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

Gubbay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5608 (24 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/6745
Re:Raymond Gubbay
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:24 December 2019
Place:Brisbane

The Tribunal decides to:
1.set aside the reviewable decision made by a delegate of the Respondent on 10 October 2019 not to revoke the mandatory cancellation of the Applicant’s Class EN (Subclass 186) Employer Nomination Scheme visa; and
2.substitute a decision that the decision dated 10 October 2019 to cancel the Applicant’s Class EN (Subclass 186) Employer Nomination Scheme visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958.

............................[SGD]............................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of Applicant’s visa – Applicant has substantial criminal record – domestic violence offences - whether discretion to revoke mandatory cancellation should be exercised – primary considerations - other considerations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction no. 79 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
24 December 2019
INTRODUCTION

This matter is an application filed by Mr Raymond Gubbay (“the Applicant”) on 17 October 2019 to review the decision of a delegate of the (“the Respondent”) dated 10 October 2019 not to revoke the mandatory cancellation of his Class EN Subclass 186 Employer Nomination Scheme visa.
At the hearing before the Tribunal, the Applicant was represented by Ms Caitlin White, Fisher Dore Lawyers. The Respondent was represented by Ms Laura Crick, Clayton Utz solicitors.
BACKGROUND
The Applicant was born in 1968 in the United Kingdom (UK). He is currently aged 51 years.
The Applicant completed his secondary schooling up to year 11 in the UK and went on to complete a Diploma of Business and Administration. He ran a number of businesses before commencing employment as an armed civilian watchman with the British forces in Germany.
The Applicant later completed training teaching English as a second language and started an English language school in Germany in 1997. This business successfully operated until 2011.
In 2002, the Applicant met his now ex-wife (“SG”) in Germany. She was employed by the German military and was undertaking medical studies. The Applicant and SG married in 2003. There are four minor children of the marriage born between 2009 and 2014. The family relocated to Australia in 2011. Whilst SG was working as a medical practitioner and completing her specialist medical studies to become an anaesthetist in Australia, the Applicant remained the full-time caregiver of their children.
In July 2017, the Applicant’s marriage to SG was in conflict and, between 9 July and 26 July 2017, he committed the below mentioned domestic violence offences to which he pleaded guilty. He was convicted and sentenced in the District Court of Queensland on 29 November 2018 for the following offences:
(a)Distribute prohibited visual recording - committed on 9 July 2017;
(b)Assault occasioning bodily harm (4 counts) - committed on 9 July (1 count) and 17 July 2017 (3 counts); and
(c)Distribute prohibited visual recording - committed between 17 July and 26 July 2017.
For the above offences, the Applicant received a head sentence of imprisonment of 15 months, to be suspended after serving four months in prison.
On 24 January 2019, the Applicant’s visa was mandatorily cancelled (“the original decision”) under s 501(3A) of the Migration Act 1958 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.
The Applicant made representations seeking revocation of the mandatory visa cancellation decision within the period and in the manner specified.
On 10 October 2019, a Ministerial delegate determined that they were not satisfied that the Applicant passed the character test or that there was another reason why the original decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel the Applicant’s visa.
On 17 October 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the commonwealth, a state or a territory.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test. The Applicant had been sentenced to a term of imprisonment of at least 12 months (namely 15 months) and at the relevant time was serving a sentence of imprisonment on a full time basis. The concession was rightly made. The Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. however, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa Applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. these different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)the nature and the seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. it relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)the principle that… violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The circumstances of the offending as contained in the Learned Sentencing Judge’s sentencing remarks[1] can be summarised as follows:
oThe Applicant and SG met in Germany in 2002. They were married a year later in London. There are four children of the marriage; two were born in England, and two were born in Australia.
oThe Applicant and SG moved to Australia in 2011. In Australia, SG worked as a doctor and was studying to become a specialist. It was decided that the Applicant would become the primary homemaker. It was common ground that there was some unhappiness in the marriage for some time. They had been to marriage guidance counselling. The Applicant was not happy with SG’s long hours of work and reduced time spent with the family.
oOne of the Applicant’s friends, T, was a boxing trainer and was training SG. SG began to develop feelings for T and sent him some text messages. The Applicant became jealous and suspicious of this and it led to this “nine day period of turbulence which led to the offending”.
o“In the days leading up to the assaults the atmosphere was tense and unpleasant. You berated [SG] about [T]. You spoke to her in a demeaning way and treated her poorly.”
o“On the 8^th of July 2017 some nude pictures were taken of her and you showed those, without her consent, to your friend [name of friend redacted] in her presence. That was very embarrassing for her. That is count 1. Then on 9^th of July 2017, during sexual intercourse, you slapped her on the left thigh which caused a bruise which was photographed by her friend the next day at work. Count 2. On the 17^th of July you heard some new rumours, which were incorrect, about [T]. She arrived home from work at 6:30 pm. You met her on the garage, confronted her and slapped her with an open hand and then with closed fists. Count 3. The children came out and you said, “mummy’s not crying, she’s laughing”. Afterwards, you were sitting on the edge of the bed and [T] was raised by you and you threatened to kill her and slapped her around the head for a long time. That certainly seemed like that to her and punched her in the arms and legs a number of times. Count 4.”
o“You then put clothes pegs on her nipples during sex. They fell off, but you kept putting them on. Eventually they were removed. She had petechial haemorrhaging of her nipples as a result. Count 5. As a result of these assaults she decided to leave the marriage and reported this to the police station. She collected the children and drove to a secure location … some days later you showed a video of you and her having sex to a cleaner, and friend, [name of friend redacted]. Count 6. Apparently the reason for that was to show that there was no injury to her. But, of course, it clearly was without her consent.”
[1] Exhibit A, G Documents, pages 26 – 31.
In sentencing the Applicant, the Learned Sentencing Judge said:
“The crown correctly points out the offences were violent. It was in a domestic setting, with the wife being the victim. There was verbal abuse as well. You were controlling during the period. It was humiliating, these disclosures for counts 1 and 6.”
The courts need to treat domestic violence offences seriously. It is pointed out she was vulnerable…”
“I have considered all matters. I think it is a serious example of domestic violence, not isolated, and compounded by the disclosure of these images without her consent, which I think is serious as well.”
The Applicant concedes the criminal offending was very serious within the meaning of the Direction. Although the Applicant disputes that the visual recording charges involved physical violence, the Applicant submits they were committed in the context of domestic violence and accordingly it is open for the Tribunal to categorise them as serious in nature.

The Applicant submits he received a sentence that was substantially below the maximum available sentence, indicating his offending was on the lower end of the scale of seriousness.
The Applicant has no prior criminal offender history. He said the offending occurred in the context of his marriage breakdown and a “nine day period of turbulence” and his conduct is unlikely to continue if returned to the community.
The Tribunal received SG’s victim impact statement (“VIS”) dated 27 November 2018 which was before the Learned Sentencing Judge.[2] That VIS was unchallenged. SG there said, amongst other things, that the offending had a traumatic impact upon her. She did not feel safe; she was diagnosed with Post Traumatic Stress Disorder with flashbacks, hypervigilance and nightmares. She was receiving regular medical and psychological therapy. She has a fear of engaging in an intimate relationship and cannot bear the thought of sexual activity without triggering anxiety attacks. The children receive, and will continue to receive, long term trauma therapy. They live in hiding from the Applicant.
[2] Exhibit C, pages 66 – 67.
Having regard to paragraphs 13.1.1(1)(a) – (c) of the Direction, the Applicant’s offending is properly categorised as serious. The Applicant rightly makes that concession. The offences of violence and the dissemination charges are serious offences.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant does not dispute that physical and psychological harm such as that referred to in SG’s VIS would likely be caused to another if the Applicant were to reoffend in a similar way.
The Applicant submits however, that he poses a low risk of reoffending and that such low risk is not unacceptable.
The Learned Sentencing Judge had before him a number of medical reports and character references. His Honour referred to stressors that were impacting upon the Applicant at the time of his offending. Those stressors included the unhappiness in the marriage resulting in attending marriage guidance counselling; that SG developed feelings for her boxing coach, T, who was also a close friend of the Applicant, and sent T text messages; SG’s long hours of work; and the Applicant’s motorbike accident in May 2017 in which he damaged his medial ligament.
The Applicant in his evidence before the Tribunal acknowledged each of his offences and that his offending was serious. He said that he was ashamed of his conduct and that it was out of character. He said that the conduct occurred in circumstances in which he was under extraordinary stress.
The Applicant said that he and SG met in 2002 and were married in 2003, and they enjoyed a fine and loving relationship. SG was studying at the time and the Applicant was running his English and translating school. The Applicant and SG had difficulty starting a family. He said that they lost their first child, which the Tribunal infers was due to a miscarriage. When they were about to commence IVF, they learnt SG was pregnant with their daughter, NLG, who was born in June 2009 and is now 10 years of age. From about that time, the Applicant and SG decided she would pursue her studies and the Applicant would wind down his business interests and assume a parenting role for their daughter, and thereafter the subsequent children of the marriage. The Applicant’s business employed a number of people and he ran that business down before he, SG and NLG came to Australia. The motivation for coming to Australia was to give their family a better lifestyle and they arrived in October 2011.
The Applicant’s sister, EL, who lived in England, travelled with them and stayed in Australia for approximately one month to help them settle in their new country. The Applicant’s second child, QG, was born in January 2012, three months after the Applicant and his family arrived in Australia.
In Australia, SG continued her studies to achieve specialisation as an anaesthetist. When pregnant in 2013, the family travelled to London and shortly after they arrived in May 2013, SG gave birth to their son, VG. A few days later, the Applicant drove SG and the family to Germany where SG sat an exam to qualify as an anaesthetist in Germany. Following their return to Australia and in August 2014, SG was advised she had passed her Australian exams to qualify as a specialist anaesthetist and the following day their son, EG, was born. Thereafter, the Applicant had the day-to-day parenting duties of their four children who were all aged under six years at that time.
The Applicant said that throughout this period SG was working very hard, starting at about 7:30 am and, because of study and work commitments, she would arrive home at about 9:00 pm – 10:00 pm. They had no quality time as a couple. Also, his wife would take frequent trips overseas. An example was when SG was pregnant with their last child. She travelled to Portugal approximately three to four months before his birth. She also travelled interstate to sit exams in Australia.
The Applicant said that the arrangement in which he cared for the children and SG worked continued so that they could pay off their debts. They moved to the Fraser Coast Region where SG worked in a hospital. However, she continued to work long hours and worked 1/3 more over time than any other medical practitioner. She also worked at three private hospitals. The Applicant described SG as being very busy and very focused. After renting for approximately one year, they bought a home with a substantial mortgage. Their initial goal that the Applicant would return to work was not achieved and he described his wife as like a runaway train that did not want to stop. He accepted that he had arguments with SG prior to the offending, but they did not involve any acts of violence.
The Applicant said that as he was the primary carer of his children and SG was working and spent no time at home; he was exhausted. He also said there was some financial stress. In late May 2017, he had a motor vehicle accident (“MVA”). He said he “ripped” his MCL and ACL ligaments in his knee and was required to lie down for approximately four weeks to see if the rupture repaired itself. It did not. He then developed deep vein thrombosis (“DVT”) and he was unable to have an operation on his knee until that resolved. He was using crutches and had limited movement. During this time, they engaged a nanny. SG would assist by taking the children to school when he could not drive. The Applicant had also started studying at university.
The Applicant and SG started attending marriage counselling because they had grown apart and they felt they needed counselling to get back together. The Applicant said that, after about four to six weeks and in late June and early July, he was still caring for the children. The Applicant said that on 8 July 2017, he was informed by his wife that she had developed feelings for T, who was a friend of the Applicant and SG’s boxing trainer. The Applicant said he was devastated. They had planned for so long and done so much, had invested time coming to Australia and having children that when his wife said she wanted to have an affair with T, he was shocked. Thereafter, occurred the “nine day period of turbulence” in the home.
The Applicant was asked what led to the offending and he said it was the fact of the MVA, the revelation that SG had been with a good friend, the idea of the family breakup, and the loyalty that was broken, all of which resulted in him not being in a good place and he acted out. He said his conduct was completely wrong and subsequently he did not believe how he had acted. He said he felt humiliated and he blamed himself.
On the morning of 18 July 2017, the Applicant took the children to school. SG subsequently collected the children from school early, and he has not seen his children or SG from that day. He then had no income. The joint bank account had been “cleaned out” and he was no longer covered by medical insurance and consequently to date he has not had the operation on his knee.
The Applicant explained that he was subsequently charged and received police bail. A protection order was made that he be of good behaviour and that he not commit an act of domestic violence against his wife or children. Further, that he was not to go to her place of work or residence without written consent or a court order. He was permitted to attend such places for the purpose of having access to his children.[3]
[3] Exhibit A, G Documents, G2, page 34.
The Applicant said he did not know where his wife and children were living. In October 2017 through his solicitor, two email communications were sent to SG’s solicitor to arrange access to the children. He received no reply. He did not attempt to contact SG after that because he did not wish to breach the protection order.
The Applicant said he remained on bail for 16 months living in the community. During that time, he was permitted to travel to England to visit his mother who was unwell. He was there for approximately six months and after he returned to Australia his mother passed away. He also obtained employment with an electrician, Mr NB, working two – three days a week. He was receiving counselling through Uniting Care.
The Applicant met Ms MM on the internet and they commenced a relationship in late 2017. She had two male children from a prior marriage. The Applicant was then allowed to live in the former matrimonial home and he and MM would divide their time living at each other’s residence. The Applicant helped MM care for her children. That relationship is continuing and, if returned to the community, it is intended that the Applicant will reside with MM.
MM gave evidence by telephone and corroborated the Applicant’s evidence about their relationship and that it is continuing. The Applicant supported her in caring for her two sons prior to being imprisoned. Their natural father was then not engaging with her children; however since June 2019 her youngest some commenced residing with his father.
There was no cross-examination of MM. Her evidence was not challenged.
The Applicant’s sister, Ms EL, gave evidence by telephone from England. She too corroborated the Applicant’s evidence. She was close to the Applicant, and his wife and children throughout their marriage. She came with them to Australia to help them settle.
Her evidence was particularly relevant to Primary Consideration B, but she did express an opinion that the Applicant will not reoffend. She described his visit to England in 2018. The Applicant was devastated by the separation from his children and she would often hear him sobbing. She opined that he would not do anything in the future which would jeopardise his ongoing contact with his children. She knew of his criminal offending and at the time he expressed contrition and remorse for what he had done. She said that his offending was uncharacteristic and is not her brother. She spoke highly of him as a person and a father.
The Learned Sentencing Judge in referring to the stressors at the time of the offending said:
“I think it is clear from those that this offending was out of character for you, and it is explained by that severe stress you were undergoing at the relevant time. I think normally you are a good person, and care very much for your children.”
The Tribunal had the benefit of a detailed and helpful report of Dr Jacqui Yoxall psychologist, dated 30 July 2019, together with her oral evidence. Dr Yoxall’s report and evidence was not challenged. Dr Yoxall has given evidence regularly before the Tribunal, has worked in the forensic environment for 15 years, and has worked in academia since 2006. She holds a PhD in the forensic aspects of psychology, albeit she is not a forensic psychologist.
Dr Yoxall assessed the Applicant by telephone on 10 and 11 June 2018. She acknowledged that she did not have the benefit of seeing the Applicant in person, nonetheless she was satisfied that he did not attempt to minimise his offending. She said the relationship was acrimonious post separation, but opined that the Applicant was genuine in his expression of remorse and regret, acknowledging the seriousness of his offending in an open and frank way.
Dr Yoxall undertook a risk assessment of the Applicant’s likelihood of reoffending using two accepted assessment tools, namely, the Level of Service Inventory – Revised (“LSI-R”) and the Spousal Assault Risk Assessment guide (“SARA”). The result of the former assessment was that the Applicant was a low risk of reoffending and required a low level of rehabilitation. The result of the latter was that the Applicant was a low risk of spousal violence and a low risk of violence towards others.
Dr Yoxall said that, although she did not have the benefit of visual observation of the Applicant, having regard to his speech generally, speech form, and his commentary, she was able to form an appropriate view of the Applicant’s mental state. She opined there was no psychotic phenomenon impacting upon the Applicant, but he did suffer from substantial distress and grief following his separation from his four children. That separation was a core component to his presentation. He had lost the life he had in place, his family, his marriage, and his home. The loss of his mother in 2018 also had an impact upon him, but the loss of his children was acute.
Dr Yoxall confirmed there was no substance abuse, no personality disorder, no violent tendencies, no personality or other disorder, nor any psychological disorder evident that might compromise the Applicant. She opined that because of his age at the time of offending, lack of history of offending, and long-standing relationship, his offending was uncharacteristic and unusual. He was not a person with a tendency for violence. He did not demonstrate the indicators for predisposition to family violence and did not present as a person of risk of family violence.
Dr Yoxall referred to those stressors that were impacting upon the Applicant and referred to by the Learned Sentencing Judge. She said over time the Applicant was developing growing discontent in respect of where his life was going, the absence of time his wife was giving to the family, and the time she was spending at work. He had an agreement with SG that he would care for the children until she achieved her specialisation as an anaesthetist, that he would then renew his career, and they would share the care of the children, which was not happening. He felt disregarded. Further, he was in substantial pain following his MVA and the pinnacle was when SG said she wanted to pursue an intimate relationship with T, the Applicant’s friend. The combination of these stressors, Dr Yoxall opined, had a devastating effect on the Applicant such that his conduct leading to the offences was impulsive and uncharacteristic. As to the filming of SG and dissemination of that material, she opined that during the relevant period of time his reasoning and judgement was impaired. She opined his overall offending was impulsive.
In assessing the risk of reoffending, Dr Yoxall had regard to the absence of any subsequent offending. It was relevant that he did not subsequently pursue SG, which was indicative of his general character and his pre-offending character. It demonstrated his realisation that he had been out of control and he then dealt with his grief. At the time of his offending, his worst fears came true, namely the loss of his wife, loss of his children, loss of his income, loss of access to medical benefits, and his continuing pain from his motor-vehicle injury. He saw his entire life as lost.
However, Dr Yoxall opined that the departure of the Applicant’s wife and children, and his continued separation from his children, has had a greater impact upon him, and the fact that he has been a reasonable person who has not reoffended, and has engaged with others, demonstrated a realisation by the Applicant that his violence was unacceptable.
Dr Yoxall acknowledged that, albeit the risk of reoffending was low, there are factors which may increase that risk and that there were things the Applicant can do in the future to manage that risk, including counselling which he has, to date, willingly undertaken. The Applicant has now instigated family law proceedings, which is a further indication of his intention to pursue a correct and legal process to enable him to renew his contact with his children.
Dr Yoxall also recommended the Applicant continue to engage in counselling programs tailored to his needs, which programs have not been available to him whilst in custody and immigration detention. These include, amongst other things, relationship communication strategies which will assist and guide him during periods of stress.
Dr Yoxall, in forming her opinion, also had regard to the Applicant having good prospects of employment, and his current relationship with his partner which included assisting her in her work. She had regard to his close relationship with his sister in England and that he had several strong key friendships and a strong community involvement. Further, the threat of deportation and threat of disassociation with his children were strong motivating factors supporting the assessment of low risk.
Dr Yoxall said that, psychologically and emotionally, the separation from his children has been a challenge and compromised the Applicant, but he has not demonstrated inappropriate or violent behaviour despite those challenges. The possibility of separation from his new family will also be, to a lesser extent, a further motivation against reoffending.
Dr Yoxall opined that, at the time of his offending, the Applicant had no answer to what he was facing. Now, he has control and the ability to manage his response, have respect and regard for the proper process in renewing contact with his children, and to remain within appropriate boundaries when facing stress. Dr Yoxall acknowledged that it was reasonable to assume the Applicant would face stress in the future but, given the way the Applicant has conducted himself, she expressed to a reasonable level of confidence that he will not engage in violent offending again.
The day before she gave evidence, Dr Yoxall received additional material which included a table of rehabilitation programs and counselling undertaken by the Applicant between July 2017 and October 2019, and the Applicant’s five-page self-reflection, all of which postdate her assessment. She said those documents reinforced her opinion and further demonstrates that the Applicant has attempted to engage in rehabilitation and counselling, and his reflection and strategies.
In addition to those programs, whilst in custody and detention he also engaged in programs relating to drug and alcohol abuse. This, Dr Yoxall opined, was a further indication of the Applicant’s level of insight into the need to understand psychological factors impacting upon him, and to identify and develop strategies and greater management and awareness of such issues including compulsion and stress.
The Tribunal also received numerous character references which all confirmed the Applicant’s general good character, that his offending was out of character, and his excellence as a parent and carer of his children.

In closing submissions, the Applicant conceded his offending was serious and he did not seek to minimise his conduct. It was accepted that if he reoffended in a like manner, it would likely result in serious physical and psychological injury. However, there were unique circumstances impacting upon the Applicant at the time of the offending. It was submitted that those factors will not re-occur in the future. Counsel referred to the Applicant’s evidence in which he said his marriage was over and he did not wish to reconcile with his former wife. Further, he has no intention of contacting her in the future and his only wish is to contact SG for the purposes of being engaged with his children.
Counsel for the Applicant referred at length to the evidence of Dr Yoxall, and submitted it was significant in assessing the risk of the Applicant reoffending. The stressors, and in particular SG’s expression of feelings for T, resulted in a tipping point and the Applicant lashing out. Further, it was submitted that there were arguably more significant stressors after SG left the home with the children. The Applicant’s separation from his children had, and continues to have, a significant impact upon him. The stress of separation is greater than the stressors at the time of his offending, and he continues to be in pain following the MVA. Nonetheless, he remained in the community for 16 months post-offending without incident.
Counsel referred the Tribunal to the two risk assessment tests performed by Dr Yoxall both confirming the Applicant was a low risk of reoffending. This, it was submitted, was also supported by the opinions of others which included his current partner MM, and his sister EL.
Counsel submitted that, in respect of the future, the Applicant will continue his relationship with MM. He has an offer of employment from NB and he also has the experience of teaching. It was also submitted that he has undertaken, and will continue to undertake, programs to deal with his mental health and resilience, and that there is nothing preventing him from exercising self-control in the future. Counsel also referred to the fact that he has, and remains on, a suspended sentence and he has not breached the terms of that suspended sentence bond.
Counsel submitted that the Applicant is now pursuing the renewal of contact with his children through family law proceedings. He has a strong desire to regain access to his children and he is pursuing this through the proper legal process. He did not react adversely to the two unanswered emails which further demonstrated that the offending was isolated, out of character, and arose due to the extraordinary stressors he was facing at the relevant time.
Given the Applicant’s low risk of reoffending, it was submitted that it was difficult to warrant the Applicant’s removal from Australia.
The Respondent emphasised the Applicant violent behaviour both physically and verbally and referred the Tribunal to the Respondent’s Statement of Facts, Issues and Contentions (“SOFICs”) commencing at paragraph 19 and in particular at paragraphs 22 – 24 inclusive. Counsel referred to paragraph 13.1 of the Direction, including paragraph 13.1.1(1)(a) and (b), and that the offences were violent crimes against a woman which the Tribunal must view seriously regardless of the sentence imposed upon him.
However, the Respondent also submitted that the risk of reoffending was low and conceded that this Primary Consideration may not weigh heavily upon the Applicant, but that this Primary Consideration still weighed in favour of the continued cancellation of the Applicant’s visa and that it remained for the Tribunal to determine the appropriate weight to be attributed under this Primary consideration.
Conclusion: Primary Consideration A
The Applicant’s offending was serious both in respect of the acts of violence and the dissemination of pornographic material of his former wife. The Tribunal agrees with the submission of the Applicant that the dissemination offences were not offences of violence, however they were offences which demonstrated a lack of regard for SG and a level of contempt that he had for her at the time of the offending.
In considering paragraphs 13.1(1) and 13.1(2)(a) and (b) of the Direction, the Tribunal accepts that the offending occurred over a very short period of time when the Applicant was burdened by difficulties in his marriage and the pain and discomfort from his MVA. Those factors, however, do not militate against the seriousness of his conduct, which were violent acts against his former wife. Should he commit further or other serious offences, the consequence would likely be serious psychological and physical harm to another.
However, the Tribunal accepts that the risk of reoffending is low. The evidence of Dr Yoxall who was an impressive and very helpful witness is of particular importance in this respect. The Applicant has undertaken various programs to deal with stress related behaviour, and importantly spent 16 months in the community on bail at a time of greater stress and distress caused by the separation from his children. He did not react inappropriately towards SG. The Tribunal accepts the evidence of Dr Yoxall and the opinion that the Applicant does not demonstrate any personality disorder or any key predictors in his personality indicative of future family violence. The Tribunal accepts Dr Yoxall’s opinion that the risk of reoffending is low.
The Tribunal accepts the Applicant’s evidence. He was an impressive witness; genuine in his remorse and contrition for his violence towards SG. The Applicant has demonstrated appropriate behaviour by pursuing the return of his children through family law proceedings. The Tribunal accepts the Applicant’s evidence that he will maintain that legal action as the appropriate process to renew his engagement with his children.
The Tribunal also accepts the evidence of MM and EL, both of whom were also impressive witnesses. The Applicant and MM currently have a close relationship albeit interrupted by the Applicant’s time in England, imprisonment and detention. Nonetheless, the Tribunal accepts that upon release from detention she and the Applicant will renew their relationship and that the Applicant’s marriage to SG is at an end.
The Tribunal accepts that the Applicant’s offending was uncharacteristic and was brought about by the significant stress he was dealing with at the time. Having regard to the whole of the evidence, the Tribunal is satisfied that the weight to be attributed to this Primary Consideration should be significantly reduced while still reflecting that this Primary Consideration should continue to weigh against the Applicant.
The Tribunal finds that Primary Consideration A should be given moderate weight in favour of the revocation of the Applicant’s visa.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)in considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is the biological father of four minor children, namely NLG aged 10, QG aged 7, VG aged 6, and EG aged 5. Until 18 July 2017, the Applicant performed the primary parenting role in respect of each child.
The Applicant has performed the role of stepfather to his partner’s children, namely JEG aged 12, and JOG aged 11.
The Applicant’s relationship with all of the aforementioned children is not in dispute. There is no differentiation with respect to best interests of his four biological children. The Tribunal will consider their interests first. The interests of his stepchildren are different to those of his biological children and different as between each other, which the Tribunal will deal with separately.
The Applicant gave evidence, which the Tribunal accepts, that he had been the primary caregiver of his biological children from their birth due to SG’s work and study commitments. He attended to all aspects of their daily care. Due to her long working and study hours, SG was unable to give much time to her family.
Since separation, SG has not responded to email communications from the Applicant requesting access to his children. There are now ongoing family law proceedings and, once resolved, the Applicant submits he is likely to play a positive parental role in the future. For much of the time, the Applicant did not know the whereabouts of his wife and children and he attempted communication through his legal practitioner. Since being in custody and detention, he has learnt that they have returned to live in the former matrimonial home and that SG has now employed a nanny to care for the children so that she can continue with her work as an anaesthetist.
The Applicant’s children did not witness the violent offending against their mother, however they saw that she was upset. The Applicant submits this does not mean they understood or remember what had happened. There is no evidence before the Tribunal that the offending had any adverse effect upon the Applicant’s children or his application for custody and access. In the absence of any evidence to the contrary, the Tribunal accepts the Applicant’s evidence that he is likely to play a positive parental role in the future and in particular that he will likely resume a significant portion of the role currently performed by the nanny. If deported, communication with his children would be difficult, particularly in person, and would not be as meaningful as it could be if the Applicant was to remain in Australia. Further, if deported before family law proceedings are finalised, there will be a real likelihood that conducting such proceedings will be difficult and cost prohibitive and he will likely lose all future contact with his children without ongoing co-operation from SG.
The Applicant commenced a relationship with Ms MM and thereafter played a parental role to her two sons. MM said, and the Tribunal accepts, that they both readily accepted the Applicant and both would be “sad and disappointed” should the Applicant be deported.
It was accepted that he would take them to school, play with them, help them with homework, and attend school events. Their biological father was then generally absent from their lives.
However, since the Applicant has been in detention and from in or about June 2019, the youngest child JOG has returned to live with his father and MM sees JOG each alternate weekend. The father also has access to JEG.
Hence, should the Applicant return to live with MM, it is likely that he will play a greater positive parenting role to JEG, being the only child who will be living in their home. The impact of deportation on JEG will likely to be greater than JOG, who now resides with his biological father.
The Applicant’s sister Ms EL gave evidence that whilst he lived in Germany, she was in regular contact with the Applicant and SG. EL was present at the birth of NLG. She would often visit the Applicant and his family in Germany and they would visit her in London. They also maintain regular contact by telephone and Facebook.
EL saw the Applicant caring for NLG and described them “like two peas in a pod”. She said that they had a very close and loving relationship. She described the Applicant as a caring, loving and a gentle parent. She said the Applicant and NLG were extraordinarily close.
EL said that when the Applicant moved to Australia, they maintained regular weekly contact including on FaceTime and WhatsApp so they could see each other. She would see the Applicant playing with the children in the swimming pool, during story time, and at the beach. She said she was there with them and was as close as possible with the Applicant and his family, and in particular the children, given the miles between them. She said that SG would work demanding hours and she would not see her unless it was late at night. On those occasions, she was more in the background.
EL said that the family came to visit her in 2011 when SG was to sit exams and the family stayed at EL’s home. SG was pregnant and she gave evidence about her giving birth while she was still visiting in London. This arrangement she said demonstrated her closeness to the family. El also arranged all aspects of the Applicant and SG’s wedding and reception.
EL was also in communication with the Applicant during 2017 and immediately before the Applicant’s offending. In the lead up to his offending, she described him as being in a leg brace and in pain. She knew that the Applicant and SG were not spending time together because of SG’s gruelling work schedule. She was aware that they had sought marriage guidance counselling. She was also aware that SG had told the Applicant she wanted a sexual relationship with her boxing coach and she described that event as “tipping him”. She said he was immediately remorseful and, when telling her what he had done, he was crying and that he knew it was wrong.
EL said the Applicant was devastated that he was separated from his children and, when he came to visit at the time of their mother’s illness, he was still devastated at the prospect of not seeing the children and was finding it very difficult. His main focus was to get back to Australia to see his children. She heard the Applicant sobbing at night, missing his children, and worried about how they were missing him. He carried drawings and cards from the children with him.
When asked about the impact the separation may be having upon the children, he said that they were four beautiful and wonderful children who spent 24 hours a day with the Applicant, and then they were taken out of that environment not to see him again. She suspected that NLG will be heartbroken. She described the relationship between the Applicant and his children as being like little ducks following the Applicant around, and she was distressed about how the separation will be impacting upon each child. She said the Applicant needs his children and they need him.
EL was aware of the Applicant’s new relationship however, in respect of MM’s two boys, they were more in the background and she has not had much communication with them.
Dr Yoxall was also asked about the impact the separation may have upon the Applicant’s children. She said that it is well accepted that when forcibly separated from a parent, the impact upon a child or children is lifelong and can impact upon a variety of ways. She opined that the natural children’s separation from the father would have a significant impact on the children.
The Applicant submits that it is in the best interests of his four biological children that this Primary Consideration weighs heavily in his favour. He had been the centre of their world and developed a strong degree of attachment. He was a loving father and that should continue. Whatever function the nanny is currently playing in respect of the day-to-day care of the children, the Applicant should be the parent given priority to perform such function and is the more ideal and appropriate arrangement. There is no other family support in Australia. The Applicant and SG’s family live overseas.
Counsel observed that following the initial family law proceedings, SG will facilitate the exchange of cards and written communication between the Applicant and his children, which it was submitted was any encouraging sign that there were good prospects of the renewal of the relationship between the Applicant and his children. It was submitted this should be allowed to continue in Australia. The prospects of doing so were the Applicant to reside in England would be difficult.
As to his two stepchildren, again it was submitted the Applicant enjoyed a good relationship and parenting role with them. It is the Applicant and MM’s intention that they will live together and that the Applicant will at least play a parenting role in respect of JEG.
The Respondent accepted that the Applicant had been the primary carer of his biological children and been a loving father until their separation. As for JOG and JEG, his parenting role has been limited. Counsel reminded the Tribunal of the Applicant’s movement records[4] which in particular confirm that the Applicant departed Australia in December 2017 and returned in June 2018 when he travelled to England. Hence, he left Australia approximately one month after the commencement of the relationship with MM and was only back in Australia for approximately five months prior to being sentenced to imprisonment on 29 November 2018.
[4] Exhibit A, G Documents, G2, page 192.
The Respondent nonetheless accepted that this Primary Consideration weighs in favour of the revocation of the Applicant’s visa cancellation and did not wish to be heard in opposition to the proposition that this Primary Consideration weighs heavily in favour of the Applicant.
Conclusion: Primary Consideration B
The Applicant had, until separation from his wife, enjoyed a close and loving relationship with his biological children and, for the whole of that period, performed the principal parenting role to them. Further, he is likely to play a similar role in the future should he return to the community.
Following his return to Australia in June 2018 and prior to his imprisonment, the Applicant played a positive parenting role in relation to both of MM’s children. However, given JOG now lives with his natural father, should the Applicant return to the community, he will likely play a parenting role in respect of JEG.
The Applicant’s prior conduct has, on the evidence, had no adverse impact upon any child referred to above, nor will it have any adverse impact upon the care of any such child in the future.
In respect of his biological children, there is no one who is likely to play a parenting role in the future albeit a nanny has been engaged by SG. The Tribunal infers this is to assist with the care of the children so that SG can maintain her employment.

It is in the best interests of the Applicant’s biological children that he remain in Australia and provide a parenting role in relation to them.
Given the limited role that the Applicant has played in respect of his stepsons, and in particular JEG, the Tribunal gives only slight consideration to this parenting role when determining the overall weight to be given to this Primary Consideration.
Having regard to the whole of the evidence, Primary Consideration B weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)the Australian community expects non-citizens to obey Australian laws while in Australia. where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. 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. Decision-makers should have due regard to the government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The evidence as it relates to this Primary Consideration is referred to above and the Tribunal will not repeat it here.
It is well-settled that it is the expectation of the Australian community that an Applicant obey Australian laws and that expectation has not been met when an Applicant by his or her offending and sentence of imprisonment cannot pass the character test pursuant to s 501(6)(a) of the Act. Hence, the expectation of the Australian community is that the Applicant’s visa be cancelled. It is then for the Tribunal to consider the weight to be given to this expectation in the operation of the Tribunal’s discretion, having regard to the balance of paragraph 13.3(1) and to the Principles referred to, in particular, in paragraphs 6.3(5) and 6.3(7).
The Applicant accepted that it was not for the Tribunal to determine the expectations of the Australian community and that the expectation was that the Applicant, being a non-citizen who has committed an offence in Australia, can generally expect to forfeit his visa. The question here is how much weight is to be given to this Primary Consideration. It was submitted that paragraph 13.3 of the Direction does not preclude the returning of the visa to the Applicant.
Counsel for the Applicant referred the Tribunal to the personal circumstances of the Applicant at the time of offending and submitted that the nature of the offending was not so severe as to outweigh the revocation of the visa cancellation. It was offending over nine days, involving one victim, and occurred when he was in a state of substantial stress and that conduct has not been repeated. Further, he was a low risk of reoffending and has made sincere efforts to engage in rehabilitation courses, including substance abuse courses.
It was submitted that when considering the tolerance of the Applicant’s criminal offending, because of the period he had spent in Australia and because it was in the best interest of his children and stepchildren that he remain in Australia, a higher tolerance may be afforded. Counsel also referred to the evidence of Dr Yoxall that trauma was likely to have been endured by the children given their separation from the Applicant, which is confirmed by the literature referred to by Dr Yoxall on the subject.
The Applicant submits that, but for this very short period of offending, the Applicant has conducted himself in an exemplary manner, including being involved in the children’s school and volunteering within the community by helping those less privileged and in need including through his church.
It was submitted therefore that no or limited weight would be appropriate with respect to this Primary Consideration.
The Respondent, consistent with the decision in FYBR v Minister of Home Affairs (“FYBR”),[5] submitted that the deemed expectation of the Australian community was that the Applicant’s visa be cancelled and that it was for the Tribunal to determine the weight to be given to this Primary Consideration. Counsel for the Respondent referred to Stewart J in FYBR at [100] in which he said:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[5] [2019] FCAFC 185.
The Respondent submitted that having regard to factors personal to the Applicant, this Primary Consideration still weighs against the Applicant, but it was for the Tribunal to determine what weight should be given. The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the Applicant.
Conclusion: Primary Consideration C
The Applicant arrived in Australia in 2011 aged 43 years and his offending occurred approximately six years after his arrival. The offences occurred over a period of nine days at which time the Applicant was under substantial stress and distress. His offending was out of character.
The Australian community has a low tolerance of any criminal conduct however, in the circumstances of this matter, a higher level of tolerance is properly given to the Applicant given the time he has lived in Australia and the contribution he has made. Although the contribution may not be in the nature of employment, he has remained a dedicated parent, having played a positive parental role to his four children so as to enable his wife to pursue a career as a medical practitioner and anaesthetist and contribute to the Australian community through her services in that profession.
The Tribunal accepts that, but for a very short period in which he offended whilst under significant stress, he was an exemplary member of the Australian community and, in addition to the care he provided for his children, he volunteered to help those in need, including through his church.
The Tribunal accepts that his offending was out of character and that there is a low risk of him offending in the future. The Applicant rightly accepts his marriage is at an end. He has pursued an appropriate legal proceeding to remedy his separation from his children and in the 16 months he remained in the community following his offending he did not breach his protection order or conditions of bail. The Tribunal accepts that his conduct in those 16 months reflects the Applicant’s law-abiding and exemplary demeanour save for the nine days in which his behaviour was inappropriate.
The Tribunal accepts that the Applicant will respect Australia’s legal framework in the future and that there is a low risk of him causing or threatening harm to his former wife or any other person. His paramount concern is the ability to renew and continue his relationship with his children uninterrupted.
Having regard to the whole of the evidence and given a greater level of tolerance that is to be shown to the Applicant, this Primary Consideration is to be given moderate weight in favour of the cancellation of the Applicant’s visa.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the direction, include (but are not limited to):
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence or argument was advanced in relation to Australia’s non-refoulement obligations such that it is of relevance in determining the application.
Other Consideration 2: strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant’s ties are mainly through his children, partner, and stepchildren, all of which is detailed above. He also has ties, to a limited degree, by virtue of his short term employment. NB gave evidence by telephone. He confirmed that the Applicant worked for him part-time for 6-12 months, performing the duties of a trade assistant installing air conditioners and doing other electrical work. It was manual labour. He was not impeded from performing those duties by his MVA injuries. NB was aware of the Applicant’s offending. He offers the Applicant similar part-time employment should he return to the community. This may become permanent employment in the future. The Applicant also performed volunteer and charity work through his church. This evidence was not challenged and the Tribunal accepts this evidence.
The Applicant said in evidence that it is his priority to remain in Australia and renew contact with his children. It is for that reason that he has initiated family law proceedings for custody and access to his children.
Further, the Applicant has commenced a new relationship with MM and he engaged with her two children prior to being imprisoned. It is the Applicant and MM’s intention to further that relationship should the Applicant be permitted to return to the community.
The Applicant otherwise has ties to England, being his place of birth and where his sister EL and other extended members of his family live. Prior to committing the criminal offences and commencing his relationship with MM, the Applicant wanted to return to England. However given the change in circumstances, he is determined to remain in Australia. His children reside in Australia and renewing contact with them is his priority.
Counsel for the Applicant submitted that the Applicant’s relationship with his biological children, and his relationship with MM and the positive role he has played with respect to her children, should weigh heavily in favour of the Applicant. It was submitted that MM has continued to visit the Applicant regularly in detention which requires her to travel a long distance for her home. Further, the Applicant supported MM in her separation from her partner. These factors, it was submitted, should satisfy the Tribunal that the Applicant and MM are committed to an ongoing relationship.
Counsel for the Respondent relied on the SOFICs which in summary referred to the following:
(a)The Applicant’s offending did not occur soon after his arrival in Australia;
(b)As for his social ties, the Applicant is now in a relationship with MM who along with her children are Australian citizens. Further, MM’s evidence that she and her children would be devastated should he be required to return to England;
(c)The Applicant worked for one year and was involved in land care and church projects and spent time in prison teaching English to other prisoners, drawing on his qualifications and prior work experience;
(d)His intended purpose is to remain in Australia to be with his children who have a right to remain in Australia indefinitely[6] and the likely impact non-revocation would have upon those children.
[6] See paragraph 14.2(1)(a) and (b) of the Direction.
The Respondent accepted it would be open for the Tribunal to find this Other Consideration weighs slightly in favour of the Applicant.
Conclusion: Other Consideration 2
The Tribunal accepts the Applicant’s evidence with respect to his ties to Australia. Given his children are, on the available evidence, now residing in, and will continue to reside in Australia, the Tribunal accepts that this is a strong tie.
The Tribunal also accepts that the Applicant is in a continuing relationship with MM and her children but the Applicant has had limited time to cement that relationship, having spent 6 months in England and been in custody or home detention since 29 November 2018. Nonetheless, the Tribunal accepts the evidence of the Applicant and MM that this is a genuine relationship with the intention of it continuing upon his return to the community.
Having regard to the whole of the evidence which is unchallenged, the Tribunal gives medium weight to this Other Consideration in favour of the Applicant.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
The Respondent argues that although there is no direct evidence in respect to this Other Consideration, the contents of the VIS together with the seriousness of the offending are sufficient to permit this Other Consideration weighing in favour of affirming the original decision.
The Applicant argues that there is no evidence going to this Other Consideration, that the VIS does not speak to SG’s attitude to the considerations with respect to the Applicant’s visa cancellation and that no weight should be given to this Other Consideration.
Conclusion: Other Consideration 4
The evidence from SG is contained in her VIS dated 27 November 2018. That document is directed to the consequence of the offending upon her and the children. It is not directed to the impact a decision to revoke the Applicant’s visa cancellation may have upon her, her children, or other members of the Australian community.
Albeit the VIS does express, for example, that SG, following the offending, was living in fear of the Applicant such that one might infer that SG may not wish the Applicant to be permitted to remain in Australia, such a finding would be in the nature of speculation, and unable to be tested by the Applicant. Conversely, it may be argued that given the passage of two years from the date of offending in which there has been no direct contact between the Applicant and SG, and further as now there is some indirect communication relating the Applicant renewing his relationship with his children, SG may have a markedly different view about the cancellation of the Applicant’s visa particularly as their children may now renew contact with their father. But again, this would be merely speculative.
Further, as there is no evidence before the Tribunal which the Applicant has had the opportunity to challenge, any decision by the Tribunal would be made without first affording the Applicant procedural fairness.
No evidence was advanced in relation to the impact upon SG, the children, or other members of the Australian community such that it is of relevance in determining this Other Consideration. Accordingly, no weight will be given to this Other Consideration.
Other Consideration 5: Extent of impediments if removed
The Applicant at paragraph 119 of the SOFICs said:
The Applicant does not claim that he would face any impediments in the UK such as will prove insurmountable. Indeed, the available material suggests that, but for his relationships with his children, stepchildren and [MM], he would choose to return to his country of birth.
The Tribunal raised with Counsel the evidence of Dr Yoxall that the Applicant’s return to the UK and resultant difficulties in engaging with his children now and into the future will likely have impact upon his psychological well-being. To that extent, the Applicant invited the Tribunal to give weight to that impact upon the Applicant either as part of this Other Consideration or separately.
The Respondent acknowledged there may be an initial adverse impact on the Applicant if removed from Australia, but he would have access to prevailing social welfare and public health systems in the UK. He requires knee surgery and will be able to access appropriate treatment on his return to the UK. He has family residing there and has previously run his own business being in English language school. The Respondent submits that the Applicant has experiences that would equip him to obtain employment and re-establish himself financially. There are no language or cultural barriers to his return to the UK.
The Respondent accepts that the Applicant will suffer some emotional hardship albeit such hardship should not have a direct bearing on the Applicant’s ability to establish himself and maintain basic living standards and hence is irrelevant to the considerations in paragraph 14.5(1).
Conclusion: Other Consideration 5
The Tribunal accepts the evidence of Dr Yoxall that the Applicant’s separation from his children has caused him grief and distress which was greater than, and more enduring than, those stressors that were impacting upon him at the time of his offending. Further, the Tribunal accepts Dr Yoxall’s opinion that should the Applicant be returned to the UK, the psychological and emotional separation from his children would challenge and compromise the Applicant and impact upon his psychological well-being.
Paragraph 14.5(1) requires the Tribunal to consider the extent of any impediment including the Applicant’s age, health and medical supports available to him should he be returned to the UK. To the extent that there will likely be some psychological impact upon the Applicant should he return to the UK, he will have available to him medical supports to address that impact. The extent to which his psychological health may be adversely affected is not clear from the evidence.
The Tribunal accepts that there will be some psychological impact upon the Applicant due to the separation from his children and, to a lesser degree, MM and her children. There is no evidence before the Tribunal as to the extent or duration of that impact, however he continues to grieve and is depressed due to his current separation for which the Tribunal infers to some degree will be exacerbated should he be deported.
Accordingly, the Tribunal attributes slight weight in favour of the Applicant in respect of this Other Consideration.
There are no more Other Considerations that arise on the available evidence.
Conclusion
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the direction, to revoke the cancellation.

Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs moderately in favour of non-revocation of the original decision;
(b)Primary Consideration B weighs heavily in favour of revocation of the original decision;
(c)Primary Consideration C weighs moderately in favour of non-revocation of the original decision; and
(d)the combined weight of Primary Considerations A and C is such that none of them, alone or combined, outweigh the weight that the tribunal has attributed to Primary Consideration B and the medium weight and slight weight attributed Other Considerations 2 and 5 respectively.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal exercises the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
For the reasons outlined above, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class EN (Subclass 186) Employer Nomination Scheme visa be revoked.

I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member BJ Illingworth

.............................[SGD]......................................
Associate

Dated: 24 December 2019

Date of hearing: 11 December 2019

Solicitor for the Applicant:
Ms Caitlin White
Fisher Dore Lawyers

Solicitor for the Respondent: Ms Laura Crick
Clayton Utz

[2019] AATA 5608

24 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	11 December 2019
Solicitor for the Applicant:	Ms Caitlin White Fisher Dore Lawyers
Solicitor for the Respondent:	Ms Laura Crick Clayton Utz