been considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185. Justice Charlesworth at [67] and [68] clarifies this provision as meaning that ‘it is not for the decision maker to make his or her own assessment of the community expectations’ and that this provision ‘concerns what the government has deemed the community’s expectation to be’. Justice Stewart agree that the effect of this provision is to deem what community expectations are [89] and that it is not for the decision maker to decide what community expectations are [93].
As the applicant has been convicted of several offences, this consideration weighs in favour of cancelling the applicant’s visa, as it is intended to do.
The Other Considerations
In deciding whether to revoke the cancellation of a visa, Other Considerations must also be taken into account where relevant. These considerations, as set out in paragraph 10(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
International non-refoulement obligations
Paragraph 10.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. The applicant is a citizen of the United Kingdom and has not raised any non-refoulment obligations.
Strength, nature and duration of ties
Paragraph 10.2(1) of the Direction provides that decision-makers must have regard to the following:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant visited Australia on several occasions prior to 2004 but migrated to Australia in May 2004.[27] He has been in Australia for nearly 16 years. He arrived in Australia as a child.
[27] Exhibit G1, 88.
His first convictions for disorderly behaviour, assaulting a public officer, trespass and obstructing public officer are recorded in 2006.[28] The applicant’s curriculum vitae[29] shows full time work for the [family business] and as a trades assistant, with a gap of approximately two years between February 2015 to March 2017. In this period, the applicant [moved to be near his parents] and says he returned as he was unable to obtain work. His employment in the period 2006 – 2015 is recorded as being for his step-father as ‘working on and off (2006 – 2015) for a period of 9 years to help and assist.’ The applicant’s fiancée said he contributes in a positive way to the local community since commencing [work in the family business] as he engages with his customers and ‘people leave with a smile on their face’.
[28] Exhibit G1, 30-31.
[29] Exhibit A1, 201-202.

The applicant started offending a little over two years after arriving in Australia, and therefore less weight is given to the considerable period of time he has lived in Australia. He has worked which while being a contribution to the Australia community, is not a substantial contribution due to the intermittent nature of his employment.
Overall, balancing the significant time which the applicant has been in Australia, the relatively short period of time before he commenced offending and his minor contribution to Australia society, the Tribunal gives this factor little weight; however, given his very significant time in Australia and as he arrived as a child the weight it is given lies in favour of not cancelling his visa, albeit to a small extent.
The applicant has significant family ties in Australia. He has daily contact with his mother, step-father and twin brothers. He is the father of five Australian citizen children and has been in a relationship with his fiancée, who is also an Australian citizen, for over six years. His grandparents are in Australia and live in the same local area. He shares parenting responsibility with his fiancée for Child 3 and Child 5.
The applicant’s fiancée said she would be devastated if the applicant returns to the United Kingdom and will have to return [interstate] with Child 5 to be closer to her family.
The applicant’s father gave evidence that he and his family would remain in Australia if the applicant is removed from Australia as it is too uncertain what will happen in the UK. This will affect him, the applicant’s mother and his brothers. They will also lose the contact they have with their grandchildren as the applicant’s fiancée and Child 5 will return [interstate] and Child 3 will return to live with her mother.
Ms A said her family unit will be affected if the applicant returns to the United Kingdom. She says she remains on good terms with the applicant, and they co-operate in the care of their two children.
Overall, this weighs in favour of not cancelling the applicant’s visa.
Impact on Australian business interests
Paragraph 10.3(1) of the Direction provides that decision-makers must have regard to the following where relevant:
(a)Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant’s parents purchased [their family business], and it was planned that the applicant would [help to] manage this business. The applicant’s mother provided a statement in which she says [the family business] has been running for just over a year and showing excellent returns. She says if the applicant leaves, they will close part of the business.
Since the applicant has been in immigration detention, his mother has been running [part of the family business], and according to the applicant’s father this results in her working twelve hours a day seven days a week.
While the removal of the applicant would have an impact on an Australian business, with the [family business] being closed, the Direction limits the weight that can be given to employment links, and as a result this is a neutral factor and does not weigh for or against cancelling the applicant’s visa.
Impact on victims
Paragraph 10.4(1) of the Direction provides that decision-makers must have regard to the following where relevant:
(a)Impact of a decision to cancel a visa 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 visa cancellation has been afforded procedural fairness.
The applicant does not have contact with the victim of the grievous bodily harm offences, and also does not currently have contact with the victim of unlawful damage. As there is no information otherwise available on the impact on victims, this does not operate in favour of cancelling or not cancelling the applicant’s visa.
Extent of impediments if removed
Paragraph 10.5(1) of the Direction provides that decision-makers must have regard to:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
While the applicant does have family in the United Kingdom, they are not close and all of his immediate family are all in Australia. He has an uncle, an aunt and cousins with whom he maintains contact over Facebook. His aunt has recently been released from prison after being convicted of trafficking heroin, and while he could stay with her, he doubts this would be a good environment. He did not have contact with his biological father as a child, and attempted to re-establish contact with him over Facebook approximately five years ago. This did not go well, and the applicant says he does not have any contact with his biological father as he is ‘not a nice person’.
If he returns to the United Kingdom the applicant will need to re-establish himself and find accommodation and employment. The Minister points to his eligibility for social security payments in the United Kingdom.
The applicant has skills he could use to find work and support himself having worked in Australia as a labourer and currently in managing the [family business]. He is relatively young and would not have language or cultural barriers in returning to the United Kingdom. Mr B gave evidence that any care he would need is available in the United Kingdom. His extended family could provide support on his immediate return to the United Kingdom, but this is unlikely to be sustainable in the long term.
Overall, the Tribunal finds there are no significant impediments to the applicant returning to the United Kingdom, and this factor does not weigh in favour of cancelling or not cancelling his visa.
CONCLUSION
Section 501(2) of the Act stipulates that the Minister may cancel a visa if he or she reasonably suspects the person does not pass the character test, and the person does not satisfy the Minister that he or she passes the character test.
Based upon the applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether the discretion in s 501(2) of the Act should be exercised to cancel the visa, the Tribunal has had regard to those considerations referred to in the Direction.
As outlined previously, primary consideration A weighs in favour of cancelling his visa, primary consideration B weighs strongly against cancelling his visa and primary consideration C weighs in favour of cancelling his visa.
Given two of the primary considerations; the risk to the community and the expectations of the community weigh in favour of cancelling the visa, and primary considerations are generally given greater weight than secondary considerations, in my view it takes unusual circumstances as considered in Sulieman to outweigh these factors. In the absence of these factors, I would have no difficulty cancelling the applicant’s visa.
However, in this case I do consider there are unusual circumstances. The first is that the best interests of the children weigh heavily against cancelling the visa. The most significant factor in my view is the consequence of cancelling the applicant’s visa on Child 3, who has reportedly flourished in the applicant’s care. Child 5 would lose the ability to maintain personal contact with his father, and his age dictates against solely using social media or telephone to maintain contact. The applicant’s twin brothers look to him for advice, and one of his brothers states he has assisted him in managing some dire personal circumstances at that time.
The secondary factors weigh significantly in the applicant’s favour. There would be a significant impact on the applicant’s family if he is removed from Australia. There are 12 Australian citizens or permanent residents that would be affected. His mother is currently working long hours to cover his absence in the business. There is a significant adverse impact on Australia citizens and permanent residents if he is removed.
In combination with efforts made by the applicant towards his rehabilitation, he has removed himself from influences [interstate] and significantly reduced his alcohol intake. I place weight on the most recent sentencing remarks which show he is now living a pro-social life.
The combination of the secondary factors and the bests interests of the applicant’s children and other minor children in Australia, weigh strongly in favour of not cancelling his visa and in the circumstances of this case outweigh the two primary considerations which operate in favour of cancelling his visa.
As a result, the decision under review is set aside and substituted with a decision not to cancel the applicant’s visa.

I certify that the preceding one hundred and fifty two [152] paragraphs are a true copy of the reasons for the decision herein of Member Millar

..............................[Sgd].......................................
Administrative Assistant - Legal
Dated: 8 May 2020

Dates of hearing: 2 April 2020

Solicitor for the Applicant: Ms A Graziotti, Estrin Saul Lawyers

Solicitor for the Respondent: Mr C Retallick, AGS

[2020] AATA 1255

2 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Proportionality

Dates of hearing:	2 April 2020
Solicitor for the Applicant:	Ms A Graziotti, Estrin Saul Lawyers
Solicitor for the Respondent:	Mr C Retallick, AGS