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

GSMY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 263 (9 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8874
Re:GSMY
APPLICANT

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

DECISION
Tribunal:Member Mark O’Loughlin
Date:9 February 2022
Date of written reasons: 18 February 2022
Place:Adelaide

The Tribunal affirms the decision under review dated 16 November 2021.
……………[SGD]…………….
Member Mark O’Loughlin
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
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
Member O’Loughlin
18 February 2022

The applicant has lived in Australia for over 30 years during which time he has committed a great deal of crime. His criminal behaviour includes assaults against women and a violent drug related robbery. The Tribunal is not satisfied that he will not revert to violent criminal behaviour if he returns to the community. Despite his ties to Australia the Tribunal has decided not to revoke the cancellation of the applicant’s visa.
This hearing was conducted electronically with the applicant and the representative of the respondent attending by video and other witnesses attending by telephone link.
The applicant was represented during some parts of the hearing by a non-legal advocate, who attended by telephone.
Participants in the hearing were distributed across as many as five time zones and did not complain that the mode of hearing caused any significant difficulty when asked.
BACKGROUND
The applicant was born in February 1971 and at the time of the hearing of this application was 50 years old.
He came to Australia from New Zealand in November 1987,[1] at which time he would have been about 16 and a half years old.
[1] Exhibit G1, G documents, page 66, at answer to question 3.
He then lived in Australia as a Subclass 444 Special Category visa holder.
In September 2020 a Supreme Court convicted the applicant of crimes he committed in December 2019. They were Robbery – Aggravated and Supply less than a commercial quantity of a Schedule 2 Dangerous Drug (Cannabis).
The applicant was originally sentenced to a term of imprisonment of four years, being three years and nine months in relation to the first charge and seven months in relation to the second, but with a direction that part of the second sentence be served together with the sentence for the first count.[2]
[2] Sentencing remarks of the sentencing judge, Exhibit G1, G documents, page 32.
The sentence for the first count was reduced on appeal (in early 2021) to imprisonment for two years and eight months and the total sentence of imprisonment was reduced to two years and 11 months.[3]
[3] Exhibit G1, G documents, pages 94-95.
On 16 October 2020, the Minister cancelled the applicant’s visa as required by s501(3A) of the Migration Act 1958 (“the Act”).
That cancellation was mandatory under that section because his sentence of more than 12 months’ imprisonment meant he did not pass the character test, bringing him within s 501(3A)(a), and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a Territory, bringing him within s 501(3A)(b).
The Tribunal notes that even after reduction, the sentence of imprisonment imposed on the applicant would have been sufficient to require the mandatory cancellation of the applicant’s visa under s 501(3A).
The applicant was notified of the cancellation of his visa on 16 October 2020.[4]
[4] Exhibit G1, G documents, pages 87-93.
The applicant made representations about revocation of the decision to cancel his visa as contemplated by s 501CA(4).[5]
[5] Exhibit G1, G documents, page 9, para [3].
On 16 November 2021 a delegate of the respondent decided not to revoke the cancellation of the applicant’s visa under that section.[6] The Applicant was notified of this decision on 17 November 2021.[7]
[6] Exhibit G1, G documents, pages 9-20.
[7] Exhibit G1, G documents, pages 122-124.
The applicant asks the Tribunal to reconsider revoking the cancellation of his visa.
EVIDENCE BEFORE THE TRIBUNAL
In addition to various documents tendered by the parties, the Tribunal heard evidence from the applicant, from his partner “Ms J”, from his daughter “Ms A”, and from his son “Mr B”.
In the case of the applicant and each witness, their evidence in chief was contained in statements that had been filed with the Tribunal at least two business days before the hearing, in compliance with s 500(6H) of the Act.
The Applicant
Written Evidence
The Applicant’s evidence in chief was extracted from various sources submitted by him or on his behalf.
He made submissions supporting his request for revocation of the cancellation of his visa.[8]
[8] Exhibit G1, G documents pages 59-79, at page 61.
He said that he came to Australia with his parents, three brothers and a sister in 1987.
He said he had not been back to New Zealand nor had he been to any other country since.
He said that he has three daughters and three grandchildren who had all grown up in Darwin.
He said that he had no immediate family living in New Zealand, only distant cousins.
He said that he has no reason to return to New Zealand, because all he loves is in Australia, and that he worries that his daughters will not cope if he is not able to be in Australia.
He asked to be allowed to stay, saying he will not be getting in trouble again and that he has had a lesson he will not forget.
In answer to question five of the Personal Circumstances Form,[9] the applicant gives his relationship status as ‘single’, rather than de facto, separated, or divorced.
[9] Exhibit G1, G documents, page 67.
In answer to question seven, which actually seeks information about the applicant’s relationship with his spouse/partner, the applicant says that he knows that if he is in New Zealand his two daughters ‘will not cope’ due to personal issues to do with sexual abuse. He says that he knows he is the only person they have.[10]
[10] Ibid.
In attachment F to that document,[11] the applicant says that his resources are very limited. He says that he’s been living in Darwin for 33 years.
[11] Exhibit G1, G documents, page 68.
He says he’s made mistakes in the past and won’t be making the same ones again.
He says that he has made steps never to touch drugs again in his life.
He says that Rehab Mission Australia has accepted him and that he has promised his daughter Ms A that he ‘won’t touch drugs again or talk to anyone that does’.
He says that he has done a Certificate 3 in Civil Construction and Traffic Control 1 and 2.
He says he believes that will make him very employable in the road construction industry.
He said that he wants to live with his daughter, Ms A or with his parents when he is released.
He said his grandmother had passed away two weeks before which had caused his mother a lot of stress.
He said that Ms A and his mother visit him in prison once a fortnight and that they sometimes leave in tears.
He says he has a 26-year-old daughter “Ms C”, who has three children. He said that he has only known her since she was 18. She is mad at him for being in prison.
He expresses regret at having been absent from his daughters’ lives and regret that they were raised in foster care. He says that the decision to put them into care was not his to make and that their mother did not want them. He says that he was deemed an unfit father, although he ‘knows this to be untrue’.
He said that he had recently learned that his daughters, Ms A and Ms D, have ‘serious dramas’ that he needs to help them with.
He says he is not a threat to anyone in this country and wants to grow old with his three daughters and three grandchildren.
He indicates that he has asked his daughter Ms A to write some words of support, but that Ms D is in Perth trying to get to know her mother.
He says that he knows Ms C will need him to stay.
In his Personal Circumstances Form at page 73 of the G documents,[12] the applicant says that he is still getting to know his grandchildren and daughter. He says he will often kick a ball and go to sports events with his niece and nephew, who live at his parent’s residence with their father, the applicant’s brother.
[12] Exhibit G1.
He goes on to say that he knows his daughters will not cope if he leaves Australia and says that he still getting to know his grandchildren and his eldest daughter Ms C. He says that he will never take anything for granted anymore and that, if he stays, he hopes to become a citizen.
In the same document, he goes on to say that he has not seen his cousins or aunties in New Zealand since he left in 1987.
In his answer to question 10 at page 11,[13] he describes his most recent offending by saying that he was helping a young friend to recover a cannabis debt. He says that he is appealing the sentence but, in any event, has resolved to avoid drugs in the future.
[13] Exhibit G1, G documents, page 75.
He refers to a program called Safe Sober Strong, which he had apparently completed, and which he says helps solve issues in everyday circumstances with the apparent aim of avoiding risky behaviour and drugs.
In relation to future offending, he points out that he is nearly 50 years old and that the threat of deportation is the wake-up call he needs to keep him out of trouble in the future.
The applicant says that he has applied for government housing and paid most of his fines out while in prison. He says that he is keen to do any programs or rehabilitation necessary.
At the top of page 13, where he is asked to list contributions he has made to Australia, he says that he ‘worked on the [rail project] job years ago’.
He also says that he is the only male in Ms A and Ms D’s lives, that their mother has no time for them and that he needs to be around to keep them safe.
In his answer to question 13 about his own concerns and fears should he be sent back to New Zealand, he says that he has no friends or close family there and has not lived there since 1987.
He repeats that all close family are in Australia and says he will be ‘lost and alone’ if he is sent back.
He says that he will have nowhere to live and no support or income there, but that he has a place to stay in Darwin.
He asks the decision-maker to take into account that his parents and daughters want him to live with them and that there are rules and conditions that he would abide by. He further says that he will have no drugs or people who have bad influences in his life. He says he ‘will not get in trouble anymore’.
At attachment H to the personal circumstances form,[14] the applicant makes further submissions. He says that he is a changed man and is sorry for the wrong that he has done in the past.
[14] Exhibit G1, G documents page 82
He refers to courses he is doing while in detention relating to anger management, life skills, father skills, drugs, and alcohol.
He says that he is suffering from anxiety and loneliness and that his absence is taking its toll on his daughters as he is the only parent they acknowledge.
He further says that his daughter (i.e. Ms A) was a victim of child abuse and that he constantly worries about her.
He says that he has made amends with his ex-partners, “Ms K” and “Ms T”. He acknowledges that he and his partners were on methamphetamine when they were together and that the drug has a bad effect on decision making.
He said that he has taken a further two-year restraining order on Ms K, because he got tired of the toxic environment she was living in.
He said that in 2015 he pleaded guilty to breaking into a house. He said he entered the house, cutting himself with glass. He said that he was taken to the house by a fellow to whom he owed money, but that he was scared and ran straight out. In the submissions, he said that he took an early plea of guilty to avoid being on bail for a long time and that he agreed to all the facts in the criminal proceedings ‘just to get it done’.
He also suggests that is likely that the victim had household insurance.
He says that he is willing to do anything to get home to Darwin including being placed on a bond, attending rehabilitation or reporting daily. He says that in New Zealand he will be homeless.
On page four of his application to this Tribunal for review[15] he says that he would like the review to take into account his rehabilitation certificates and says that his daughter relies heavily on him and is suffering from mental illness due to him being in detention.
[15] Exhibit G1, G documents page 1
On the fifth page he says that he has ‘more’ that he wants taken into consideration.
The applicant also provided his own short statement, in the form of an email dated 19 January 2022.[16]
[16] Exhibit A12.
He repeats his request to stay in Australia and the fact that he has been here for 35 years.
He says his main reasons for wanting to stay are his partner Ms J, and his family.
He repeats that he has no family or friends in New Zealand and says that he has never planned to return there.
He states that he lost his password (it appears from context that he means ‘passport’) 20 years ago and never bothered getting one again.
He says that he has been in detention for six months and knows he will never break any more laws in Australia again.
He says he is a broken and anxious man now and will obey any regulations to stay in Australia as he considers it his home.
He says he has let down his kids and his nieces and nephews and his partner, Ms J has stuck by him the whole way through this bad experience.
He repeats his plea to stay in Australia.
Cross Examination
In cross-examination the applicant was asked whether he maintains contact with his parents, three brothers and one sister. He said he does. He agreed that he has not provided supporting statements from them and said that is because he did not ask those family members for supporting statements.
He said that he only asked for statements from people who are dependent on him.
He said that if he is released from detention and allowed to stay in Australia, he intends to stay with his brother, Mr R, in “Town Z” WA. He said that Mr R has a house of his own and that he works in the mines and is not always at home.
He said that he had intended to return to Darwin, but now thinks that it is too familiar and it would be better for him to avoid returning there.
He understands that his brother Mr R can get him a job on the roads and he would like to explore that.
It was put to him that there was a suggestion of a plan to live with Ms A if he got out. He said that he would like to live with Mr R to start with, then get Ms A to join him and then see if it would be better to return to Darwin.
He was asked if he planned to live with Ms J and said that yes, he plans to marry her.
The Applicant said he does not identify as an Aboriginal Australian, nor do his parents. However, his son, Mr B, is an Aboriginal Australian.
The applicant was asked about the statement he made to the Minister in which he said he planned to attend rehabilitation with Mission Australia.[17] The applicant said that he no longer has a drug problem and so he no longer intends to attend rehabilitation. He said he does not need it.
[17] Exhibit G1, G documents, page 68
The applicant agreed that his criminal record extends over 30 years and that it could be described as ‘lengthy’.
He agreed with the proposition that he had fallen in with ‘the wrong crowd’ early in life.[18] He agreed that he had been using meth almost daily for 10 years and that his habit grew to the point that he used much as he could get.
[18] See the applicant’s history to the probation and parole officer in the report dated 3 September 2020 at Exhibit R1 page 85.
He told the Tribunal that he had last used meth two years ago and agreed that one of the main reasons he stopped was because he was arrested and incarcerated.
The applicant was asked about his ties to Australia and, in relation to his mother’s failing health, said that he thought that his ability to spend time with her would help. He said that he would not be in a position to support them financially but that if he returned to New Zealand his parents would be disappointed and it would be disastrous.
He agreed that his mother does not see him at the moment but said that he maintains contact by telephoning her ‘pretty much say every third night’.
He agreed that his parents could visit him in New Zealand but said that he would not ask them to do so.
He said that maintaining contact with his parents in the same way that he does now, by Facebook or by telephone, is not the same.
The applicant was asked about his son, Mr B.
He said that he had not met Mr B but that they are in contact via social media. He said that he had told his daughters about Mr B and that they had made contact. He said he had told Mr B that he would get in touch if he gets out.
He agreed that Mr B does not rely on him financially.
He thought that if he went to New Zealand, Mr B could probably not afford to visit him there.
The applicant was asked about his daughter Ms C. He said that she is headstrong and that his other two daughters, Ms A and Ms D, have problems with her.
He said that he does not have contact with Ms C at the moment. His evidence was that he would like to have contact with her children but that she does not have custody of them.
The applicant also gave evidence that he sees himself as an uncle to a young man “Mr Z”, who has provided a letter of support.[19] He said that when Mr Z was a youth growing up around Darwin without parents, he knew where the applicant’s flat was and would stay there when he needed to.
[19] Exhibit A6.
He was also asked about another referee, “Ms Y”.[20] He said that he worked with her years ago on night patrol in Darwin. He said that he knows her and her children and extended family. He said a couple of times he’s had to help her with domestic violence and unruly children. He said she knows about his criminal history.
[20] See exhibit A10.
In relation to another referee, “Ms X”, he said he has really always known her, but has had a close relationship with her since 2012. He said that she has a son, “Mr W”, who is about 20 years old and with whom he has a good relationship.
The applicant was also asked about his relationship with Ms J.
He agreed with her statement that it is an on-again off-again relationship. He said that they first became friends about five years ago and that the relationship became intimate about three years ago. He said that the relationship had been strengthened by him being incarcerated.
The applicant was cross-examined as to his own attitude to the relationship and it was pointed out that in his original statements to the department he did not refer to it at all. He said that he thought he had referred to it, but that the relationship was always important. He agreed that there had been some concern about the future of the relationship, given the possibility that he will return to New Zealand.
He said that, although she had talked about coming to New Zealand, he did not think that was a realistic prospect. He would not want to put her through that.
The applicant said that Ms J knows the whole of his criminal history, including his history of breaches of domestic violence orders. He agreed that, when their intimate relationship started, he was still using methamphetamine daily.
The applicant was asked about his grandchildren, three children of his daughter Ms C. He said that he believes the three children are aged between three and nine years old. He said that Ms C did not want the children and does not have custody of them. They live with their father who, in turn, lives with his parents. The applicant does not play any parental role, although he would like to have a relationship with them.

He said he has had some contact with his brother, “Mr P’s” children. Those two teen-aged children live with the applicant’s parents. The applicant said that if he went to New Zealand he would miss the opportunity to have a relationship with them and that he is not a danger to kids now that he has changed.
The applicant agreed that he doesn’t have any significant health conditions, either physical or mental and that his work history includes working as a roofer and a welder. In addition, he has worked as a cleaner, cook and general hand in prison and done some work tutoring other inmates in reading and writing.
He was asked about the evidence he had given about an offer of employment from his brother. He said that it was included in a Facebook message. His brother’s girlfriend works at a company that does civil construction and the applicant is qualified in that work so he hopes an offer will come.
The applicant was asked about his criminal history.
He said that he had not been involved with the police in New Zealand but that his first conviction in Australia was in 1988, about a year after he arrived. That conviction was for the offences of assault, hinder police, and providing a false name and address.
The Tribunal notes that pages 21 to 26 of exhibit G1 contain a report of the applicant’s national criminal history, which sets out his convictions and the penalties imposed.
The applicant agreed that there was a general trend of increasing seriousness in his criminal offending and, although he had not counted them, was prepared to agree that he had been convicted of at least 58 offences. The Tribunal notes that the applicant has been convicted of about 58 driving offences in addition to over 40 other offences.
He could not recall how many times he had been sentenced to terms of imprisonment although he did say that the most recent sentence was the longest term of imprisonment he had ever served. He thought his first term of imprisonment was imposed in about 1996.
He agreed that his offending history includes violent offending, that it includes aggravated assaults against women and assaults against police officers acting in performance of their duty.
He also agreed that his offences include driving under the influence of illicit substances, stealing, aggravated robbery, breaches of domestic violence orders, failing to comply with restraining orders, breaching bail, and failing to comply with the terms of a suspended sentence.
He agreed that his most recent convictions were for aggravated robbery and supply of cannabis. He said that there was a lot to that story, which he had explained his statement.
He agreed that his sentence of four years was reduced to two years 11 months on appeal.
The applicant agreed that he entered a plea of guilty and said that he accepted responsibility for the offences on the basis summarised by the sentencing judge.[21]
[21] Exhibit G1, page 28, para [4] and following.
The sentencing judge’s comments may be summarised as saying the applicant and two others formed the common intention to unlawfully enter a residence to take three pounds of cannabis.
The applicant and one of the others, “CK”, entered the house.
There was a confrontation with the victim and CK became violent, including breaking a door down. The victim took up a metal broom handle about one metre long to defend himself.
There was a scuffle, during which the victim hit CK with the broom handle. The applicant took the broom handle, threw it away, grabbed the victim by the front of his shirt, shook him, and demanded to know where the cannabis was. The victim indicated a bag of cannabis on the floor.
The applicant released the victim, grabbed the bag of cannabis and left.
The applicant received 84 grams of cannabis as payment for his part in the robbery and he supplied that cannabis to other people in the Darwin area.
The sentencing judge specifically rejected the suggestion that, in disarming the victim, the applicant was de-escalating the situation.
After some cross-examination, the applicant conceded that the incentive of a reward was part of the reason he engaged in these crimes.
The applicant gave evidence that, at the time of the offences, he was ‘broke’. He said that he does not currently have any assets and he does have some outstanding fines which he will have to pay.
The applicant agreed with the sentencing judge’s description of him as having a ‘… Bad criminal history and breaches of earlier suspended sentences and court orders… including 19 breaches of domestic violence orders and restraining orders.[22] The applicant said in his defence that he has changed.
[22] Exhibit G1, G documents, pages 30-31.
The applicant admitted to convictions in February 2015 for aggravated assault and engaging in conduct that breached a domestic violence order but said he did not remember the details of the offences.
The applicant agreed that he had contact with his ex-partner, Ms T and that he sometimes had disputes with her. He agreed that, apparently in about 2014, he had contact with Ms T despite that being a breach of a domestic violence order (“DV order”). He said that ‘a lot of the time she came to me’.
When specifically asked, he said that it was sometimes her (i.e. Ms T’s) fault when he breached the DV order against him.
He agreed that one breach, apparently in January 2007, arose from him striking his then‑partner (“Ms S”) twice with his left hand. He said that this happened because he thought that she should be with the children, but she had left them on their own all night.
He agreed that he had told the police that his Ms S was a liar and a manipulator and that she was fixing him up by telling the police lies. The applicant said that she still is.
He repeated that he has changed and would not behave like this in future. He said that the experience of being incarcerated when he turned 50 was a real ‘eye opener’ for him. He said that the possibility of having to return to New Zealand is a substantial motivation to stay out of trouble.
The applicant was asked about his current drug use and said that he had not taken drugs for two years, since he had been imprisoned. He said that he does not want drugs in his life.
In re-examination he said that he will not re-offend, even if he is unable to get a job, because he understands that the consequences are so serious.
Ms A
Written Evidence
Ms A’s evidence was contained in a letter of support dated 7 January 2022.[23] She attested to the truth of the letter.
[23] Exhibit A5.
In the letter she says that she is the third of the applicant’s four children and that she has the strongest bond with him.
She says that her upbringing was tough but that was out of her father’s hands. She says that even though he did not bring her up he was a ‘huge involvement’ in her upbringing. She says that he taught her manners, respect towards others and herself, Maori heritage and ‘little tricks or talents for outdoor survival or preparation for independence’.
She refers to his kindness, gentleness and his caring nature and says that many people respect him.
She says he has introduced her to many positive people and has himself been a ‘great role model’.
She says that he was the one that was there for her through her hardest struggles in life yet. She describes an incident of sexual assault against her when she was at a sleepover as a girl. She said that he supported her through two years of court cases during which she suffered from depression and sleepless nights.
She said that her father gave her the strength to continue.
She also said that, since she was a kid, she has suffered with an eating disorder and that her father taught her to cook to accommodate that. She says that he continued to do that from gaol and the detention centre and he monitors her eating over the phone and by FaceTime.
She says that she has relied on him for all of her life as a father, best friend, counsellor, cook, and teacher.
She said that she had moved from Darwin to Perth in 2020 to set up for her father to join her but when she learned that there was the prospect that he would be deported she returned to Darwin.
The letter says that she still plans to go to Perth to live with her father and to be closer to her siblings and his siblings. She says that they both want to leave Darwin.
Cross Examination
Ms A was asked to clarify her evidence about living with the applicant in Perth. She said that she will live with her father and uncle in Town Z in WA, but that the other members of the family who live in Western Australia are in Perth.
Ms J
Written Evidence
Ms J’s evidence in chief was contained in a letter of support in the form of an email in the G documents dated 17 September 2021 (which was an attachment to the applicant’s submission),[24] an email of 25 December 2021[25] and a further email of support of 31 December 2021.[26]
[24] Exhibit G1, G documents, page 84.
[25] Exhibit A1.
[26] Exhibit A2.
In the email of 17 September 2021, Ms J said that she and the applicant were in an ‘on/off relationship’ before he was imprisoned in Darwin.
She says that they lost touch due to Covid restrictions, as at the time she was visiting family in “Town A” NT.
She says that is her home Community and that she is an Indigenous woman who lives by a strong, proud culture and traditions. She has ‘standing’ in her family and is considered ‘boss’.
She says that the applicant has met, and been accepted by, her Indigenous family and is recognised as her partner.
She says that she had not been aware that the applicant had been sent to WA for detention but that they have re-established their relationship through daily and nightly phone calls and messaging of various types.
She says that he is an integral part of her life and they hope one day to be together again.
She says that if he is deported, she will be greatly affected because he is her ‘rock’ and partner. She thinks that they may marry if he stays, although they are not discussing that possibility at the moment, because he does not want to ‘dream’ and lead her on.
She says that he has also been given a ‘skin name’ and is a community member in “Town B” NT where his son lives, and therefore it is ‘totally wrong’ for him to be in detention.
She says that she and her family regard the applicant as more Indigenous Australian than NZ Maori and they extend their support for him to stay in Australia.
She looks forward to his return to his family in the Northern Territory.
In the email of 25 December 2021, she repeats that she seeks the release of the applicant back home to the NT. She does not refer to the possibility of him living in Town Z in WA.
She says that she and her family are worried about the possibility of never seeing him again.
She says that there has been a detrimental effect on her personal life and that she has been prescribed anti-depressants. She says that she is stronger and more confident when he is by her side and that sending him away would ruin both of their lives.
She says that she and the applicant have the dream of moving to her community Town A in the NT. She speaks of the opportunity to work in the mines. The applicant did not mention any plan to live in Town A.
She said that facing the funerals of her mother and sister recently without the applicant’s support was difficult for her.
She says that she believes there is a strong bond between the applicant and his daughter Ms A.
She also refers to the applicant’s son, Mr B, who she says grew up in Town B and lives in “Town C”. She says that he is a strong ‘traditional lore man’ who would be greatly affected if the applicant is not permitted to stay.
In the email dated 31 December 2021, Ms J refers to the negative impact of the applicant’s absence on her Christmas celebrations and says that the applicant has served his time in relation to his crime and should have been released and returned to them.
Cross Examination
Ms J was asked about the possibility of a permanent relationship with the applicant on his release. She wanted to explore that.
She agreed that she is in Darwin and said that she had been born and bred there and spent most of her life there.
She said that she understood that he intends to live in Perth with his brother if he stays in Australia. She said she would be happy to relocate to live with him. It would be a good chance for them to start afresh. She said that Darwin is a small place and is not a good place at the moment with the drugs, which might encourage him down the wrong path again.
She said that she knew about his problem with drugs. She said in evidence:
“I understand that [the Applicant] did have – not a major problem. I believe it was more influential from the people he was hanging with.”
When asked whether she had seen him under the influence of drugs she said that she may have but that she had a rule against bringing drugs into the house and he had respected that rule.
She said that she had never used methamphetamines or other ‘powders, pills, needles’ and that her experiences with drugs was restricted to some marijuana and alcohol when she was young.
She said that she believed she would be able to get work in the mines if she moved to WA.
In relation to past offences of domestic violence on the part of the applicant, she said that he had told her that he had troubles with some past partners and ended up incarcerated due to them. She hopes that the applicant is at an age where he has left all that behind him.
Ms J was asked whether her strong connection to the Town A area, would prevent her from moving to Perth or Town Z in WA. She said that she generally goes to Town A in the dry season because the roads are impassable in the wet. The Tribunal understands that the dry season generally extends from April until August or September. She did not think she would be prevented from maintaining this connection if she moved to WA, particularly with a two week on, one week off, work cycle in the mines.
Mr B
Written Evidence
Mr B provided a brief email, dated 18 January 2022,[27] in support of the applicant.
[27] Exhibit A11
He said that he is 21 years old and was born in and lives in Town C.
He says that he is a proud [Indigenous community] man with strong cultural beliefs who has been through Aboriginal lore.
He said that he had recently been in contact with his dad (i.e. the applicant) and with his sisters, Ms A and Ms D.
He says that he wants to help release his father from the detention centre and that he knows his sisters are not coping very well. He wants to spend time with his father, as family is important to him.
Cross Examination
Mr B confirmed that he had no relationship with his father while he was growing up.
He said that he works for a school in Town C.
He said that he had moved to South Australia for nine months last year, then came home.
His evidence was that if his father is released, he would like to spend time with him. He would go and live with his father.
He said that if his father is not released, he will probably maintain contact but it will be hard. He said he had not thought about going to New Zealand but that it would be difficult for him.
He said that he had never left Australia and would rather not. He did not know if he could afford to go to New Zealand.
Other Witness Statements
Exhibit A4 is a statement from Ms X who says that she has known the applicant since 2012 and that he has been her very good friend since then.
She describes him as her ‘rock and protector’ of her and her son Mr W, who is the applicant’s godson. She also describes the applicant as Mr W’s mentor.
She emphasises the applicant’s connection to Darwin and says that he should not be sent away from the only home he has known. She also notes the applicant’s bond with his own children.
Exhibit A6 is a statement from Mr Z, to whom the applicant referred in his evidence as being ‘at least 20 years old’. Mr Z describes the applicant as a ‘father figure’ who helped him find the path to go from ‘nothing to something’ in his career as a miner.
He does not want to be separated from the applicant and asks that he not be deported.
The applicant also tendered a joint email from his parents, dated 11 January 2022.[28]
[28] Exhibit A7.
They express their concern and say that they feel like they are facing a ‘death sentence’. They believe that the applicant has paid for his crimes and is remorseful.
They say that he has nothing in New Zealand and that he should be given the opportunity to move to Perth. They say that they hope to move to Perth themselves in the near future.
The applicant tendered a letter of support from his daughter, Ms D,[29] who says that her father has always been an encouraging and supporting figure in her life. She says that she has suffered from anxiety and depression but he has helped her make many steps to improve her life.
[29] Exhibit A8.
She says that he is the one person she has been able to turn to and that he has not judged her where others have.
She believes that, if he is given the chance he will lead a productive and beneficial life for himself and those around him. She asks that he be allowed to stay.
Exhibit A10 is a letter of support from “Ms Y” who says that she and the applicant have been close friends since their 20’s. She says that he lived with her and her children for a time during his hardships.
She describes him as “the perfect gentleman” and a “good role model”. She also describes him as “incredibly intelligent” and as having so much to offer. She says that he is a wonderful father to his daughters and expresses her dismay at his incarceration.
The applicant also tendered a letter from “Ms V”, who was involved in the applicant’s work as an instructor in numeracy and literacy while he was in prison. She speaks in positive terms of his grasp of the subject matter and his ability to communicate it to the students.
STATUTORY FRAMEWORK
Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not satisfy the character test and that person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined in s 501(7).
Section 501(7)(c) provides that a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal finds that at the time the applicant’s visa was cancelled under s 501(3A), he had been sentenced to a term of imprisonment of 12 months or more, being two years and 11 months, and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
The Tribunal finds that the applicant does not pass the character test as defined and that the Minister was therefore obliged by the terms of s 501(3A) of the Act to cancel the Applicant’s visa.
The Tribunal notes the concession made by the respondent in submissions that the applicant has made representations as contemplated by s 501(CA)(4) of the Act.
In view of the Tribunal’s finding that the applicant does not pass the character test, the Tribunal’s remaining task is to determine whether there is ‘another reason’ why the original decision to cancel the applicant’s visa should be revoked.[30]
[30] See Migration Act (1958) (Cth) s 501CA(4)(b)(ii).
In doing so the Tribunal must apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”).
Paragraph 5.2 of the Direction provides a framework for decision makers. It emphasises that the grant of an Australian visa is a privilege and is made in the expectation that a visa‑holder will be law abiding and not cause harm to individuals or the Australian community.[31]
[31] See Direction, paragraph 5.2(1).
It also makes it clear that non-citizens who engage in criminal conduct should forfeit the privilege of staying in Australia and that Australia has a low tolerance of criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.[32]
[32] Ibid, paragraph 5.2(2).

The Direction sets out ‘Primary’ and Other’ considerations relevant to the discretion to revoke the cancellation of a visa.
The Direction provides that primary considerations should generally be given greater weight and that one or more primary considerations may outweigh other primary considerations.[33]
PRIMARY CONSIDERATIONS
[33] See commentary of Colvin J at [23] in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. See also Direction, paragraph 7.
Preliminary matter – Family Violence
One matter the Tribunal is directed to consider is ‘family violence’ perpetrated by the applicant.
‘Family violence’ is defined at subparagraph 4(1) of Direction No. 90.
It may be summarised as referring to violent, threatening or other coercive behaviour directed to a member of a person’s family. Examples are given including assault, stalking, and depriving the family member of his or her liberty.
The term ‘family member’ is not defined.
The respondent submits at paragraph 20 of its Statement of Facts, Issues, and Contentions that the Tribunal should consider the following aspects of the applicant’s criminal history as relevant family violence;
“ Engage in conduct that convenes DVO (6x);
Breach DVO (1x);
Failure to comply with restraining orders (12x); and
Aggravated Assault (2x).”
The applicant was asked in cross examination about some of these matters, apparently to afford him natural justice as required by subparagraph 8.2(2)(b) (where information comes from an authoritative source but has not been the subject of a conviction).
The applicant was also asked about some incidents in January 2007 and August 2014 that led to convictions for assault and breaching Domestic Violence orders.
The applicant accepted his convictions arising from these incidents and the respondent says that they should be counted as relevant acts of Family Violence.
Consideration of the police documents provided suggest that the applicant was not in a current relationship with either victim at the time of the offending behaviour. He was not living with either victim and in each case there was a DVO against him prohibiting him from contacting the victim.
Although it is clear that are serious allegations against the applicant, the Tribunal is not satisfied that these relate to a “family member”. That being the case it does not appear that they comprise “family violence” as contemplated by the Direction.
In relation to the other matters set out above, it does not appear that there were any convictions and that as no questions were asked, the applicant has not been afforded natural justice in respect of them.
Although this seems inconsistent with the intention of Direction No. 90, the Tribunal will not treat these matters as acts of family violence for the purposes of this application.
Subparagraph 8.1 – Protection of the Australian community
The Direction relevantly provides that decision-makers should keep in mind the protection of the Australian community from harm and have particular regard to the principle that entering or remaining in Australia is a privilege that is conferred on non-citizens in the expectation that they will be law abiding and will not cause or threaten harm to individuals all the Australian community.[34]
[34] Direction, paragraph 8.1(1).
The Direction also provides that decision-makers should give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date;[35] and
·the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[36]
[35] Ibid, paragraph 8.1.1.
[36] Ibid, paragraph 8.1.2.
The Direction, at sub paragraphs 8.1.1(1)(a) and (b) sets out some examples of conduct that may be considered very serious.
Sub paragraph 8.1.1(1)(a) specifies violent and or sexual crimes, crimes of a violent nature against women or children, regardless of the sentence imposed and acts of family violence, regardless of whether there is a conviction or a sentence imposed.
Relevant to this matter, sub paragraph 8.1.1(b) specifies crimes committed against government representatives or officials in the performance of their duties.
The applicant’s most recent offences, the sentences for which led him to fail the character test, included an element of violence.
The Tribunal has also had regard to remarks of the sentencing judge of a Local Court of the Northern Territory in September 2017,[37] relating to several counts of breaching a domestic violence order in November 2016, for each of which the applicant entered a plea of guilty, and to five other charges of which he was found not guilty.
[37] Exhibit G1, G documents, pages 35-52.
The Tribunal has regard to the breaches of domestic violence order. For the avoidance of doubt, the Tribunal has not had regard to the matters in respect of which the applicant was found not guilty.
However, the applicant did admit under cross-examination that he has a history of violent offending including aggravated assaults against women and assaults against police officers in performance of their duty.
He also admitted that he has a history of breaches of domestic violence orders, breaching bail, and failing to comply with the terms of a suspended sentence.
The applicant admitted that he was convicted of an aggravated assault against a woman that occurred in 2007 and another in 2014.
He could not recall the details of the offence in 2007 but did not dispute that it involved him breaching a domestic violence order.
Although he claimed not to recall the detail of the offending behaviour, he was prepared to accept that the allegations against him that he struck his victim with the back of his left hand and threatened to kill them both.
He said that he was worried about his children who were in the victim’s care and that his victim was and remains a liar and manipulator. Although he purported to accept blame for the incident, he suggested that she manipulated him.
He was also asked about a conviction for an aggravated assault on another woman arising from conduct in 2014.
Again, he claimed not to recall the details of his offending behaviour but accepted that he pleaded guilty to a charge of aggravated assault in breach of a domestic violence order.
He also agreed that he had several breaches of domestic violence orders and restraining orders in respect of that ex-partner but said that a lot of the time she came to him. He agreed when it was suggested to him that it was sometimes her fault that he breached the orders.
There is no doubt that the applicant’s offending history includes offences that subparagraph 8.1.1(1) directs the Tribunal to consider when assessing the nature and seriousness of the applicant’s conduct because they are violent offences against women.
At subparagraph 8.1.1(c), the Tribunal is directed to consider the sentence imposed by the court for a crime or crimes.
The applicant’s sentence for the most recent offending was reduced from a term of four years to a term of two years and 11 months.
The Tribunal finds that despite the reduction, that sentence indicates that the applicant’s offending in that case was serious and was viewed as serious by the court.
The Tribunal has regard to the applicant’s National Criminal History Check,[38] which shows about 100 convictions for a range of offences including hindering police, assault, providing a false name and address, various driving offences, driving unregistered vehicles, driving uninsured vehicles, aggravated assault, disorderly behaviour, failing to comply with a restraining order, being armed with an offensive weapon at night, stealing, damage to property and driving with a prohibited drug in blood.
[38] Exhibit G1, G documents, pages 21-26.
In sentencing remarks,[39] the sentencing judge noted that the applicant has:
‘…58 convictions for driving offences of various kinds, some miscellaneous offences, a few offences of dishonesty. That is criminal deception, unlawful entry and stealing. And more relevantly, ten convictions for various varieties of assault. You also have one prior drug related conviction…19 convictions for breaching domestic violence orders…and restraining orders. You have four breaches of bail and two breaches of suspended sentences.’
[39] Ibid, page 27-37, at page 29.
At subparagraph 8.1.1(d), the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness is to be considered. The respondent submits that applicant’s offending has escalated in seriousness.
The Tribunal observes that the applicant’s first record conviction was for assault and is not satisfied that there is a trend of increasing seriousness in the applicant’s offending. The offending was serious from the start.
The Tribunal is satisfied that the applicant’s offending has been frequent based on the National Criminal History Check.[40]
[40] Ibid, pages 21-26.
Sub paragraph 8.1.1(1)(e) directs the Tribunal’s consideration to the cumulative effect of the applicant’s repeated offending. There is no specific evidence of any effect on the victims of the applicant’s offending. The respondent submits, and the Tribunal accepts, that the resources used to enforce the law and administer the applicant’s sentences are a cost to the community.[41]
[41] Exhibit R1, page 5, para [18.1.5].
At subparagraph 8.1.1(1)(f) the Tribunal must consider whether the non-citizen has provided false or misleading information to the Department. There is no evidence that he has.
At subparagraph 8.1.1(1)(g) the Tribunal is directed to consider whether the non-citizen has re-offended after being formally warned or otherwise made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence of any such warning and the Tribunal is satisfied that none was given.
Having balanced the considerations referred to in the Direction at paragraph 8.1.1(1) the Tribunal finds that the applicant’s criminal conduct is of such nature and seriousness that it weighs heavily against the revocation of the cancellation of the applicant’s visa.
At subparagraph 8.1.2, the Direction requires the Tribunal to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Subparagraph 8.1.2(1) the Tribunal is directed to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The subparagraph goes on to effectively say that some conduct and the resultant harm are so serious that any risk that it may be repeated is unacceptable.
Subparagraph (2) sets out considerations that the Tribunal must take into account in assessing the risk posed by the applicant.
8.1.2(a) directs the Tribunal to consider the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.
The Tribunal has regard to the applicant’s past convictions including convictions for assault, stealing, and domestic violence. All of this offending behaviour has the potential to cause harm to members of the Australian community should it be repeated. The most serious harm that such offending would be likely to cause is injury to its victims.
At 8.1.2(2)(b) the Tribunal is directed to assess the likelihood of the applicant engaging in further criminal or other serious conduct.
In so doing, subparagraph 8.1.2(2)(b)(i) directs the Tribunal to take into account information and evidence on the risk of the non-citizen re-offending. The respondent has urged the Tribunal to accept the contents of a report,[42] which the respondent says shows a finding that the applicant needs an improvement in attitude and is a risk of reoffending.[43]
[42] Exhibit R2, Respondent’s Supplementary Documents, page 93.
[43] Exhibit R1, page 6, para [18.2.5].
The Tribunal does not find that the report is clear about that and, in any event, it is of dubious authority. The expertise of the author of the report is not established and neither the applicant nor the Tribunal has had the opportunity to test it.
On the other hand, the applicant’s insistence that he will not offend again is only supported by his lay witnesses who, despite being honest in their assertions that they believe the applicant will not re-offend, do not appear to be well placed to make such an assessment.
The Tribunal is not satisfied that there is reliable ‘information and evidence’ on the risk of the applicant re-offending in this matter.
Subparagraph 8.1.2(2)(b)(ii) requires the Tribunal to take into account evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since their most recent offence.
Although there is evidence of the applicant having completed courses aimed at rehabilitation, the Tribunal is not able to assess their likely impact.
The Tribunal does have regard to the applicant’s period of over two years of abstinence from drugs during the time that he has been in prison and immigration detention and accepts that it is likely that this abstinence has had some rehabilitative effect.
On the other hand, the subparagraph requires the Tribunal to give weight to time the applicant has spent in the community since the most recent offence. The applicant has spent no relevant time in the community.
On balance the Tribunal finds that the applicant has taken advantage of opportunities that have been presented to him by taking courses and has been able to remain free of drugs while in custody but his determination not to re-offend and the rehabilitative measures he has taken have not been tested in the community and the Tribunal is not satisfied that there is no risk of further offending by the applicant.
The Tribunal is also concerned that to some extent the applicant still blames the female victims of his assaults for those offences which suggests that he has yet to acknowledge the seriousness of his offending.
The consideration directed by 8.1.2(2)(c) is not relevant to this matter.
The Tribunal accepts that this has been the applicant’s longest period of abstinence after a decade of heavy drug use.
The applicant expresses confidence that he will not return to drug use and that he will not, therefore, commit any further crime.
Against that, the applicant’s ability to resist drugs has not been tested in the broader community. He agreed in cross-examination that his ability to abstain has, thus far, coincided with his time in custody.
The Tribunal also views with concern, the evidence given by the applicant under cross‑examination that he has decided for himself that he does not require the rehabilitation into which he had enrolled, as he sees himself as free of drugs. It is not clear whether the applicant’s views about this are reliable.
Having considered the evidence in this matter in the light of subparagraph 8.1.2 the Tribunal finds that the risk to the Australian community should the applicant commit further offences or engage in other serious conduct is such that this consideration must weigh against revocation of the cancellation of the applicant’s visa.
On balance, in relation to the primary consideration of the protection of the Australian community, the Tribunal finds that this consideration weighs substantially against revocation of the cancellation of the applicant’s visa.
Subparagraph 8.2 – Family Violence Committed by the Non-Citizen
The second primary consideration is set out at paragraph 8.2 of the Direction. It asserts that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. It further states that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2.(2)(a) provides that this primary consideration is relevant in circumstances where a non-citizen has had charges proven against him that involve family violence.
Subparagraph 8.2(2)(b) provides that this primary consideration is also relevant where there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence and the non-citizen has been afforded procedural fairness.
The respondent submits that the consideration is relevant to a range of offending behaviour and breaches of domestic violence orders by the applicant.
The respondent further submits that the applicant has been afforded procedural fairness in relation to the offending behaviour.
For the reasons set out under the heading “Preliminary Matter- Family Violence” above, the Tribunal is not satisfied that this consideration is relevant to this matter.
Subparagraph 8.3 – Best Interests of Minor Children in Australia affected by the Decision
The Tribunal is directed by this paragraph to make a determination about whether cancellation, refusal or non-revocation of a mandatory cancellation of a visa is in the best interests of a child affected by the decision.
It relates to children who are under 18 years old at the time of the decision.
It requires that where 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.
There is no evidence that the applicant has any minor children of his own.
He has given evidence that he has a relationship with his brother’s children, a boy and a girl.
He has also given evidence that he would like to establish a relationship with his grandchildren, the children of his daughter Ms C.
There is no evidence of any other relevant minor children.
Subparagraph 8.3(4) sets out factors that must be considered by the Tribunal where the best interests of the child are being considered.
Subparagraph 8.3(4)(a) requires consideration of the nature and duration of the relationship between the child and the non-citizen. It directs that 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.
In the case of the applicant’s grandchildren, he gave evidence that he held them twice when his daughter had them but he does not have a relationship with them now. He said he is keen to try to establish one. He has limited contact with his daughter, their mother, but she does not have custody of them in any event. They live with their father and his parents.
There was no evidence about how the applicant will establish a relationship with his grandchildren.
In the case of his niece and nephew, he said in evidence that his niece and nephew are teenagers that he would like to have a relationship with them. They live with his parents and brother. At the time of his application, he said that he often kicks a ball outside with them and goes to school sports events.[44]
[44] Exhibit G1, G documents, page 73.
There is evidence that the applicant has 10 other nephews and nieces[45] but no evidence of a relevant relationship with them.
[45] Ibid, page 74.
Subparagraph 8.3(4)(b) directs the Tribunal’s consideration to the extent to which the applicant 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.
The subparagraph clearly contemplates any minor children of the applicant although presumably if there was evidence that he will play an important role in the lives of his grandchildren and nephews and nieces that would be relevant. There is no evidence that he will play an important role in the lives of these children.
Subparagraph 8.3(4)(c) directs the Tribunal’s contemplation to the impact of the applicant’s past conduct and the likely impact of his future conduct and whether that has or will have a negative impact on the child.

There is no evidence that the applicant’s past or future conduct will have a negative impact on the relevant children.
Subparagraph 8.3(4)(d) directs the Tribunal to consider the likely effect that separation from the applicant would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways.
The Tribunal accepts that, despite the limited interaction that the applicant has had with the children particularly in the last two years during his incarceration, the children are likely to be saddened if he has to move to New Zealand. There is no evidence that there will be any greater impact on any of the children.
Subparagraph 8.3(4)(e) directs the Tribunal to consider whether there are other persons who already fulfil a parental role in relation to the child.
The applicant does not fulfil a parental role in relation to any of the relevant children and the evidence suggests that each child has someone to fulfil that role.
Subparagraph 8.3(4) (f) directs the Tribunal to consider any known views of the child.
There is no evidence about the views of any of the relevant children and this consideration is not relevant.
Subparagraph 8.3(4)(g) directs the Tribunal to consider evidence that the child has been, or is, at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally.
There is no evidence of any relevant matter. This consideration is not relevant to this application.
Subparagraph 8.3(4)(h) directs the Tribunal to consider evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence of any such trauma and this consideration is not relevant to this application.
Having weighed all of the considerations to which the Tribunal is directed and having considered the best interests of the relevant minor children in making its determination, the Tribunal finds that there are no minor children of the applicant, nor are there any minor children who depend on him in any financial or emotional sense.
Having said that, it seems likely that his grandchildren and nieces and nephews would probably be saddened to learn of him moving to New Zealand and so the Tribunal accords this consideration a little weight in favour of revocation of the cancellation of the applicant’s visa.
Subparagraph 8.4 – Expectations of the Australian Community
This primary consideration acknowledges the expectation that the Australian community expects non-citizens to obey Australian laws while in Australia. It further provides that, where a non-citizen has engaged in serious conduct in breach of this expectation, or there is an unacceptable risk that they may do so, the Australian community expects the Government not to allow such a non-citizen to enter or remain in Australia.
It further provides that the nature of character concerns or of offences may be such that the person should not be granted or allowed to continue to hold a visa.
The provision goes on to specify relevant conduct at subparagraph 8.4(2).
Subparagraph 8.4(2)(a) specifies acts of family violence.
The Tribunal has not found that the applicant is guilty of family violence.
Subparagraph 8.4(2)(b) specifies causing a person to enter into, or otherwise be party, to a forced marriage.
There is no evidence that this is a relevant consideration in this matter.
Subparagraph 8.4(2)(c) specifies the commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled. The subparagraph provides that “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against vulnerable persons such as the elderly in the form of fraud, extortion, financial abuse/material exploitation or neglect.
As discussed above, the applicant admitted in evidence that he has been convicted of two counts of aggravated assault against women. Those offences clearly fall within the conduct specified in this subparagraph and the Tribunal regards them as very serious. The applicant did not seek to suggest that they were minor in nature or not serious. He proffered in his defence that he believes he has changed and will not offend in this way again.
Subparagraph 8.4(2)(d) specifies the commission of crimes against government representatives or officials due to the position that they hold or in the performance of their duties.
The Tribunal observes that the applicant has been convicted of assault of a police officer in the execution of that officer’s duty.[46] Given that the Tribunal has no information about the nature of that offending, there is no basis upon which to assess its seriousness and it does not therefore appear relevant.
[46] Exhibit G1, G documents, page 24.
Subparagraph 8.4(2)(e) specifies involvement or reasonable suspicion of involvement with human trafficking or crimes that are of serious international concern.
This class of crimes is not relevant to this application.
Subparagraph 8.4(2)(f) specifies worker exploitation.
There is no evidence that this consideration is relevant to this application.
Having weighed up the considerations to which it has been directed the Tribunal gives substantial weight to the applicant’s convictions for violence against his ex-partners and finds that this primary consideration weighs heavily against the revocation of the cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
At paragraph 9, Direction No. 90 obliges the Tribunal to take into account other considerations where they are relevant.
Subparagraph 9.1 – International Non-refoulement Obligations
There is no evidence that this consideration is relevant to this application and the Tribunal accords it no weight.
Subparagraph 9.2 – Extent of Impediments if Removed
Subparagraph 9.2 directs the Tribunal to consider the extent of impediments that the non-citizen may face if removed to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social medical and/or economic support available to them in that country.
The applicant was 50 years old at the time the Tribunal heard this matter.
He gave evidence in cross-examination that he does not suffer from any physical incapacity for work.
He gave evidence that he expects to be able to work in road construction.
There is nothing to suggest that the applicant could not pursue that occupation in New Zealand from the point of view of age and health.
The Tribunal accords this consideration no weight against revocation of the cancellation of the applicant’s visa.
There is no evidence of any substantial language or cultural barriers to the applicant establishing himself in New Zealand.
There is no suggestion that the applicant would require substantial social, medical and/or economic support in New Zealand. In any event, if he does there is no suggestion that he would be denied these services.
The applicant has submitted that he no longer has important family ties to New Zealand. He has relatives who live there but he has not maintained contact with them and does not expect that they will support him if he goes there.
The Tribunal accepts that there will be a period after he returns to New Zealand during which he will need to establish himself including finding accommodation and work. Although there is no reason to suspect he will not be successful in this, it may take time.
To that extent the Tribunal finds that this consideration weighs slightly in favour of revocation of the cancellation of the applicant’s visa.
Subparagraph 9.3 – Impact on Victims
Subparagraph 9.3 directs the Tribunal to consider the impact of its decision on members of the Australian community including victims of the applicant’s criminal behaviour, family members of the victim or victims where information about this is available and the non- citizen has been afforded procedural fairness in relation to such evidence.
There is no relevant material before the Tribunal and this consideration is accorded no weight.
Subparagraph 9.4 – Links to the Australian Community
Subparagraph 9.4 requires the Tribunal to have regard to the strength, nature and duration of ties to Australia. The Tribunal is required to do so having regard to paragraphs 9.4.1 and 9.4.2.
Subparagraph 9.4.1 relates to the strength, nature and duration of the applicant’s ties to Australia.
Subparagraph 9.4.1(1) directs the Tribunal to consider any impact of the decision on the non-citizen’s immediate family members in Australia where they are Australian citizens, permanent residents or have a right to remain in Australia indefinitely.
The Tribunal understands that the applicant has four children all of whom are Australian citizens. The Tribunal has regard to the evidence from three of the applicant’s children- Ms A, Ms D, and Mr B.
There is no doubt that Ms A regards her father’s support as important to her and she is concerned about the negative effect his removal to New Zealand may have on her.
Ms D also views her father as being an important support in her difficult life.
Mr B has only met his father relatively recently, but the Tribunal accepts that he is keen to explore a close relationship with his father and does not believe that he would be able to do so if the applicant is in New Zealand.
All three of these people have expressed interest in living with the applicant if he moves to Town Z in WA, as he proposes to do if this application is successful.
The applicant does not say that he has a close relationship with his other child, Ms C and the Tribunal does not have any evidence from her.
The Tribunal accepts that the applicant’s removal to New Zealand will probably have a negative impact on three of his children and accords that significant weight.
The Tribunal further has regard to the evidence from the applicant’s parents. They also say that they hope to move to Perth in the near future, apparently to be nearer the applicant.
The Tribunal has considered the impact on the applicant’s minor relatives in the context of Primary Consideration 8.3 and accorded it a little weight in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal also has the benefit of evidence from Ms J which is discussed above.
She describes herself as the applicant’s ‘partner’[47] although she also described the relationship as ‘on again off again’ in her evidence.
[47] Exhibit A2
She says that she and the applicant were in a relationship that started as a friendship about five years ago and developed into an intimate relationship.
She agreed that she had discussed entering a permanent relationship with the applicant but that he did not want to investigate that until he knows whether or not he will be staying in Australia.
On the basis of that evidence the Tribunal finds that Ms J is not currently a ‘family member’ for the purposes of subparagraph 9.4.1(1) but her evidence is nonetheless relevant to the next part of the consideration.
Subparagraph 9.4.1(2) directs the Tribunal to consider the strength, nature and duration of any other ties that the applicant has to the Australian community.
At 9.4.1(2)(a) it requires the Tribunal, in doing so, to have regard to the length of time that the applicant has resided in Australia, including whether the non-citizen arrived as a child. Subparagraph 9.4.1(2)(i) provides that less weight should be given to that consideration where the applicant began offending soon after arriving in Australia. Subparagraph 9.4.1(2)(ii) provides that more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The applicant arrived in Australia when he was just over 16 years old in November 1987. For the purposes of this consideration the Tribunal is satisfied that he was young when he arrived.
The National Criminal History Check[48] suggests that the applicant’s offending history in Australia started with a conviction for assault and hinder police in October 1988.
[48] Exhibit G1, G documents, pages 21-26, at page 26.
Although it is not clear whether that date is the date of the offending or of the conviction, the Tribunal is satisfied that the applicant began offending soon after he arrived in Australia.
Although there is little evidence of positive contribution to the Australian community by the applicant, there is evidence that he has worked in various occupations and also evidence that his children have had substantial support from him.
The Tribunal also notes that while in prison he helped tutor other inmates, which weighs in his favour.
The Tribunal is satisfied that the applicant has resided in Australia for over 33 years which is a long time.
On balance, the Tribunal gives little weight in favour of the application to the length of time that the Applicant has spent in Australia due to the length of his offending and the limited evidence of his positive contribution to the Australian community.
Subparagraph 9.4.1(2)(b) directs the Tribunal to have regard to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal notes that the applicant has extensive family ties to the Australian community and that his parents, siblings, grandchildren, nephews, and nieces are all Australian citizens or permanent residents.
The Tribunal further notes that the applicant has provided evidence showing links to Ms J, Ms X, Mr W, Ms Y and Mr Z.
There is no doubt that all of these people strongly believe that it is their best interests, and in the best interests of the Australian community, that the applicant be allowed to remain in Australia.
The Tribunal also has regard to evidence, particularly from Ms J and Mr B that suggests that the applicant has strong ties to Indigenous Australians.
Ms J suggests that the applicant has been accepted by Indigenous communities to the extent that he has been accorded a status comparable to ‘son in law’. However, the applicant himself does not identify as an Aboriginal Australian.
Further, the evidence suggests that the Indigenous Australians to whom the applicant has links do not propose to go with him to New Zealand if he returns so the applicant’s removal will not cause them to lose their connection to country.
The Tribunal has weighed the evidence relating to the applicant’s links to the Australian community and had regard to the directions set out in paragraph 9.4 of the Direction. The Tribunal is satisfied that the applicant’s family and some other Australians will be distressed and perhaps materially disadvantaged by his removal to New Zealand.
Subparagraph 9.4.2 requires the Tribunal to consider any impact on Australian business interests if the applicant is not allowed to remain in Australia.
The provision relevantly stipulates that an employment link will generally only be given weight where the decision of the Tribunal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of such impact in this matter and the Tribunal is not satisfied that the applicant’s removal will have any relevant impact on Australian business interests.
In view of the applicant’s family and other links to the Australian community, the Tribunal finds that the consideration set out at 9.4 weighs in favour of the revocation of the cancellation of the applicant’s visa and accords it significant weight.
CONCLUSION
The Tribunal finds that Primary Consideration 1 – Protection of the Australian Community weighs substantially against revocation of the cancellation of the applicant’s visa.
The Tribunal is not satisfied that relevant family violence has been demonstrated and accords Primary Consideration 2 - Family Violence Committed by the Non-Citizen no weight.
The Tribunal finds that Primary Consideration 3 – Best interests of minor children in Australia bears a little weight in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal finds that Primary Consideration 4 – Expectations of the Australian Community weigh heavily against revocation of the cancellation of the applicant’s visa.
Of the relevant Other Considerations contemplated by the Direction, the Tribunal finds that Other Consideration 1 – Extent of impediments to the applicant if he is removed is of no weight in favour of the revocation of the cancellation of the applicant’s visa.
The Tribunal finds that Other Consideration 4 – the applicant’s Links to the Australian Community weigh significantly in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal notes that in weighing the considerations, one or more primary considerations may outweigh other primary considerations.
Having weighed the considerations together and considered all of the evidence to which it has been directed, the Tribunal finds that the Protection of the Australian Community and the Expectations of the Australian Community outweigh the remaining Primary Considerations and the Other Considerations.
Therefore, the Tribunal is not satisfied that the discretion to revoke the mandatory cancellation of the applicant’s visa should be exercised.
DECISION
The Tribunal affirms the decision under review dated 16 November 2021.
I certify that the preceding 396
(three-hundred and ninety-six)
paragraphs are a true copy of the reasons
for the decision herein of Member
Mark O’Loughlin
…………………[SGD]……………………..
Associate
Dated:  18 February 2022
Date of hearing:  24 and 25 January 2022
Representation for the Applicant:      Self-represented
Solicitor for the Respondent:             Mr Adrian Downie (Senior Lawyer)
Australian Government Solicitor
Annexure A – List of Exhibits

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 – G5, paged 1 – 130)

-

6 December 2021

R1

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

14 January 2021 [sic]

14 January 2022

R2

Respondent’s Supplementary Documents (SG1 – SG41, paged 1 – 231)

-

14 January 2022

A1

Letter of Support of Ms J (2 pages) attaching:

-    Photograph of medication label

25 December 2021

25 December 2021

A2

Further Letter of Support of Ms J (2 pages) attaching:

-    Biography of Ms J’s family member with photograph

-    Biography of Ms J’s family member with photograph

31 December 2021

31 December 2021

A3

Letter of Support of Ms V attaching evidence of rehabilitation (14 pages)

1 March 2021

5 January 2022

A4

Letter of Support of Ms X (1 page)

6 January 2022

6 January 2022

A5

Letter of Support of Ms A (1 page)

7 January 2022

7 January 2022

A6

Letter of Support of Mr Z (1 page)

10 January 2022

10 January 2022

A7

Letter of Support of Applicant’s parents (1 page)

11 January 2022

11 January 2022

A8

Letter of Support of Ms D (1 page)

12 January 2022

12 January 2022

A9

Victims of Crime Assessor’s Notice – Ms A (1 page)

13 January 2022

13 January 2022

A10

Letter of Support of Ms Y (1 page)

7 January 2022

14 January 2022

A11

Letter of Support of Mr B (1 page)

18 January 2022

18 January 2022

A12

Email from Applicant (statement) (1 page)

19 January 2022

19 January 2022

[2022] AATA 263

9 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 – G5, paged 1 – 130)	-	6 December 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (12 pages)	14 January 2021 [sic]	14 January 2022
R2	Respondent’s Supplementary Documents (SG1 – SG41, paged 1 – 231)	-	14 January 2022
A1	Letter of Support of Ms J (2 pages) attaching: - Photograph of medication label	25 December 2021	25 December 2021
A2	Further Letter of Support of Ms J (2 pages) attaching: - Biography of Ms J’s family member with photograph - Biography of Ms J’s family member with photograph	31 December 2021	31 December 2021
A3	Letter of Support of Ms V attaching evidence of rehabilitation (14 pages)	1 March 2021	5 January 2022
A4	Letter of Support of Ms X (1 page)	6 January 2022	6 January 2022
A5	Letter of Support of Ms A (1 page)	7 January 2022	7 January 2022
A6	Letter of Support of Mr Z (1 page)	10 January 2022	10 January 2022
A7	Letter of Support of Applicant’s parents (1 page)	11 January 2022	11 January 2022
A8	Letter of Support of Ms D (1 page)	12 January 2022	12 January 2022
A9	Victims of Crime Assessor’s Notice – Ms A (1 page)	13 January 2022	13 January 2022
A10	Letter of Support of Ms Y (1 page)	7 January 2022	14 January 2022
A11	Letter of Support of Mr B (1 page)	18 January 2022	18 January 2022
A12	Email from Applicant (statement) (1 page)	19 January 2022	19 January 2022