Hall Infante and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Hall Infante and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1485 (6 June 2024)
Division:GENERAL DIVISION
File Number:2024/1809
Re:HALL INFANTE, Esteban Alejandro
APPLICANT

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

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:6 June 2024
Place:Adelaide

The decision under review is affirmed.
.........................[sgnd]..................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class AS Subclass 801 Spouse visa under section 501(3A) - where Applicant does not pass the character test– Applicant has substantial criminal record – Applicant’s visa had been cancelled previously – Applicant disregarded warnings from the Department – Applicant understands that if engaged in further criminal or other serious conduct, this may again result in his visa being cancelled on character grounds – Applicant has committed robbery – Applicant has committed acts of family violence – resulting in family violence restraining orders – Applicant has been a serial traffic offender – dangerous driving – property damage – driving without a license – Applicant has not been a primary caregiver of his son since birth – Applicant’s son is in care of the Department of Communities (WA) – Applicant has been in Australia since 5 years old – Applicant’s immediate family are Australian citizens – Applicant no longer speaks Spanish – Applicant has no practical or social connection to Chile – Applicant suffers from mental health and substance abuse issues – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Jones v Dunkel 101 CLR 298
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
6 June 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 15 March 2024, not to revoke the mandatory cancellation of his Class AS Subclass 801 Spouse visa (“the Visa”). His visa was cancelled on 27 September 2022 under section 501(3A) on the basis that he did not pass the character test.[1]
[1] Exhibit 3, G-Documents, G2, Attachment 1: Delegate’s Decision Record, 10; G3: Statement of Reasons for Refusal, 11-26.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction for Robbery, for which he was sentenced to a term of 2 years and 2 months imprisonment.[2]
[2] Ibid G4, Attachment A1: National Criminal History Check, 34.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 27 May 2024. The Applicant was represented by Mr Louis Martin of Estrin Saul Lawyers and the Respondent was represented by Ashley Burgess of Australian Government Solicitor.
The Applicant gave evidence by Teams from Yongah Hill detention Centre in WA.
The Applicant generally responded to questions in a direct manner. He was however a poor historian. On several occasions he conceded that his memory of events was poor because of his drug use. He made many claims that are either improbable, or plainly false. These are detailed below but include for example, denying details of his offending and exaggerating his relationship with his biological son, (Child A) and his some-time partner, B.R.
Overall, to the extent that there is independent contemporaneous material available, such as police records, I prefer this to the Applicant’s version of events. To the extent that the Applicant has no recall, I accept these independent records as accurate.
I do accept however, that the Applicant presently has a genuine wish mend his ways, so as to avoid deportation.
The critical issue in this case is whether there is realistic prospect of him ever being capable of doing so.
He expressed remorse for his offending.
The Applicant Called his mother as a witness. She gave evidence by telephone. She displayed understandable concern for the Applicant’s welfare. I accept that she would be very distressed if the Applicant were to be removed to Chile. She was largely ignorant of the Applicant’s offending record. Where her account of events differs from that of the Applicant, most importantly regarding the events surrounding her assault by him on 22 March 2016 , I prefer her evidence and contemporaneous reports recorded in police notes.
This is a case in which the Applicant’s unexplained failure to call a critical witness, B.R, raises serious questions about the reliability of much of his evidence. In the Applicant’s narrative, B.R is central in his future plans, if he were to be released into the community. His failure to call her denied the Tribunal an opportunity to have that evidence tested in the hearing. In the case of this crucial witness, his unexplained reliance only on received, untested statements, is unsatisfactory. It gives rise to a reasonable inference that she may not have assisted him if she had been called.[3]
[3] Jones v Dunkel 101 CLR 298.
BACKGROUND FACTS
The Applicant was born on 30 May 1990, in Santiago, Chile. He is now 34 years old.
The Applicant’s mother was a Chilean. His father is Australian citizen born, in Tasmania.[4] They met when he was working in Chile. His mother is now also an Australian citizen.[5] The Applicant has not obtained Australian citizenship by descent.
[4] Ibid Attachment O3: Statement of Mr Esteban Alejandro HALL INFANTE, 149 at para [1]
[5] Ibid.
On 26 June 1995, the Applicant arrived in Australia with his mother and his younger brother.[6] He was 5 years old. They initially lived in Somerville, Victoria.
[6] Ibid Attachment R: Applicant’s Movement Record, 175.
On 20 May 1997, the Applicant was granted the Visa, as a dependant to his mother.[7]
[7] Ibid Attachment U: Notice of Visa Cancelation (dated 27 September 2022), 184.
On 8 August 1999, the Applicant left Australia for a period of 4 weeks.[8] He visited Chile.
[8] Ibid Attachment R, 175.
On 5 September 1999, the Applicant returned to Australia.[9] He has lived here ever since.
[9] Ibid.
The Applicant has immediate family members in Australia. These include his mother, his father[10], his younger brother J. Hall Infante and his younger sister A. Hall Infante. He also has an older half-brother and half-sister. They are all Australian citizens.
[10] His father is presently living overseas and is separated from his mother.
The Applicant also has other relatives in Australia on his father’s side.[11]
[11] Exhibit 7, Respondent’s Tender Bundle, 284, 427.
The Applicant has always had a distant relationship with his father who now works overseas.
In about 2002, when the Applicant was about 12, his mother was diagnosed with leukemia.
The Applicant attended [Primary School 1] in Australia. He says that he was teased and bullied because of his skin colour and for his brother’s autism. As a result, his mother moved him to [Primary School 2].[12] He described that there has always been a ‘distance’ in their relationship and ‘especially when I started using drugs’.[13]
[12] Exhibit 3, G-Documents, Attachment O3, 149 at para [5].
[13] Ibid Attachment F4: Pre-Sentencing Support Report from The Whitehaven (dated 04.08.2022), 87.
The Applicant says he began drinking alcohol when he was around 12 years old.[14]
[14] Ibid Attachment O3, 149 at para [6].
The Applicant says he started using marijuana when he was around 16 years old.[15]
[15] Ibid.
In 2005, the Applicant and his family all moved from Mornington Peninsula, Victoria to Western Australia, he said that this was so his mother could continue to receive treatment for her leukemia.[16]This was not her explanation. She said it was to get away from the discrimination that they experienced in a small rural community.
[16] Ibid Attachment O3, 149 at para [7].
In 2006, at the end of year 10, the Applicant left High School.[17] He worked intermittently doing various labouring or unskilled jobs. He told the Tribunal that he stopped working so that he could look after his mother. Even if this was true initially, his evidence regarding his chaotic life over the years to come, suggests that he would have been of limited ongoing assistance to her.
[17] Ibid Attachment O3, 149 at para [8].
The Applicant told the Tribunal that he was using drugs, mainly amphetamines, to cope “with the pain of my life”.
On 30 May 2008, the Applicant turned 18.
On 12 July 2008 the Applicant was involved in some serious dangerous driving, resulting in an accident. The Statement of Material facts says:
“At about 11:50pm on Saturday the 12th of July 2008 the accused drove a Holden Commodore registered number [number] in a south-easterly direction on Cardup Siding Road, Cardup.
The accused was in company with his friends (Complainants) who were passengers in the vehicle. They all decided to go for a drive to the service station in Byford. (K. rear centre passenger, B. rear driver's side passenger and N. rear centre passenger two other passengers also in the vehicle were not injured (L. rear passenger side, C-W front passenger).
K. and N. state they sharing the centre seatbelt and all other passenger state they were wearing seatbelts.
The area is semi-rural and is speed is zoned at 80 kilometres per hour, the road is sealed bitumen and of good repair, at the time there was no street lighting in the area. The road is bordered by bushland to the south and rural housing lots and bushland to the North.
The accused drove in an easterly along Cardup Siding Road at speed, as he approached a sharp 90 degree "S" bend in the road, he negotiated the first right hand bend at speed causing the tyres of the vehicle to lose traction and create a skidding noise as he proceeded around the bend. He continued to accelerate heavily out of the first bend gaining speed as he approached the second left hand bend.
The accused attempted to negotiate the second bend at excessive speed and lost control of the vehicle. He pulled the steering wheel sharply to the left in an attempt to avoid a crash, this was not successful and the vehicle continued to skid out of control, the vehicle skidded sideways for approximately 30 to 40 metres before the rear driver's passenger side door area collided with a large tree on the south-eastern side of the carriage-way, as a result of the initial impact the vehicle was spun around and the passenger side of the vehicle has collided with a second tree. Extensive damage was caused to the vehicle as a result of the impact.
The accused assisted to free the injured persons from the vehicle and placed them on the roadside, he attempted to reverse the vehicle telling his friends he did not have a driver's licence, asking them what he was going to do.
His attempts to move the vehicle were unsuccessful due to the extensive damage cased to the vehicle and it's position.
The accused travelled the same route on Cardup Siding Road earlier in the evening, again going to the local service station in Byford with friends in his vehicle.
Emergency services were called by (C-W) Police and several Ambulances attended to the crash.
As a result of this matter;
[K.]; Was taken to the Armadale Kelmscott Hospital by ambulance where she received initial treatment she was then transferred to Princess Margaret Hospital for further treatment, K. was treated for multiple lacerations to the right eye area, tenderness to the lumbar spine and lower back, fractures to the left upper pelvis, fractures to the right lower pelvis, extensive fractures to face bone, eye socket and check bone, fractures of the ear canal and a left skull fracture.
K. spent an extended period of time hospitalised as a result of her injuries, the injuries interfered with the health and comfort of K.
[B.]; Was taken to the Fremantle Hospital by ambulance where he received treatment for his injuries, B. was treated for multiple facial lacerations to the right eyebrow, check area and crown of head. Small fractures to the right eye and nose, substantial swelling to face and forehead.
The injuries interfered with health and comfort of B.'s.
[N.]; Was taken by Ambulance to the Armadale Hospital where she received treatment for her injuries, N. was treated for Abrasions to the left knee, haematoma to the right forehead, right loin tenderness, fractured to the left side of pelvis.
The injuries interfered with the health and comfort of N.
At the time of driving the accused was the holder of a learner's permit only, number [number] which was issued on the 21/02/2008 and expires on the 19/02/2009. The accused was in breach of conditions applicable to the permit. The accused did not have a suitably qualified person in the vehicle present with him at the time of driving and was not displaying "L" plates as per the conditions of his learner's permit.
On the 21st of January 2009 the accused attended at the Mundijong Police Station where he participated in a video record of interview, the accused made certain admissions to the manner of his driving. He gave the explanation that his actions were a "bit stupid", and acknowledge of being in breach of his learner's permit.
The accused was advised he would be summonsed in relation to the above matters and present charges preferred.”[18]
[18] Exhibit 7, Respondent’s Tender Bundle, 463-4.
The Applicant accepted this version of events when asked about it in the Tribunal. I note that there were 6 people in a car licensed to carry only 5. Passengers were seriously injured.
On 26 May 2009, the Applicant was convicted of 3 counts of dangerous driving occasioning bodily harm and 1 count of driving unauthorised as learner driver. The Armadale Magistrates Court imposed a 7-month imprisonment and a Suspended Term of Imprisonment Order of 12 months. He received multiple fines and he was also disqualified from driving for 18 months.[19]
[19] Exhibit 3, G-Documents, Attachment A1: National Criminal History Check (dated 06.12.2023), 34.
On 9 September 2010, the Applicant was involved in what amounts to a small scale attempted drug trade rip off. This may have been potentially dangerous for an end user. The Statement of Material Facts says:
“At about 1:15am on the 9th day of September 2010 the accused stated he was inside "Club 234" which is located on the corner of William Street and Francis Street, Northbridge.
The accused has recognised a female he had seen previously in the venue.
The accused has entered into a conversation with the female and her boyfriend stating that he was feeling tired.
A discussion has taken place between the group in which it was decided that the accused would swap some "Ice"(amphetamines) for some "dexies" (Dexamphetamines) which were in the possession of the female and her boyfriend.
The group moved outside and the accused removed a small clip-seal bag from his pocket and proceeded to empty an amount of the crystal substance into his hand.
Police observed this and immediately seized the clip-seal bag and arrested the accused.
The accused was conveyed back to the Perth Police Station where he was interviewed.
The accused made admissions on video that he had received the crystal substance from a friend and believed it to be salt and arthritis medicine. He further stated that he planned to tell people the substance was amphetamines in an effort to sell it because he "needed some funds"
The accused was released to be summonsed.
Both the female and her boyfriend have also been summonsed.”[20]
[20] Exhibit 7, Respondent’s Tender Bundle, 467.
At about 11.20 pm on 6 October 2008, the Applicant was observed urinating on the front window of a shop in Market Street, Fremantle. He was less than 50 meters from the Newport Hotel. [21]
[21] Ibid 468.
On 9 November 2010, the Applicant was convicted of disorderly behaviour in public offence. He was fined $600.[22]
[22] Exhibit 3, G-Documents, Attachment A1, 34.
On 18 December 2010, the Applicant was caught by police driving without a license.[23]
[23] Exhibit 7, Respondent’s Tender Bundle, 469.
On 20 April 2011, the Applicant was convicted of no authority to drive. He was fined $300.[24]
[24] Exhibit 3, G-Documents, Attachment A1, 34.
The Applicant says that he started using methamphetamine in 2011 or 2012.[25]
[25] Ibid Attachment O3, 150 at [12].
On 18 May 2012, the Applicant was again detected by police driving without a license.[26]
[26] Exhibit 7, Respondent’s Tender Bundle, 470.
On 19 May 2012, the Applicant was convicted of no authority to drive. He was fined $150 and disqualified from driving for 3 months.[27]
[27] Exhibit 3, G-Documents, Attachment A1, 34.
On 29 August 2012, the Applicant was again detected by police driving without a license.[28]
[28] Exhibit 7, Respondent’s Tender Bundle, 471.
On 20 November 2012, the Applicant was convicted of no authority to drive. He was fined $400.[29]
[29] Exhibit 3, G-Documents, Attachment A1, 34.
In 2013, the Applicant started a relationship with R.S. The relationship lasted about two years.[30]
[30] Exhibit 3, G-Documents, Attachment F4: Pre-Sentencing Support Report from The Whitehaven Clinic Program Facilitator, S. Ferguson (04.08.2022), 89; Attachment O1, Submission from the Applicant’s representative (dated 28.02.2024), 121 at [17]; Attachment O3: Statement From the Applicant (dated 28.02.2024), 150 at [13].
On 7 March 2013, the Applicant drove erratically, lost control of his vehicle and mounted the footpath colliding with a power exchange. He refused to provide details to police and left the scene. He still had no license.[31]
[31] Exhibit 7, Respondent’s Tender Bundle, 473-4.
In the Tribunal, the Applicant accepted that there were pedestrians in the vicinity at the time. He said that the road was wet. He also said that he was on drugs at the time.
On 22 March 2013, the Applicant was released on bail from Fremantle Magistrates Court.[32]
[32] Ibid 475.
On 5 April 2013, the Applicant failed to appear, and a warrant was issued for his arrest.[33]
[33] Ibid
On 5 June 2013, the Applicant was arrested on the warrant.[34] He was again detected by police driving without a license.[35] On this occasion the vehicle was owned by him, but he had put it in his mother’s name. He agreed that he had false number plates on the car.
[34] Ibid
[35] Ibid 478.
On 19 June 2013, the Applicant was again detected by police driving without a license.[36]
[36] Ibid 476.
On 12 July 2013, the Applicant was released on bail by the Fremantle Magistrate’s Court.[37]
[37] Ibid 481.
On 31 July 2013, the Applicant was convicted of no authority to drive offence. He was fined $600.[38]
[38] Exhibit 3, G-Documents, Attachment A1, 34.
On 21 August 2013, the Applicant was convicted of multiple offences including driving an unlicensed vehicle (not owner), displaying false number plate that is not issued for that vehicle and no authority to drive. He received a fine for each offence totalling $800.[39]
[39] Exhibit 3, G-Documents, Attachment A1, 34.

On 9 December 2013, the Applicant failed to appear in accordance with a condition of bail. A warrant was issued for his arrest.[40]
[40] Exhibit 7, Respondent’s Tender Bundle, 481.
In about 2015, the Applicant he commenced a relationship with R.S’s stepsister, M.G. He claims that the relationship with M.G was toxic, as it was mainly associated with drugs. They were both methamphetamine users.[41] It is clear from the evidence that M.G had serious mental health issues. She has a criminal record and has since spent time in prison.
[41] Exhibit 3, G-Documents, Attachment O3, 150 at [14]; Exhibit 7, Respondent’s Tender Bundle, 534.
On 31 August 2015 the Applicant was involved in an assault. The Statement of Material Facts says:
“The victim in this matter is a 34 year old male, 181cm in height and of slim build. The accused is a 25 year old male, [X] cm in height and of medium build. The victim is known to the accused.
At about 9.50am on Monday the 31st of August 2015 the accused attended at [address], South Lake which is the residence of witness J.S, a friend of the accused. Also at the address were witness A.F and the victim, D.S.
The victim requested that the accused leave, as he was not welcome at the address.
The accused became aggressive, shouting and swearing at the victim. The accused then punched the victim to the face with his right closed fist.
A further scuffle ensued between the two and the accused grabbed a piece of metal, believed to have been a tire iron, and struck the victim in the middle of the forehead causing the skin to break and bleed immediately.
The victim and the accused separated and the accused left the scene on foot.
The complainant spoke to Police at the scene but required to attend at Fiona Stanley Hospital to have his injuries treated.
As a result of the assault the complainant suffered swelling and a laceration to his forehead which required seven staples.
On Saturday the 17th of October 2015 the accused was arrested in relation to another matter. He was conveyed to the Murdoch Police Station where he participated in an Electronic Record of Interview making full admissions to the offence.
The accused was held in custody, in relation to the other matter, to appear at Perth Magistrates Court on Sunday 18th October 2015.”[42]
[42] Exhibit 7, Respondent’s Tender Bundle, 482.
On 17 October 2015, the Applicant was arrested on the warrant issued on 9 December 2013 and taken into custody.[43]
[43] Ibid 481.
On 23 October 2015, he was released on bail. This was his first time in prison. He was charged but not convicted.
On 8 December 2015, there was an incident between the Applicant and his then girlfriend, M.G:
“On Tuesday 08th December 2015 the POI's were on a bus to Fremantle to from South Lake, [M.G] was on her way to an appointment with the Salvation Army Employment Plus Centre.
As the bus approached Carrington Street X Rockingham Road, the POI's have become involved in an argument relating to HALL INFANTE "checking out other girls".
POI's exited the bus and continued with the argument.
[M.G] sat on the ground on Carrington Street, refusing to move and continuing shouting at HALL INFANTE, who began shouting back and became frustrated due to [M.G.'s] behaviour. HALL INFANTE blamed her behaviour on [M.G] being pregnant and being emotional and irrational.
HALL INFANTE made attempts to move [M.G] along by picking her up by the arms and "walking" her down the street, towards Forrest Street, in order to make the appointment in Fremantle, as the bus they were on had left the area.
[M.G] continued to argue and was responding to HALL INFANTE's persistnace by pushing back and attempting to go in the opposite direction.
HALL INFANTE stated he could hear people shouting at them from across the road but continued to try to get M.G from the area and in to Fremantle for the appointment.
At 1020hrs Police located the POI's on Forrest Street near Rockingham Road.
On approaching the POI's Police could see both both parties involved in arguing with each other.
POI's seperated and spoken to.
Both accounts matched up with [M.G] stating she instigated the argument due to not liking the way HALL INFANTE was looking at other females.
Neither party mentioned assaults, threats, damage to any property. Police did not identify any injuries nor were any mentioned by either party.
Both parties agreed that "time out" would be the best option and a 24 hour Police was issued with HALL INFANTE the person bound.
Due to [M.G] being isolated from friends and family, HALL INANTE agreed to vacate his mothers house and stay at an address in Yangebup for the duration of the Police Order.
Name checks conducted on both POI's with nothing outstanding.”[44]
[44] Ibid 538-9.
On 22 March 2016, the Applicant was involved in an episode of family violence. The victims were his mother, his brother (J) and his then girlfriend – M.G. The Statement of Material Facts says:
“The accused in this matter is a 25 year old male, solid build and approximately 182 cm tall. The victim (INFANTE) is the accused's mother, 45 years of age and approximately 170cm.
At about 5.30pm Tuesday 22 March 2016 the accused was at his home address, situated at [address], South Lake. Also present at the address was the accused's mother, brother and girlfriend.
He became involved in a heated argument with his girl friend (see further charge) regarding missing money. The victim (INFANTE) intervened in the incident to protect the girl friend. He grabbed the victim and pulled her into the living room.
The accused pushed the victim onto a lounge and began yelling at her. The victim fearing further assault, closed her eyes. The accused stuck his fingers into the victims eyes, while yelling at her to open them. As the victim attempted to get off the lounge, the accused again pushed her.
The accused picked up the victim and began to shake her, while yelling at her that she was a sick woman.
The accused released the victim, who as a result of the assault received visible injuries, including bruising to her left arm. The accused further complained of soreness and pain as a result of being assaulted by her son.
and further..
The accused was involved in an argument with his girlfriend regarding missing money. The accused yelled abuse and swore at the victim about money he believed had been taken by the victim, which she denied.
The accused sat on the victim and placed his hands on her throat region while yelling and screaming at her.
The accused's mother entered the room, fearing for the safety of the victim and observed her son assaulting the victim.
The victim was crying and yelling for the accused to stop.
Police were contacted regarding a further assault at the premises where the accused assaulted his brother (still being investigated). On attending the accused was placed under arrest and conveyed to the Murdoch Police Station where the present charges preferred.
The accused participated in a ERI, however denied assaulting the victim (girlfriend). He admitted to guiding his mother from his room, but denied pushing her or sticking his fingers in her eyes
and further..
The accused was conveyed to the Murdoch Police Station as a result of the domestic related assaults.
His property was searched and a [Bank] Credit Card in the name of [name] was located inside his wallet.
The accused stated he found the credit card a week earlier on the street nearby and placed it in his wallet. He made no attempt to return the card to the owner or Police and had not contacted the Police to report it found.
He was further charged as a result.
The accused in this matter is a 25 year old male, solid build and approximately 182 cm tall. The victim (INFANTE) is the accused's brother, 21 years of age and of slim build and approximately [X]cm tall.
At about 5.30pm Tuesday 22 March 2016 the accused was at his home address, situated at [address], South Lake. Also present at the address was the accused's mother, brother and girlfriend.
A physical altercation had occurred between the accused his girlfriend and the accused's mother. (Brief number [numbers] refers). The victim began to video record the accused's actions and the accused's demeanour. The recording was done via the victims mobile telephone.
The accused warned the victim that if the recording did not stop that he would smash the telephone and the accused's computer.
A physical altercation ensued that resulted in the victim picking up a 20cm kitchen knife. The accused picked up a large wooden chair.
The accused struck the victim on the top of his head which resulted in the victim falling to the floor in a semi-conscious state.
SJA attended the scene and initially treated the victim at the scene before conveying him to Fiona Stanley Hospital. A short time after arrival at Fiona Stanley Hospital the victim was transferred to Royal Perth Hospital for further medical intervention.
As a result of the assault the victim received a fractured skull, 12 stitches to the wound and concussion.
The accused was arrested and interviewed in regards to the assault and stated that he was protecting himself against the knife, and the victim ducked down resulting in the chair hitting him on the head.
The accused was charged with the present charges preferred.”[45]
[45] Ibid 484-8.
When asked about this the Applicant said in relation to the assault on M.G that he did not recall that happening. There was no conviction for this offending. I note that in the context of family violence, which I find this to be, a conviction is not however necessary under the Direction. I regard the police records as authoritative sources. The Applicant was afforded procedural fairness.[46]
[46] See Direction 99 para 8.2(2)(b).
In relation to his assault on his younger brother, he pointed out that there was no conviction for this offending. I note that in the context of family violence, which I find this to be, a conviction is not necessary. I regard the police records as authoritative sources. The Applicant was afforded procedural fairness.[47]
[47] See Direction 99 para 8.2(2)(b).
In relation to his assault on his mother, the Applicant was convicted. The Applicant disagreed with the police facts. He said that his mother “dropped and I picked her up. I told her to calm down”. He denied putting his fingers in her eyes. He became very evasive when being questioned about this episode.
He entered a plea of guilty because “the Judge said I had to”. I note that the Applicant’s mother was not only an older female and therefore physically vulnerable to the Applicant, but she was also very unwell.
The Applicant’s mother gave a materially different account. She agreed that she had told the police what happened on the day. She also recalled that the Applicant “tried to open my eyes very hard”.
I do not accept the Applicant’s evidence on this incident. He was evasive in answering questions. I prefer the independent sources including his mother. Her best and freshest account is in the police records.
On 23 March 2016, the Applicant was bailed to appear Court on 12 April 2016. He failed to appear.[48]
[48] Ibid 493.
On 12 April 2016, a warrant was issued for the Applicant’s arrest.[49]
[49] Ibid.
On 13 May 2016, the Applicant was stopped by police. He gave a false name and address.[50]
[50] Ibid.
On 19 May 2016, police attempted to arrest the Applicant. He ran away from police when approached and was found hiding near a tree, in a neighbour’s yard.[51]
[51] Ibid 493-4.
Between 20 and 25 May 2016, the Applicant was imprisoned for breach of bail.
On 24 May 2016, the Applicant was convicted of multiple offences including breach of bail undertaking, driver failed to give name and address (property damage), dangerous driving and no authority to drive. He received a fine for each offence totalling $1250 and was disqualified from driving for 3 months.[52]
[52] Exhibit 3, G-Documents, Attachment A1, 34.
On 22 June 2016, the Applicant assaulted his then pregnant girlfriend – M.G. The Statement of Material Facts says:
“On Wednesday 22 June 2016 at around 7:30pm the accused was with the victim, his partner, walking along Taurus Street, Southern Cross.
They have began to argue about money which quickly became heated.
During the argument both persons have became physical and the accused is alleged to have punched the victim in the face.
They have then seperated and the victim has returned home whilst the accused left the area.
The victim has contacted Police who attended and obtained a statement. There was a minor swelling to the left cheek of the victim. A search for the accused was unsuccessful.
The following day on Thursday 23 June 2016 Police were conducting patrols when the accused and the victim were sighted in the rear laneway to their residence.
On seeing Police approach the accused has ran and attempted to hide in a chicken coop but was located and arrested.
He participated in an electronic record of interview where he made admissions to putting his hand in the victims face but said he did not think he punched her. He also stated he had been punched by the victim as well (inquiries ongoing).
He was subsequently charged with the offence and bail refused due to current bail and continuing offences.
The victim is 175cm tall of slim build and also 5 months pregnant.
The accused 180cm tall of stocky build.”[53]
[53] Exhibit 7, Respondent’s Tender Bundle, 496.
The Applicant was asked about this and was prepared to concede only that he “grabbed her by the mouth”. I prefer and accept the police record. He attended a few courses with Relationships Australia after this but stopped going because he “felt uncomfortable” about discussing intimate details with a female counsellor.
On 28 September 2016, there was another incident in connection with M.G being admitted to hospital for the birth of Child A:
“M.G attended Fiona Stanley Hospital (FSH) on Wednesday 28th September 2016 in company with Esteban HALL INFANTE as she is approximately 35 weeks pregnant and her waters had broken. HALL INFANTE is the father. [M.G] disclosed some domestic violence incidents to a FSH Social Worker who as per policy notified Department of Child Protection (DCP).
DCP in turn notified FSH that HALL INFANTE was bound by protective bail conditions to not be within 50 metres of [M.G]. FSH advised HALL INFANTE that he had to leave. [M.G] refused to stay without the father of her baby and they both left FSH, against the advice of the medical staff.
[M.G] was advised that as her water had broken she and the baby were now susceptible to serious infection, Amnionitis, which could result in the death of [M.G] and/or her unborn child. [M.G] still departed the hospital and refused treatment if HALL INFANTE could not be with her.
On Thursday the 29th September 2016 [M.G] returned to FSH in company with HALL INFANTE. Due to her condition she was admitted to the maternity ward in company with HALL INFANTE. [M.G] was given antibiotics for the potential infection and advised not to leave the hospital without the direction of medical staff. FSH notified DCP of the situation, who in turn contacted Police.
Police attended FSH at approximately 1500hrs and discussed the matter in depth with several members of staff to establish the potential repercussions of arresting HALL INFANTE. Those present listed:
Dr [M.M] RMO
Midwifery and Nurse Director WCN – [T.L]
Senior Social Worker – [J.M]
Midwifery Manager, Non-Ambulatory - [D.P]
Aboriginal Liaison Officer – [L.K]
These staff members can be contacted on [phone number].
It was established that [M.G] is in an extremely vulnerable mental state and has no family or friends to be with her during this time. [M.G] had already refused medical attention once and it is feared that if HALL INFANTE were to be arrested [M.G] would leave the hospital which would likely lead to serious infection and potentially the death of her and/or her unborn child.
During this time [M.G] was moved to a private room.
Police spoke to [M.G] outside the room and explained they had to speak to her and HALL INFANTE regarding a breach of protective bail conditions. [M.G] became upset and agitated, saying HALL INFANTE was not presenet and did not wish to speak to Police. This stress was not good for the health of her or her unborn child.
Eventually [M.G] allowed Police into the room where HALL INFANTE was present. Police spoke to both parties separately.
[M.G] stated she was stressed and needed somebody to comfort her. She stated she had asked for HALL INFANTE to be with her during the pregnancy because she did not have any family or friends who could be with her. She stated her sister, (J.K), [M.G], was on her way but she would not be in Perth for another day at least.
HALL INFANTE stated he had been abiding by the bail conditions, however [M.G’s] father had contacted him, on her request, to be with her. As he is the farther of the child, he attended FSH with her as support.
The number one priority is the health and wellbeing of [M.G] and her unborn child. As such the decision was made by Police that HALL INFANTE would not be arrested at that point in time but rather a DVIR submitted and the matter revisited at a later date when [M.G’s] health is not at risk.
HALL INFANTE stated he would attend Fremantle Magistrates Court on Friday morning 30/09/2016 in an attempt to get an exemption to his bail conditions during the birth of his child.”[54]
[54] Ibid 542-3.
I accept the Applicant’s evidence that he was present at the request of M.G and that hospital staff had at least acquiesced in him being there in breach of Court orders. He told the Tribunal that he knew that he was breaching orders and that he left as soon as Child A was born.
On 29 September 2016, The Applicant’s son, Child A, was born.[55]
[55] Exhibit 3, G-Documents, Attachment G2: Western Australia Birth Certificate of Child A, 101.
On 5 October 2016 a safety plan was developed that prohibited the Applicant having contact with MG or Child A.
In December 2016, the Applicant and M.G separated. The relationship had lasted about a year.[56] He says of the time since then, “[M.G] and I have rarely seen each other or spoken since we separated. I understand that she is currently in prison.”[57]
[56] Ibid Attachment O3, 150 at [14].
[57] Ibid.
On 6 December 2016, the Applicant was convicted of common assault in circumstances of aggravation or racial aggravation and possession of stolen unlawfully obtained property. He received a fine for each offence totalling $900.[58]
[58] Ibid Attachment A1, 34.
On 20 December 2016, the Applicant was convicted of giving false personal details to police and two counts of breach of bail (fail to appear soon after). He was fined $500 for each offence.[59]
[59] Ibid.
On 6 January 2017 , the Applicant’s mother was advised that her application for Australian citizenship had been approved.[60]
[60] Exhibit 7, Respondent’s Tender Bundle, 252-3.
On 10 January 2017, the Applicant was convicted of common assault in circumstances of aggravation or racial aggravation. He was fined $2000.[61]
[61] Exhibit 3, G-Documents, Attachment A1, 34.
Also in early 2017, Child A was taken into the care of the WA Department of Communities and Child Protection.[62] He was placed in the custody of various foster carers.[63]He was eventually released to the care of the Applicant’s mother and sister.
[62] Ibid Attachment O1: Submission from the Applicant’s representative (dated 28.02.2024), 121 at [21].
[63] Ibid 121 at [26].
On 9 March 2017, the Applicant was stopped by police and found to be carrying a knife. He said that he intended to use it for self-defence.[64] He told the Tribunal that he had recently suffered a home invasion and that’s why he was carrying it.
[64] Exhibit 7, Respondent’s Tender Bundle, 497.
On 18 April 2017, the Applicant was convicted of possessing an article with intent to injure or disable a person. He was fined $1000.[65]
[65] Exhibit 3, G-Documents, Attachment A1, 34.
On 21 April 2017, the Applicant assaulted E.O, a woman with whom he was in an “on and off relationship”. He also drove a car into 2 police vehicles causing damage. The Statement of Material Facts says:
“The accused and the victim are in an on and off relationship.
At about 3.30pm, 21, April 2017 the accused and the victim were in a white Toyota vehicle registration [number] on Knocks Place, Jandakot.
The couple were involved in a heated argument.
Whilst driving the vehicle the accused punched the victim in the face and upper body a number of times with a closed fist.
Consequently the victim suffered bleeding, a swollen nose, and a minor cut on her lip.
The victim left the vehicle and received assistance from a passer-by who contacted Police on her behalf.
The victim required medical attention for the injuries she sustained during the assault.
Later that day the accused was arrested and conveyed to Cockburn Police Station.
The accused was unable to participate in an evidential record of interview due to him being drug affected.
The accused was subsequently charged with the present charge preferred.
The accused is a male, 180cms tall and solid build.
The victim is a female, [X]cms tall and slim build.
And further,
At about 8.50pm on the 21 April 2017, police attended [address], South Lake, to locate the accused in relation to another matter.
On seeing two police vehicle approaching the address, the accused entered his vehicle a white Toyota motor vehicle registration [number].
The accused drove the vehicle directly at the two police cars approaching him, hitting them both and causing damage to all three vehicles.
The accused was subsequently arrested and conveyed to the Cockburn Police Station.
The accused was unable to participate in an evidential record of interview due to him being drug affected.
The accused was subsequently charged with the present charge preferred.”[66]
[66] Exhibit 7, Respondent’s Tender Bundle, 499

The Applicant told the Tribunal that E.O was an intimate partner and that she was also a drug abuser. E.O is another victim of the Applicant’s family violence.
The Applicant said that his collision with the police cars happened because he was “paranoid” and he “panicked”.
Applicant said that he entered a guilty plea. He agreed with the alleged facts. They had both been taking drugs.
On 22 April 2017, the Applicant was taken into custody.[67] He says that he stopped taking drugs when he was in prison.
[67] Exhibit 3, G-Documents, Attachment O1, 121 at [23].
When asked about this the Applicant denied the alleged facts. He denied strangling C.M. He denied stalking her. He conceded that he was using methamphetamines again at this time.
I accept that C.M was an intimate partner of the Applicant. I accept the police record.
On 3 October 2017, the Applicant was convicted of endangering life, health or safety of a person and unlawfully assault and thereby did bodily harm with circumstances of aggravation.[68] He was sentenced to 1 year and 4 months imprisonment. In his sentencing remarks, Magistrate Gluestein said:
“His Honour: Mr Hall Infante appears before me for sentencing, once again. I think we've been through this process before, Mr Hall Infante. Sadly, you're back before me for reoffending. The two charges, as I've indicated to counsel, are serious and I'm required, under section 6 of the Sentencing Act in the sentencing process, to have regard to, in particular, the seriousness of the offending both of which carry a maximum term of seven years limited in this court to three on each.
The assault on the female was a serious assault. It was a persistent assault, albeit in a very dangerous situation if, at the time, as I understand, you were driving a motor vehicle. A number of punches to the face and upper body and fortunately, the lady, E., is able to get out of the car and escape. The second incident, I will call it, later that evening when police attend, rather than assist or cooperate, you deliberately drive your vehicle in an extremely dangerous and reckless manner towards police officers and damaging their vehicles.
Both of these offences are serious. They both, frankly, call for immediate terms of imprisonment which I'm about to impose. I have taken into account your guilty pleas. I've taken into account a pre-sentence report that I have read and dated 2 October which is not supportive of any period of judicial case management or any community-based order and, frankly, the author of the report has it correct. These do call for, in terms of personal deterrence, terms of imprisonment.
The appropriate term on the assault, given the maximum is seven years, is a term of imprisonment of 10 months to which I apply a discount of 20 per cent under section 9AA which is a discount of two months, an effective term of eight months which will be concurrent with the next sentence. On the threat charge or endanger charge the appropriate term on that is a term of imprisonment of 20 months, with a 20 per cent discount brings that down to an effective term of 16 months which I backdate to 22 April and I make you eligible for parole.
Hopefully, Mr Hall Infante, for you and your rehabilitation, halfway through the 16 months, which will be approximately, I'm told, another couple of months, you should be eligible for parole on these two charges and up to you to think about your future and· what you inject yourself with or what you drink. Carry on the same way and you will get the same result.”[69]
[68] Ibid Attachment A1, 34.
[69] Exhibit 3, G-Documents, Attachment D2: Extract of Proceedings from the Magistrates Court of Western Australia (dated 3.10.2017), 49-50.
In relation to this offending the Applicant says:
“At Freemantle on Tuesday, 3 October 2017
The assault on E. a former partner was the start of downside of my life in my version of the story, I picked her up from the train station as we were arguing about something she mention that she was sleeping with other people from the previst night we argue about it. As I drove I [...] her with a open [...] & stopped the car a bit further to let her out [...] there was no traffic I got out and idmedently apologies witch doesn’t acuse my action and in fact I don’t think it never will to behave like any [...] like that. So I left and went back to my friends house as night came along I asked my friend if she wanted anything from the shop she said bread & milk so I had the car running because I quickly asked her for a lighter I reversed out of her driveway witch is in 4 house duplex with a long drive way at the time I reversed out the was a bright white light and was [...] for a second as I straight the car I see it was police I look around and I didn’t see no blue & red lights just normal car lights they all got out and red light was all over me I got out and was touched to the ground hand cuffed & layed on the ground while I was on the ground I got hit like someone hits a hammer on a nail and while got hit a officer said so you like to hit girls after that I woke up with finger in my eyes and couldn’t remember for a bit why he had finger on my eye as for this I pleaded guilty for these charges and I am aware of the impact of any situation is [...] in my manner of behaving.
For the driving I didn’t go to court and wasn’t aware how long the suspension was as witch lead me to the [...] that I had my license.
I am disappointed in my action and […] I made some more mistake and to hold a visa for a month got it taken of me again for something I thought Home Affairs was aware of […] me into shock with me, partner and family when I did get it again. I did not commit another crime it was a crime that was committed 2020 and took some time to deal with it […] were informal by a phone call Home Affair called […] apart from that I am trueley remorsfall and […] some help with my own expeneds and was hopeing to continual counselling & […] building a […] lite were I can grow with my partner […] to […] a house work & costerty of my son please understand my hole life has been in Australia and that Chile is pretty much a foren country for me I can’t go back I won’t survie alone.”[70]
[70] Ibid Attachment G1: Letter from the Applicant, 97-9 (as written in the original document)
On 1 November 2017, the Applicant received a notice from the Department of Home Affairs informing of his visa cancellation under s 501(3A) (the first visa cancellation).[71]
[71] Ibid Attachment S: Notice of Visa Cancellation (dated 01.11.2017), 176-180.
On 14 November 2017, the Applicant requested a revocation of the first visa cancellation.[72]
[72] Ibid Attachment F: Revocation request (dated 11.08.2022), 55; Attachment T: Notice of decision to revoke visa cancellation (dated 22.01.2019), 181-3; Exhibit 7, Respondent’s Tender Bundle, 266, 276.
On 23 November 2017, an affidavit was prepared by a Senior Child Protection Worker for proceedings in the Children’s Court of WA. This states:
“[Child A] has been exposed to significant harm and neglect in [M.G’s] care as result of her transience, neglect; drug use and poor mental health and previous engagement in domestic violent relationships. Previous safety planning and support network has not provided enough safety for [M.G] and [Child A]. [M.G’s] mother has also passed away; and she had been a significant support in ensuring [Child A’s] safety.
HISTORY
9. [Child A] was first known to the Department due to concerns for his safety and well-being due to being exposed to significant incidents of domestic violence whilst M.G was pregnant with [Child A] in 2016.
10. On the 5 October 2016 a safety plan was developed for [Child A] to reside with Ms M.G and her brother R.G and her sister in law A.G in Perth and then travel to her mother J.G in Southern Cross to reside. It was stipulated that here was to be no contact between (Child A) and Ms M.G with Mr Hall-Infante. This was agreed by Ms M.G.
11. On 21 October 2016 the Department substantiated that [Child A] was likely to suffer significant emotional harm in the care of Ms M.G and Mr Hall-Infante. The case was closed with the above mentioned safety plan in place.
RECENT EVENTS LEADING TO THIS APPLICATION
12. On 1 November 2017 the Department was notified that Ms M.G and [Child A] had attended a community health centre and M M.G appeared under the influence of an illicit substance. Concerns were also raised for Ms M.G’s presenting mental health as her behaviour appeared erratic and concerns were expressed about her capacity to care for [Child A] appearing overweight for his age, dirty and was only dressed in a nappy and t-shirt.
13. On November 2017 the Police contacted the Department notifying that they had attended the house where Ms M.G and [Child A] resided as they were looking for Ms M.G’s nephew. Police raised concerns for [Child A] who was witnessed to be crawling on the floor which was covered in dog faeces, the general home hygiene was poor and presented as unsafe for a child.
14. On November 2017 Alma Street Mental Health Service (“Alma Street”) Social Worker J.C ([Ms J.C]) notified the Department of further concerns. Ms J.C advised that Ms M.G’s father, P.D, has been admitted to Alma Street. He had ongoing mental health issues which had been exacerbated by Ms M.G and [Child A] moving into Mr P.D’s address. Ms J.V said that Mr P.D has 5 dogs and the home which would exacerbate the already significant unhygienic state of the home.
15. Ms J.V said that workers from Alma Street had attended the home but that Ms M.G wouldn’t let workers into the home. The workers were able to see enough of the state of the home to express extreme concern. She went on to say that Alma Street had received a report from staff at the Ottey Family & Neighbourhood Centre in South Lake that Ms M.G had attended the centre the week before with [child A]. She was naked. Alma Street have been told by family that Ms M.G has a history of methamphetamine use and when does use she becomes psychotic. Ms J.V reported that Ms M.G was refusing to leave Mr P.D’s property and they may be forced to call police to her removed so their patient, Mr P.D could return to his home. Ms J.V expressed concern about the impact this would have on Ms M.G and [Child A].
16. Ms M.G advised Ms J.V that she was keen to go to Geraldton for family support but did not have the money to get there. Ms J.V advised that the mental health service booked Ms M.G and [Child A] a ticket to travel to Geraldton on Friday 10 November however Ms M.G and Child A left the previous night with an unidentified male and travelled by bus to Geraldton. This was before the Department had been able to assess [Child A’s] safety in Ms M.G’s care.
17. The whereabouts of Ms M.G and [Child A] were unknown for a number of days and the information provided by Alma Street was very limited as to with whom and where Ms M.G and [Child A] would be staying and of possible contact details.
18. On 16 November Department Worker L.K received a phone call from a worker at Geraldton Women’s refuge regarding concerns for [Child A] in Ms M.G’s care. The refuge worker advised that Ms M.G’s sister R.C (Ms R.C) had contacted the refuge over the weekend requesting accommodation for Ms M.G and [Child A]. Ms R.C said that the family were really worried about [Child A] in this care of Ms M.G due to Ms M.G mental health, neglect of [Child A] and drug use. Ms R.C said that Ms M.G and [Child A] had been living in ‘squalor’ in South Lakes and were now in Geraldton. Ms M.G stayed at the refuge for 2 nights however she did not return to the refuge the previous night with [Child A]. While at the refuge lots of concerns have been noted for Ms M.G and [Child A] including:
a) Ms M.G walks around all day and night with mirrored glasses and stickers all over her face.
b) her conversations are disorganised and don’t make sense; she appears as delusional and erratic.
c) Ms M.G hadn’t been sleeping; she is up all night pacing and disrupting other residents.
d) Ms M.G was talking about bizarre things like having different illnesses and diseases.
19. The worker advised that she had set up a mental health assessment the previous night for Ms M.G however she did not return to the refuge for this to be taken. The refuge worker advised Ms M.G presents as very thin and unhealthy.
20. The refuge worker advised that Child A is nonverbal, he can’t walk or crawl, and he spends all of his time in his pram. Every time [Child A] makes noise Ms M.G feeds him. [Child A] is overweight. Ms M.G keeps talking about ‘having enough of [Child A]’ and ‘being at her wits end with him’. Refuge workers said that according to policy Ms M.G should be discharged from the refuge for not returning by curfew the night before, however based on the significant concerns about Child A’s welfare, the refuge would be willing to accommodate Ms M.G and Child A if they returned so the Department could access the situation and act to ensure Child A’s safety and wellbeing. The refuge worker said she would call me on the Crisis Care Unit after hours if Ms M.G returned to the refuge.
21. Geraldton Departmental staff spoke with various extended family members in Geraldton who all reported concerns for [Child A’s] safety in Ms M.G care including drug use and neglect and that Ms M.G constantly yells; swears; shouts and smacks [Child A]. Family members reported Ms M.G’s behaviour to be erratic over the past few days and family did not want her near their own children.
22. Departmental workers V.K (Mr V.K) and J.C (Ms J.C) presented unannounced at an address in Geraldton where they located Ms M.G and [Child A]. When the workers explained to Ms M.G the concerns that had been received in relation to her care of Child A, Ms M.G immediately became heightened, stating that Departmental officers had no right to question her, and that she did not have time to speak, as she was busy. The workers repeatedly attempted to discuss their concerns with Ms M.G including querying her around alleged drug use, with her becoming increasingly hostile and disengaged. The workers asked Ms M.G how they could best support her, with her stating “leaving”. The workers complied with the request. It was noted that Child A did not appear to react to Ms M.G increasing aggression, with there appearing to be little movement coming from him.
23. Consequently Mr V.K and Ms J.C arranged to go back to the address with Police and Child A was taken into provisional protection and care pursuant to s 37 of the Act.
24. [Child A] was conveyed to the Department’s Geraldton office. Upon a brief examination of the child by Departmental Officers, bruising was noted to his face and lower body, with photographs taken.
25. [Child A] attended a medical examination immediately after being brought into provisional protection and care. There were some minor abrasions noted however no signs of obvious injury. There were three spots on buttock which could possibly be considered as bruising. The examining Doctor recommended a skeletal survey for Child so that if there were past injuries these would be detected. The Department will arrange this to occur as soon as possible.
26. On 17 November Ms M.G attended Geraldton Office. Ms M.G’s behaviour escalated and she became threatening to staff. Police attended and escorted Ms M.G out of office. Attempts made to have Ms M.G’s mental health assessed were unsuccessful. Attempts made to have Ms M.G in rationale conversations about her child were also unsuccessful.
CARE ARRANGEMENTS
27. [Child A] has been placed with temporary carers.
28. Contact between Ms M.G and [Child A] will be arranged as soon as possible subject to Ms M.G presenting illicit substance free, in a rational and calm manner and child focussed so that Child A’s safety can be ensured.”[73]
[73] Exhibit 7, Respondent’s Tender Bundle, 307-13.
The Applicant made representations with the assistance of his legal advisers regarding his request for revocation of the first visa cancellation. This contains the following passages:
“Esteban is very regretful about his previous actions and the time he has spent in prison made him think about his future and his son’s [Child A’s] future, he is committed to transform his life and become a working and law-abiding person. He is planning on living with this family, away from negative influences.
He has also enrolled through Acacia Prison in the following courses:
1. Alternatives to Violence, a 3-day course within the prison.
2. PCIR = Positive Communications in Relationships.
3. Mediation of Family Relationship Issues with the mother of his 1-year old son [Child A].
Esteban represents a very low risk to the Australian community due to more mature personal outlook after reflection and counselling in prison.
In addition to his serious approach to rehabilitation the applicant has made all possible inquiries and submitted serious commitments to his former employer to continue his apprenticeship in order to secure employment.
…
Considering the circumstances, Esteban is the best option to support his son. Irrespective of his past actions, Esteban and the support of his family are the only stable source of support that is available for the child and therefore imperative that the child remains with constant contact of his father. In the event Esteban’s visa cancellation is not revoked, the impact on his child's life will be extremely negative as he will grow up without his father and evidently the financial and emotional support that is necessary for the healthy development of any child, but primarily of a child from a separated household.
It is essential to consider that if Esteban has to leave Australia it would be very difficult to maintain contact with his son and would not be able to undertake parenting responsibilities. Esteban’s presence in Australia is vital to [Child A’s] life and well-being as he is the best person to fulfil a parental role in relation to the child. He loves his son very much and he is looking forward to being released so that he can spend time with him as he grows. That is his strong ambition.
Esteban past conduct has not resulted in any abuse or neglect or has caused [Child A] to suffer either physically or emotionally.
His mother C.I.L, who is an Australian Citizen, has a range of severe medical conditions, Chronic Myeloid Leukemia CML, Arthritis and Fibromyalgia. She has a past medical history of Major Depressive Disorder with previous suicidal attempts.
Before he was imprisoned, Esteban was her main carer; he was always there for her, emotionally, cooking meals, doing house cleaning, animal care and gardening.
Esteban’s mother would be devastated if his visa cancellation is not revoked. She was distressed when he was sent to jail and she needed a range of psychological treatments at Fiona Stanley
Hospital in order to deal with the situation.
Esteban deserves a second chance to show he is able to put the past behind him.”[74]
[74] Ibid 238-244.
I note the striking similarity between the Applicant’s representations in response to the first visa cancellation and the ones now being made before this Tribunal.
I also note that at this time, the Applicant was the subject of orders made to protect Child A from him. In 2018, Child A was relocated by child protection authorities to live with the Applicant’s sister and mother.[75] As from this time, the Applicant could not reside with them because of these orders.
[75] Exhibit 3, G-Documents, Attachment O1, 122 at [26].
On 21 August 2018, the Applicant was detained at Yongah Hill, immigration detention centre, following his release from prison, because his visa was cancelled.[76]
[76] Ibid Attachment O3, 150 at [17].
He stated: “I went to prison for the first time in October 2017 for aggravated unlawful assault causing bodily harm, and endangering life, health or safety of a person. My visa was then cancelled for the first time in November 2017. Up to that point I had made two applications for Australian citizenship, but they were never approved.”[77]
[77] Ibid at [16].

On 27 December 2018, The WA Department of Communities wrote to the Department of Home Affairs regarding Child A. This letter says:
“I refer to your email to [email address] requesting information regarding Mr Hall Infante’s son [CHILD A] DOB [date/month/year].
[Child A] is in the care of the Chief Executive Officer of the Department of Communities and is under a protection order time limited, and as such the Department is [Child A]’s current legal guardian. [Child A] currently resides with S. Hall and C.I, his paternal grandparents.
The time limited protection order is due to expire 26 March 2019. To date the Department has been unable to locate [Child A’s] mother, M.G, and has been unable to work towards any possible reunification with Mr Hall-Infante due to his incarceration and later detention at Yongah Hill Immigration Detention Centre. It is therefore anticipated that on expiry of the current protection time limited, the Department will apply for a protection order until 18 years. It is preferable that parents are present and available to participate in these proceedings to enable them to have their views expressed.
As the Department is the current legal guardian of [Child A], [Child A]’s mother M.G does not have custody rights., M.G can, through arrangement and supervision by the Department, have contact with [Child A]. However, to date the Department has not been able to contact M.G regarding possible contact.
Mr Esteban Hall Infante can, through arrangement with the Department, also have supervised contact with [Child A]., Currently [Child A] has contact with Mr Hall Infante, facilitated and supervised by [Child A]’s paternal grandparents, through visitation at Yongah Hill Immigration Detention Centre and via Skype.
The Department considers it important for [Child A] to have contact, where possible, with both his parents and will continue to work with Mr Hall-Infante to facilitate this. To enable [Child A] to develop an ongoing and sustainable relationship with his father, it is preferable that Mr Hall- Infante remain resident in Australia. In the absence of any current contact with his mother, it is of critical importance for [Child A]’s developing sense of identity, that he have ongoing and consistent contact with his father, preferably on a face to face basis.
The Department would appreciate any notification or updates regarding the progress of Mr Hall Infante’s application for revocation of his visa cancellation in order that the Department is able to engage Mr Hall Infante in matters regarding [Child A].
I can be contacted by email at [email], by letter at the address below, or by telephone on [phone number].”[78]
[78] Exhibit 7, Respondent’s Tender Bundle 358-9.
On 22 January 2019, a delegate of the Minister decided to revoke the first visa cancellation.[79] On the same day, the Applicant signed an acknowledgement of the revocation, which relevantly stated: “
“I, Mr Esteban Alejandro HALL INFANTE, acknowledge that I have received the Notice of decision to revoke visa cancellation under s 501CA(4) of the Migration Act 1958. I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be considered.
Signature [Applicant signed]
Date 22/1/19”[80]
[79] Exhibit 3, G-Documents, Attachment T, 181-3.
[80] Ibid 183.
It is apparent from the Delegate’s decision that the perceived interests of Child A, and the Applicant’s assurances, including that there was a “low probability of him reoffending”[81] were significant factors in reaching the revocation decision.[82]
[81] Exhibit 7, Respondent’s Tender Bundle, 282
[82] Ibid 369-74.
The Applicant was in prison or detention from 22 April 2017 until 22 January 2019. During this time the Applicant says that he did various courses and abstained from drug use. He had plenty of time to reflect on the consequences of his actions and the then immediate prospect of removal to Chile. He told the Tribunal that he understood that if he reoffended, he may be sent back to Chile.
On 13 July 2019, the Applicant was involved in an incident of family violence against his then girlfriend - C.M. The police record states:
“Victim: C.M [DOB]
Perpetrator: Esteban Alejandro HALL-INFANTE 30/05/2019
The victim rents an apartment in Northbridge with the lease signed in her name only.
The perpetrator has no permanent residence but stays with the victim.
There are no children or pets involved in this relationship.
The victim made contact with police to report the following:
At about 8.00pm on Saturday 13 July 2019, the victim was at her home address, [address], Northbridge. The suspect was also at the address with the victim.
An argument took place between the victim and the suspect, causing the suspect to choke the victim with his hands. According to the victim, the suspect then prevented the victim from leaving her apartment for a period of about two to three hours.
During the two to three hour period, the suspect was begging the victim not to terminate the relationship, hugging and holding the victim, not allowing her to leave.
During this time, the victim was in possession of her mobile phone, and told the suspect that she would call the police. The victim did not ring the police or anyone else to ask for help, as she feared that the suspect might be deported out of Australia.
The perpetrator also held a knife to his own wrist and threatened to self-harm in front of the victim.
After a while, the suspect eventually left the apartment. The victim then left the apartment and went to her friendâ€™s house where she rang the police.
Perth City Dets â€“ Crime Car reviewed incident, spoke to the victim face to face at the Perth Police Station and found no evidence to support the offence of deprivation of liberty. A running Sheet and the Cad Job will be updated by the crime car to reflect their critical decision.
The victim made contact with police to report the following:
Perpetrator has stangled the victim twice in the last 6 months.
…
Summary of BEHAVIOURAL/RISK factors indicated on FVIRs Verbal. Physical. Financial. Emotional.
BEHAVIOURAL FACTORS
Control Y Esteban would threaten to self-harm if the relationship ended. Esteban calls [C.M] via various social media platforms and will continue to do so until she answers the phone. Esteban would call [C.M] derogatory names.
Jealousy Y Esteban would monitor her movements and review messages on her phone along with social media accounts.
Stalking
Threaten hurt/kill victim Y Esteban had made claims to self-harm if [C.M] ends the relationship. Holding a knife to his wrist as he made the claims.
Threaten hurt/kill child
Threaten hurt/kill family
Strangle / Choke / Suffocate / Drown Y [C.M] claims Esteban has strangled her twice since Feb 2019 â€“ July 2019.
Prior FVIR stated that Esteban had strangled ex-partners requiring family members to intervene and pull Esteban off her.
RISK FACTORS
Victim frightened Y [C.M] is fearful of Esteban due to his acts of violence (strangle) and preventing her from leaving her unit for a few hours. Estebanâ€™s behaviour is unpredictable, [C.M] is fearful to even make eye contact with him (July 2019 â€“ Statement)
Drugs Y Esteban claims they are both heavy meth users. Review of prior FVIRs and IRs reflect that drugs are a large part of their lives, leading to several criminal offences and break down in family relationships.
Alcohol
Mental health Y Both have self-harm attempts. Esteban placed a steak knife on his wrist and made threats to self-harm that has occurred two or three times previously. Esteban has made other self-harm claims however did not specify how he would carry it out.
Estebanâ€™s behaviour was confusing to [C.M] and would shift suddenly from violent to loving and caring (e.g., strangled her then asked her to marry him, when down on one knee) [July 2091 â€“ Statement].
Health/Vulnerability Esteban ex-partner lost her unborn baby was Esteban was on PBC. His ex-partner was in the hospital and refused medical treatment of Esteban could not be with her. As a result, she left the hospital and suffered an infection leading to the death of their child. Separated Y Early July 2019
Attempts to leave Y Prior efforts to end the relationship made. The first attempt made in May 2019 due to his behaviour being disrespectful, abusive and violence (July 2019 â€“ Statement) Isolation (Geo/Social) Y Reflected in FVIR, nil details available. Based on prior FVIR with other parties, both appear to have family and friends in Perth.
Abuse more often
Abuse worse
Physical violence Y Esteban has a history of FV violence against various ex-partners involving high-level assaults against ex-partners and family members.
Ever hurt child
Ever hurt pet/animal
Sexualised behaviour Y [C.M] is a victim of two sexual related offences where drugs were involved and consumed by both parties.
Weapons/objects used
Firearm access
Cultural/Religious
Financial issues Y Esteban has nowhere to live and needs to declare bankruptcy due to owing money for a car crash.
[C.M] appeared to have been homeless for an extended period staying various associate homes.
Child contact issues
Most recent FVIRs [number]”[83]
[83] Exhibit 7, Respondent’s Tender Bundle, 547-550 (as written in the original document).
At 8:20AM on 14 July 2019, the Applicant was issued with an order for the protection of C.M, prohibiting him from contacting her. During the course of the next 36 hours he made 10 calls to her in breach of the order.[84]
[84] Ibid 502.
In about July 2019, the Applicant started a relationship with his current partner B.R.[85] They were both methamphetamine users. They were effectively homeless, living intermittently with B.R’s mother, who was also a methamphetamine user.[86]
[85] Exhibit 3, G-Documents, Attachment O4: Letter from B.R (statutory declaration), 159-160; Attachment O2, 151 at [18]; Exhibit 7, Respondent’s Tender Bundle, 556.
[86] Exhibit 3, G-Documents, Attachment O1, 122 at [30].
On 20 September 2019, it seems that the Applicant and a female accomplice were involved in the theft of a puppy:
“Victim atttended Fremantle Police Station to repor ther puppy stolen.
She had advertised her car for sale on Gumtree.
A couple had shown interest and came around to her house.
As they were talking about the car, they took a great interest in her puppies (3) which were on the front yard.
The male buyer "Estevan" was talking to the victim about the car while the female was on her phone walking in the front yard.
"Estevan" can be contacted on [phone number].
Suddenly the male buyer told he will come back with transfer papers and drove off in his car.
Victim states she never saw the female get into her car.
Victim noticed one of the puppies missing after a while.
Victim believes that they ahve stolen the puppy.
The puppy is 12 weeks old and is a cross between Staffy and Daniff.
Puppy is micro chipped and she has registeered it as missing.
She has enquired with all the Vets and has already posted on Facebook.
No CCTV Footage.
Nil witness.
She does have Estevan's Gumtree Profile Picture which will be emailed to CCTV SMAIL with this IR as reference.
5KIs:
PM: No CCTV Footage
PA: N/A
W: N/A
I: N/A
SUS: "Estevan" [phone number].[87]
[87] Exhibit 7, Respondent’s Tender Bundle, 553 (as written in the original document).
The Applicant was asked about this and said this had nothing to do with him. He did not realise that the woman he was with, had taken a dog. He was not charged with an offence.
On 13 October 2019, the Applicant was found by police to be in possession of a meth pipe with traces of the drug. He claimed that it was a “whistle”.[88]
[88] Ibid 503.
On the same day a 2-year restraining order was made against the Applicant for the protection of C.M.[89]
[89] Ibid 713.
On 28 October 2019, the Applicant was, according to Police records, involved in a serious assault. Police records state:
“In this instance the victim drove to his friend â€™s address at [address 1]. He left his car there and he went to lunch with four other friends, 3 males (B.A, L.M, and one still unidentified person) and 1 female (A.C) at Nandos Gate Way.
Upon returning to [address 1], a male (B.A) from the party saw the suspect (Estaban HALL INFANTE).
[B.A] the victim (C-W) and another male went to confront the suspect has [B.A] had some issues to sort out with him.
All three males began assaulting the suspect on the street on [address 2].
[Address 2] is the address of B.R which is the suspectâ€™s partner.
During the assault/brawl the suspect used a meth pipe to stab the victim in the neck. Everyone run off and the victim was left to walk the street bleeding profusely from the neck. The victim removed his shirt and put it around his neck to stop the bleeding.
The victim stopped a male driving past in a car but the male refused to take him to the doctor due to the fact that he was covered in blood.
The victim then walked to the nearby Community Centre on Lombe Gardens asking for help. The victim was then picked up by his friend L.M in [A.C]â€™s car which is a red Hyundia, and taken to the ST John Emergency car in Gate Way.
As a result of the victimâ€™s movement 3 CAD jobs were created.
Police spoke to the victim at ST John Emergency care (Gate Way shopping Centre), the victim did not provide a crime scene area and this Police PFA 3 locations including the victimâ€™s address as the victim stated that he was home and was vague about where the incident occurred.
The victim did not want to name the person who assaulted him.
The victim was stabilised and conveyed to RPH Major Trauma Unit, he eventually provided a statement but refused to sign it.
The next day Police attended RPH to obtain more information about the assault and to have the victim sign his statement.
The victim stated that he did not want Police to investigate the assault nor wanted their involvement, and stated that the statement he gave the previous day was obtained under duress and while he was heavily medicated for pain and refused to sign the statement.
The victimâ€™s injuries consist of a deep cut to the right side of the neck and a nicked vein. No permanent injuries and the victim is expected to make a full recovery.
As a result of the PFA at the victimâ€™s address and his lack of cooperation a search warrant was executed (I/R number) and a large quantity of cannabis was seized.
[B.R] from [address 2] gave consent for her house to be forensically examined and provided a statement in that she witnessed part of the assault.
Police also seized her CCTV drive.”[90]
[90] Ibid 554 (as written in the original document).
The Applicant told the Tribunal that he could not recall this.
On 3 November 2019, the Applicant was involved in an incident of family violence directed to B.R. A 72-hour order was issued. The Police report states:
“***Antecedents***
B.R and Esteban have been in a relationship for about 4 months. Esteban comes and goes from B.R's home address.
***Attendance Report***
Police attended [address 1] to speak with B.R following calls in relation to CAD [number].
The CAD report provided information that neighbours had called Police after their female neighbour (B.R) was heard screaming and causing a disturbance.
A further call was received from B.Râ€™s mother stating that B.R had been beaten up by her boyfriend Esteban at [address 2], and B.R had left home by foot and made her way to her mothers and wishes to speak with Police there.
Police attended [address 1] and spoke with B.R at length. At first B.R was reluctant to provide any information. B.R eventually revealed that she had a verbal argument with Esteban which escalated to physical violence, Esteban had pushed her or slapped her with an open palm to her face, he then choked her in a way to intimidate and control her. B.R stated she slapped Esteban during the fight.
Police sought a statement from the victim (B.R) however she refused to assist Police with their enquiries. Police observed a small scratch to her face, the victim refused to allow Police to seek medical treatment on her behalf (SJA) and refused to allow Police to take photo's of her injuries, she stated that she might seek medical treatment however from her GP she refused to assist attending officers in signing a medical release form.
Police spoke with B.Râ€™s mother, T.L [DOB] separately. [T.L] informed Police that B.R had come over very upset and stated she had been beaten up and Esteban and he had stolen some jewellery and money. [T.L] stated that it happens all the time but Esteban calls her after the events and he cries and says sorry and B.R always forgives him and continues the relationship despite all the warnings from her and other people.
She stated that B.R was on the phone to Esteban just prior to Police arrival and that she will not make a complaint.
B.R admitted to Police that physical violence does occur regularly and is getting worse but still refused to provide a statement despite Police attempts to convince her otherwise.
***Antecedents***
B.R and Esteban have been in a relationship for about 4 months. Esteban comes and goes from B.R's home address.
…
VICTIM OVERVIEW
Victim criminal history - 33 court outcomes including disorderly, obstruction, breach of CRO, numerous possess drug paraphernalia, cannabis, meth, possess drug intent to supply, breaches CRO and threats to injure Worker safety issues -   Police alert 19/03/19 is highly unpredictable and may become extremely violent. On last police contact she was highly drug affected and armed herself with keys protruding through her knuckles "Wolverine style" before assaulting officers.
PERP OVERVIEW
Breached PO/FVRO/Bail - N
Perp criminal history - 17 court outcomes including endanger life of a person, unlawful assault, agg common assault x 3, breach of bail, AOBH x 2 and disorderly
Worker safety issues -   Drove a car at 2 police vehicles causing extensive damage to all 3 vehicles. Police alert 09/03/17 May be in possession of knives/weapons
Summary of BEHAVIOURAL/RISK factors indicated on FVIRs
BEHAVIOURAL FACTORS
Control   Esteban would threaten to self-harm if the relationship ended with C.M. B.R would verbal abuse ex-partner J, insulting how he looks, what he wears, his family etc. B.R would throw items at J and constantly call and text J with aggressive and emotionally abusive message. B.R would send associates to J's place of employment yelling for him to come outside. B.R would damage his property
Jealousy   Esteban monitors partnerâ€™s social media and messages etc. of partners. B.R stated that Esteban is very possessive and jealous. His violent actions are usually as a way to intimidate and control her.
Stalking   Breached PO with ex-partner C.M by constantly calling her, B.R would call ex-partner J up to 90 times a day
Threaten hurt/kill victim
Threaten hurt/kill child
Threaten hurt/kill family Esteban threatened to burn his familyâ€™s house down
Strangle / Choke / Suffocate / Drown   previously strangled ex-partner C.M and choked B.R in a way to intimidate and control her
RISK FACTORS
Victim frightened
Drugs   Police alert from 2013 that Esteban was involved in manufacture of meth. Esteban is recorded a heavy meth user. 03/11/19 Police observed evidence of drug use at [address 2], B.R admitted to Police she uses cannabis and sometimes meth, she stated not sure about Esteban Alcohol
Mental health   Police alert that Esteban suffers from depression. Esteban placed a steak knife on his wrist and made threats to self-harm that has occurred two or three times previously. Esteban has made other self-harm claims however did not specify how he would carry it out. B.R has alerts in relation to past mental health incidents (talk of suicide) B.R has psychosis and in 2016 it was noted that B.R was taking anti-depressants and anti-psychotic medication
Health/Vulnerability   Esteban ex-partner lost her unborn baby when was Esteban was on PBC. His ex-partner was in the hospital and refused medical treatment if Esteban could not be with her. As a result, she left the hospital and suffered an infection leading to the death of their child. B.R has been in multiple previous FV relationships and has previously been involved in a substantial amount of FV incidents with her mother and step-father. B.R is partially deaf. Esteban is currently wanted for questioning for a wounding in which he has stabbed the victim in the neck with a meth pipe, B.R is a witness to this incident (October 2019)
Separated B.R and Esteban have been in a relationship since July 2019. Esteban comes and goes from B.R's home address.
……..
Abuse worse
Physical violence   Esteban assaulted his mother by pushing his fingers into her eyes and has assaulted his brother hitting him over the head with a wooden chair causing a fractured skull. He has punched an ex-partner E.O in the face and upper body whilst he was driving, punched ex-partner M.G to the face in summary Esteban has a history of FV violence against various ex-partners involving high-level assaults against ex-partners and family members. B.R has previously assaulted her ex-partner J by hitting him numerous times.”[91]
[91] Exhibit 7, Respondent’s Tender Bundle, 556-60 (as written in the original document).

On the basis of the evidence, the Applicant has been in an intimate relationship with M.G, E.O, C.M and B.R. Police records suggest both that they were all drug users, and that he committed many acts of family violence against these women.
The Applicant has also committed acts of violence against his mother, his brother.
Given that the Applicant was at times residing with B.R and her mother, I am of the view that his incidents with B. R.’s mother also probably constitute family violence.
Even if I am wrong about B.R‘s mother coming within the scope of “family”, and ignore those incidents, the Applicant’s remaining record of family violence is still appalling. It is set out in detail above.
His entire relationship with B.R has been dominated by chaos, violence and drug abuse. It has been punctuated with violence against both her, and her family. Her mother is, or at least was, also a drug abuser. His other intimate partners have also been drug abusers.
The available evidence suggests that B.R has serious mental health and drug abuse issues of her own. She claims in her written statements that these issues are now resolved. In the absence of her being called to give evidence, I am not prepared to accept that she has either of these problems under control.
If the Applicant were to return to the community, he plans to resume his relationship with B.R. This would, on the basis of a long and detailed history, almost certainly result in more family violence.
The Australian community rightly has very low tolerance of family violence. When it is repeated against multiple victims, this is even more concerning. In the Applicant’s case, it constitutes an established pattern of behaviour.
Conclusion: Primary Consideration 2
This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant has lived in Australia since he was a small child. His formative years have been spent in Australia.
The Applicant has made some limited positive contributions to Australia. He has worked for some periods and paid taxes. He claims to have been a carer for his mother, though the evidence shows that he has spent many years either imprisoned, or couch surfing. Since Child A went to live with his mother, the Applicant has been unable to be there.
I have no doubt that his mother would be very distressed if he were to be removed to Chile. I accept her evidence on this point.
I accept that his sister, brother and B.R would be distressed by him being removed. I note that B.R stated at one stage that she would follow him to Chile if he were to be deported. Whether that may still be the case is unclear. If she had been called as a witness, she could have been asked about this.
Child A naturally would be distressed to learn that his father was deported. The practical impact of this on his day-to-day life would however be negligible. He could continue to have electronic contact with the Applicant. If the Applicant were to resume his previous lifestyle, he would probably be a detrimental influence on Child A.
There was little evidence about the impact on others in Australia.
On the other hand, he has been a serial offender. He has contributed to chaos in the circles in which he has moved. He has been an ongoing burden to the community through his ceaseless demands on the criminal justice system.
In relation to his ties to Australia, the Applicant says:
“All the family I have are in Australia. My immediate family are:
a.my mum, C. I. L., born [date, month] 1969 in Chile, but now an Australian citizen;
b.my dad, S. J Hall, born [date, month] 1953 in Australia;
c.my younger brother, J. Hall Infante, born [date, month] 1994 in Chile, but now an Australian citizen;
d.my younger sister, A. Hall Infante, born [date, month] 1996 in Australia;
e.my older half-brother, D. A. Hall, born [date, month] 1980 in Australia; and
f.my older half-sister, C. M. K., born [date, month] 1976 in Australia.
My other family members in Australia are:
a.     my uncle, M. Hall, born [date, month] 1955 in Australia;
b.     my uncle, B. Hall, born [date, month] 1956 in Australia
c.     my aunty, P. Hall, born [date, month] 1956 in Australia;
d.     my cousin, E. Hall, born in 1984 in [date, month]; and
e.     my paternal grandmother, R. W, born [date, month] 1935 in Australia.
In Australia I also have seven nieces and nephews and four cousins.
I know my whole family would be devastated if I had to be removed back to Chile.
I know my son [Child A] would be particularly affected if I was removed from Australia. [Child A] is only seven years old and I desperately want to be there for him to make up the time we have already lost. I visited my son every day before I went into prison. We have a strong relationship even though we do not get to see each other in person as much as I would like. I call [Child A] every day and we have long conversations about things like his week at school and his favourite toys. He loves Transformers toys and at the moment he is interested in dinosaurs and in superhero movies. It has not been easy for [Child A] with both of his parents not around for him. When we talk I really try hard to be someone [Child A] can speak to about what he is going through. [Child A] often says he misses me and wants to see me and that causes me a lot of pain.
[Child A] used to visit me in Hakea Prison once a month but this stopped for a while because of COVID. Not being able to see [Child A] in that period was so painful for me. My mum and B.R will drive him out to visit me at Yongah Hill now, but it is difficult for them because I'm over an hour away from Perth and [Child A] has school every day. When they do visit, [Child A] and I have a great time together. We draw, do counting, watch kids shows on Netflix, play 'I Spy', wrestle and talk about things. I see my son growing up without his father and am so hurt by that. I want to be there for my son and I can't afford any more time away from him.
If I have to leave Australia forever then my son would grow up without a father. If I am in Chile I think the connection I have with [Child A] would end up disappearing. I want to be there for him. I want to be someone who can be around to make sure [Child A] does not go down the wrong path like I did. I am worried he will think his father left him and did not make an effort to be there with him. I do not think our relationship would survive.
I love my son more than anything. I just want the opportunity to prove that I can turn my life around and one day have custody of [Child A] again.
My father and I are much closer now that I am an adult and he has been really supportive of me. Because of the path that I went down, my sister and I are not as close as we used to be, but I know that if I show her I can turn my life around, we would be able to reconnect.
My mother and I have supported each other in everything we have been through. She has been so distressed by this whole process and she would be devastated if I was forced to go back to Chile. My mother would not be able to return to Chile with me, and I would not expect her to. She is too elderly, and all her medical and other supports are in Australia. If I am removed from Australia I will not see her very much, if at all. She is in remission at the moment, but I cannot bear the thought of not being here for my mother if she was to get sick again and need me. Both my mother and father are eager to support me and see me succeed. They want more than anything for me to reunited with [Child A] permanently.
My mother has done an amazing job of looking after [Child A], but she is getting older now and will not be able to care for him forever. Even though mum is in remission, she is still very unwell because of the aftereffects of her medication and chemotherapy. My mum and sister share responsibility for looking after [Child A], but my sister is still young and doesn't want the responsibility of looking after him. My mum is getting older and I want to be there to help her like I used to. My dad is away for work most of the time so there isn't anyone to help her around the house or help her with [Child A], but he does provide financial support.
I can't ask my sister A. to look after [Child A] again. I feel responsible for taking her youth away from her. A. should enjoy her life as a young adult. I do not want her to take on the responsibility of caring for [Child A] again, with all the stress and financial problems that would cause her.
I also need to be in Australia to support and be with my fiance B.R. I want to be there with her so we can support each other to make something of our lives. B.R is also in a better place than she has ever been. She is working two jobs and living in her own private rental. She has cut off communication with her mum and has been sober since 2021 and is continuing to take her prescription medication. I am so proud of her. B.R has been so supportive of me since I've been in prison and immigration detention and she has said she will help support me with my rehabilitation in the community. For the first time in our relationship we will be sober together. For the first time in years I will be able to go home to stable accommodation and not have to find somewhere to sleep at night or stay with people who are bad influences on me.
I can't afford to go back to how things used to be. If I do, I know I'm going to lose everyone I care about and who cares about me. I don't want to keep wasting away. I want to work for a better life for me, my fiance, and my son.
I have lived in Australia for over 28 years now, almost my entire life. Even though I am not an Australian citizen I have always called Australia home and consider myself to be Australian. My dad is Australian and I have been here so long I don't know anything else but Australia.
Before my life took a bad turn with my methamphetamine use, I tried hard to be a hard-working member of the community. Even though I left school early, I completed trades qualifications and was employed for over four years. I also tried to do the right thing and care for my mother when she was sick.
Almost all of my family are Australian citizens. All of my ties are to Australia. The only reason I am not an Australian citizen is because my dad told me I did not need to apply for citizenship, and then I could not get a new Australian passport. My fiance B.R is an Australian citizen who would be unable to follow me to Chile. This whole process has been so distressing for B.R. Our future plans are to get married, work hard, and eventually save up enough to buy our own home. We want to prove that we can create a safe home for [Child A] to live in with us.
My whole life is in Australia. I have no ties to Chile other than my grandmother and grandfather, some cousins, and an uncle. But a big reason my mum decided to move us to Australia was to get away from that family, particularly from her uncles who were drug traffickers. I do not know any of my family in Chile and I do not want to know them. They do not know me either. They are poor and elderly and would not be able to support me if I went back. I am fearful that if I return to Chile I will be homeless and hungry. Given my situation and limited work history I think I would struggle to find a job.
If I am forced to go back to Chile I don't know what I will do. I do not speak Spanish and Australia and Chile have very different cultures. I won't have a job or anywhere to live. I would have no idea where to go or how to restart my life. I am not going to understand the language or the currency, and I won't have any family or housing. I won't know how to read anything or understand what anyone is saying.
I am genuinely sorry for my criminal offending. I realise that I received a lot of warnings about what would happen if I offended again. In the heat of the moment, I just wasn't thinking about the consequences. Going through each of my offences during the Whitehaven program made me feel really sorry for what I have done. I know that my behaviour has hurt a lot of people. I hope I can make up for it in some way by continuing to work on my anger issues, my addiction, and the other things that make me offend. I do not think I am a bad person. I just made a lot of bad, impulsive decisions that were influenced by the drugs I was taking, and that has put in the position I'm in now. I never intended to hurt anyone.
I have made so many positive changes in my life in the past three years and I just want to spend the rest of my life in Australia with the people I care about.”[204]
[204] Exhibit 3, G-Documents, Attachment O3, 154-6.
The Applicant gave virtually no evidence about his extended family beyond the passage above.
The Applicant has virtually no connection to Chile. He regards himself as de-facto Australian. This is understandable.
I have no doubt that the Applicant’s family, especially his mother, brother, sister, B.R, Child A, and friends in Australia would be very distressed if he were to be returned to Chile.
Conclusion: Primary Consideration 3
This consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
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 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;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Child A is aged 8 ½ years. He is a under the guardianship of the Chief Executive of the relevant WA Government Department.
He has not lived with his biological mother since he was a few months old. She apparently has no interest in him. She is or has been, in prison.
Child A has been in the care of his grandmother, the Applicant’s mother since he was 1 ½ or 2 years old. She is aged 55 and has serious health issues. He is also cared by the Applicant’s younger sister.
I accept that Child A has a natural interest in knowing his father and wants to be with him. Whether this is objectively in Child A’s interest is another matter. In an immediate sense, this would be managed by child protection authorities.
The Applicant says that he wants to obtain custody of Child A with B.R. This is a highly problematic aspiration, given their criminal, mental health issues and drug abuse history.
The Applicant has never been the boy’s primary care giver since birth.
His aspiration to obtain custody, would in practice depend, amongst other things, on the attitude of the child protection authorities. If the Applicant were to reoffend, or resume drug use, he would be very unlikely to obtain custody of Child A.
Having regard to the Applicant’s record and the risk of him reoffending, I regard the prospect of him having any more than occasional supervised access to Child A before he is 18, as very remote.
The Applicant would, however, be likely to have at least occasional face to face, supervised contact with Child A, if he were to remain in Australia.
Whether this may be of benefit to Child A, is dependent on whether the Applicant reoffended. For the reasons set out above, I regard this as likely.
The Applicant would otherwise be able to continue communicate with Child A electronically. This would remain the case if he were to be returned to Chile.
Conclusion: Primary Consideration 4
Having regard to all of the above, and even assuming in the Applicant’s favour that he does not reoffend, Primary Consideration 4 weighs only slightly in favour of revocation of the Applicant’s visa cancellation. More likely, it is in Child A’s best interests not to have ongoing personal contact with the Applicant.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[205]
[205] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s criminal record as set out in Annexure B
b.the other matters set out above
Conclusion: Primary Consideration 5
Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
a) Legal consequence of the decision:
The Applicant has made no claim to be entitled to protection.
This consideration is neutral.
b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant has no practical or social connection to Chile.
He has no connection to the culture and claims not to speak the language. I accept that his present command of Spanish is rudimentary. It would take some time for him to acquire reasonable language skills.
He is 34 years of age and apparently in good physical health. He does suffer from asthma, mental health and substance abuse issues.
He would be entitled to the same social, medical and economic support as any other citizen of Chile, but these would probably be inferior to those available in Australia. His access to the appropriate treatment for his problems, should he choose to engage with it, may be limited in Chile.
There is no doubt that the Applicant would suffer serious difficulties in readjusting to life, in what would to him be, essentially a foreign country.
This would be likely to cause him serious emotional distress and probably it would adversely affect his mental health. This may in turn lead him into substance abuse, as a poor coping mechanism.
It remains unclear whether B.R. would follow him to Chile.
This consideration weighs heavily in favour of revocation.
c) Impact on victims
There is no evidence of this.
This Other Consideration (c) is neutral.
d) Impact on Australian business interests
There is no evidence of this.
This Other Consideration (d) is neutral.
Additional Other Consideration: citizenship by decent:
The Applicant raised this issue, but it has been clarified that he is saying that he could have applied for this. There is no claim that this has in fact been conferred.
FINDINGS: OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s 501 or s 501CA, is neutral.
(b)extent of impediments if removed: weighs heavily in favour of revocation.
(c)impact on victims is neutral.
(d)the impact on Australian business interests is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs very heavily against revocation.
Primary consideration 2 weighs very heavily against revocation.
Primary consideration 3 weighs in favour of revocation.
Primary consideration 4 weighs at best, slightly in favour of revocation.
Primary consideration 5 weighs heavily against revocation
Other considerations (a), (c) and (d) are neutral.
Other consideration (b) weighs heavily in favour of revocation.
The Tribunal now must evaluate the ascribed weight of the Primary and Other Considerations to determine whether the discretion to revoke the visa cancelation under section 501CA(4) of the Act, should be exercised.[206]
[206] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
It is particularly concerning that the Applicant has had his visa validly cancelled, as discussed above, on 2 occasions. On the first of these occasions, it was reinstated only after his representations and promises.[207]
[207] See para [98] above.
He signed an acknowledgement of a formal warning at this time. I regard the fact of a previous visa cancellation and a formal warning having been given, and practically ignored, as carrying very significant weight.
On the second occasion the cancellation, was rendered invalid by a subsequent Federal Court decision. I give this cancellation as such no weight, but the submissions made by and on behalf of the Applicant at this time are illuminating.
These proceedings are a review of the third cancellation.
The Applicant has been under no illusions as to the consequences of reoffending, at least since 22 January 2019, when his first mandatory visa cancellation was revoked.[208]
[208] See para [104] above.
This close brush with deportation, did not deter him. He continued to offend. Indeed, his conduct became worse.
His present assurances to be reformed, must be considered in the light of his past conduct. His assurances demonstrably carry little weight.
His psychological counsellor said that the Addiction Recovery Process Program sessions will help the Applicant focus on self-awareness, and by the time of his release, the Applicant “will be aware of ‘his red flags’ to remain healthy and drug free” including having a relapse management plan in place.[209]
[209] See para [208] above.
When he was last tested in an uncontrolled environment, he immediately resumed drug taking and offending. He has not been tested again in an uncontrolled environment, since his most recent imprisonment. He stated in his Personal Circumstances Form regarding the risk of him reoffending that “if I had to say a risk is me relapsing & go on drugs & after awhile I mite do some thing”.[210]
[210] See para [224] above.
Based on the evidence, I am not persuaded that he is aware of his “red flags” or that he has the capacity to “remain healthy and drug free”. I am not persuaded that he has any management plan.
Primary Considerations 1, 2 and 5 cumulatively weigh very heavily against revocation.
The weight given to the interests of Child A, is at best slightly in favour of revocation for the reasons set out above.
The strongest factors in the Applicant’s favour are Primary Consideration 3 and Other Consideration (b). These do cumulatively weigh in favour of revocation.
If the Applicant were before this Tribunal seeking to overturn a first mandatory visa cancellation, the decision would be much more finely balanced. Even then, his lengthy criminal record, family violence and entrenched drug dependence, would weigh heavily against him, notwithstanding his ties to Australia and undoubted difficulties in adjusting to life in Chile.
As it is, the Applicant has already been given a second chance, when the first visa cancellation was revoked. He chose to ignore it. In these circumstances, the balance is heavily against revocation of the visa cancellation.
The proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding four-hundred and twenty-one (421) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

...........................[sgnd]...................................
Associate

Dated: 6 June 2024

Date of hearing: 27 May 2024

Advocate for the Applicant:

Mr Louis Martin
(Estrin Saul Lawyers )

Advocate for the Respondent: Mr Ashley Burgess
(AGS)
ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Applicant

Statement Of Facts, Issues And Contentions

2

Respondent

Statement Of Facts, Issues And Contentions

3

Respondent

G-Documents

4

Applicant

Bundle of Documents

5

Applicant

Applicant’s Submission in Reply

6

Applicant

Supplementary Bundle of Documents

7

Respondent

Respondent’s Tender Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court

Court Date

Offence

Court Result

Perth District Court of Western of Australia (WA)

18.08.2022

Robbery

Imprisonment: 2 Years 2 Months Concurrent From 01- Jul-2021.

Perth Magistrates Court (WA)

03.12.2021

Disorderly behaviour in a police station or lock up

Fine $500

Fremantle Magistrate Court (WA)

08.06.2021

Stealing - Re-Hearing Of 22.12.2020 Application Under S126 To Amend/Canc Order

Fine: $100

Cancel CBO

Fremantle Magistrate Court (WA)

11.05.2021

Breach of bail

Fine $400

Fremantle Magistrate Court (WA)

11.05.2021

Used an unlicensed vehicle

Fine $100

Fremantle Magistrate Court (WA) 11.05.2021 Breach Of Conditional Sent Imprisonment: 6 months
Concurrent from 11 May 2021

Fremantle Magistrate Court (WA) 11.05.2021 Breach Of Conditional Sent Imprisonment: 6 months
Concurrent from 11 May 2021

Fremantle Magistrate Court (WA) 11.05.2021 Breach Of Conditional Sent Imprisonment: 6 months
Concurrent from 11 May 2021

Fremantle Magistrate Court (WA) 11.05.2021 Breach Of Conditional Sent Imprisonment: 6 months
Concurrent from 11 May 2021

Fremantle Magistrate Court (WA)

11.05.2021

Breach Of Conditional Suspended Sent

Imprisonment: 6 months

Concurrent from 11 May 2021

Fremantle Magistrate Court (WA)

11.05.2021

Without lawful excuse trespass on a place

Fine $400

Fremantle Magistrate Court (WA)

11.05.2021

No authority to drive – suspended

Mdl Disqualified: 9 mths Cumulative;

Fine: $1000

Fremantle Magistrate Court (WA)

11.05.2021

Exceed Speed Limit Between 10 And 19 Km/H

Fine $200

Fremantle Magistrate Court (WA)

11.05.2021

Breach Of Conditional Suspended Imprisonment Order

Fine $ 500 (global)

Fremantle Magistrate Court (WA)

11.05.2021

No authority to drive – suspended

Mdl Disqualified: 9 mths Cumulative;

Fine: $400

Fremantle Magistrate Court (WA)

22.12.2020

Stealing

COOM BASED ORDER: 6 Months Concurrent from 22 December 2020

Armadale Magistrates Court (WA)

15.07.2020

Exceed speed limit in a speed zone between 10 and 19km/h

Fine $200

Rockingham Magistrates Court (WA)

30.06.2020

No authority to drive (disqualified)

Disqualified: 9 months – Cumulative; Fine $400.

Fremantle Magistrate Court (WA)

31.03.2020

No authority to drive (never held

Fine $200

Fremantle Magistrate Court (WA)

24.03.2020

Breach of protective bail conditions

COND SUSP IMP ORDER: Original Term: 6 Months Suspended for 1 year from 24 MARC 2020 -Cumulative

Fremantle Magistrate Court (WA)

24.03.2020

Common Assault in Circumstances of Aggravation or Racial Aggravation

COND SUSP IMP ORDER: Original Term: 6 Months Suspended for 1 year from 24 MARC 2020 -Concurrent

Fremantle Magistrate Court (WA)

24.03.2020

Breach of protective bail conditions

As above

Fremantle Magistrate Court (WA)

24.03.2020

Criminal Damage or Destruction of Property

COND SUSP IMP ORDER: Original Term: 4 Months Suspended for 1 year from 24 MARC 2020 -Concurrent

Fremantle Magistrate Court (WA)

24.03.2020

Breach of protective bail conditions

COND SUSP IMP ORDER: Original Term: 6 Months Suspended for 1 year from 24 MARC 2020 -Concurrent

Perth Magistrates Court (WA)

09.01.2020

Breach of Police Order

Fine $500

Perth Magistrates Court (WA)

12.12.2019

Possessed drug paraphernalia in or on which there was a prohibited drug or plant

Fine $400

Fremantle Magistrate Court (WA)

03.10.2017

Endanger life, health or safety of a person

Imprisonment: 1 Year 4 Months – Concurrent from 22 April 2017

Fremantle Magistrate Court (WA)

03.10.2017

Unlawfully assault and thereby did bodily harm with circumstances of aggravation

Imprisonment: 8 Months – Concurrent from 22 April 2017

Fremantle Magistrate Court (WA)

18.04.2017

Possessed an article with intent to injure

Fine $1000

Fremantle Magistrate Court (WA)

10.01.2017

Common Assault in Circumstances of Aggravation or Racial Aggravation

Fine $2000

Perth Magistrates Court (WA)

20.12.2016

Breach of Bail (Fail to appear soon after)

Fine $500

Perth Magistrates Court (WA)

20.12.2016

Breach of Bail (Fail to appear soon after)

Fine $500

Perth Magistrates Court (WA)

20.12.2016

Give False Personal Details To Police

Fine $500

Perth Magistrates Court (WA)

06.12.2016

Common Assault in Circumstances of Aggravation or Racial Aggravation

Fine $800

Perth Magistrates Court (WA)

06.12.2016

Possession of stolen or unlawfully obtained property

Fine $100

Fremantle Magistrate Court (WA)

24.05.2016

No Authority to Drive

Fine $400; Mdl Disqualified: 3 months – Concurrent

Fremantle Magistrate Court (WA)

24.05.2016

Dangerous Driving

Fine $400

Fremantle Magistrate Court (WA)

24.05.2016

Driver failed to give name and address

Fine $350

Fremantle Magistrate Court (WA)

24.05.2016

Breach of Bail Undertaking

Fine $100

Fremantle Magistrate Court (WA)

21.08.2013

No Authority to Drive (never held)

Fine $200; Mdl 7 days DELAY: 3 months

Fremantle Magistrate Court (WA)

21.08.2013

False Number Plate (Not issued for that vehicle)

Fine $400

Fremantle Magistrate Court (WA)

21.08.2013

Unlicensed Vehicle (Not Owner)

Fine $200

Fremantle Magistrate Court (WA)

31.07.2013

No Authority to Drive (Fines Suspended)

Fine $600

Fremantle Magistrate Court (WA)

20.11.2012

No Authority to Drive (Fines Suspended)

Fine $400

Perth Magistrates Court (WA)

19.05.2012

No Authority to Drive (never held)

Fine $150; Disqualified: 3 months

Fremantle Magistrate Court (WA)

20.04.2011

No Authority to Drive (Fines Suspended)

Fine $300

Fremantle Magistrate Court (WA)

09.11.2010

Disorderly behaviour in public

Fine $600

Armadale Magistrates Court (WA)

26.05.2009

Unauthorised Driving by Learner Drivers

Fine $200

Armadale Magistrates Court (WA)

26.05.2009

Dangerous Driving Occasioning Bodily Harm

Fine $1000; Mdl Disqualified: 18 months – Concurrent

Armadale Magistrates Court (WA)

26.05.2009

Dangerous Driving Occasioning Bodily Harm

Fine $1000; Mdl Disqualified: 18 Months - Concurrent

Armadale Magistrates Court (WA)

26.05.2009

Dangerous Driving Occasioning Bodily Harm

Susp Imp Order: Imp 7 Months Susp 12 Months; Disqualified: 18 Months – Concurrent

[2024] AATA 1485

6 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Appeal

Date of hearing:	27 May 2024
Advocate for the Applicant:	Mr Louis Martin (Estrin Saul Lawyers )
Advocate for the Respondent:	Mr Ashley Burgess (AGS)

Exhibit no.	Lodged by	Document
1	Applicant	Statement Of Facts, Issues And Contentions
2	Respondent	Statement Of Facts, Issues And Contentions
3	Respondent	G-Documents
4	Applicant	Bundle of Documents
5	Applicant	Applicant’s Submission in Reply
6	Applicant	Supplementary Bundle of Documents
7	Respondent	Respondent’s Tender Bundle

Court	Court Date	Offence	Court Result
Perth District Court of Western of Australia (WA)	18.08.2022	Robbery	Imprisonment: 2 Years 2 Months Concurrent From 01- Jul-2021.
Perth Magistrates Court (WA)	03.12.2021	Disorderly behaviour in a police station or lock up	Fine $500
Fremantle Magistrate Court (WA)	08.06.2021	Stealing - Re-Hearing Of 22.12.2020 Application Under S126 To Amend/Canc Order	Fine: $100 Cancel CBO
Fremantle Magistrate Court (WA)	11.05.2021	Breach of bail	Fine $400
Fremantle Magistrate Court (WA)	11.05.2021	Used an unlicensed vehicle	Fine $100
Fremantle Magistrate Court (WA)	11.05.2021	Breach Of Conditional Sent	Imprisonment: 6 months Concurrent from 11 May 2021
Fremantle Magistrate Court (WA)	11.05.2021	Breach Of Conditional Sent	Imprisonment: 6 months Concurrent from 11 May 2021
Fremantle Magistrate Court (WA)	11.05.2021	Breach Of Conditional Sent	Imprisonment: 6 months Concurrent from 11 May 2021
Fremantle Magistrate Court (WA)	11.05.2021	Breach Of Conditional Sent	Imprisonment: 6 months Concurrent from 11 May 2021
Fremantle Magistrate Court (WA)	11.05.2021	Breach Of Conditional Suspended Sent	Imprisonment: 6 months Concurrent from 11 May 2021
Fremantle Magistrate Court (WA)	11.05.2021	Without lawful excuse trespass on a place	Fine $400
Fremantle Magistrate Court (WA)	11.05.2021	No authority to drive – suspended	Mdl Disqualified: 9 mths Cumulative; Fine: $1000
Fremantle Magistrate Court (WA)	11.05.2021	Exceed Speed Limit Between 10 And 19 Km/H	Fine $200
Fremantle Magistrate Court (WA)	11.05.2021	Breach Of Conditional Suspended Imprisonment Order	Fine $ 500 (global)
Fremantle Magistrate Court (WA)	11.05.2021	No authority to drive – suspended	Mdl Disqualified: 9 mths Cumulative; Fine: $400
Fremantle Magistrate Court (WA)	22.12.2020	Stealing	COOM BASED ORDER: 6 Months Concurrent from 22 December 2020
Armadale Magistrates Court (WA)	15.07.2020	Exceed speed limit in a speed zone between 10 and 19km/h	Fine $200
Rockingham Magistrates Court (WA)	30.06.2020	No authority to drive (disqualified)	Disqualified: 9 months – Cumulative; Fine $400.
Fremantle Magistrate Court (WA)	31.03.2020	No authority to drive (never held	Fine $200
Fremantle Magistrate Court (WA)	24.03.2020	Breach of protective bail conditions	COND SUSP IMP ORDER: Original Term: 6 Months Suspended for 1 year from 24 MARC 2020 -Cumulative
Fremantle Magistrate Court (WA)	24.03.2020	Common Assault in Circumstances of Aggravation or Racial Aggravation	COND SUSP IMP ORDER: Original Term: 6 Months Suspended for 1 year from 24 MARC 2020 -Concurrent
Fremantle Magistrate Court (WA)	24.03.2020	Breach of protective bail conditions	As above
Fremantle Magistrate Court (WA)	24.03.2020	Criminal Damage or Destruction of Property	COND SUSP IMP ORDER: Original Term: 4 Months Suspended for 1 year from 24 MARC 2020 -Concurrent
Fremantle Magistrate Court (WA)	24.03.2020	Breach of protective bail conditions	COND SUSP IMP ORDER: Original Term: 6 Months Suspended for 1 year from 24 MARC 2020 -Concurrent
Perth Magistrates Court (WA)	09.01.2020	Breach of Police Order	Fine $500
Perth Magistrates Court (WA)	12.12.2019	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fine $400
Fremantle Magistrate Court (WA)	03.10.2017	Endanger life, health or safety of a person	Imprisonment: 1 Year 4 Months – Concurrent from 22 April 2017
Fremantle Magistrate Court (WA)	03.10.2017	Unlawfully assault and thereby did bodily harm with circumstances of aggravation	Imprisonment: 8 Months – Concurrent from 22 April 2017
Fremantle Magistrate Court (WA)	18.04.2017	Possessed an article with intent to injure	Fine $1000
Fremantle Magistrate Court (WA)	10.01.2017	Common Assault in Circumstances of Aggravation or Racial Aggravation	Fine $2000
Perth Magistrates Court (WA)	20.12.2016	Breach of Bail (Fail to appear soon after)	Fine $500
Perth Magistrates Court (WA)	20.12.2016	Breach of Bail (Fail to appear soon after)	Fine $500
Perth Magistrates Court (WA)	20.12.2016	Give False Personal Details To Police	Fine $500
Perth Magistrates Court (WA)	06.12.2016	Common Assault in Circumstances of Aggravation or Racial Aggravation	Fine $800
Perth Magistrates Court (WA)	06.12.2016	Possession of stolen or unlawfully obtained property	Fine $100
Fremantle Magistrate Court (WA)	24.05.2016	No Authority to Drive	Fine $400; Mdl Disqualified: 3 months – Concurrent
Fremantle Magistrate Court (WA)	24.05.2016	Dangerous Driving	Fine $400
Fremantle Magistrate Court (WA)	24.05.2016	Driver failed to give name and address	Fine $350
Fremantle Magistrate Court (WA)	24.05.2016	Breach of Bail Undertaking	Fine $100
Fremantle Magistrate Court (WA)	21.08.2013	No Authority to Drive (never held)	Fine $200; Mdl 7 days DELAY: 3 months
Fremantle Magistrate Court (WA)	21.08.2013	False Number Plate (Not issued for that vehicle)	Fine $400
Fremantle Magistrate Court (WA)	21.08.2013	Unlicensed Vehicle (Not Owner)	Fine $200
Fremantle Magistrate Court (WA)	31.07.2013	No Authority to Drive (Fines Suspended)	Fine $600
Fremantle Magistrate Court (WA)	20.11.2012	No Authority to Drive (Fines Suspended)	Fine $400
Perth Magistrates Court (WA)	19.05.2012	No Authority to Drive (never held)	Fine $150; Disqualified: 3 months
Fremantle Magistrate Court (WA)	20.04.2011	No Authority to Drive (Fines Suspended)	Fine $300
Fremantle Magistrate Court (WA)	09.11.2010	Disorderly behaviour in public	Fine $600
Armadale Magistrates Court (WA)	26.05.2009	Unauthorised Driving by Learner Drivers	Fine $200
Armadale Magistrates Court (WA)	26.05.2009	Dangerous Driving Occasioning Bodily Harm	Fine $1000; Mdl Disqualified: 18 months – Concurrent
Armadale Magistrates Court (WA)	26.05.2009	Dangerous Driving Occasioning Bodily Harm	Fine $1000; Mdl Disqualified: 18 Months - Concurrent
Armadale Magistrates Court (WA)	26.05.2009	Dangerous Driving Occasioning Bodily Harm	Susp Imp Order: Imp 7 Months Susp 12 Months; Disqualified: 18 Months – Concurrent