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

Gerrard and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 806 (22 April 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0932
Re:Logan Gerrard
APPLICANT

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

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:22 April 2022
Place:Sydney

The reviewable decision made on 1 February 2022 is affirmed.
..................................[SGD]......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under s 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – reviewable decision affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
22 April 2022
Introduction

The Applicant, Mr Gerrard, is a citizen of New Zealand who was born in 1984. He arrived in Australia in October 1999 aged 15. He has resided here permanently with a couple of short return visits to New Zealand.
On 5 January 2021 a delegate of the Minister cancelled the applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test because he had a substantial criminal record because he had been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of Australia (s 501(3A)(b)).
On 11 September 2020, he was convicted of Assault occasioning actual bodily harm (DV)-T2; Common Assault (DV)-T2 and Resist officer in execution of duty -T2 and sentenced to an aggregate term of 12 months’ imprisonment, to be served by way of an intensive Correction Order (ICO) which was revoked on 24 November 2020 by the State Parole Authority with effect from 21 October 2020, because he had breached the ICO by reoffending, and he was ordered to serve the balance of 12 months in prison.
On 8 January 2021, the Applicant made representations requesting revocation of the cancellation decision pursuant to s 501CA(4)(a) of the Act. On 1 February 2022 a delegate of the Minister decided that the decision should not be revoked (the reviewable decision).
On 8 February 2022, the Applicant applied to the Tribunal to review that decision.
The issues
It is not disputed that the applicant does not pass the character test.
The issue to be determined is whether there is another reason to revoke the mandatory cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act having regard to the relevant policy made pursuant to s 499 of the Act, Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
Direction 90
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task, relevantly, in exercising powers under s 501CA of the Act. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel the visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Each relevant consideration will be addressed in turn.
Primary considerations
Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) of Direction 90 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1 sets out the matters to which regard must be had when considering the nature and seriousness of the non-citizen’s criminal offending.
On 19 February 2021, after the Applicant had been imprisoned for breach of the ICO, he was convicted of Reckless wounding (DV)-T1 and Contravene prohibition/restriction in AVO (Domestic) and sentenced to an aggregate term of 15 months’ imprisonment commencing 22 October 2020 (when he was taken into custody) and concluding 21 January 2022 with a 10 months’ non-parole period commencing on 22 October 2020 and concluding 21 August 2021.
The Applicant served time in prison and was then moved to Villawood Detention Centre where he remains.
The offences were committed on 21 October 2020 against one of the Applicant’s sisters in her home where he was living. The offence involved one punch to the face with a closed fist causing the skin above her left eye to split causing immediate pain and bleeding. The Applicant pleaded guilty at the earliest opportunity. He denied being under the influence of either alcohol or drugs at the time. He did have a drug and alcohol dependence of some standing. Two children were asleep in a separate room. Another child was present in the room but there was insufficient material to confirm whether there was an aggravating feature. The Applicant was unaware that his sister was pregnant at that time and vulnerable.
Aggravating factors included that it occurred in the victim’s home, the Applicant was subject of conditional liberty, being subject to a 12 month ICO which had been imposed on 11 September 2020 for an offence of violence, common assault, against the same sister and for an offence of violence against another victim (a former partner).
The sentencing magistrate accepted a submission that the Applicant grew up in a home where domestic violence was apparent between his parents and directed towards him and his siblings. That he had been exposed to domestic violence during his upbringing may partially explain his behaviour towards his sister.
The ICO was imposed on 11 September 2020 in the following circumstances. The sentencing magistrate said that the Applicant’s act of violence towards his sister in her home was in front of her children. The applicant was convicted of a Common assault (CV)-T2. Two other offences were called up and dealt with on that on that day. The first was Resist officer in execution of duty-T2 offence for which an 18 month community correction order (CCO) had been imposed on 26 June 2020. The second was Assault occasioning actual bodily harm (DV)-T2 for which a two year CCO was imposed on 4 June 2019. That offence was committed against the Applicant’s former partner.
Under the ICO, the Applicant accepted supervision of Community Corrections for drugs and alcohol, domestic violence and anger management. He was to abstain from alcohol and drugs for 12 months and submit to random drug and alcohol testing.
It is significant that the Applicant was to have rehabilitation as directed by the Community Correction Office and supervised by the Community Corrections Service during the CCOs issued on 26 June 2020 and 4 June 2019.
On 4 June 2019, the Applicant had been convicted of Stalk/intimidate intend fear physical etc harm (domestic)-T2, in addition to the offence of Assault occasioning actual bodily harm (DV)-T2. The victim was his then partner. In respect of the first offence, a 12 month CCO was imposed that concluded on 3 June 2020. Hence, that period had expired when the matter came before the court on 11 September 2020.
On 23 May 2019 the Applicant was convicted of Drive with middle range PCA – 1^st off, fined $600 and disqualified from driving, with six months participation in an alcohol interlock program.
The Applicant’s other previous convictions were:
·26 August 2010 – Use offensive language in/near public place/school, fine $150; and Resist officer in execution of duty -T2, s 9 Bond 6 months
·19 July 2010 – Unlicensed for Class, Class C/R/LR/MR – 1^st offence, fine $200
·10 May 2006 – Learner not accompanied by driver/police officer/tester, $100 fine; court costs $65; and Drive with high range PCA, $1,000 fine; court costs $65; disqualification 2 years commencing 24 February 2006;
·18 July 2005 Larceny value <=$2000-T2 fine $200; court costs $65; and Use offensive language in/near public place/school fine $100; court costs $65.
Although there was a gap in the Applicant’s criminal history from 2010 to 2019, he conceded during his oral evidence that he had engaged in domestic violence against the mother of his children around the end of the relationship in 2014. There was a lack of detail about what he meant by that statement. I give it no weight.
It was conceded that the offending from 2019 was very serious. There is a pattern of domestic violence against females in domestic relationships with the Applicant. He reoffended while on an ICO. The seriousness of the offences has increased recently in a short period of time.
The risk to the Australian community should the Applicant commit further offences or
engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[1]
[1] Direction 90, Paragraph 8.1.2(1).
When considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the first consideration is the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal conduct.[2]
[2] Direction 90, Paragraph 8.1.2(2)(a).
The Applicant’s criminal history shows that should he engage in further criminal conduct individuals may suffer domestic violence, including physical and psychological harm. A child may be present during an incident of domestic violence. He may drive under the influence of alcohol, potentially endangering other people. Police officers may be resisted in exercising their powers of arrest.
The next consideration is the likelihood of the Applicant engaging in further criminal conduct, taking into account information and evidence about the risk of re-offending and rehabilitation achieved at the time of decision.[3]
[3] Direction 90, Paragraph 8.1.2(2)(b).
Both Dr Kwok, Clinical and Forensic Psychologist, and the Community Corrections Officer who wrote a sentencing assessment report dated 10 November 2020 assessed the Applicant at a medium risk of reoffending. The magistrate’s assessment of that same risk in the sentencing remarks made on 19 February 2021 were based on the latter assessment.
Dr Kwok reported that the Applicant had been exposed to domestic violence, neglect and alcohol use by his parents. His grandmother who lived with the family mostly raised him and when she died when he was 13 he preferred to go to a foster carer than remain with his parents. When the foster carer died two years later, he came to Australia where one of his sisters was living. His two sisters and three of his four brothers live in Australia. He has monthly contact with his parents who live in New Zealand with his other brother.
Dr Kwok recorded the Applicant’s history of drug use. He started using cannabis at 14 with either biological uncles or people he called uncles. After arriving in Australia he used cannabis and alcohol almost every day or every week. He obtained the drug from people including “uncles and aunts”.
Dr Kwok noted that he was found with gaol-made alcohol in prison and he told her he used cannabis and alcohol in detention. He told her that he had attended one year of drug and alcohol counselling ordered by the court and saw the counsellor every day for eight months.
The Applicant told Dr Kwok that he believed that he had a mental illness because he had spent two weeks as an in-patient at a mental health facility and had been medicated. In his statement, the Applicant dated this admission to the early 2000s.
Considering his history, Dr Kwok expressed the following opinions. The Applicant has likely been suffering from a mental disorder since adolescence although she could not ascertain a specific diagnosis from the assessment and supporting documents. He had likely met the criteria for Alcohol Use Disorder and Cannabis Use Disorder at some stage. His substance use, as well as his disturbance of mood and thought, are likely contributory to his offending behaviours. If his mental condition and substance use are not properly assessed and treated, there is a moderate risk that he will engage in further criminal or serious conduct. His future risk will be a function of his engagement in and responsiveness to treatment.
Dr Kwok was unable to provide an opinion about the Applicant’s empathy or his understanding of his offending. She had difficulty understanding the Applicant which was complicated by the interview being conducted by video. During oral evidence, Dr Kwok said that a further comprehensive assessment would be necessary to determine a diagnosis and treatment plan.
On behalf of the Applicant, it was submitted that the recent offences happened mostly when the Applicant was unemployed and consuming alcohol and drugs on an excessive basis. The Applicant was fired on 27 November 2019.[4] The prospects of employment with two people with whom the Applicant had previously worked or been employed were relevant to this consideration. Both witnesses were very supportive but curiously the Applicant had approached neither during his period of unemployment before being imprisoned.
[4] Ex R1, p 20.
The Applicant has expressed an interest in undergoing rehabilitation in a long-term facility such as Odyssey House. It was submitted that he has shown insight into his condition and remorse and should be given a chance to get treatment. I prefer Dr Kwok’s assessment to the Applicant’s expressions of insight and remorse.
An example of his claimed insight and remorse was a file note by Wagga Wagga Community Corrections dated 30 July 2021 which stated that the Applicant was fully aware that hitting his sister as she not looking after her children was a huge mistake, that he lets things bottle up, which in tandem with alcohol and cannabis makes him explode. He admitted that he needed to talk to people about his frustration, feels better when he is employed and had been unemployed for some time when the offences occurred and may have been depressed.
The evidence demonstrated that while in detention, the applicant had completed an on-line Anger Management 101 course by 15 February 2022, a Drug and Alcohol Abuse 101 course on 9 February 2022 and an Understanding Addictions course on 20 February 2022.
He said that he had accessed doctors and nurses while in detention. On 14 March 2022 he completed a medical request form in relation to his mental health in which he wrote that he had a split personality and was talking to and answering voice in his mind. An appointment was made for 17 March 2022. Other records that clearly refer to mental health and when he appears to have attended, were 22 February 2022 and 9 March 2022. The records end on 17 March 2022.
In response to a request on behalf of the Respondent, Junee Correctional Centre replied in relation to educational/rehabilitation courses undertaken in prison, that the Applicant’s initial classification on entering prison was that he was not eligible for intervention Pathways. NSW Corrections records stated that due to the short time frames, the Applicant was ineligible for therapeutic interventions.

The Applicant had been involved in brewing alcohol while in prison. He admitted in his written statement that he knew that he would get into trouble but did it anyway. There was no evidence that the Applicant used drugs while in prison. During his oral evidence he admitted that he had drunk alcohol and used drugs while in detention.
During the sentencing hearing on 11 September 2020, about six weeks before his most recent offences for which he was imprisoned, the magistrate made remarks to the following effect. The Applicant’s act of violence towards his sister in her home was in front of her children. The other act of violence was against a former partner. Her Honour talked about his drug addiction and told him to get clean and not to replace it with something else like alcohol or gambling. He had to work with people to understand why he was taking it. She referred to his self-medicating and said that he needed to find other ways of dealing with those issues which are legal and to not end up having mood swings that make him scary to be around. When asked, the Applicant said he understood.
Her Honour asked him if he had grown up with violence in the home. He said yes. She talked about the cycle of violence and told him that he had to be the one to stop that so it does not continue in his extended family and had to learn to deal with things differently and unlearn behaviour. She told him next time he was angry to take a deep breath and walk away and not to punch someone in the face to get attention. He said: “Yes, your Honour”.
She talked about the adverse impact on his sister’s children who would look up to him as an uncle and told him to teach them better ways of doing things because he did not want to hear them saying, “well, it’s okay, Uncle Logan does that so I’m going to do that”. She told him he had to be a better role model.
Her Honour also explained that the effect of the ICO, that he accepted supervision regarding drugs and alcohol, domestic violence and anger management, and he was not to consume alcohol and/or illicit drugs. She said that she did not want him substituting alcohol (which did not appear to be problem at that time) for drugs. He had to submit to alcohol testing by Community Corrections. He said: “Okay, yes”.
He confirmed that he understood that if he did not comply with the conditions and the ICO was revoked, he would “go in” for the term of the ICO. Her Honour told the Applicant that she was putting the responsibility on him to do something about, which he also acknowledged.
Despite the Applicant’s acknowledgements to the sentencing magistrate, about six weeks later, he committed the most recent offences.
As early as 6 June 2019, the Applicant presented to Community Corrections under the influence of alcohol, having consumed half a long neck and having the rest in his bag. He agreed to abstain prior to future reports. This was after his 23 May 2019 conviction for Drive with middle range PCA and sentence to six months’ participation in an alcohol interlock program.
The sentencing assessment report dated 26 June 2020 appears to address in substance only the resist officer offence dealt with that on that day. The Applicant reported symptoms of depression since losing his job in in December 2019 and using alcohol and methyl amphetamine to manage his mental health and had used more than his normal amount while associating with negative peers the day before the offence. Consequently, his recollection of events was vague. He expressed remorse for his actions towards police and the business owner and apologised to them.
A file note shows that New South Wales Corrections had discussed with the Applicant the risk that he may be deported, and he was concerned about that, but he seems to have no recollection of that and had not given it real consideration until he received notification in writing when he was in prison. He had not been given a previous formal warning by the Department.
At this time, the Applicant has not been diagnosed with a mental health condition or treated for such a condition or for his drug and alcohol abuse. His evidence was that he was aware he had an alcohol problem from at least 2005 and he began smoking cannabis when he was about 15 years old. Those behaviours are long term behaviours. He attributed the end of his relationship with the mother of his sons in 2014 to his drug and alcohol use. It is unnecessary to list the many references in the evidence, including those to which he was taken in cross-examination, that support the conclusion that those behaviours are long term, even while reporting to Community Corrections while on CCOs.
The Applicant has taken some on-line courses and sought some assistance in detention. While the Applicant claims to have insight into his offending, his past conduct while on the CCO, the ICO, in prison and detention do not support that claim. He has continued to seek access to drugs and alcohol. His behaviour in respect of drugs and alcohol and his criminal offending is untested in the community. I accept his honest written statement that he was trying hard to stop thinking about his past as it makes him sad and wanting to take drugs.
If released from detention, the Applicant will not be under supervision on parole. His prison sentence expired in January 2022.
The Applicant hopes that he may rekindle the relationship with the partner against whom he committed offences. They used drugs together and she tried to take contraband material to him in prison in March 2021. He was not aware of her attempts to stop taking drugs.
He proposes to live with his aunt who gave evidence. She has had her own battle with alcohol abuse and sought support to address the issue. She still drinks but not to the same extent. Her family are concerned that she is drinking. I accept that she wishes to support the Applicant.
The evidence does not support the submission put on behalf of the Applicant that he has good prospects of successful rehabilitation.
The protection of the Australian community weighs against revocation of the visa cancellation decision.
Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction 90 says that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
It was conceded that the Applicant has committed family violence offences against his former partner and sister which are serious.
It was submitted that the Applicant has demonstrated insight into and remorse for his behaviour.
There has been a pattern of family violence offences of increasing in seriousness in 2019 to 2020 against two victims. While the Applicant has expressed remorse and insight, he remains untested in the community, may have an untreated mental health condition, and has alcohol and drug abuse issues which he has taken some limited steps to address. I refer to Dr Kwok’s inability to provide an opinion about the applicant’s empathy or his understanding of his offending.
I give no weight to the Applicant’s comment that he committed family violence against the mother of his children at the end of the relationship in about 2014. There was no detail about that to allow an assessment to be made.
This consideration weighs against the revocation of the visa cancellation.
Best interests of minor children in Australia
Paragraph 8.3 of Direction 90 addresses the best interests of minor children in Australia affected by the decision.
The Applicant has two Australian citizen sons who were born in 2007 and 2009. The older son is almost 15 and the younger son is 12. The Applicant has had no contact with them since the end of the relationship with their mother in 2014, that is for about eight years. The evidence does not support a finding that there is a limited relationship.
Their mother has remarried. There is no evidence about their circumstances since then, including the role the step-father plays in their lives.
The evidence about the applicant’s role in their lives before he lost contact is negligible, but I am prepared to accept that he played a paternal role.
The Applicant claims that he plans to make contact with his sons, become part of their lives, and re-establish a long lasting and meaningful relationship with them. He says that he has been a broken man since he last contact with them.
He claimed that he had tried to re-engage with them but provided no information about what he had done.
Dr Kwok acknowledged that given the lack of contact with his sons, which she understood was five years, not eight, moving to New Zealand would have little impact on their current relationship. She maintained her opinion when told that there had been no contact for eight years.
Given that history I am unable to determine the extent to which the Applicant is likely to play a positive parental role in the future to either of his sons because I am not satisfied that it is likely that the Applicant will be able to reconnect with them before they turn 18.
I am prepared to assume that the possibility that the Applicant will reconnect with his younger son before he is 18 is higher than reconnecting with his older son before he turns 18.
I find that it is in the best interests of both sons that the visa cancellation be revoked to enable the Applicant to have the best chance of reconnecting with them and developing a relationship with them before they turn 18. However, I give limited weight to this consideration in respect of both sons.
The Applicant claims to have twenty-four nieces and nephews in Australia and that he has strong bonds with five of them, three nieces and two nephews. Four are the children of his sister whom he assaulted twice. On one occasion one child was in the room during the assault.
The four children of his sister who was his victim, are in the care of another sister who provided a statement and gave oral evidence (the sister). Her evidence was that she had a total of six foster children belonging to that sister, who are currently aged one, two, five, six, seven and nine. Although not clarified during evidence, given the ages of the two youngest children, I infer that the Applicant was referring to the four older children whom he would know because he lived for a time with his sister whom he assaulted. I infer that the youngest child was born since he was taken into custody.
The sister said that the children are in her care pursuant to a court order which precludes anyone living with her who has not had a police check or working with children permission. I infer that she is providing parental care to the children. The mother of the children has supervised visits. The sister said that she is not planning to have the Applicant live with her. She is prepared for him to have contact with the children. She said that they ask to see him. She was aware that the Applicant drinks a lot and has seen him intoxicated, most recently in 2019. She was aware that he smoked marijuana now and then and his use of another drug, perhaps ice, after his most recent conviction.
The Applicant wrote that he taught his two nieces how to be good mannered and well-behaved and that he looked after his nephews in his spare time.
The other child to whom the Applicant claims to be close is the daughter of a cousin. The Applicant wrote that she was his little favourite because she was the newest to the family.
He wrote that he loves all those children dearly and would not want them to grow up without him nearby.
The Applicant does not fulfil a parental role to any of his nieces or nephews, including for his niece who is his cousin’s child. The evidence does not suggest that he has maintained contact with any of those children since he was taken into custody in October 2020. He conceded that they are all too young to know that he would never see them again, but it would break him to leave them “after all the years” he had looked after them. He loved babysitting them.
Dr Kwok accepted that the Applicant had been a positive factor in the lives of the four children but considered that the Applicant had acted violently towards their mother while the children were at home and that he had punched his sister while she was pregnant. She wrote that the Applicant’s actions demonstrate his disregard for the children’s interests when he lost control of his emotion and acted on impulse. There would be benefits and possible negative consequences for the children if he remained in Australia.
I take into account that the Applicant has taken some steps to address his mental health and drug and alcohol abuse.
Accepting that it is better for relationships that people have personal contact, if the applicant returned to New Zealand, he could contact his sons and nephews and nieces by written, audio and visual means.
This consideration weighs in favour of revocation of the visa cancellation but I do not accept that it weighs strongly in favour of that outcome or that this primary consideration outweighs all other considerations.
Expectations of the Australian Community
The fourth primary consideration is expectations of the Australian Community. Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Direction 90 further states that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
The Full Court of the Federal Court of Australia considered clause 11.3 of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
Australia may afford a higher level of tolerance to criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[5] The Applicant has lived in Australia for over 20 years. He has two distinct periods of offending, the most recent being the more serious.
[5] Direction 90, paragraph 5.2(4).
The question for the decision-maker is the weight to be attached to this consideration.
It was submitted on behalf of the Applicant that I should take into account that the Applicant has two Australian born children, he has been in Australia for 15 years, does not have a lengthy history of criminal offending, his history of exposure to domestic violence and being in foster care, and that he is remorseful and will have treatment.
The Applicant’s most recent offending includes acts of family violence against two different women. He has two convictions in 2020 and 2010 for Resist officer in execution of duty.
Proceeding on the basis of the Government’s views as articulated in paragraph 8.4 of Direction 90, this consideration weighs against the revocation of the visa cancellation decision.
Other considerations
The relevant other considerations in this case are the extent of impediments if removed from Australia and links to the Australian community. Paragraph 7(2) of Direction 90 states the primary considerations should generally be given greater weight than other considerations.
Extent of impediments if removed
Direction 90, paragraph 9.2, requires a decision-maker to consider the extent of impediments that may be faced if the person is removed from Australia to their home country, in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country, and sets out matters relevant to that consideration.
It was conceded that the Applicant will not have cultural or language difficulties if he returns to New Zealand and will be able to access the medical and social security systems available to all citizens of that country.
Dr Kwok wrote that mental health support and treatment for substance abuse are available in New Zealand. In her opinion, the main struggle for the applicant will be separation from his family, including his sons and extended family who live in Australia.
I accept that the Applicant will face practical and emotional difficulties on returning to New Zealand where he has not lived for over 20 years, since he was 15. He will miss his nieces and nephews. That he is in a different country from his sons may impact adversely upon him.
He does have relatives in New Zealand, including his parents and one brother. He claims that he does not know his cousins in New Zealand and says that he would not seek accommodation or assistance from his parents because he suffered as a child from their neglect and significant emotional and physical abuse, due to their substantial alcohol abuse.
The evidence was that he lived with them for an unspecified period of time in Australia before they returned to New Zealand in about 2019, so that is a possible place of accommodation for him.
He has not been employed in New Zealand and does not have connections there to get employment. He does have extensive experience in Australia doing removalist work.
This consideration weighs in favour of revocation of the visa cancellation decision.
Impact on victims
I raised with the parties whether the impact on victims was a relevant consideration in this case. As the parties accepted, the evidence is not sufficient to make a finding on this consideration.
Links to the Australian community
The consideration links to the Australian community has two limbs.[6] Only the first is relevant, the strength, nature, and duration of ties to Australia.
[6] Direction 90, paragraph 9.4.
Since he was a minor, the Applicant has lived and worked in Australia. He has ties to Australia through his three brothers, one of whom lives in Queensland, two sisters, two sons, nieces and nephews, cousins and their families and other family members, including the aunt who gave evidence with whom he proposes to live if he remains in Australia. The vast majority of his family live in Australia.
The Applicant has a good working history in Australia until November 2019 and has contributed to the Australian community through that employment. The written record was not quite accurate as he moved among employers, but that does not diminish his record. Two of his previous employers/co-workers provided written statements and gave very supportive evidence of his work ethic. One had found the Applicant on Facebook recently because he wanted to offer him a full-time job. The other was prepared to employ him, part-time initially, but building to full-time employment. Neither had a detailed knowledge of his offending or drug and alcohol use but I accept that both had a general understanding and would be prepared to employ him given their experience with him in the past.
This consideration weighs in favour of revoking the visa cancellation decision.
Conclusion
I have to weigh all “primary” and “other” considerations set out in Direction 90. “Other considerations” should not be necessarily given less weight in all cases; it is a case-by-case consideration.[7]
[7] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.

The primary considerations, the protection of the Australian community, family violence committed by the non-citizen, and the expectations of the Australian community outweigh the other considerations in this case.
There is not another reason to revoke the mandatory cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act.
Decision
The reviewable decision made on 1 February 2022 is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[SGD].....................................
Associate
Dated: 22 April 2022

Date(s) of hearing: 11 and 12 April 2022

Solicitor for the Applicant: Ms M Mamarot, South West Migration & Legal Services

Solicitor for the Respondent: Mr W Sharpe, HWL Ebsworth Lawyers

[2022] AATA 806

22 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	11 and 12 April 2022
Solicitor for the Applicant:	Ms M Mamarot, South West Migration & Legal Services
Solicitor for the Respondent:	Mr W Sharpe, HWL Ebsworth Lawyers