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

GDRS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1771 (15 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1339
Re:GDRS
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:15 May 2020
Date of written reasons: 12 June 2020
Place:Sydney

The Tribunal decides that the reviewable decision dated 17 December 2019 is set aside, and in substitution, decides that the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, issued on 30 September 2007 is not cancelled under section 501(2) of the Migration Act 1958 (Cth).
.............................[sgd].............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review set aside
LEGISLATION
Evidence Act 1995 (Cth) – s 135
Migration Act 1958 (Cth) – ss 499(1), 499(2), 499(2A), 500(6J), 501(1), 501(6), 501(7) and 501G
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6, 7, 8, 9, 10
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
12 June 2020
INTRODUCTION

The applicant was born in April 1991, in New Zealand, and is therefore a New Zealand citizen by birth.[1]
[1] G9, at p 45. See paragraph [29] below.
In August 1991, very soon after his birth, the applicant and his older sister were removed from their birth parents.[2] Interim custody of the children was granted by the District Court at New Plymouth, New Zealand, to BM, who was married to JR, the applicant’s ‘adoptive’ father.[3] BM passed away in 2017.
[2] G10, at p 58: Attachment H; Interim Custody Order.
In late 2002, BM and JR came to Australia, accompanied by the 11 year old applicant, and his older sister.[4] The applicant has lived in Australia continuously since 2002.
[4] G8, at p 41: Attachment F; letter dated 28 August 2019.
In 2006, the applicant and SF formed a relationship, and in November 2007, child 1 was born.[5] Child 2 was born in May 2011.[6]
[5] G20, at p 73: Attachment R; Birth Certificate.
[6] G20, at p 74: Attachment S; Birth Certificate.
The relationship lasted seven years. By mid-2013 the relationship had run its course. According to the applicant, he came home from work and found SF in bed with his cousin. A week later, on 29 July 2013, he confronted the couple as they waited to catch a bus. He assaulted each of them in what was a violent outburst, and smashed the glass screen of the bus shelter. This incident gave rise to a number of offences, including assault and assault occasioning actual bodily harm.
On 8 January 2014, the applicant was sentenced to eight months imprisonment for the two assaults, to be served concurrently, with a non-parole period of six months. He was also sentenced to a 12 month good behaviour bond, for resisting an officer in the execution of duties, malicious damage and failing to appear.
In July 2014, the applicant was released from prison.[7] He soon formed a relationship with BJ, and in December 2015, child 3 was born. The new relationship did not last. The applicant presently has no contact with child 3. He pays child support through the Child Support Agency.
[7] G3, at p 25.
In 2016, the applicant and AB started seeing each other. They first met at school and dated briefly after he was charged and before he went to prison. The relationship has flourished and he financially supports AB and AB’s eight year old child (child 4).[8] He is a good provider, having worked in road construction since 2010.[9] Child 4 considers the applicant to be her ‘daddy’.[10] The applicant sees child 1 and child 2 on a regular basis, at least three times a month.[11] He takes them to sport and plays rugby league with them. He has apologised to SF and her partner for his violent conduct towards them. He has accepted responsibility for his actions. He does not blame them in any way. They have forgiven him for his behaviour at the bus shelter. He does not pay child support for the boys because SF says she does not want him to. It seems that the applicant and SF and her partner have reconciled.
[8] G13, at p 63.
[9] G8, at p 54.
[10] Members File, Tab D.
[11] Transcript, 14 May 2020, at p 56.
THE PRESENT PROCEEDINGS
On 15 June 2019, an officer of the Department of Home Affairs (‘the Department’) wrote to the applicant informing him that consideration would be given to whether his Class TY Subclass 444 Special Category (Temporary) visa should be cancelled on character grounds, in accordance with s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).[12]
[12] G4, at p 27: Attachment B.
The applicant was invited to comment or provide information on any factors he believed to be relevant to whether he passed the character test, and why his visa should not be cancelled.
On 25 June 2019, in response to the Minister’s letter of 15 June 2019, the applicant completed a Form entitled Personal Circumstances Form (Response to matter under s 501 of the Act).[13]
[13] See G9, at p 43: Attachment G.
On 17 December 2019, a delegate of the Minister decided to cancel, under s 501(2) of the Act, the applicant’s visa, issued on 30 September 2007.
In late December 2019, a case officer informed the applicant by (undated) letter that:
After careful consideration of your response and the matters listed in the Notice, the delegate of the Minister administering the Act decided on 17 December 2019 to cancel your visa under s 501(2) of the Act.
The letter was hand delivered to the applicant’s authorised migration agent and was in a form and contained the requisite information prescribed by s 501G of the Act. A document entitled ‘Statement of Reasons for Cancellation of Visa under s 501(2) of the Migration Act 1958’, and dated 17 December 2019, was attached to the undated letter.[14]
[14] G2, at pp 11 - 18.
In March 2020, border force officials arrested the applicant and took him into immigration detention.[15]
[15] See Detention start date, Respondent’s Tender Bundle, at p 1.
On 10 March 2020, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision made on 17 December 2019 (‘the reviewable decision’).
In these proceedings, the jurisdiction of the Tribunal having been properly invoked, the task for the Tribunal is to determine whether cancellation of the applicant’s visa is the correct or preferable decision.
THE HEARING
The hearing was held by videoconference on 14 May 2020, and by telephone on 15 May 2020.
The solicitor for the respondent provided a Statement of Facts and Contentions in the usual way, dated 1 May 2020.[16]
[16] Member’s file, Tab L.
The applicant was represented by a solicitor. He filed written submissions dated 17 April 2020,[17] and a further submission on a matter of evidence dated 8 May 2020.[18]
[17] Members File, Tab C.
[18] Member’s File, Tab JK.
The Tribunal received documents relating to the matter tendered under s 501G of the Act (the ‘G documents’) as well as a Tender Bundle, which included:
(a)Incident Reports relating to incidents at Villawood Detention Centre;
(b)A document Driving Record issued by NSW Transport in response to a Summons to Produce Documents;[19] and
(c)Criminal history records relating to the applicant provided by the Commissioner of Police (NSW).[20]
[19] Respondent’s Tender Bundle, at pp 6, 7.
[20] Respondent’s Tender Bundle, at pp 8, 27.
The applicant’s criminal history may be found in additional documents before the Tribunal:
(a)A document entitled Nationally Coordinated Criminal History Check (NCCH) provided by the Australian Criminal Intelligence Commission (‘ACIC’).[21]
(b)An extract, dated 8 January 2014, of Sentencing Remarks from the Local Court of NSW;[22]
(c)A letter dated 12 August 2019 from the Local Courts of New South Wales.[23]
[21] G3, at p 24: Attachment A; Court file.
[22] G6, at p 35: Attachment D: Court file.
[23] G7, at p 37: Attachment E; Court file.
The Tribunal also received into evidence a number of references submitted on behalf of the applicant. All but two of the referees gave evidence before the Tribunal. The two exceptions were:
(a)Child 4, the eight year old child of AB, the applicant’s de facto partner, who wrote a letter to the Tribunal; and
(b)Mr BE, a principal at the applicant’s current place of employment, who provided a reference.
The following witnesses gave evidence to the Tribunal, in the following order:
(a)The applicant;
(b)Ms SF, his former partner;
(c)Ms AB, his present partner (Members File, item F);
(d)Mr WH, family member (Member’s file, item A);
(e)Ms PC, his de facto partner’s grandmother (Member’s file, item A);
(f)Ms VW, AB’s aunty, (Member’s file, item A);
(g)Mr JR, his adoptive father;
(h)Mr KS, manager (Member’s file, item HI).
RULING ON EVIDENCE
(a) Non-compliance with the two day rule
One document within the member’s file (a reference from Ms DT, child 4’s carer’s principal) was the subject of exclusion under s 500(6J) of the Act. I was informed that this reference had by error not been sent to the respondent in a timely manner, and therefore I excluded this document from consideration.
(b)The incident report
The applicant’s solicitor opposed the reception of a document headed ‘Incident Report’ concerning incidents said to have occurred in the Villawood detention centre.[24] He provided a written submission, referring to s 135 of the Evidence Act 1995 (Cth). He acknowledged the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.[25] In the event, having reviewed the material, I ruled against the submission to exclude this document.
[24] Respondent’s Tender Bundle, item 1.
[25] Administrative Appeals Tribunal Act 1975 (Cth), s 33.
A PRELIMINARY MATTER
The applicant’s birth country is stated as UNKNOWN on the Department Movement History. However, the parties agree that the applicant is a New Zealand citizen. The applicant’s solicitor informed the Tribunal that his instructions are that the applicant was born in New Zealand, in April 1991, and that he first arrived in Australia in late 2002, at the age of 11.
According to the Movement History supplied to the Tribunal by the Department of Home Affairs, the applicant was granted the aforementioned visa on 30 September 2007.[26] The Movement History shows that the applicant departed Australia on 22 September 2007, and returned on 30 September 2007.[27] There is no record of the applicant departing Australia prior to his arrival on 3 October 2002. The solicitor for the respondent, on instructions from the Department, informed the Tribunal that the Movement Record was a complete record of all movements by the applicant.
[26] G5, at p 33: Attachment C; Movement History.
[27] G5, at p 33: Attachment C; Movement History.
Although the absence of a birth certificate is troubling, I think it can be safely assumed, for the sake of these administrative proceedings, that the applicant was born in New Zealand, and that he is a non-citizen. I have previously referred to the Interim Custody Order made by the District Court, New Plymouth, New Zealand, relating to the applicant.[28]
[28] G 10, at p 58: Attachment H; Interim Custody Order.
THE DELEGATE’S REASONS FOR THE REVIEWABLE DECISION
With regard to offending, the delegate noted:
[27] I am concerned that [the applicant] has not shown a great insight into his offending or taken full responsibility for his offending. The Magistrate commented that [the applicant] was blaming his ex-partner for his offending. [The applicant’s] representation was that he apologised to the victim for the sake of harmony. [The applicant] represented that his only criminal offence since he turned 18 years of age was his conviction of 8 January 2014. I note since turning 18 years of age [the applicant] has in excess of ten convictions for offending other than that of his convictions on 8 January 2014, including drive motor vehicle during disqualification period – 2^nd +off, possess prohibited drug, and other motor vehicle related offences. [The applicant] received fines, community service orders and imprisonment for eight months for these offences. It seems that [the applicant] does not consider these offences as important, indicating that he is likely to continue to offend.
[28] I find that there is an ongoing likelihood that [the applicant] will re-offend, albeit a low likelihood.
[29] I consider that further offending of a violent nature by [the applicant] could result in physical harm to members of the Australian community.
The delegate concluded:
[58] In considering whether or not to cancel [the applicant’s] visa, I gave primary consideration to the best interests of [the applicant’s] children …and have found their best interests would be best served by not cancelling the visa.
[59] [The applicant] has committed very serious crimes, those of assault occasioning actual bodily harm (DV) and Common Assault (DV) which are of a violent nature, and the common assault (DV) was against a woman holding his child, and [the applicant] and non-citizens who commit such offences should generally not expect to be permitted to remain in Australia.
[60] I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion, I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm.
THE LEGISLATIVE FRAMEWORK
Under s 501(2) of the Act, the relevant Minister or delegate may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.
Under s 501(6) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’, as defined by subsection 7.
Section 501(7) provides that if the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more, then they have a substantial criminal record.
It is conceded by the applicant’s solicitor that he has a substantial criminal record, and therefore he does not pass the character test. In exercising the discretionary power contained within s 502(2) of the Act to determine whether the correct or preferable decision is to affirm the delegate’s decision or to set it aside, I am required by s 499(2A) of the Act to apply Direction No.79.
DIRECTION No 79.
Direction No 79 sets out primary and other considerations that must be taken into account in deciding whether to affirm or set aside the cancellation decision, as explained below.
Paragraph 8 provides five rules governing how the relevant considerations are to be taken into account. Under paragraph 8, a decision-maker must take into account the primary and other considerations relevant to the specific category of decision in question. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Both primary and other considerations may weigh in favour of, or against cancellation. Primary considerations should generally be given greater weight than the other considerations. One or more of the primary considerations may outweigh other primary considerations.
Primary Considerations
Paragraph 9 provides the primary considerations:
(1)In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:
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 9.1(1) provides that 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.
Other Considerations
Paragraph 10 sets out other considerations that must be taken into account where relevant, in deciding whether to cancel a visa and states:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations 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;
e)Extent of impediments if removed.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
I am mindful of the matters referred to in paragraph 9.1(1) referred to at paragraphs 43 to 62 below.
I must also give consideration under paragraph 9.1(2) to the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I deal with these matters in turn.
The nature and seriousness of the Applicant’s conduct to date
In considering the nature and seriousness of the applicant’s conduct, I must have regard to the matters listed at paragraph 9.1.1(1).
I have previously referred to the 29 July 2013 incident at the bus shelter, which gave rise to five charges in all. The applicant appeared in the Local Court of New South Wales on 8 January 2014, and was convicted of common assault (DV) and assault occasioning actual harm (DV). ‘DV’ signifies the domestic context of the offending.
The nature of the conduct may be taken from the learned magistrate’s sentencing comments. Her Honour commented as follows:
The police facts have been tendered and it would appear that the victim in relation to the assault was the partner or ex-partner recently of the accused and it would appear from the police facts that she had broken off the relationship and the second victim is a person who was described as being known to the accused.
It appeared that the accused approached them at a bus stop, head butted the second victim causing the actual bodily harm and then grabbed his ex-partner by the throat, pushed her into a cyclone fence and then punched her three times to the face while holding his son. He also broke the glass on the bus shelter, which is the basis of the malicious damage charge and then resisted the police when they attended at the scene. ..
The accused is before me today and he’s indicated that – and it’s something of an understatement, I guess – he took it very badly that the relationship had broken down. He says that he has had no contact with his children since these offences arose, and indeed, they are now in a different state…
He says that this occurred because he had caught his wife out or partner out cheating on him and that he decided to deal with it, he says now, inappropriately but certainly seems to blame his ex-partner for his behaviour on this particular occasion. His behaviour is completely unacceptable…[29](emphasis added)
[29] G6, at p 35: Attachment D; Sentencing remarks.

Her Honour concluding by saying:
I have considered the seriousness of these matters and it’s my view they are extremely serious matters, particularly obviously the assault and the assault occasion actual bodily harm. I have considered whether there is any alternative to a period of imprisonment, a full time period of imprisonment and I’m of the view that there is not…[30]
[30] G6, at p. 36.
With respect to these offences, at least one involved a woman or child as the immediate victim. The offending attracts the consideration identified in paragraph 9.1.1(1)(b) of Direction No. 79, relating to violent offences against women or children. As decision-maker, I am required to view this offending as very serious, regardless of the sentence imposed.
Other offences
The NCCH report includes entries in March 2006 for assault occasioning actual bodily harm, affray and robbery; property damage in April 2008; and possession of cannabis in June 2011. These matters were dealt with in the Children’s Court and resulted in a fine or bond.
Over the decade from November 2008, there have been multiple instances of driving without a license, driving while disqualified, or driving an uninsured or unregistered motor vehicle. Repeat offending resulted in disqualification and habitual offender declarations, most recently in September 2015.[31]
[31] NSW Transport report, Respondent’s Tender Bundle, at p 6; NCCH Report, G3, at p 25.
As noted above, the applicant was released from prison in July 2014,[32] and there are subsequent entries for offences relating to the use of an unregistered and uninsured motor vehicle on 29 April 2015, and for driving whilst disqualified.[33] I note in passing that there are two entries on the record which are contested:
(a)An entry in the NCCH Report relating to an offence allegedly committed on 27 July 2017, driving during period of disqualification.[34] There is no equivalent entry in the NSW Police record.[35] For this reason, the respondent’s solicitor did not press me to rely on it.[36]
(b)An entry relating to an offence allegedly committed on 11 July 2019 (camera detected - exceed speed by not more than 10 km/hour). The applicant disputed this offence and said that his father was driving at the relevant time. He said that he had gifted the motor vehicle to his father and he was pretty sure this had been sorted out. However, the applicant’s father was asked about this offence in evidence and could not remember anything about it.[37] The respondent’s solicitor accepted that this was in any event low end speeding and she did not wish to make too much of it.[38]
Conduct in detention
[32] G3, at p 25.
[33] Respondent’s Tender Bundle, at p 6.
[34] G3, at p. 24.
[35] Transcript, 15 May 2020, at p 106.
[36] Transcript, 14 May 2020, at p 44.
[37] Transcript, 14 May 2020, at p 24.
[38] Transcript, 15 May 2020, at p 104, line 24.
The applicant entered detention at Villawood IDC in March 2020.
The respondent’s solicitor tendered an Incident Report which I admitted over objections of the applicant’s solicitor.[39] The report indicates the following incidents:
(a)5 March 2020 – File note to the effect that applicant had threatened to self-harm. He was placed on a Keep Safe monitoring program.
(b)13 March 2020 – Argument between various detainees – one slight injury but indicated complainant indicated that it was self-sustained. No action taken against applicant.
(c)27 March 2020 – Applicant described as displaying “abusive and aggressive behaviour towards SERCO officers”. Reprimanded and denied incentive points.
(d)2 April 2020 – Allegation of Assault – The applicant claims he was in the shower at the time of the alleged incident. No action taken.
[39] Respondent’s Tender Bundle, at p 1.
Only the 27 March incident resulted in any negative sanction.
The sentence imposed: Paragraph 9.1.1(1)(f)
For the bus shelter incident in March 2013, the applicant was sentenced to eight months imprisonment for the two assaults, to be served concurrently, with a non-parole period of six months. In relation to the offences of resisting a police officer, malicious damage and failing to appear, he was sentenced to a good behaviour bond for a period of twelve months.
I also note the NCCH record of juvenile offending, from as early as March 2006. I also note the imposition of various penalties and supervision orders for his offending as a juvenile and young adult.
The frequency of offending and whether there is any trend of increasing seriousness: paragraph 9.1.1(1)(g)
Annexure A of the Respondent’s Statement of Facts and Contentions included a Conviction Summary, for the period 2006-2017. The record contains 21 offences, 12 of which are traffic offences. There is one speeding (low range) and one ‘disobey no right turn signal’. The remaining traffic offences relate to unlicensed driving, driving an unregistered or uninsured vehicle.
I have noted the NCCH report, which contains references to appearances before the Children’s Court including entries in 2006 and 2008 for assault occasioning actual bodily harm, affray and robbery in 2006; property damage in 2008; and possession of cannabis in 2011.
The applicant was released from prison in July 2014. The record is clear in relation to convictions for non-traffic related matters since his release in 2014. He has however, picked up three unlicensed driving offences: two arising from an incident on 18 August 2015, the other on 1 September 2015. There is a further entry in the NCCH relating to an offence of driving while disqualified on 27 July 2017, but there is no entry for this offence in the NSW Police record.[40]
The cumulative effect of repeated offending: paragraph 9.1.1(1)(h)
[40] G3, at p. 24.
The record suggests that the applicant’s offending peaked in 2013 with the assault on his former partner; and following a period of imprisonment there has been a considerable reduction in offending.
False or misleading information: paragraph 9.1.1(1)(i)
There is no evidence that the applicant has given false or misleading information to the department. I also note that the applicant received a sentencing discount for pleading guilty.
Offending after a warning has been given Paragraph 9.1.1(1)(j)
There is some material which suggests that as a juvenile the applicant was not responsive to legal warnings; hence the repeated driving without a license resulting in declarations of habitual offending. However, this is not a trend that has continued since his release from prison in 2014.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: paragraph 9.1.2
Paragraph 9.1.2. divides the risk assessment process into two phases. The decision-maker is required to consider whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community (9.1.2(1)). The decision-maker is also required to consider the risk to the Australian community (9.1.2(2)).
RISK TO INDIVIDUALS OR GROUPS OR INSTITUTIONS IN THE AUSTRALIAN COMMUNITY
In assessing the risk to specific individuals or groups, the Tribunal is to give effect to the principles in paragraph 9.1.2.[41] The community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In some case, the harm that would occur if the conduct is repeated is so serious that any risk of repetition is unacceptable. Decision-makers are also required to give effect to the nature of the harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen reoffending; taking into account evidence of rehabilitation achieved by the time of the decision, and giving weight to time spent in the community since the most recent offence.[42]
[41] Direction No 79; paragraph 9.1.2(1).
[42] Direction No 79; paragraph 9.1.2(2).
The assessment of this risk factor is to be considered in light of all the relevant circumstances. I focus on the domestic violence offending, but do not thereby intend to limit the cumulative effect of offending in other ways, such as by committing multiple driving offences. However, given the reduction of offending in that respect, I think it is fair to consider that the primary focus should be the risk to individuals should the applicant engage in further acts of violence within a family context.
The applicant is now firmly settled in a family environment. He stands in loco parentis to child 4. He supports child 4 and AB financially. There is no doubt that any outbreak of violence within this domestic context would be catastrophic. The harm that would occur if the conduct is repeated is so serious that any risk of repetition is unacceptable. According to AB’s grandmother and AB’s aunt, there has been no violence or sign of violence in this new relationship. For the past four years he has been living with AB and child 4. This is a case where although the potential harm is very high, the risk of harm is very low.
PC was asked to comment on the applicant’s assault conviction:
You are aware that at one stage he had assaulted his former partner?‑‑‑Yes, but I asked [AB] about that and she told me the circumstances. I don’t believe in any abuse of anything or anyone but I know the circumstances. Like if anything was going to turn a man violent I suppose it would be finding your wife with somebody else (indistinct). (Indistinct) to find the children taken, the children gone.
Do you have any concerns along similar grounds (indistinct)?‑‑‑ Heavens no. With [the applicant], no. That’s why I was so relieved that she found someone so lovely and I swore to tell the truth. He’s only ever – whenever I see him on any occasion I get a big kiss and a cuddle. He calls me Nan and he calls me Mum. Like, he’s just family and no, I don’t think he’d ever hurt a hair on [AB’s] head, nor [child 4’s]. Never. I mean (indistinct) provoked wasn’t he really? If anyone was going to lose their temper it would be that circumstance.[43]
[43] Transcript, 14 May 2020, at p 74.
There is however one red, or at least amber, flag in the evidence before the Tribunal, and that is contained in the evidence of WH, a family member. WH provided a short handwritten reference, which I set out in full.[44]
I have known [the applicant] ever since he was adopted into my brother in laws family as a very young boy. I have seen him grow into a fine young man and like most young men he had his ups and downs. I believe he has changed for the better ever since the birth of his two boys. I am happy to write this letter in support of [the applicant] and his family.
[44] Member’s file, item A.
WH gave evidence by telephone. When asked by the applicant’s solicitor whether he could act violently again he answered: ‘It’s a possibility’.[45] I set out the exchange in full:
[45] Transcript, 14 May 2020, at p 71.
Okay. Do you think given an assault that he’s likely to do that again in the future?   It’s a possibility.
What makes you say that? I don’t know. Just knowing him as I do I think it’s possible. It would take a lot but (indistinct) but other than that he’d have to have a fair bit of provocation and then I think he would...
[What about] assault as in, you know, hitting his partner that time? No, I don’t think he’d do that.
You said it would take a lot of provocation to get him to assault somebody? Yes.
I would have thought that if you’d said that he’d grown up and he had changed then you would think that he wouldn’t? Well from what I’ve seen since that incident happened he is different. He’s – I haven’t seen any of that in him.
So I’ll put it to you again, would you anticipate given his current state of mind that he would be likely to reoffend in that manner again? Yes, he would in his current state of mind…
SENIOR MEMBER: [WH], if I understand what you’re saying it is to the effect that you can’t rule out the possibility that [the applicant] might in a domestic context assault his partner again, is that what you – I take you to be saying? I said that in the way that that bloke asked me that question. In his current state of mind. He’s not in the best state of mind at the moment being locked up. If he was out working he’s fine but in his current state of mind, yes, anything could happen.
Have you witnessed any outbursts of anger in the time that you’ve been working with him? I don’t work with him but I haven’t seen any outbursts since he was in prison for that last assault in 2013.
So you haven’t seen any reactions of that kind?   No. No.
This is a critical question because the tribunal has to assess the safety of the Australian community in relation to [the applicant], given that incident that occurred back then. So in this sense your evidence is important. You say you’ve known him for a very long time? Yes.
Over that time you formed the view that he is capable of violence when under stress. Is that your position? Yes.
Would you say he’s more prone to acting in that way than other people you know?   No.
He’s about normal in that respect in your view is he? Yes.
WH’s evidence is troubling, even as a candid assessment that the applicant is, as shown by past acts, capable of violence. WH said that he did not think that the applicant would act violently towards a partner or child in a domestic family context. He had been referring only to the situation in prison or detention.
The evidence of his former partner SF, and his present partner, AB, do not support a finding that the applicant is a danger to the community. One might summarise their evidence by saying that the applicant was a changed man since his wayward youth, that he had ‘grown up’. He had taken responsibility for his previous failings and he had accepted his responsibilities. He had taken genuine steps at reconciliation with SF. Perhaps her evidence was the most telling. She did not think that he was a danger to his new family.
I do not think that WH’s evidence should cause me to change this assessment.
In view of the evidence presented to the Tribunal, I find that there is a very low likelihood of further acts of violence, especially violence in a domestic context.
RISK TO THE AUSTRALIAN COMMUNITY
Under paragraph 9.1.2(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;
(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;
(ii)Evidence of rehabilitation achieved by the time of decision, giving weight to time spent in the community since their most recent offence…
I have considered the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious misconduct.
I consider that there is some possibility that the applicant may reoffend in relation to motor vehicles but that it is not high. There has been a noticeable drop in offending in this respect. His solicitor indicated that he proposed to advise him on taking steps to acquire a special purpose drivers’ license for employment purposes. Were he to have such a license, the risk of offending in relation to motor traffic offences would decline considerably.
By parity of reasoning with the risk to individuals, I have formed the view that the likelihood of the applicant endangering the Australian community by engaging in further criminal acts or other serious misconduct is low to very low.
CONCLUSION WITH REGARD TO PRIMARY CONSIDERATION 1 (PC 1).
The protection of the Australian community from harm as a result of criminal activity weighs in favour of cancelling the applicant’s visa.
This factor weighs in favour because of the very serious nature of assault committed by the applicant against his former partner, regardless of the sentence imposed. I also note that the offence was committed in front of his young son. There is the additional factor of the applicant’s offending as a juvenile, as well as his record of driving whilst disqualified.
However, I find that the factors relevant to PC 1 do not weigh heavily in favour, for the following reasons:
(a)The domestic violence incident for which the applicant was imprisoned occurred within the context of family breakdown when the applicant was relatively young;
(b)There has been no resurgence of family violence or violence of any kind;
(c)The respondent’s solicitor accepted that from his release from prison in 2014, “there has been a de-escalation in offending, in that none of the offending, criminal offending, has been of a violent nature”;[46]
(d)There has been a very strong show of support for the applicant from key women in his life. These include not only the victim of the assault, SF, but his present partner of four years standing, AB, as well as AB’s older female relatives, including her grandmother, who strongly approves of AB’s relationship with the applicant. It is reasonable to assume that these responsible women have made a judgment about the risk posed by the applicant to their safety and the safety of their children;
(e)There is evidence of rehabilitation and reform, reducing the likelihood of further offending;
(f)My overall finding that the likelihood of the applicant endangering the Australian community by engaging in further criminal acts or other serious misconduct is low to very low.
[46] Transcript, 15 May 2020, at p 106.
PRIMARY CONSIDERATION 2: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 9.2(1) of the Direction requires a decision-maker to make a determination about whether cancellation is in the best interests of minor children in Australia who may be affected by cancellation of the applicant’s visa.
Paragraphs 9.2(2) provides that this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision to cancel the visa is expected to be made. As shown by the following Table, each of the children affected by this decision is under 18 years of age.

CHILD

YEAR OF BIRTH

MOTHER

CONTACT

FINANCIAL SUPPORT

1

2007

SF

Weekends

No

2

2011

SF

Weekends

No

3

2015

BJ

Nil

Yes

4

2011

AB

Cohabiting

Yes

Paragraph 9.2(3) provides that if there two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 9.2(4) provides that in considering the best interests of the child, certain factors (eight in number) must be taken into account. They include: the nature and duration of the relationship between the child and the non-citizen; the extent to which the non-citizen is likely to play a positive parental role in the future; the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence of abuse or neglect by the non-citizen; and evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct.
I propose to consider each of these factors in turn. I will distinguish between the children where their interests may differ.
(a) The nature and duration of the relationship between the child and the non-citizen
Child 1 and child 2
The applicant has regular contact with child 1 and child 2, seeing them two or three times a month and taking them to sports practice. The account of witnesses, including the mother of the children, SF, is that he is a caring and considerate father.
Child 3

The applicant does not have any contact with child 3, but hopes to do so in the future. He was asked by the solicitor for the respondent about the contact he has with child 3 and responded as follows:
Have you tried to get – using legal means, have you tried to get access to [child 3]?---Yes, yes I have.
What have you done?---Well, I went to the Family Law Court in Blacktown, the Family Law Court – what are they? I can’t remember exactly on the top of my head what they were actually called, but they were a Family Law Firm, you go and sit down, you – it’s a mediation. I did start the mediation process of it. And as poor as it sounds, but my work being shift work, I didn’t really have time to keep going to the appointments and stuff like that, because we’re only one crew, work personnel, when one of us are down, everyone (indistinct) so. But again, that was my – that was my responsibility where I should have taken more action.
All right. So, to your knowledge, does the mother have full, legal custody of [child 3]?---Yes.
And it’s on that basis that you pay (indistinct) care and up – I guess, maintenance, of [child 3]?---Yes.[47]
[47] Transcript, 14 May 2020, at p 27.
Child 4
In early 2016, the applicant started living with AB, and child 4.[48] They are still together and appear to be a committed and happy couple. Child 4 has not met her real father and considers the applicant to be her ‘daddy’. The applicant supports AB and child 4 financially.[49]
[48] G13, at p 63.
[49] Members File, Tab D.
(b) The extent to which the non-citizen is likely to play a positive parental role in the future
SF gave the following evidence relating to the applicant’s relationship with child 1 and child 2:
If you had to sum [the applicant] up as [the applicant] in July 2013, and [the applicant] in May 2020, would you describe him as being the same person?---No, I wouldn’t.
He’s a completely different guy?---He is, he is.
Okay and so, [the applicant] regularly engages with the boys?---Yes, he does.
About how often does he contact them?---So, he regularly contacts them, because you know, the boys love to hear from their father. Like, our boys love both of us and I would never stop the kids from seeing or even speaking to them – to him – because, at the end of the day, that’s their dad. So, they pretty much speak regularly, but he does work, so you’ve got to take that into consideration when like, he tries to be there for them, to come to their school stuff and their sport things. But like, we both work, so we both have a hectic schedule, so yes.
If [the applicant] was to be sent back to New Zealand, how would that affect [child 1 and child 2]?---They’d be devastated, absolutely devastated. They mean – our boys love him, regardless of anything that has happened between me and [the applicant]. The boys have nothing to do with that. I have made sure – we both have made sure – to keep them out of our dispute, because at the end of the day, he’s still the father to my kids and I know he loves his kids and the boys love him and they’ll be absolutely devastated if he had to leave.
Would you be able to facilitate them going to see him in New Zealand?---To be honest, no, not really. They’re in school, they have – once these restrictions have lifted, they play sport and like, I have work commitments as well. Like, the only time that they’ll be able to see them is seeing him on school holidays, but then that, I can’t guarantee, because they have after school curriculum. So, I can’t really guarantee that they’ll be able to go back every school holidays or when they can.
So, you would say that him being removed from their lives would probably be the end of it?---Yes, it would be. I know that’s harsh to say, but it would be, because like, financially as well and physically, for them to keep going back to New Zealand to try and maintain that relationship, it’s going to take a toll on them and I don’t want to see my kids suffering and I don’t want to see them hurt. That’s the last thing I would want for them, yes.
AB gave evidence to the Tribunal, and spoke highly of the applicant’s dedication to child 4. AB is determined to keep the family together, even if she has to take child 4 to New Zealand so that they can live together with the applicant as a family.
Another conspicuous voice is that of AB’s grandmother. She testified by telephone and said that it would be devastating if the applicant was removed and would have a terrible effect on child 4 and AB. She spoke very highly of the applicant.[50]
[50] Transcript, 14 May 2020, at p 74; see above para [62].
The applicant’s sister provided a statutory declaration.[51] Having recited various non-contentious facts, she states:
[12]      It has been more than 6 years since [the applicant] assaulted his former partner. Since he came out of prison they have interacted with each other. He has not repeated such behaviour.
[13]      He has apologized to his former partner and I believe that his remorse is genuine.
[14]      If [the applicant’s] visa were to be cancelled, and he is made to leave Australia then it would cause severe hardship to the 4 minor children in his life. It would not be in their best interest.
[15]      [SF’s] two boys would be deprived of continuing their relationship with their father. Also, they will be deprived in the financial maintenance that he contributes to their wellbeing.
[16]      [BJ’s] child 3 will lose his monthly maintenance.
[17]     [AB] and her daughter will be without accommodation, and the maintenance that the [applicant] provides.
[18]     I ask the Australian government to recognise this, and therefore not cancel [the applicant’s] visa.
[51] G17, at p 69: Attachment O; Statutory Declaration.
The evidence of SF, AB and AB’s grandmother is that the applicant plays, and will continue to play, a very positive parental role - if he is allowed to stay in Australia. If he is not allowed the stay, the important relationships with his natural children will, in all probability, wither away.
I note that one document within the member’s file was the subject of exclusion under s 500(6J) of the Act. This was a reference from Ms DT, his step-daughter’s carer’s principal. I was informed that this reference had by error not been sent to the respondent in a timely manner and therefore it was excluded from consideration. Nevertheless, there is sufficient evidence before the Tribunal, quite apart from this document, including a hand-written letter from child 4, from which a positive inference might be drawn.
(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
There is little doubt that child 1 and child 2 were, as young children, exposed to harm by reason of the applicant’s conduct in 2013. They were two and six years old respectively in 2013, when the applicant and SF separated. They are now nine and twelve. There is now a healthy and positive relationship between SF and the applicant. SF is supportive of the applicant’s regular weekend contact with the boys. There is nothing to suggest any residual adverse effect by reason of the events of 2013.
(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
AB said that if the applicant’s visa were to be cancelled, then she would move to New Zealand with child 4. This is upsetting to child 4. In her letter to the Tribunal, she wrote, in her own handwriting:
To the Judge, I really don’t want to leave Australia because my family is here and I will miss them a lot. My mum says we will have to leave if dad has to go. I miss my daddy everyday it makes me cry all the time. I sleep in his bed waiting for him to come home and it makes me scared that he won’t come home. He says he will be home in a month. I really don’t want to leave. I want my dad - from [child 4].
In relation to child 1 and child 2, SF indicated that she would not be able to relocate to New Zealand, or even visit there. It was simply too disruptive to contemplate such visitations with the proper development of the children in their present environment, which included lots of weekend sport, let alone the financial burden. She said that if the applicant’s visa were to be cancelled, there would be little if any contact between the applicant and child 1 and child 2 for the remainder of their adolescence.
In relation to child 3, the applicant expressed regret that he had not done more to maintain contact. He said that he tried to participate in family counselling after he broke up with child 3’s mum, but found it too difficult, given his work obligations. He said that if allowed to remain in Australia he hoped to do more about seeing his son.
(e) Whether there are other persons who already fulfil a parental role in relation to the child
SF and AB appeared before the Tribunal and there is no question that each fulfils a parenting role in relation to their respective children. On the basis of their evidence, one might readily infer that each is a loving and devoted mother. The Tribunal did not receive any evidence as to child 3’s circumstances.
In relation to child 4, the circumstances have been noted above.
(f) Any known views of the child
Child 4’s letter has been referred to above.
The Tribunal did not receive evidence directly from child 1 and child 2, but there was secondary evidence from SF and AB that they love their father and would be devastated if he were to be removed from their lives.
The Tribunal did not receive evidence relating to child 3’s views.
(g) Evidence of abuse or neglect by the non-citizen
There is no evidence of abuse or neglect.
(h) Evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct
There is no evidence of emotional or physical trauma, other than that relating to the applicant’s separation from child 4.
CONCLUSION WITH REGARD TO PRIMARY CONSIDERATION 2
My overall conclusion with regard to PC 2 is that it weighs heavily in favour of non-cancellation. I am especially influenced by the evidence of support given by SF and AB.
I think that the effect upon child 1 and child 2 of the applicant’s removal would be to cut them off entirely from their father. This would be a good thing if their father was a danger to them. But the uncontradicted evidence before me is that this is not the case at all.
PRIMARY CONSIDERATION C (PC 3) – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY: 13.3
Paragraph 9.3(1) provides as follows:
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.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
Stewart J analysed the clause as follows, at [100] et seq. His Honour said:
[100] To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·     non-citizens will obey Australian laws when in Australia;
·     it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·     in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[101] Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial, which is an attractive feature given the heterogeneity of views in this area.
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
[104] omitted
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”.[50] That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
The High Court declined to grant special leave to appeal from the majority decision.[52]
[52] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
The majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker, to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of cancellation. In general, the more serious the breach, the more it weighs in favour of cancellation, and it may even be decisive. It is hard to imagine a case where PC3 might not weigh, at least to some degree, in favour of cancellation.
In assessing the weight to be assigned to primary consideration 3, I have due regard to the views of the executive government relating to the removal of non-citizen offenders from this country. The views of the government are encapsulated within Direction 79.
I note that the Government has exercised its power to give directions to the decision-maker and in Direction 79, it sought to strengthen the protection of woman and children from domestic violence. A paper on the Parliamentary website states:
Direction No. 79 commenced on 28 February 2019 and replaced the previous Direction No. 65. While the new Direction is not significantly different to the former one, it now provides that in considering the nature and seriousness of the non-citizen’s criminal offending and other serious conduct, decision-makers must have regard to (amongst other matters) ‘the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’.[53]
[53] See Claire Petrie, Migration Amendment (Strengthening the Character Test) Bill 2019; <accessed 25 May 2020>.
There is no doubt that family violence is recognised as a serious threat to the peaceful functioning of society. Such violence is no longer regarded as a private matter. It impinges on the quality of life for all members of the community. For those trapped within its web, and especially helpless minors, there is a special quality of horror. Many suffer in silence. The community has rightly judged that domestic violence is now seen as a specific form of offending that cannot be tolerated. This is now firmly reflected not only in the criminal law, but in administrative proceedings such as the present.
It does not however follow that all cases involving violence against a woman in a domestic context will be treated as of equal weight. Under Direction No. 79 the decision-maker is required to weigh the gravity of the offending. As noted by Stewart J at [102]:
In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial.

What of this particular case? In short, the applicant stated in evidence that he came home from work and found SF in bed with his cousin. A week later, on 29 July 2013, he confronted the couple as they waited to catch a bus. He assaulted each of them, and smashed the glass screen on the bus shelter. This is how the applicant responded to his solicitor’s questions during the hearing:
Do you remember when it was you found out that the relationship had been ended by [SF]? Your relationship?‑‑‑I didn’t – there was no heads up that the relationship had finished.
When did you find out that it had, in fact, finished?‑‑‑I come home from work and they were in bed together.
How did this incident the assault happen on 29 July? How much earlier did you find them in bed together?‑‑‑A week. A week before. A week and a half maybe before, so it was only fresh. And then when I went to go and see my kids at her mother’s house her mum and that (indistinct) the Coles that was around the corner from them and they were at the bus stop together with my son.
Now, unfortunately you approached them?‑‑‑Yes.
What were you hoping to achieve by approaching them?‑‑‑Honestly, there was nothing that I could have – had achieved. There was just a lot of anger, a lot of, you know, a lot of mixed emotions, a lot of (indistinct), you know. Things would go wrong and things would go good, you know, like I just didn’t know how to approach the problem and fix it without violence being involved. And that’s where I take full responsibility for the violence that was involved, that was me again acting without thinking for doing.
When you went to court on 8 January you entered a plea of guilty to the charges?‑‑‑Yes, I did.
And that was at the earliest opportunity?‑‑‑Yes.
Okay. You were released from gaol in July of 2014?‑‑‑Yes.[54]
[54] Transcript, 14 May 2020, page 22.
When asked whether the bus shelter incident was the first time he had punched SF, he responded as follows:
Okay. Was that the first time you punched [SF], is that what you’re saying?---No, that’s not the first time (indistinct). (indistinct) with each other, no.
Okay, so there had been blows before, is that right?---There has, there has been, yes. But not when she was pregnant.
Not when she was pregnant?---Not when she was pregnant. I think there was like three times before then, as far as I can remember.
Okay, other times you’ve punched [SF]?---Other times – she used to punch me in the head.[55]
[55] Transcript, 14 May 2020, page 42.
SF was also asked about violence prior to the bus shelter incident:
We heard some evidence this morning that this was not the first time that [the applicant] had punched you. Were there other times that you recall?---
Not that I can recall.[56]
[56] Transcript, 14 May 2020, page 57.
SF was asked about other incidents where she had reported the applicant for violence, including punching and hair pulling. One stand out incident was said to have occurred at Westmead Hospital in April 2008, when the young couple attended a parenting class. SF threw a can at him, and allegedly his response was to strike her in the stomach.[57] She was asked about this and responded as follows:
What about – I think you – Mr Doyle talked to you about, at Westmead Hospital, you were attending a parenting class and after an argument, it says that – the record says – that you threw a can of drink at [the applicant] and then he got up and punched you twice in the stomach. Do you have anything to say about that?---No, I have nothing to say about that.
Do you recall the incident?---Not really, to be honest. [58]
[57] Respondent’s Tender Bundle, at pp 14-15.
[58] Transcript, 14 May 2020, at p 57.
SF had no recollection of any violence before the pivotal incident at the bus shelter. SF commented that as a young couple she and the applicant had problems. It really amounted to this. She felt that he was not growing up as much as she wanted him to.[59]
[59] Transcript, 14 May 2020, at p 57.
One unusual feature of this case is that it took the Minister six years from the applicant’s release from prison to cancel his visa. The violent incident which lies at the heart of these proceedings occurred almost seven years ago. The respondent’s solicitor said that her instructions were that the resources of the Department were limited. She also intimated that since 2019, there was a stronger emphasis on domestic violence as a ground for cancelling a non-citizen’s visa. These are understandable factors. However, one consequence of this lengthy period of inaction is that two of the children to be considered, namely child 3 and child 4, would not have been in issue at all had the administrative processes been actioned in a timely manner. Child 3 would not have been conceived and child 4 would not have come to regard the applicant as her father.
The policy of the law is specifically aimed at protecting women and children from acts of violence. Paragraph 9.3 states that 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.
The evidence in this case may well support a finding that the couple had at the very least a turbulent and probably dysfunctional relationship during the period they spent together as a couple. It may be possible to interpret SF’s evidence as motivated by a desire to protect the father of her children from deportation. However, I do not read it that way. She had no financial motivation given that she does not receive child support from the applicant. She appeared to be genuinely concerned by the possibility of child 1 and child 2 being deprived of ongoing contact with their natural father.
As noted above, the focus of this hearing is the extent to which the applicant acted towards SF in a violent manner, and whether the bus shelter incident was typical of the applicant’s behaviour, and therefore may be used to predict his future behaviour. Within a domestic context, provocation in any degree is no longer accepted as an acceptable social justification for violence to any degree.
But the evidence in the hearing, and specifically, the evidence provided by SF, does not support a finding that there was a sustained degree of domestic abuse committed upon SF by the applicant. Her evidence does not support any such finding. He certainly denied punching her when pregnant. She did not give evidence that he had.[60] Nor was any such implication to be extracted from the testimony of the other witnesses.
[60] See for example, Transcript, 14 May 2020, at p 57.
Decision-makers are required by paragraph 9.1 of Direction No. 79 to focus on ‘the nature of the character concerns or offences’. It is my view that the present case does not fall into the worst category of domestic violence.
It may well be considered offensive to categorise degrees of domestic violence; on the basis that any degree or form of violence against women is not to be tolerated. This may be so, but the law requires an assessment of the relative gravity of the offending, in order to ascertain the weight to be assigned to this consideration. This is not an exercise carried out according to mathematical precision, but according to intuitive sense and judgment. The weight to be assigned to any of the considerations must be assessed according to the evidence of the circumstances of the particular case.
As noted by Stewart J at [103] in the passage quoted above:
In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
My conclusion on PC 3 is that it weighs in favour of cancellation, but that the particular offences of violence committed by the applicant, together with the other offences contained in his criminal record, do not point strongly in favour of cancellation. Put simply, this is not a particularly egregious case.
OTHER CONSIDERATIONS
As referred to in paragraph 40 above, paragraph 10 of Direction 79 sets out other considerations that must be taken into account where relevant, in deciding whether to cancel a visa and states.
I propose to consider each of these considerations in turn.
(a) International non-refoulement obligations
The applicant’s solicitor has not raised any non-refoulement issues.
(b) Strength, nature and duration of ties
The applicant is now 29 years of age. He came to Australia at the age of eleven. He has lived in Australia for almost 18 years, nearly two thirds of his life. His mother died here, his father lives here. He has an extended family in Australia. He considers himself to be an Australian.
The applicant has very solid employment credentials. He has been employed as an Asphalt General Hand since 2010.[61] It is hard work and hard to find solid reliable workers. Since October 2017, he has been employed by one company. The company’s owner, Mr KS described him as a good worker, good natured, and that he had “never seen him angry or ill tempered”. In evidence, Mr KS said that the applicant had a future with the company. He was according to KS, “the best worker we have ever had.” Mr KS was aware of the deportation proceedings against the applicant.[62]
[61] G9, see attachment G [p 54].
[62] Statutory declaration (undated): Member’s file, item HI. See also Mr Sultana’s letter of support: G18, at p 71.
Mr LB,[63] another principal in the company, also provided a reference. The letters are dated 22 August 2019. Each manager comments:
I would believe that it is the best interests of our company to retain a hardworking and committed employee like [the applicant]. He is a good lad. We are aware of the troubles he got into in the past and his time in prison. We gave him an opportunity, and he’s embraced it wholeheartedly. He’s proven to be a committed employee. We’ve grown to depend on him.
[63] G 19, at p 72: Attachment Q.
I find that this ‘other consideration’ favours non-cancellation.
(c) Impact on Australian business interests
There is no evidence to suggest that the Applicant’s employment involved the delivery of a major project or delivery of an important service in Australia.
(d) Impact on victims
This has been discussed at length above.
(e) Extent of impediments if removed
The solicitor for the respondent submitted that by virtue of his long employment as an asphalt worker he would easily find work in New Zealand. There would be less likelihood of unemployment should he be required to return to New Zealand.
The applicant has some family in New Zealand but is not acquainted with his New Zealand brethren. He last travelled in New Zealand for a week in 2007 when he was 16. He would be presuming on kinship bonds without any familiarity with the individuals involved.
The Movement History indicates that he departed Kingsford Smith Airport (KSA) on 14 July 2003 and returned 10 November 2003 (almost four months); departed KSA 19 September 2004 and returned 2 October 2004 (two weeks); and departed 22 September 2007 returning on 30 September 2007 (one week). With the exception of these three short absences he has lived in Australia since he was 11.[64]
[64] G5, at p 33: Attachment C: Department of Home Affairs, Movement History.
I accept that the ‘extent of impediments if removed’ does not point strongly in favour of non-cancellation. The applicant is still young and eminently employable. He could start a new life in New Zealand, although his Australian born children would suffer.
WEIGHING THE FACTORS
The question to be finally decided is whether in light of the primary and other consideration the reviewable decision should be set aside.
I have carefully weighed the evidence provided to the Tribunal in both documentary form and in oral testimony. I have considered that evidence in terms of the primary and other considerations referred to in Direction No. 79. I have considered the written and oral submissions made by the representatives for each of the parties.
I have found that two of the primary factors weigh in favour of cancellation of the applicant’s visa. PC1 and PC3 weigh in favour of cancellation, although neither weighs strongly in favour of cancellation.
I note that under paragraph 8(2) of the Direction, primary considerations should generally be given greater weight than the other considerations.
The other considerations should also be weighed in the balance. The ‘non-refoulement’ issue is not raised by the facts of this case, and the ‘impact on Australian business interests’ is relatively neutral. The ‘impact on victims’ does not favour cancellation, given the degree of reconciliation with SF and her partner. The ‘extent of impediments if removed’ points mildly in favour of cancellation. The ‘strength, nature and duration of ties’ points significantly to non-cancellation.
Overall, my conclusion in relation to the ‘other considerations’ is that they point slightly in favour of non-cancellation.
This case is really about the children. PC2 is heavily weighted against cancellation.
Taken together, PC2 outweighs the combined weight of PC1 and PC3. It outweighs those primary considerations, even without taking other considerations into account. In this particular case, PC2 together with the other considerations firmly outweigh the combined effect of PC1 and PC3.
DECISION
I am satisfied that the correct or preferable decision is to set aside the decision under review, namely, the decision made by the delegate on 17 December 2019, and in substitution, decide that the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, issued on 30 September 2007, is not cancelled under s 501(2) of the Act.

I certify that the preceding 152 (one hundred and fifty -two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..........................[sgd]..............................................
Associate
Dated: 12 June 2020

Date(s) of hearing: 14 May 2020 & 15 May 2020

Solicitors for the Applicant: Mr M Doyle

Solicitors for the Respondent: Ms H Dejean

[2020] AATA 1771

15 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Charge

CHILD	YEAR OF BIRTH	MOTHER	CONTACT	FINANCIAL SUPPORT
1	2007	SF	Weekends	No
2	2011	SF	Weekends	No
3	2015	BJ	Nil	Yes
4	2011	AB	Cohabiting	Yes

Date(s) of hearing:	14 May 2020 & 15 May 2020
Solicitors for the Applicant:	Mr M Doyle
Solicitors for the Respondent:	Ms H Dejean