George and Minister for Home Affairs (Migration)

George and Minister for Home Affairs (Migration) [2019] AATA 180 (19 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7016
Re:Rewiata George
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:
Senior Member Theodore Tavoularis
Date:19 February 2019
Place:Brisbane

The decision under review is affirmed.
............................[sgd]..........................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because the Applicant did not pass the character test and had served a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – decision under review affirmed.
Legislation
Criminal Code Act Compilation Act 1913 (WA)
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Davis v Davis and Another (2007) 38 Fam LR 671
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
19 February 2019
INTRODUCTION AND BACKGROUND

Mr George (‘the Applicant’) has resided in Australia on a Class TY Subclass 444 Special Category (Temporary) visa for various periods of time since he first arrived here in August 2007.[1] He is a national of New Zealand.[2] On 7 August 2017, the Applicant was sentenced to 18 months of full time imprisonment for one (1) count of grievous bodily harm.[3]
[1] Exhibit 7, section 501 G-Documents, G02, page 144.
[2]Exhibit 8, Applicant’s Statement of Facts, Issues and Contentions, page 2, [8].
[3] Exhibit 7, section 501 G-Documents, G02, page 23.
While serving this term of imprisonment, a delegate of the Minister for Home Affairs (‘the Minister’) gave the Applicant notice, on 16 October 2018, that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant’s visa was cancelled on the grounds that he did not pass the character test as set out in s 501(6)(a) of the Act as he had a substantial criminal record as defined by s 501(7)(c) of the Act.[4]
[4] Ibid, G02, page 145.
In November 2017, the Applicant requested that this cancellation be revoked. However, a delegate of the Minister decided in November 2018 not to revoke the mandatory cancellation of the Applicant’s visa under s 501CA(4) of the Act.[5]
[5] Ibid, G02, page 9.
The Applicant applied to the Tribunal for a review of the delegate’s decision on 30 November 2018. Under s 500(1)(ba) of the Act, the Tribunal has jurisdiction to review the decision made by a delegate of the Minister.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this section provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8] Ibid.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Relevantly, this section provides a person will not pass the character test if ‘the person has a substantial criminal record (as defined by subsection 7 [of s 501 of the Act])’.[9] For present purposes, a person has a substantial criminal record if:
…
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or[10]
…
[my underlining]
[9] Migration Act 1958 (Cth), s 501(6)(a).
[10] Ibid, s 501(7).
I do not recall any substantive contest at the hearing about the issue of whether or not the Applicant passes the character test. On any practical and reasonable view, he does not pass the character test pursuant to section 501(6)(a) as defined by s 501(7)(c) as he was sentenced to a term of full time imprisonment for 18 months for the offence of ‘grievous bodily harm’.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(1)(a) for the cancellation of his visa to be revoked.
The question now turns to whether there is any other reason why the cancellation of the visa should be revoked. I do not think there is any other reason for the delegate’s cancellation decision to be revoked. My reasons follow.
ISSUE 2: IS THERE ANY OTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. Ministerial Direction No 65 (‘the Direction’) provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[11]
[11] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[13]
[12] [2018] FCA 594.
[13] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
At this juncture, it is necessary to summarise the Applicant’s offending history. That history spans the period from April 2009 until October 2016. It also spans two countries, namely, New Zealand and Australia.
The Applicant’s history in New Zealand primarily involves two themes. First, offences relating to the Applicant’s abuse of both alcohol and an illicit substance while operating a motor vehicle. Second, offences involving repeated failures to observe the reasonable requirements of lawful authority. These failures derive from the Applicant’s repeated breaches of a failure to observe requirements imposed on him as part of a sentencing or supervisory regime of punishment.
The Applicant committed four (4) traffic offences in New Zealand between April 2009 and February 2013.[14] Those offences involved:
[14] Exhibit 7, s 501 G-Documents, G02, page 141.
·On 29 April 2009, the Rotorua District Court in New Zealand convicted the Applicant for driving under the influence of alcohol. He was detected with a breath alcohol level of over 400mcgs per litre of breath. He was convicted and fined the sum of $700 (New Zealand) and disqualified from driving for a period of 6 months from 29 April 2009.
·On 17 June 2009, the Rotorua District Court in New Zealand convicted the Applicant for driving under the influence of alcohol. He was detected with a breath alcohol level of over 400mcgs per litre of breath. He was fined the sum of $650 (New Zealand) and disqualified from driving for 8 months on and from 29 October 2009. Notably, this date is the expiry of the 6 month period of disqualification from his first offence. This means, having regard to both of these two driving under the influence offences, the Applicant was disqualified from driving for a cumulative period of 14 months.
·On 17 June 2009, consequent upon his immediately preceding conviction on that day for driving under the influence, the Applicant was also convicted of unlicensed driving. He was disqualified from driving for an 8 month period on and from 17 June 2009. Presumably, this particular 8 month period of suspension would have been concurrently served with the combined effect of the suspensions deriving from his first two sentencing episodes.
·On 16 September 2013, the Rotorua District Court convicted the Applicant of impaired driving while his blood was detected to contain ‘…evidence of qualifying drug…’. He received a multi-faceted sentence to address both the driving elements of his conduct together with the impact of substances – legal or illicit – on his driving. As best as I understood the New Zealand offending history, the sentence comprised:
oHe was required to commit to a community service type order with a total time commitment of 150 hours commencing on and from 16 September 2013;
oA supervisory order was made commencing on 20 March 2014 and running for a period of 9 months. This order had ‘special conditions’ attached to it;
oAn ‘indefinite disqualification’ from driving was imposed with effect from 16 September 2013;
oWhen and if the Applicant got his driver’s licence back, a condition would be attached to it that is described in the offending history as ‘Apply Zero Alcohol Licence’.
There is a peculiar aspect to the Applicant’s offending history in New Zealand. In his oral evidence before the Tribunal, the Applicant said he had never qualified to receive a drivers licence in New Zealand. In other words, on his own evidence, he never held a valid, current or otherwise recognised drivers licence to drive, manage and control a vehicle in that country. If that evidence is correct, then there is difficulty in reconciling a sentencing regime of him being disqualified from driving. Neither representative could explain the discrepancy. In the final analysis, it does not impact upon any finding about, or comprehension of, the Applicant’s offending in New Zealand.
As mentioned above, the second theme of the Applicant’s offending in New Zealand involved his refusal to accept lawful authority in circumstances where it was trying to both rehabilitate and deter him from further offending.[15] In short, the Applicant breached or otherwise failed to comply with virtually every condition imposed upon him by the Rotorua District Court on 16 September 2013. This aspect of the offending history can be summarised thus:
·On 20 March 2014, the Rotorua District Court found that he had breached the conditions of supervision imposed upon him as a result of his drug-influenced driving for which he was sentenced on 16 September 2013. He was convicted and sentenced to a supervisory order with a duration of 9 months commencing on 20 March 2014. That supervisory order was made with ‘special conditions’ attached to it:
·Also on 20 March 2014, the Rotorua District Court found that he had breached the terms of his community work or service based order imposed upon him on 16 September 2013. The date of the breach was 7 January 2014, barely 3 months after the imposition of the community work/service based order. He was convicted for this breach and the sentencing result appears as follows: ‘Convicted and Sentenced: To Come Up For Sentence If Called Upon – 20/03/2014 – 9 months’[16]
·On 8 May 2014, the Rotorua District Court found that he had breached the terms of the supervision order imposed on him on 16 September 2013. The breach of this supervision order occurred on 25 March 2014, some 6 months into that 9 month supervisory order. He was convicted for this further breach and the sentencing result appears as follows: ‘Convicted and Sentenced: To Come Up For Sentence If Called Upon – 08/05/2014’.[17]
[15] Ibid.
[16] Ibid.
[17] Ibid.
His offending history in Australia is significant because of two primary things. First, it occurred a relatively short time after his arrival in this country and, as will be demonstrated from an examination of his movement records, it occurred after he had not spent very much time at all in Australia. Second, the offending was very serious – and potentially catastrophic – from the outset. There was no gradation in severity. His first and only offence in Australia could have quite conceivably claimed the life of another person and occurs in circumstances of a significant dereliction in the Applicant’s levels of self-control and being able to judge right from wrong.
On 7 August 2017, the Albany District Court of Western Australia convicted and sentenced the Applicant to one count of grievous bodily harm pursuant to s 297 of the Criminal Code Act Compilation Act 1913 (WA). A custodial term of 18 months imprisonment was imposed. Both the circumstances of the offending and the comments of the learned sentencing judge make for sombre reading. In summarising the factual circumstances of the case, the learned sentencing judge (Her Honour Wager DCJ) noted these circumstances:
“The facts on which you were sentenced are that you and [the victim] were working together with a shearing contractor in Kojonup. You had only known each other for a matter of weeks before socialising together and with others in Kojonup. You had both been drinking alcohol steadily throughout the evening and you were both intoxicated. I note from the comments that neither of you was as drunk as some people, but the reality is that you were both under the influence.
Later in the night when you were outside your address in Kojonup you were both on the top of a small set of stairs leading to the front door of your apartment. [the victim] said something to you that caused you to be agitated. And consistent with [the witness’] statement, he gave you a pat on the head and a drunken hug. You told him not to touch you and to stop doing that, but he didn’t take any notice of you. And he went to give you another hug but you stood up and then shoved him. Then you punched him twice and once was to the head.
… [the victim] fell to the ground, striking his head on the concrete landing…it soon became clear that the victim had lost consciousness and,…things changed dramatically from that point.”[18]
[my underlining]
[18] Ibid, G02, pages 25-26.

The very serious nature of this conduct involving grievous bodily harm can be readily gleaned from the injuries sustained by the victim. Her Honour Wager DCJ made these further observations in this regard:
“CPR first aid was commenced by the others who were there and he was then conveyed to the Katanning Hospital and subsequently conveyed via Royal Flying Doctor Service to Royal Perth Hospital for the swelling of the brain. Now, the injury he sustained was significant…that fluid on the brain needed to be drained, a number of operations need [sic] to be performed and [the victim] ended up in a coma in intensive care for a significant period.
The injuries posed are significant and sustained threat to his life. The doctor had to carry out multiple life-saving procedures. The injuries were of such a nature as to endanger or be likely to endanger life. So there was a two centimetre by two centimetre laceration to the back of the head, but it was that fluid in the brain cavity that was the real issue. That was the real danger for him. And that’s why you’ve heard that there was the portion of the skull removed from the back and why they had to do what they did.[19]
[my underlining]
[19] Ibid, G02, pages 26-27.
In addition, the very serious nature of the Applicant’s offending can be understood by its lasting and very damaging effects on the victim. Undisputed neurological opinion, as noted and accepted by Her Honour Wager DCJ is that:
“…there’s likely to be permanent injury, including incoordination and impaired fine motor skills the left-hand side…
But it seems there may be problems for him as a result of what occurred that may make life very difficult, even employment. As a result of the assault, he described that he suffered a crack to the skull and had surgery on the skull and the bone taken out. So he says he was in hospital for six weeks and was in a coma and in rehabilitation for many months. He can’t remember exactly how long. He describes the whole thing as being confusing to him and he suffers from memory loss now.
He gets very confused and more tired than he used to. He gets headaches from overdoing things but they’re as not as bad as they used to be, he says. In rehabilitation, he had to learn how to walk in and, in hospital, he was unable to swallow and had to be reminded to do that. He had to have a tracheotomy as part of his medical treatment, and so that meant that there was a hole in his throat. And it’s a scar, he says, that his nieces and nephews now put their fingers in.”[20]
[20] Ibid, pages 27-28.
I feel compelled to make reference to the extraordinary resilience of the victim. This is not to, in any way, ameliorate the Applicant’s horrendous offending but to record the victim’s stoic nature in the face of, not just the initial attack upon him, but his seemingly remarkable capacity to try and get on with his life. As also noted by Her Honour Wager DCJ, this episode was:
“…clearly very traumatic for a 23 year old [i.e. the victim] he remembers very little about his time in Australia. He was only here for six weeks before the assault and he can’t remember anything of that period. He can’t remember shearing sheep and he thought he was in Taupo when he woke up. He describes his family as being supportive, but he hates being a burden on them. He says they must think that they have a big baby around them. He’s forgetful and unpredictable. He says that:
For my future, I just want to go back to work and put all of this behind me. I want to see what my future brings to me and I am determined to make my life work, to get over these hurdles and make the best life I can. I am young and fit. I need my brain to catch up.
…now, he has acknowledged very generous [sic] his family support and the support of shearing gangs in Australia and New Zealand and fundraisers to help the cost for his family and for travel.
And he says that he doesn’t get any compensation because it didn’t happen in New Zealand. The matter is very serious. Even with one punch, if the other person is affected by alcohol, tragic consequences can result. And the impact of that grievous bodily harm will be with him forever. Now, it’s (indistinct) that he is able to build on his positive attitude and he certainly hope he can. I accept also that in his statement he said:
I don’t think that the guy that hit me intended to hit me and I personally have no emotional anger towards him. I hope he has learned some lessons though.”[21]
[my underlining]
[21] Ibid, pages 28-29.
For the sake of completeness, the specific remarks of Her Honour Wager DCJ relating to the formulation and imposition of the actual sentence should also be recorded in this decision:
“…what happened to [the victim] is serious. It was life threatening, as the doctor has said.
And that is clearly one of the factors that makes this so serious.
…
…so taking into account all of those matters, the reality is, yes, you do have to go to prison immediately. And you do have to go to prison because people do have to know that if you involve yourself in violence and this sort of thing happens, it’s not going to be tolerated. So there is a price to be paid…
So I’m sentencing you to 18 months imprisonment and that is with an eligibility for parole. Now, that is backdated to start on 11 July 2017. So that means that in basically about 8 months you could be looked at for parole release, but it’s totally up to the authorities whether or not that occurs.”[22]
[my underlining]
[22] Ibid, pages 31-32.
The nature and seriousness of the non-citizen’s conduct to date
Viewed in totality, the Applicant’s offending both in New Zealand and Australia can only be categorised as ‘very serious’. I specifically recall his representative conceding that particular categorisation for his evidence and also labelling the offending in Australia as ‘heinous’. Both descriptions are, in my view, totally correct. The Applicant’s offending cannot be described in any other way.
For the sake of completeness, I will apply the relevant factors appearing at paragraph 13.1.1 of the Direction to my assessment of the nature and seriousness of the Applicant’s criminal offending and other conduct to date. Those relevant paragraphs comprise:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
(c) The sentence imposed by the courts for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeated offending;
…
Sub-paragraph (a) of paragraph 13.1.1 of the Direction stipulates that, without limiting the range of offences that may be considered serious, violent crimes are viewed very seriously. The circumstances of the Applicant’s commission of the grievous bodily harm offence are inherently very serious. One need look no further than the above-quoted sentencing remarks of Her Honour Wager DCJ. The very serious nature of the conduct derives from (1) the Applicant’s appalling lack of self-regulation and control, especially after the consumption of alcohol, (2) the life threatening and potentially catastrophic nature of the injuries suffered by the victim and (3) the quite debilitating and seemingly permanent effect of this violence on the 23 year old victim that will adversely affect virtually every aspect of his life.
In its Statement of Facts, Issues and Contentions, the Respondent has described the Applicant’s offending in Australia as ‘…significant and reckless violence.’ I agree that it can be categorised as such. It is significant offending because it could have quite conceivably claimed the life of the victim but for the timely and vital intervention of expert medical treatment. It is reckless because of its gratuitous nature, delivered with next to no provocation, with little or no purpose or motivation. One is left with no other impression than that a night out with the Applicant for a few drinks has every prospect of ending with some sudden and potentially catastrophic physical violence from him towards anyone who engages his attention – even in a cursory way.
I have no difficulty in applying this sub-paragraph (a) of paragraph 13.1.1 of the Direction to find that having regard to the very violent and potentially catastrophic nature of the Applicant’s offending in Australia, his conduct can be readily categorised as very serious.
Sub-paragraph (c) of paragraph 13.1.1 of the Direction directs a decision maker to look at the sentence imposed by the courts for a given crime or crimes in order to assess the seriousness of the relevant conduct. As observed by Senior Member Poljak of this Tribunal,
“The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him…Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.”[23]
[23] PNLB and Minister for Immigration and Border Protection [2018] AATA 162, paragraph [22].
The notable feature of the Applicant’s offending in Australia from a sentencing perspective is the imposition of a significant custodial term from the very first offence he committed in this country. All too often in matters such as this, one can detect an Applicant’s propensity towards, for example, the resolution of disputes or disagreements through harsh words, bullying behaviour or mild physical actions that we colloquially call ‘push and shove’.
That is not what the Applicant’s offending and sentencing history (in this country) shows. His first transgression in this country is a potentially catastrophic one. He could have killed the victim. This reality was not lost on Her Honour Wager DCJ. Her Honour immediately incarcerated the Applicant because, as is repeatedly apparent in Her Honour’s sentencing remarks, ‘…the matter is very serious…’, and the circumstances of the offending that threatened the victim’s life ‘…is clearly one of the factors that makes this so serious’.
The seriousness of the Applicant’s offending can be clearly seen from both Her Honour’s sentencing remarks and the amount of custodial time imposed. Her Honour had no second thoughts: the Applicant’s very serious conduct merited a sentence that immediately and for a not inconsiderable time, removed him from mainstream society. The 18 month custodial head sentence imposed by Her Honour was, in my respectful view, totally justified because, as was communicated to the Applicant during his sentencing:
‘…you do have to go to prison immediately. And you do have to go to prison because people do have to know that if you involve yourself in violence and this sort of thing happens, it’s not going to be tolerated.’[24]
[24] Exhibit 7, section 501 G-Documents, G02, page 32.
While the Applicant’s offending episode in this country may be singular, the inescapable reality is that the sentence imposed by Her Honour Wager DCJ for the potentially catastrophic crime committed by the Applicant is a severe sentence and thus indicative of the very serious nature of his offending.
Sub-paragraph (d) of paragraph 13.1.1 of the Direction compels a decision maker to look at the frequency of the non-citizen’s offending and to ascertain whether there is any trend of increasing seriousness. As mentioned, the Applicant’s offending in Australia has been singular and thus not frequent. His offending history in New Zealand tells a different story. His offending in New Zealand was relatively frequent and consistent with a finding of a trend of increasing seriousness when viewed with his offending in Australia.
As mentioned earlier, the Applicant’s offending pattern in New Zealand has two broad components to it. During the period of circa mid-2009 to mid-2013, the offending history, at first blush, refers to ‘traffic’ derived matters involving the Applicant’s use of a motor vehicle. But this is to tell only half the story. This component of the history (in New Zealand) also reveals the undeniable role played by the misuse and/or abuse of both alcohol and illicit substance referred to as a ‘qualifying drug’ in the Applicant’s traffic history. Put simply, basically all of his traffic offending is directly impacted by either alcohol or an illicit substance(s).
The second component of the Applicant’s New Zealand history involves a predominant theme of refusing to comply with the reasonable requirements of lawful authority imposed on him to adequately punish him for his traffic offending committed between mid-2009 to mid-2013. From September 2013 to March 2014, the Applicant contrived to breach every single non-custodial penalty imposed on him. He was convicted of a breach of the conditions governing at least two supervisory orders. He breached the terms of a community work order and was duly convicted for that breach as well.
His offending history in Australia cannot be said to be frequent but when considered in conjunction with his New Zealand history, it is, beyond question, demonstrative of an increasing trend of seriousness. Essentially, traffic-derived offending in New Zealand and a refusal to accede to lawful authority in that country has now been superseded by a conviction and significant head custodial term of 18 months imprisonment for the very serious offence of grievous bodily harm that nearly claimed the life of the victim.
I am therefore of the view that the relative frequency of the Applicant’s offending (in New Zealand) and its demonstrated increasing trend of seriousness (in Australia), clearly renders the Applicant’s offending as very serious.
Sub-paragraph (e) of paragraph 13.1.1 of the Direction compels a decision maker to consider the cumulative effect of a non-citizen’s repeated offending in any assessment of the seriousness of the relevant conduct. To my mind, the cumulative effect of the Applicant’s offending history in New Zealand is to (1) render him oblivious to the reasonable requirements of lawful authority and (2) cause him to think his issues with a lack of self-regulation and poor decision making when under the influence of alcohol and/or illicit substances were somehow under control.
As his 23 year old victim in Australia tragically discovered, the cumulative effect of the Applicant’s New Zealand offending is that those issues were not under any measure of control. It is in this milieu of a lack of respect for both lawful authority and his unresolved issues with alcohol and illicit substances that the Applicant committed the very serious offence of grievous bodily harm in October 2016. Viewed in its totality, the cumulative effect of the Applicant’s offending in New Zealand and Australia has seen him very seriously, and almost catastrophically, ignore the personal rights of another person resulting in a criminal charge of grievous bodily harm punished by a head custodial term of 18 months imprisonment.
I am therefore of the view that the cumulative effect of the Applicant’s repeated offending demonstrates that he has not developed any appreciable level of respect for the lawful authority governing the Australian community into which he seeks re-admission. The totality of his conduct both here and in New Zealand does not inspire any confidence that he has somehow resolved or placed under control his issues with a lack of self-regulation and control when he consumes alcohol and/or illicit substances. The cumulative effect of his offending is to render these issues as still ‘live’ such that any alcohol or drug induced inclination to further offend in the future remains uncertain and unresolved.
Upon (1) the application of the relevant sub-paragraphs of 13.1.1. of the Direction to the Applicant’s conduct giving rise to his criminal and traffic history and (2) taking a longitudinal view of that history with an absence of any demonstrated diagnosis and/or management of the factors giving rise to his propensity to offend, I find that the Applicant’s conduct to date is of a very serious nature.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Consideration of this component of Primary Consideration A requires me to make an assessment of whether the Applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. The Direction stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Further, the Direction says that certain conduct, if it were to be repeated, ought to be regarded as sufficiently serious as to give rise to an unacceptable risk to the safety and wellbeing of the Australian community.
The assessment of this risk requires me to consider two specific paragraphs of the Direction:
(a) Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and
(b) Paragraph 13.1.2(2)(b) requires me to have regard to the likelihood of the Applicant engaging in further criminal conduct, including evidence of reoffending and rehabilitation.
The nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal or other serious conduct
At this juncture, it is necessary to review the evidence of the Applicant. He provided both written evidence[25] prior to the hearing and oral evidence at the hearing.
The Applicant’s evidence in chief
[25] See Exhibit 2, Statutory Declaration of the Applicant declared on 22 January 2019.
The Applicant was ably taken through his evidence as it appeared in his Statutory Declaration made on 22 January 2019.[26] He was asked about his understanding of why his visa had been cancelled. He explained that it ‘…was because of the GBH in 2017. We were both intoxicated. I didn’t want to hurt him because I knew I would go to jail.’
[26] Ibid.
When specifically asked about the circumstances of the offending, the Applicant repeated that both he and the victim were heavily intoxicated and that, looking back, he was not blaming anyone for the offence other than himself.
Neither his written or oral evidence contained much detail about his relationship with alcohol but he did say ‘…I never want to touch alcohol again.’ He spoke of having completed a number of courses while either in criminal custody or immigration detention. He said he had completed three computer courses and one drug and alcohol course. He said ‘…these courses have helped me a lot.’ He added that he put his name down to complete an anger management course but that it was quite a popular course with other inmates/detainees and that it was subject to a waiting list.
The Applicant said he was an insular man who finds it difficult to talk about his feelings. The current matter has caused him, he says, to open up a lot to people and to properly express his feelings. He seemed forthcoming when speaking about the additional difficulties confronting his partner, Ms Vininkka Garlett, who is the mother of their 1 year old daughter. He spoke of the significant burden being solely carried by Ms Garlett in circumstances where:
·She is the primary carer for her mother who is seriously ill with a cervical cancer condition;
·She is the primary carer for her two infant siblings;
·She has significant financial difficulty in supporting herself and their 1 year old daughter due to the loss of his regular income from his work as a wool presser.
If returned to the Australian community, the Applicant said ‘I just want to look after my family.’ He said that his previous employer, Mr Mark Parsons, would readily employ him as either a wool presser or as a shearer with the business known as ‘Parsons Brothers Shearing Service’. According to the Applicant’s oral evidence, his cousin works for another contractor in the wool industry and that other contractor is following him up – even while he has been in detention – for work ‘about once a week’. The Applicant said that he has spoken with this other contractor and has told him about this pending matter before the Tribunal.

He was asked to contemplate the possibility of him being compelled to return to New Zealand and how that would affect not just himself but those around him. He confirmed that he had taken the possibility of returning to New Zealand into account. His primary focus seemed to be on the welfare of his partner, their one year old daughter as well as the welfare of her immediate family, specifically, her seriously ill mother and her two infant siblings for each of whom his partner was he primary carer. He added that further tumours had been discovered within his partner’s mother last year and that the primary source of supportive funds for the partner and her immediate family was Centrelink benefits.
Material filed on behalf of the Applicant, specifically, his Amended Statement of Facts and Contentions dated 1 February 2019[27] provides a helpful summary of the Applicant’s evidence with regard to this component of Primary Consideration A. That summary is stated thus:
[27] Exhibit 1, the Applicant’s Statement of Facts and Contentions dated 1 February 2019
“…
b.The Applicant does not dispute the criminal, non-criminal and traffic features in Australia and New Zealand. Further the Applicant disputes the seriousness of the offences in New Zealand, however concedes the facts of the feature of alcohol.
c.…. the Applicant understands the seriousness of his offending, as that he has never had his visa cancelled before ….
d. The Applicant has extended [sic] his intentions to rehabilitate himself …..
e.….. alcohol or substance abuse were features of all of his offending, notably the one that led to his visa cancellation.
f.The Applicant is aware of the consequences of committing further offences …
g.The Applicant has completed several workshops, to better himself and his family while incarcerated and in detention.
h.The Applicant contends with the Respondent’s position that Primary Consideration 1 strongly favours a decision to affirm the Respondent’s original decision.
i.The Applicant has sought out help in regards to his offending and continues to better himself while in detention.
j.The Respondent has erred [sic] their opinion that the Applicant’s risk of re-offending is high, while the evidence and information presented provides contrary views.
…”[28]
Cross-examination of the Applicant
[28] Ibid, paragraph [10].
The Applicant confirmed, by way of background, that he was born in the north island of New Zealand, in Rotorua which is situated in the Bay of Plenty area. He grew up in New Zealand and went to school there. He completed primary school and two years of secondary school. He said that he found employment in New Zealand and that it involved “farming work”. He was asked for what period of time he did that farming work and he responded with “1½ years”.
The Applicant was then referred to the G Documents and, specifically, to the relevant movement records relating to him. He agreed that he first arrived in Australia on 23 August 2007 to attend his brother’s wedding and that he stayed here for about a week, departing on 30 August 2007. He agreed that he returned to Australia on 24 February 2010 to attend his cousin’s 21^st birthday party and that he remained here until 6 March 2010. He further agreed that he returned to Australia about 5½ years later on 15 August 2015 for work purposes. He came here to work as a wool presser in the Kojonup area of Western Australia and that he remained here for several weeks until 23 October 2015. He further agreed that for the period March 2010 until August 2015 he was residing in New Zealand and that he “… was doing nothing there” .
It was put to the Applicant that there was a contradiction in his evidence because earlier in his cross-examination he said that he had been involved in farming work in New Zealand for about a year and a half. The Applicant responded with “… yes, but that was in 2013. To support myself I was living with my mother.”
He further agreed that when he left Australia on 23 October 2015, he went to Bali for a holiday and then returned on 31 October 2015, remaining here until 2 May 2016. He agreed that when he returned to Australia for the most recent time on 16 August 2016, he recommenced his work as a wool presser in the Kojonup area of Western Australia.
The Applicant agreed that he has spent the majority of his life in New Zealand and that he has immediate family living in New Zealand comprising of his mother, father and his younger sister. He agreed that he does have a big family in New Zealand and that he still keeps in touch with his family members in New Zealand. He agreed that based on the fact that he has spent the majority of his life in New Zealand, he is accustomed to living in that country.
With specific reference to the grievous bodily harm offence committed in October 2016, the Applicant agreed that this offending occurred barely three months after his most recent arrival in Australia on 16 August 2016.
With specific reference to his consumption of alcohol, he confirmed that he commenced drinking at the age of 15 years and that he has been “… drinking ever since”. He said he only drank on social occasions such as birthdays and social gatherings.
He was taken to his New Zealand offending history[29] and was specifically directed to the two drink driving offences committed on 10 April 2009 and 30 May 2009. He readily conceded that he was driving with a blood alcohol level well in excess of the legal limit but then added that he had “… never had a driver licence in New Zealand.” He said that he “… learned how to drive on the farm.” He also conceded that the second of his two drink driving offences, committed barely a month after the first one, was indicative of the reality that he did not learn any lesson from the first drink driving offence.
[29] Exhibit 7, Section 501”G” Documents, G02, page 141.
He was then taken to the entry in his New Zealand offending history from 19 February 2013 relating to the charge of “Drove impaired – blood contained evidence of qualifying drug….”. He agreed that he started using cannabis when he was about 17 years of age, in or about 2008. With reference to this particular conviction regarding the driving and management of a motor vehicle, the Applicant said that “… drugs in the system is not as serious as alcohol in the system…”.
He had little or nothing convincing to say about his breaches of the supervisory orders and the community work order which had been imposed on him as a result of his driving a vehicle with a “qualifying drug” in his system on 19 February 2013.
He was then taken to the circumstances of, and his conviction for the grievous bodily harm offence committed in October 2016. He repeated his written evidence that he “…. mostly only drank occasionally…”. He confirmed that he knew the victim having met him two months prior. He conceded that punching an intoxicated person twice in the head could have potential adverse consequences. He also conceded that he was aware of other incidents described in the media as “one punch incidents” (or similar) and that he was aware that one punch at the wrong time upon the wrong person could well have a catastrophic outcome.
The Applicant said he was quite surprised that what he called a “…. single mild action could have caused this much damage”. In terms of the circumstances of the incident, the Applicant said “… we were drinking a lot. I’d left pretty early because I had work the next day. I went back home. They came over to my house and they turned on my stereo… We had a few more drinks and then we had a chat outside.” The Applicant conceded that he was intoxicated when he administered the two punches to the victim.
The Applicant was then asked, to my mind, a critical question along these lines: “When you became aware that [the victim’s] conduct was making you feel agitated and you knew that he was intoxicated, don’t you think reacting in this way by punching [the victim] was disproportionate to his behaviour towards you?”. The Applicant responded with “… I did it just so he knows he is to leave me alone. I didn’t mean to hurt him but I don’t think I took things too far.” [My underlining].
The Applicant said that he was aware of the initial life threatening injuries suffered by the victim and that those injuries caused him to fall into a coma and to undergo surgery. He said that since the incident “I haven’t reached out to him [the victim].”
In terms of his consumption of alcohol, the Applicant said the last time he consumed alcohol was on the night of the incident giving rise to the grievous bodily harm charge. He said that he wants “… to stop drinking altogether” and that “… no alcohol is available in prison”. He was asked that if returned back to the Australian community, what motivations he might have to stop consuming alcohol and he responded with “my partner, my little daughter, the drug and alcohol programmes I have done”. He readily conceded that “I did have a problem with alcohol.”
With specific reference to his family, he confirmed that he first met his current partner in January 2017 and that their daughter was born a year later on 17 January 2018 while he was in criminal custody for his grievous bodily harm offending. He said that he spoke with his partner and their daughter “every day”. He added that his partner had been struggling financially during the period he has been in either criminal custody or immigration detention. He had little or no effective response to the suggestion that if returned to New Zealand, he could find employment and support the family from New Zealand. He responded with “…. but I want to be there for my daughter and it is very difficult for my partner to visit me in New Zealand.”
Analysis of the Applicant’s evidence
I have had regard to the Applicant’s evidence in chief and the abovementioned summary of his position regarding this component of Primary Consideration A. I am of the view that the Applicant has little or nothing to say about the nature of his traffic offending in New Zealand. It seems clear that the commission of, and conviction for his first drink driving offence had virtually no deterrent effect on this aspect of his offending. The second drink driving offence occurred barely a month after the first. The Applicant had little or nothing to say in response to the suggestion that his breach of the entirety of the supervisory orders and the community work order was indicative of his failure to respect lawful authority.
Little also can be said about the swiftness with which the offending giving rise to the grievous bodily harm conviction occurred after his arrival in Australia. He came here on the most recent occasion on 16 August 2016. The grievous bodily harm offending occurred barely three months after that in October 2016.
To my mind, the most significant question arising from the Applicant’s evidence is whether he has overcome the specific factors giving rise to his offending to date. Those factors appear to be (1) his capacity to consume alcohol and remain in control of himself and to not make bad choices such as almost catastrophically hurting someone or drinking and driving or driving with a prohibited drug in his system; (2) whether any previous issues he may have had with illicit substances are either controlled or otherwise under some form of treatment regime and (3) whether any diagnosed or problematic features of his personality predisposing him to an extreme physical reaction to a largely benign approach from another party have been identified and resolved.
The Applicant readily acknowledges that he “… did have a problem with alcohol”. He further acknowledges that he started using cannabis when aged about 17 years old. He says that he has not consumed alcohol since October 2016 - at the time of the grievous bodily harm offending. He also says that no alcohol is available to him in prison. Be that as it may, the Applicant’s assertion about wanting to “… stop drinking altogether” remain untested in the broader community and, although I will address the risk of recidivism later in these Reasons, there is little in the way of convincing evidence before the Tribunal that the Applicant will never again consume alcohol and/or illicit substances.
To my mind, the issue of more significant concern is the Applicant’s insight into the circumstances of his offending involving the grievous bodily harm conviction. To gauge his level of insight into this offending, it is necessary to review the totality of his version of what occurred, how it occurred and how the Applicant has subsequently interpreted and defined the circumstances of his infliction of two punches on the victim with the abovementioned almost catastrophic outcome.
In his statutory declaration declared on 22 January 2019[30], the Applicant said:
“7. At the time, I was employed as a wool presser at Kojonup. On the night of the offence, I had been celebrating a 21^st birthday party with work colleagues at a premise across the street of my residence. I’m not a very regular drinker, and mostly only drink occasionally at similar social events. On this night, we were all quite sociable and enjoying our night, and so I did consume a large quantity of alcohol, more than my usual level.
8. After some time, I returned to my residence with a friend to go to bed because I had to wake up for work the following morning. My sleep was interrupted when a group of people from the event earlier came to my residence, where they continued to drink and celebrate.
9. I knew of, [the victim], but was not well-acquainted, as we had only worked together for a short time. Although intoxicated, most of the other guests were quite respectful, but he was quite rude and belligerent for some reason, and I thought it was just the alcohol and he will get over it. We were standing outside my front door at the top of the stairs when he became very inconsiderate of my person [sic] space. He grabbed me in an embrace, patted my head, grabbed my throat and told me to leave my own home. I asked him not to touch me, but he took no notice and he again grabbed me in a hold once again. As the situation escalated I was becoming very agitated and was concerned what he might do to harm me or others. I shoved him away from me and then punched the victim twice, one of which was in the head.
10. I can truly attest that my only intention at this time was to make [the victim] take me seriously and to stop his actions. …
…
12. … I have had time to reflect on the mistakes of my past …. Although I never meant for the events of that night to transpire, I realize the likelihood of these conflicts is amplified by alcohol consumption. As such, I have realized I want to maintain sobriety. I have attended drug and alcohol programmes and ceased drinking, as I never want to experience or be involved in any traumatic accident like this again.”[31]
[My underlining and highlighting].
[30] Exhibit 2, Statement of the Applicant made on 22 January 2019.
[31] Ibid, pages 1 – 3.
I have misgivings about several aspects of the Applicant’s version of the incident from the particular perspective of him having the necessary insight into his grievous bodily harm offending. The Applicant’s summary of the circumstances leading to the two punches does not square with the remarks of the sentencing Judge, Her Honour Wager DCJ, who noted:
“Later in the night when you were outside your address in Kojonup you were both on the top of a small set of stairs leading to the front door of your apartment. [the victim] said something to you that caused you to be agitated … He gave you a pat on the head and a drunken hug. You told him not to touch you and to stop doing that, but he didn’t take any notice of you. And he went to give you another hug, but you stood up and then shoved him. Then you punched him twice and once was to the head.”[32]
[32] Exhibit 7, Section 501 G Documents, G02, pages 25 – 26.
Her Honour’s remarks speak of the victim giving the Applicant a pat on the head and a drunken hug, followed by another hug. This is a long way from the Applicant’s assertion of being grabbed by the throat by the victim and being told to leave his home. The Applicant’s version is that “the situation escalated …” and that he was “… becoming very agitated and [the Applicant] was concerned what he [the victim] might do to harm me or others”. There is no suggestion of any escalation of any situation nor is there any suggestion of the victim becoming agitated and possibly harming others in Her Honour’s remarks. Rather, and consistent with the evidence of a witness, the Applicant’s extreme and potentially catastrophic punches were not delivered as a result of any alarm or self-defensive posture in reaction to agitation from the victim. As observed by the witness, the Applicant’s punches “… was a – like a bugger off punch.”[33] This, to my mind, is consistent with the evidence of another witness who said it did not seem like the Applicant hit the victim very hard.[34]
[33] Ibid, G02, page 26.
[34] Ibid, G02, page 26.
I note that the Applicant was sentenced pursuant to the remarks of Her Honour Wager DCJ. The Applicant was independently and legally represented at his sentencing for the grievous bodily harm offence. One would expect that any disparity between Her Honour’s grasp and summary of the facts and that of the Applicant would have been raised and/or challenged prior to or during the sentencing hearing. There is nothing before the Tribunal that this occurred and I therefore prefer the factual summary appearing in Her Honour’s sentencing remarks over and above the version provided by the Applicant for the purposes of this hearing.
While the Applicant may have, by now, understood that what he did was seriously wrong, and potentially catastrophically so, my misgivings about his level of insight into his offending arise from (1) the self-serving nature of the Applicant’s version of the incident compared to that recorded by Her Honour Wager DCJ and (2) the Applicant’s failure to understand that even a moderately weighted punch to a heavily intoxicated person can have catastrophic consequences.
There would have been no need for the Applicant to re-cast the circumstances of the incident such as to make the victim out to be more of an instigator or transgressor than he was in reality, if the Applicant understood that one heavily intoxicated person can catastrophically harm another heavily intoxicated person with even moderately weighted or applied force.
Therefore, It cannot be denied that in the barely three months that the Applicant found himself in Australia (ie August 2016 – October 2016), the nature of the harm he has caused to the victim has been very significant. His offending has not only significantly and permanently affected the victim, it has also no doubt affected those around him because the victim is conscious of his injuries causing him to be a burden on others. Thus the nature of the harm caused by the Applicant in this country to date has seriously affected not only the victim but his own relatively small “community” around him comprising his family and other loved ones and, most likely, work colleagues who no doubt have learnt of the incident.
Were the Applicant to re-offend in a similar manner, I am of the view that he would pose a very significant and potentially catastrophic risk to individuals in the Australian community. If repeated, this type of offending could result in members of the Australian community suffering anything from serious physical or psychological injuries or, conceivably, death. Taking into account the nature of his previous offending in this country, I consider that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the person engaging in further criminal or other serious conduct

Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
There is a ready acknowledgement by the Respondent that the Applicant is now abstaining from alcohol. The Respondent makes reference to a certain certificate dated 20 August 2018 confirming that he has successfully completed the “Holyoake Men’s Group drug and alcohol programme”.[35] This certificate is evidence of the Applicant’s completion of a given programme. It cannot be relied upon as definitive proof that he will not re-offend nor can it be relied on as a definitive measure of the level of his risk of re-offending.
[35] Ibid, G02, page 120.
The Respondent adopts a retrospective approach to the exercise of predicting the Applicant’s future risk or likelihood of re-offending. The Respondent cites the comments of Katzmann J in the matter of Minister for Immigration and Citizenship v Obele[36] to this effect:
“… The offences he has committed provide the best and perhaps the only real indicator of the harm he might cause in the future …
I disagree that the fact of previous criminal conduct can tell us nothing about the kind of harm that an offender may pose in the future. The assessment of the risk of re-offending in which sentencing judges routinely engage is based on the past. When the Direction focuses on the nature of the relevant conduct it does so in the context of the assessment of the level of risk of harm so the risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk that he might in the future engage in it.”[37]
[36] [2010] FCA 1445.
[37] Ibid, paragraphs [58] – [59].
The Respondent’s contention is that any predictive assessment of the Applicant’s future risk of offending is to be gauged from his past behaviour. I think this contention, while simplistic, is a valid and referable one for present purposes. It is not trite to refer to an applicant’s past misdeeds or offending as a basis for predicting the level of likelihood of that applicant re-offending.
However, I am of the view that, for present purposes, the question can be further refined as follows: is there independent, expert and reliable evidence that the factor(s) giving rise to the Applicant’s offending, both in New Zealand and in Australia, have been identified/diagnosed/defined? If so, are those factors under a regime of management and control such that the Applicant’s risk of re-offending is of such a lower magnitude as to not attract any adverse impact from this aspect of Primary Consideration A relating to the risk of recidivism?
Associate Professor James Freeman: Evidence in Chief
The primary evidentiary reference for the Applicant’s risk of recidivism in this matter is the report of the forensic psychologist, Associate Professor James Freeman. Associate Professor Freeman is an experienced psychologist. He has provided a report[38] in which he had applied certain actuarial risk assessment tools as part of a predictive exercise in assessing the Applicant’s risk of recidivism. Those tools comprise (1) the Hare Psychopathy Check List (PCL-R); (2) The Violent Risk Appraisal Guide (VRAG) and (3) The HCR-20 (Historical, Clinical and Risk Management Violence Assessment Scheme).
[38] Exhibit 5, Report of Associate Professor James Freeman, Psychologist, dated 19 November 2017.
In terms of “clinical summary, risk assessment and concluding remarks”, Associate Professor Freeman noted:
“12.1    … the Applicant has … demonstrated a strong work ethic and has avoided contact with a negative peer support group as well as significant substance misuse. There are no marked aspects to his psychosocial functioning in the community and he presents in good mental health.
12.2     The origins of the offence [ie, specifically, the grievous bodily harm offending] can be linked to the disinhibiting effects of alcohol. More specifically, the relationship between excessive alcohol intoxication and engagement in aggressive and impulsive behaviours is well documented. Mr George accepts drinking to intoxication and responding with reactive violence to a perceived emotional stressor. The events is [sic] particularly uncharacteristic in nature, and he presents with a high level of remorse and regret. In summary, the current case is a clear example of the impairing effect of excessive alcohol consumption on an otherwise prosocial individual.
12.3     The risk that he will re-offend is most closely correlated with his ability to avoid becoming heavily intoxicated (and involved in interpersonal disputes) again in the future. Encouragingly, the Applicant has a sufficient level of insight and presents with a high level of commitment to avoid similar events. …
…
12.5     … he struggled to articulate an effective strategy to successfully re-establish himself in New Zealand. He is also naturally concerned about the impact of the visa cancellation upon the secondary victims (e.g., his partner and unborn daughter[39]) who will rely on him for financial support.”[40]
[My underlining].
[39] Associate Professor Freeman’s report was written in November 2017. The daughter of the Applicant and his partner was born in January 2018.
[40] Exhibit 5, Report of Associate Professor James Freeman, Psychologist, pages 5 – 6.
In his oral evidence in chief, Associate Professor Freeman opined that the Applicant “…doesn’t need a treatment plan …” for any of the factor(s) predisposing him to offend as he did in November 2016 or, indeed, as he did in New Zealand. He thought no such treatment plan was required for three reasons. First, while there needed to be an ongoing “focus on” the possibility of the Applicant returning to a pattern of substance abuse, this was not a factor that needed any ongoing treatment, plan or assessment. Second, the Applicant’s social functioning was not marked by violent aggression. Third, the Applicant was in relatively stable mental health.
In his further oral evidence in chief, Associate Professor Freeman thought the Applicant’s grievous bodily harm offending was an “… out of character situation because there were no clear precursors to deviant ideations and no clear precursors in [the Applicant’s] functioning”.
Associate Professor Freeman was referred to the Applicant’s history of offending in New Zealand involving, as it does, the primary theme of both drink driving and driving with a “qualified drug” in his system. Associate Professor Freeman conceded that at the time he prepared and wrote his report, he was not provided with a copy of the Applicant’s history of offending in New Zealand. He was asked whether, knowing the Applicant’s history of offending in New Zealand, his report would have been any different? The response was as follows:
“He’s tackled the issue of alcohol misuse. I think he had both the intent and motivation to control his alcohol consumption. He has the motivation and intuition to get himself back on track. There are not a lot of destabilizing factors in his life.”
Associate Professor Freeman – Cross Examination
In cross examination, Associate Professor Freeman was asked about precisely what the Applicant reported to him in relation to any of his previous offences involving alcohol. He responded by saying that the Applicant did not provide him with his New Zealand offending history. It was put to Associate Professor Freeman that there is a previous history of offending while under the influence of alcohol in New Zealand in 2009 and that the grievous bodily harm offending in October 2016 also involved the misuse of alcohol. As I recall his evidence, Associate Professor Freeman had little or nothing to say in response to the suggestion that when the Applicant consumes alcohol, he has (1) a demonstrated pattern of reckless behaviour and (2) is vulnerable to engaging in non-consequential thinking.
Associate Professor Freeman also conceded that the Applicant was sentenced in August 2017 and that he interviewed the Applicant by telephone in mid-November 2017 and thus the Applicant had not been incarcerated for very long at the time of that interview. He agreed that his assessment that the Applicant “is committed to avoiding alcohol consumption in future …” and that “… such an intention appears achievable …” should be tempered by the reality that (1) at the time of that observation, the Applicant had only been incarcerated for a short period and (2) the Applicant was in the controlled and closed environment of incarceration and that the true measure of the extent to which the Applicant can achieve a state of sobriety in future is dependent upon that intention being tested in the broader community.
In terms of setting a level of future risk of recidivism, Associate Professor Freeman said “… there is no concept of no risk, there is a low risk that he will re-offend”.
He was then taken to paragraph 10.2 of his report wherein he opined that the Applicant “… has no illicit substance use history”. He was asked whether this was an actual finding in his report or whether it was something that was self-reported by the Applicant. He confirmed it was the latter. The Applicant’s history of driving a motor vehicle while under the influence of a “qualifying drug” in New Zealand plus the Applicant’s evidence of having first used cannabis when he was aged 17 years in 2008 was then put to Associate Professor Freeman. He was of the view that “… if the Applicant socially smoked marijuana in the past, it would not propel him into further offending.”
Associate Professor Freeman – Assessment of his evidence
Associate Professor Freeman’s report is primarily concerned with a clinical exercise of applying three assessment tools and arriving at a given quotient for the Applicant’s risk of recidivism. Neither his interview with the Applicant or his written report take into account the Applicant’s predisposition to alcohol consumption and consumption of an illicit “qualifying drug” in New Zealand and how that predisposition caused him to offend in that country.
He is, respectfully, wrong to suggest the Applicant “… has no illicit substance use history”. He clearly does have a substance abuse history. It is exactly what motivated his offending in New Zealand such that he committed two drink driving offences barely a month apart, plus an offence of driving a vehicle with an illicit “qualified drug” in his system. Not only does Associate Professor Freeman’s report not refer to the Applicant’s substance abuse history, there is also no analysis of how that history predisposed him to offending as he did in New Zealand and how it also predisposed him to ignoring and refusing to submit to lawful authority in that country.
Of greater concern is the absence of how it can now be said (or found by an expert like Associate Professor Freeman) that the Applicant’s substance abuse issues were somehow all resolved by the time he arrived in Australia in August 2016 yet contrived to commit the very serious and potentially catastrophic grievous bodily harm offence while heavily intoxicated, barely three months later in October 2016.
It is, with respect, trite and of minimal evidentiary value for Associate Professor Freeman to suggest that the Applicant’s past use of marijuana “would not propel him into further offending”. This is especially so in circumstances where (1) he has made no assessment of how and to what extent the Applicant’s issues with alcohol and illicit substances predisposed him to offending in New Zealand and (2) he has made no assessment of whether those issues had been resolved and were no longer factors predisposing the Applicant to offending at the time of his arrival in this country in August 2016.
In the absence of those two assessments, it is difficult to attribute much evidentiary value to the capacity of Associate Professor Freeman’s report to reliably predict the Applicant’s risk of recidivism. Specifically, if expert opinion cannot tell us that any such factors predisposing the Applicant to offend had been resolved by the time he arrived in Australia in August 2016, it is dangerous for this Tribunal to act on a finding that the grievous bodily harm incident that occurred barely three months later in 2016 was some sort of “one off event” and categorically did not involve any element of the Applicant having unresolved issues with alcohol and/or illicit substances.
Accordingly, the only remaining reliable predictor of any likelihood that the Applicant will engage in any further criminal or other serious conduct can only be gauged by reference to the level of deterrent effect the previous measures have had on his propensity to offend. As mentioned earlier, the quite reasonable and non-custodial penalties imposed upon him in New Zealand seem to have no deterrent effect on his behaviour involving offending while operating a motor vehicle. Of perhaps greater significance is his refusal (in New Zealand) to submit to lawful authority be it by (1) observing the terms of two supervision orders and one community work order and (2) take the simple step of obtaining an official drivers licence.
I repeat my earlier stated concerns about the Applicant’s level of insight into his grievous bodily harm offending in this country in October 2016. His lack of insight can be seen by reorientating the primary focus of his evidence in relation to this incident in an effort to re-cast it into a more confrontational episode than it really was and as it was described by the sentencing Judge. His lack of insight can also be seen in his extraordinary statement in cross-examination that in attacking the victim as he did, “… I don’t think I took things too far”.
The Applicant’s evidence about wanting to “… stop drinking altogether” must be weighed against the reality that such a statement is made in the relatively closed confines of criminal custody and/or immigration detention and that such aspirations to abstinence and sobriety have not been tested in the broader community.
I am also favourably disposed to the Respondent’s contention that while the Applicant has stated that he was merely an occasional or social drinker, virtually all of his offending in New Zealand and Australia has been committed while under the influence of alcohol. On a cynical view, one could say the more alcohol he consumes, the more serious and potentially catastrophic his behaviour becomes.
I repeat my misgivings about the Applicant’s level of insight into not just his offending but how the factors involving alcohol and illicit substances have predisposed him to offending. For reasons already stated, I have difficulty in applying the findings of Associate Professor Freeman as a reliable and predictive guide for the Applicant’s future risk of recidivism. I am thus not satisfied that the Applicant will not continue to engage in further criminal conduct in the future. Such harm, were it to be repeated, is an unacceptable risk that the Australian community should not be reasonably expected to bear.
I therefore find that this Primary Consideration A, the protection of the Australian community from criminal or other serious conduct, weighs heavily in favour of affirming the decision to not revoke the cancellation of the Applicant’s visa.
Primary Consideration B: Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) of the Direction compels decision-makers to determine whether revocation is, or is not, in the best interests of any children who may be affected by the cancellation of an applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under the age of 18 years at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has a one year old daughter. The child was born while the Applicant was in criminal custody/immigration detention and his contact with the child has been sparse primarily due to the geographic distance between where the Applicant is being held and where his partner and daughter reside. Thus, the provisions of paragraphs 13.2(1) and (2) are relevant such that I am required to make a determination about whether a refusal to revoke the mandatory cancellation of the Applicant’s visa is or is not in the best interests of his abovementioned child.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(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 primary witness in this matter who can shed light on the abovementioned factors appearing in paragraph 13.2(4) of the Direction is the Applicant’s partner, Ms Vininkka Garlett, who is the mother of their abovementioned one year old daughter. Ms Garlett provided written evidence in the form of a statutory declaration[41]. She also gave oral evidence at the hearing.
[41] Exhibit 3, Statutory Declaration of Vininkka Garlett made on 23 January 2019.
Her evidence in chief had a very sad and unfortunate tone. It gave the impression of a lady operating under abnormal and unfair levels of pressure who was near the end of her tether. She confirmed the currency of her relationship with the Applicant and that they have a one year old daughter together.
Ms Garlett said she had visited the Applicant three or four times while he has been in criminal custody/immigration detention but the distance and cost of visiting him more frequently has proved prohibitive because the immigration detention centre where he is currently being held is a two-way, three hour journey from her home. She gave evidence of having to deal with quite difficult and straightened domestic circumstances.
She told the hearing that her mother has an advanced form of cervical cancer and that she is undergoing chemotherapy treatment. Any beneficial effects of the chemotherapy treatment have been effectively removed because that treatment has had an adverse effect on her mother’s heart. In addition to being the primary carer for her own one year old child, Ms Garlett is also the primary carer for her seriously ill mother and her two infant siblings aged nine and 12 years respectively.

Ms Garlett operates in financially difficult circumstances. Instead of being in a position of being reliant on her mother to look after her one year old daughter while she tries to find employment, Ms Garlett acts as the primary carer for five people solely reliant on Commonwealth welfare payments. She was clear that if the Applicant was allowed to come back into the community, he would be able to work and support her, their daughter and to assist with the care and support of her immediate family. Without the Applicant’s support, Ms Garlett said “I am struggling physically, emotionally, financially”.
Ms Garlett suffered a stroke in the third trimester of her pregnancy. She attributes this unfortunate and adverse event to the incarceration of the Applicant and her mother’s dire health situation. She spent a few months in hospital following the stroke and is experiencing ongoing effects as a result of it. She said “I am not feeling myself at the moment and one side of my body is weaker than the other”.
Ms Garlett was asked whether she could move to New Zealand in the event the outcome of this application resulted in the Applicant not being returned to the Australian community. She cited several factors militating against any possibility of her and their one year old daughter she has with the Applicant relocating to New Zealand. First, as the eldest daughter of the family, there is a cultural expectation that Ms Garlett will look after her seriously ill mother. Second, all of her mother’s treating doctors are in Australia and it would be difficult to re-establish that critical network in New Zealand. Third, she cannot afford a relocation of herself and their infant daughter were the Applicant to be returned to New Zealand. Fourth, it will be almost financially impossible for her to regularly travel to New Zealand with her infant daughter to visit the Applicant.
In cross-examination, Ms Garlett confirmed she first met the Applicant in November 2016 following his conviction for the grievous bodily harm offence. As best as she could recall, the Applicant was not in criminal custody when she met him because they met at a gathering of her friends.
It was suggested to her that the Applicant – even if returned to New Zealand – could still play a fatherly role in their daughter’s life. She responded with “Yes, but I don’t see how - he won’t be able to have an active role in her life if deported”. She also noted that while they could communicate via telephone calls, she and their one year old daughter would “barely ever” see the Applicant in person in New Zealand because they cannot afford to travel there, “not even for a visit”. She said that she grew up without a father’s presence in her life and she did not want their daughter to grow up without a dad.
She was asked about her mother’s health and confirmed the serious cervical cancer diagnosis, the adverse effect of the chemotherapy treatment on her mother’s heart and the reality that her mother lacks the strength to even prepare her infant children for school.
With specific reference to video and/or skype or other electronic means of visual contact, Ms Garlett agreed this would be possible but said “I’d rather he was here in person”.
I turn now to an application of the factors appearing at paragraph 13.2(4) of the Direction. Sub-paragraph (a) refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child.
Having regard to the evidence of Ms Garlett, I am inclined to find that restoration of the Applicant’s visa is in the best interests of his infant child. It is clear that the Applicant has a positive relationship with his infant child and her mother/his partner, Ms Garlett. In contrast to that, it cannot be denied that the daughter was born while the Applicant has been in criminal custody/immigration detention and that, save and except for three or four in person visits, his lengthy cumulative period out of the community has caused him to be absent from the daughter’s life, at least in a physical sense.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction points a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Apart from the Applicant’s own evidence, there is no expert and independent evidence before the Tribunal analysing (1) the role, if any, played by the Applicant in the child’s life thus far and (2) any adverse impact on the child were the Applicant to be compelled to return to New Zealand.
Even in the absence of any such expert report, I find that it is more likely than not that the Applicant will play a positive role in the life of his infant daughter especially given the 17 year length of time until that child attains the age of 18 years. It is thus appropriate for me to positively apply this factor (b) to any consideration of whether restoration of the Applicant’s migration status is in the best interests of the child.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the child. There is no evidence to suggest that the Applicant’s offending either in New Zealand or in Australia has had any direct impact on the child. All of this offending occurred a considerable time before she was even born. Of course, were the Applicant to re-offend in future, there could conceivably be an adverse impact on the child. However, given the child’s age and the reality that the offending occurred prior to her birth, I am not able to allocate any weight to this factor (c) for the purposes of this consideration.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the child from the Applicant would have on the child, taking into account the child’s or the Applicant’s ability to maintain contact in other ways. It is clear that in this day and age of electronic communication, the Applicant will be able to have contact with the child by SMS or social media. A logical extension of this would involve the introduction and maintenance of visual and real time contact with the child via Skype and other digital platforms. It is clear that the Applicant and the child have communicated by way of telephone while he has been in criminal custody/immigration detention. In these circumstances, this factor (d) is of minimal weight in assessing whether restoration of the Applicant’s migration status is in the best interests of the child.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are persons who already fulfil a parental role in relation to the child. Clearly, there are. The infant daughter is under the primary care of her mother, Ms Garlett. As against that observation, it must be borne in mind that Ms Garlett is performing this role in the difficult and straitened circumstances I have earlier described. For the purposes of this factor (e), I am of the view that this factor (e) is of minimal weight in assessing whether restoration of the Applicant’s migration status is in the best interests of the child.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the child about her separation from the Applicant, having regard to the child’s age and maturity. As mentioned, the child has had very sparse contact with the Applicant because he has been in either criminal custody or immigration detention from prior to her birth to the present time. As well, the child is only 12 months of age. There are no known views of the child such as to facilitate a positive application of this factor (f) in favour of restoration of the Applicant’s visa status.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. For reasons already stated in relation to sub-paragraph (c) of paragraph 13.2(4) of the Direction, I am of the view that this sub-paragraph (h) is of no weight and is not determinative of any finding about Primary Consideration B.
Having regard to:
(a)the troubling evidence of Ms Garlett; and
(b)the Respondent’s concession that it is in the best interests of the child for him to remain in Australia;[42]
(c)an application of factors (a), (b), (d) and (e) of paragraph 13.2(4) of the Direction
I am of the view that the best interests of the Applicant’s minor child in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh that weight attributable to Primary Consideration A.
[42] Exhibit 6, Respondent’s SFIC, page 14, paragraph [52].
Primary Consideration C: The Expectations of the Australian community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of the considering the present matter, the essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of serious offending in this country and his less than convincing demonstration of insight into his offending (both here and in New Zealand), should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
To my mind, the question may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·he has a not insignificant traffic and other offending history in New Zealand involving:
otwo convictions for the operation of a motor vehicle while above the legal alcohol limit;
oone conviction for driving while disqualified;
oone conviction for impaired driving as a result of the presence of a “qualifying drug” in his blood stream;
otwo convictions for breaching a supervisory order; and
oone conviction for a breach of a community work order;
·following intermittent and short trips to Australia (from New Zealand) during the period August 2007 until May 2016, he arrived in this country on 16 August 2016 with the intention of settling here and making a life for himself in Australia, yet barely three months after being here contrives to commit (in October 2016) the very serious offence of grievous bodily harm resulting in an almost catastrophic outcome for the victim;
·the sentencing Judge (for the grievous bodily harm offence) was in no doubt of the significant seriousness of the Applicant’s conduct noting:
o“the injury [the victim] sustained was significant”;
o“the injuries posed are significant and sustained threat to his life… The injuries were of such a nature as to endanger or be likely to endanger life”;
o“the matter is very serious. Even with one punch, if the other person is affected by alcohol, tragic consequences can result.”
o“and the impact of that grievous bodily harm will be with [the victim] forever”;
o“what happened to [the victim] is serious. It was life threatening, as the doctor has said. And that is clearly one of the factors that makes this so serious”.
·the sentencing Judge immediately imposed a custodial sentence with a head term of 18 months imprisonment;
·putting aside the quite short and mainly social visits made by the Applicant to Australia during the period August 2007 until May 2016, the Applicant has been in Australia on a continuous basis from 16 August 2016 to the present time. This equates to approximately 29 months. His offending has seen him spend approximately 26 of those 29 months out of the Australian community in either criminal custody or immigration detention;
·despite the best efforts of Associate Professor Freeman, it is not possible for this Tribunal to rely on his report to assess the likelihood of the Applicant engaging in further criminal or other serious conduct because:
othere is no definitive assessment of how and to what extent the Applicant’s issues with alcohol and illicit substances predisposed him to offending in New Zealand; and
othere is no definitive assessment of whether those issues had been resolved and were no longer factors predisposing the Applicant to offend at the time of his arrival in this country in August 2016 or at any time since;
·in the absence of independent and expert opinion to confirm that any such factors predisposing the Applicant to offend had been resolved by the time he arrived in Australia in August 2016, it would be dangerous for this Tribunal to act on a finding that the very serious grievous bodily harm incident that occurred barely three months later in October 2016 was some sort of “one off event” and categorically did not involve any element of the Applicant having unresolved issues with alcohol and/or illicit substances.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. One must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[43]
[43] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 (“ETWK”) at [102] and [103]:
102. …I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when 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…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[44]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[44] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
[76]…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[45] Justice Bromwich said:
[85]…The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms, which is precisely what it did.
[My underlining]
[45] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term for his very serious grievous bodily harm offending in October 2016, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending in this country to date, barely three months after his intention to settle here. As I have noted earlier, his offending was of a very serious nature from its commencement causing the sentencing Judge to immediately impose a term of imprisonment of 18 months;
(ii)His demonstrated refusal to accept, respect and submit to lawful authority. This is particularly evident from his offending profile in New Zealand comprising:
·         two offences of driving a motor vehicle while over the legal blood alcohol limit, committed barely within a month of each other in 2009;
·         a refusal to take the time and make the effort to obtain a driver licence in New Zealand resulting in a charge of disqualified driving in 2009;
·         one offence of driving a motor vehicle while impaired by the presence of an illicit “qualifying drug” in his bloodstream;
·         two convictions for a refusal and failure to comply with two supervisory orders (in 2013 and 2014, respectively); and
·         one conviction for a refusal and failure to meet the requirements of a community work order (in 2014).
(iii)My assessment of a significant risk of substantial harm to the Australian community were this Applicant to re-offend;
(iv)The absence of independent and expert opinion that (1) any factors involving alcohol and/or illicit substances (or any other factor) had been resolved by the time the Applicant arrived in Australia in August 2016, and (2) that the Applicant’s offending in October 2016 categorically did not involve any element of the Applicant having unresolved issues with alcohol and/or illicit substances (or any other identified factor) predisposing him to offend;
(v)The comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.

Having regard to the totality of the Applicant’s very serious history of offending in this country (plus his offending history in New Zealand), together with the incomplete state of the psychological evidence around the factors motivating that offending, I find that the Australian community would be of the view that the Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that this Applicant would continue to hold a visa.
As often occurs in hearings like this, the Applicant spoke of being given a fresh chance to resume his life in Australia. Does he deserve it? The answer to this question depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[46]
[46] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant’s history of offending is demonstrative of a pattern of reckless and irresponsible behaviour when he has consumed alcohol. It seems clear that his consumption of alcohol predisposes him to engaging in non-consequential thinking. His stated intention to never again involve himself with alcohol and/or illicit substances has been made while in the closed confines of criminal custody and immigration detention. The durability of that intention has not been tested in the general community. His unconvincing level of insight into his offending does not inspire any confidence that he has overcome the factors within his psychological make-up that have predisposed him to commit the offences he has committed thus far.
I am of the view that a significant majority of the Australian community would think likewise. I cannot accept, for example, that the Applicant was not aware of consistent government, local community and media campaigns warning of the dangers of “one punch” incidents. I take no comfort from his comment in cross-examination that “I don’t think I took things too far” when he violently and almost catastrophically attacked the victim who will carry the burden of the physical effects of the attack for the rest of his life.
His offending in this country is clearly of a very serious nature. Were he to re-offend, the risk of harm he would present to the Australian community would be quite significant. I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it reposed in him when he first came here. There is little more the Australian community can be reasonably expected to do for him.
I therefore do not consider that the Australian community would be prepared to give the Applicant a visa to remain in Australia and to participate as a member of the Australian community.
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation. Accordingly, I find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This Other Consideration is not relevant in this case.
(b) Strength, nature and duration of ties
The Applicant arrived in Australia in August 2016, when aged 24 years. Absent a series of short and social visits to Australia during the period August 2007 to May 2016, it is beyond argument that he has spent the majority of his life in New Zealand. As noted earlier, he was in this country for barely three months prior to committing the very serious grievous bodily harm offence in October 2016. He has spent virtually the entirety of the balance of his time in this country in either criminal custody or immigration detention. I therefore accept the Respondent’s contention that, having regard to paragraph 14.2(1) of the Direction, no weight should be allocated to the amount of time the Applicant has spent in Australia.
There is a readily made concession by the Minister that both the Applicant’s partner, who is an Indigenous Australian, resides in Australia, with their infant daughter, aged 12 months. There is a further acknowledgement by the Minister that the Applicant has two siblings and seven cousins who reside in Australia. As against that, the Applicant’s mother and father and one of his sisters reside in New Zealand. He therefore has significant family links in New Zealand. In cross-examination, the Applicant acknowledged that he still keeps in touch with his family in New Zealand.
I am mindful of the Applicant’s contention regarding certain cultural considerations. That contention is stated as follows:
“104. In Davis v Davis,[47] the Court recognized the importance of culture in assessing the best interest of an Indigenous child should be afforded special attention in the Family Law Act 1975 …. because of the unique needs and difficulties faced by Indigenous children both historically and presently.
105. If the Applicant is removed from Australia his child’s unique needs will be negatively affected, therefore strong consideration for the child’s Indigenous culture should be taken into account.”[48]
[47] Davis v Davis and Another (2007) 38 Fam LR 671.
[48] Exhibit 8, Applicant’s SFIC, page 17, paragraphs [104] – [105].
While I am respectful of the indigenous heritage of the Applicant’s partner and child, I am not aware of any authority, legislation, direction or other instrument displacing the operative effect of the relevant Primary and Other Considerations in the Direction when considering the best interests of the Applicant’s infant child for present purposes.
There is little or no evidence of any positive contribution made by the Applicant towards the Australian community. The most regretful aspect of this Other Consideration (b) is, of course, the physical removal of the Applicant from the lives of his infant child and his partner. I note and understand the cost and logistical difficulty his partner will have in both her and their infant child visiting the Applicant in New Zealand, but the Applicant can (and has been able to) maintain contact with his family members via telephone or other electronic/digital means.
In terms of the Applicant’s employment prospects in Australia, I have taken into account the letter from “Parsons Bros Shearing Service”[49] which speaks of him as a “… hardworking, energetic, reliable and responsible” worker. This letter stipulates that “We would happily have [the Applicant] back to work with our team. He is [sic] asset to any employer.” In a similar way, the Applicant’s sister, Delwyn Fraser, says that the Applicant “… thoroughly enjoys his job and has developed many skills in the Sheering Industry since commencing employment here in Australia”.[50]
[49] Exhibit 7, Section 501 “G” Documents, G02, page 88.
[50] Exhibit 4, Statutory Declaration of Delwyn Fraser, declared on 30 January 2019.
While this Other Consideration (b) may weigh in favour of revocation, it is outweighed by the Primary Considerations and the Other Considerations which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
I have earlier referred to the victim’s extraordinarily stoic and resilient approach towards the adverse circumstances in which he now finds himself as a result of the Applicant’s very serious grievous bodily harm offence. The Applicant did himself no favours in cross-examination when, after confirming that he was aware of the injuries suffered by his victim and that those injuries saw the victim go into a coma and then undergo cranial surgery, he said “I haven’t reached out to him”.
There can be no question that the Applicant’s grievous bodily harm offending has resulted in significant damage and harm to the victim which has no doubt adversely impacted the victim’s family and social circle.
There can be no question the Applicant has been afforded due procedural fairness when dealt with by the Respondent and, indeed, all aspects of lawful authority both in Australia and in New Zealand. I do not consider this Other Consideration assists the Applicant. If anything, it weighs slightly against the revocation of the cancelation of his visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that any assessment of impediments faced by a non-citizen if removed from Australia back to their country of origin must take into account:
(a)the person’s age and health;
(b)whether there are substantial language and cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant is a fit young man of 27 years of age and does not have any stated health issues. There is, likewise, no evidence of any language or cultural barriers militating against his capacity to re-settle in New Zealand. He holds a number of qualifications and there is little or no evidence of any difficulty he will have in obtaining employment and otherwise re-settling himself in New Zealand and residing there and maintaining at least basic living standards.
In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand… (He has previously lived there…) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[51]
[51] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
There is a ready acknowledgement by the Minister that if returned to New Zealand, the Applicant would suffer emotional hardship due to his separation from his partner and daughter.[52] Be that as it may and harsh though it may sound, the Respondent’s further contention is correct:
“…. such hardship should not have a direct bearing on the Applicant’s ability to establish himself and maintain basic living standards in New Zealand and is therefore irrelevant to, and not contemplated by, the consideration in paragraph 14.5(1) of Direction 65.”[53]
[52] Exhibit 6, Respondent’s SFIC, page 19, paragraph [81].
[53] Ibid.
I therefore agree with the contention that this Consideration does not favour revocation of the decision to cancel the Applicant’s visa.
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which heavily weigh in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
International non-refoulement obligations: not relevant;
(b)Strength nature and duration of ties: weighs in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: slightly, if at all, weighs against the Applicant;
(e)Extent of impediments if removed: does not favour the Applicant.
CONCLUSION
There can be no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction.
Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh Primary Consideration B which does favour the Applicant. I do not consider that any of the Other Considerations, alone or combined (or combined with Primary Consideration B), assist the Applicant to any sufficient degree, certainly not to the extent that they would outweigh the Primary and Other Considerations which favour non-revocation.
Accordingly, I find that there is not another reason why the cancellation of the Applicant’s visa should be revoked. It follows that I should not make an order revoking the cancellation of his visa.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

.............................[sgd]...........................................
Associate
Dated: 19 February 2019

Date of hearing: 11 February 2019

Advocate for the Applicant: Mr Tanguy Mwilambwe

Solicitors for the Applicant: GTC Lawyers

Advocate for the Respondent: Ms Jiadi Liang

Solicitors for the Respondent: Clayton Utz

[2019] AATA 180

19 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Date of hearing:	11 February 2019
Advocate for the Applicant:	Mr Tanguy Mwilambwe
Solicitors for the Applicant:	GTC Lawyers
Advocate for the Respondent:	Ms Jiadi Liang
Solicitors for the Respondent:	Clayton Utz