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

Hill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5946 (17 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5371
Re:Jim Fredrick Hill
APPLICANT

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

DECISION
Tribunal:Senior Member Kate Millar
Date:17 November 2020
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Hill’s visa.
…………………Sgd…………………….
Senior Member K Millar
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – Class TY Subclass 444 Special Category Visa – applicant has substantial criminal record –- whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member Kate Millar
INTRODUCTION

Mr Hill is a citizen of New Zealand who has lived in Australia for 15 years, arriving when he was 12 years old. He has committed a number of criminal offences, the most serious of which are drug offences. He has also been convicted of contraventions of a domestic violence order, assaulting or obstructing a police officer, driving offences, dealing with the proceeds of crime, assault occasioning grievous bodily harm and wilful damage.
After he was sentenced for drug offences to a term of imprisonment term of three years and six months, his visa was cancelled under the mandatory cancellation provisions. Mr Hill sought revocation of the cancellation of his visa, and this was refused on 28 August 2020. Mr Hill has applied for a review of this decision.
BACKGROUND
Mr Hill came to Australia with his mother, stepfather and two brothers when he was 12 years old. He states his childhood was characterised by physical abuse as the Samoan culture of the family is strict, and the family “hit first and talked later”. He said his culture views mental illness as laziness and not as a sickness, and it is hard to show emotions.
He started running away from home when he was young but would return and the physical abuse continued. He said his mother was also abused, and he tried to intervene to stop it.
Mr Hill used drugs to self-medicate and socialise, and to cover up possible exposure as an abused child. He said he was led astray and pressured by his peers and was trying to prove himself. He was diagnosed with depression and prescribed Valium but felt he didn’t need it and is not currently on any medication.
In 2013 Mr Hill’s stepfather started a church which now has approximately 20 parishioners. His parents own two adjoined houses and a granny flat, and they allow people who are having problems to stay in the house. His maternal grandmother migrated to Australia approximately a year ago and also lives with his parents. His aunt P moved to Australia in 2005/2006 and his other aunts, S and E, came to Australia in the last 5 years.
Mr Hill’s eldest child was born when Mr Hill was 15 years old. Mr Hill said he was kicked out of home and disowned because his partner was pregnant, so lived with his partner and her parents. When he got a job, he obtained housing and moved in with his partner and child before they had their second child. For two to three years, they were well off because he was working.
Mr Hill lost his job before his third child was born, and since then has been back and forth between his partner’s parents and his parents. He said his ex-partner was diagnosed with schizophrenia and had a lengthy admission to hospital in 2016 and 2017. He said now that she has a diagnosis, is on medication, sees a doctor and is able to look after the children.
His adopted oldest brother Timothy is not in contact with the family. His brother Zhivago returned to New Zealand two years ago. Mr Hill said Zhivago is living in a hostel and trying to re-establish himself in New Zealand. Zhivago has four children who live in Australia with their mother. Their mother is Mr Hill’s ex-partner’s sister, as the two brothers dated the two sisters. Mr Hill’s children and his ex-partner live in a house purchased by his ex-partner’s parents with Zhivago’s children and their mother.
Mr Hill has three stepsisters, C who is 15 years old, M who is 12 and G who is 10.
On arriving in Australia, Mr Hill attended school and completed Grade 10. He worked in labouring positions between 2007 and 2011, after which he was employed as an educator at family day care and then as a cook. At the time his visa was cancelled, he stated he was starting a TPP course to allow him to finish Year 11 and 12. He said he had completed a Certificate I in Construction through TAFE.
Mr Hill started offending as a minor, and as a child was charged with attempted stealing and obstructing a police officer, failing to appear, entering premises with intent, robbery with actual violence, wilful damage and consuming alcohol. In court appearances in March and October 2008, convictions were not recorded on any of these charges, and Mr Hill was sentenced to a good behaviour bond, community service, a probation period and reprimanded.
On 11 January 2011, he was charged with breaking and entering. A conviction was not recorded, and he was sentenced to a good behaviour bond and restitution.
On 11 May 2012, he was charged with public nuisance. He was fined, and no conviction was recorded. The police facts state he was banging on the door of a house. He was found on the porch of the house intoxicated and did not respond to police. He was handcuffed but refused to move, and when physically moved became verbally abusive using obscene language. [1] Mr Hill says he cannot remember what happened because he was intoxicated. He pleaded guilty and cannot now recall much about this incident.
[1] TB1/5
He was charged with and convicted of assault occasioning actual bodily harm, wilful damage, and assaulting a police officer on 17 August 2014.
The police facts state that Mr Hill was located outside a McDonalds acting erratically and goading people to fight. It is stated he attempted to karate kick a person who narrowly avoided the kick. Mr Hill attempted to enter the McDonalds to pursue the person. He continued to goad people to fight him, approached the victim and attempted to instigate a fight. The victim ignored him, and the police facts state Mr Hill approached the victim from behind and punched him with a closed fist. The victim was knocked unconscious and Mr Hill threw him against a post causing a large split to the back of his head. Mr Hill was arrested but was too intoxicated to be interviewed.
Mr Hill does not agree with the police facts, and states that the charges were downgraded after CCTV of the incident was reviewed. Mr Hill agrees he was intoxicated but says he was not goading people to fight him. He says he went past a group who were laughing at him, he said, ‘what’s the go’ and ‘if they had problems to come and solve them’. He said he walked away but they kept going and the victim raised his fist and said Mr Hill had attempted to kick him. This made him blow up. He blacked out and woke up in the watch house.
Mr Hill said the CCTV showed him talking to the victim and looking at him before Mr Hill hit him, showing he did not hit the victim from behind. Mr Hill said the CCTV also showed that the victim was coming back at him before he fell and cracked his head. He said after the footage was available, the charge was reduced from grievous bodily harm to actual bodily harm. He pleaded guilty to actual bodily harm because he did approach the victim and landed the first punch, but maintained the reason for the victim’s injury was the victim coming back to Mr Hill.
The police facts state Mr Hill was conveyed to the police station and that he struggled with and threatened to spit on police officers. He was placed in a holding cell and spat on windows and walls and at a camera. He was charged with wilful damage. Mr Hill said he could not recall this as he blacked out and woke up in a holding cell intoxicated. He said he was mistreated, his clothes were taken and that he was put in a nightgown so he retaliated as he thought he had been mishandled.
The sentence for assault occasioning actual bodily harm, as well as wilful damage and assaulting or obstructing police, was 60 hours of community service. That he was not given a suspended or actual term of imprisonment for the assault provides support for Mr Hill’s version of events. In light of the sentence, and in the absence of sentencing remarks, the Tribunal accepts Mr Hill’s account of the assault. It accepts the police’s version of the assault and obstruction of a police officer and wilful damage.
He was convicted of three counts of breaching bail conditions on 21 January 2015 and was fined.
On 5 September 2016, he was charged with contravening a domestic violence order. The terms of the domestic violence order did not prevent Mr Hill living with his partner and children.
The police facts state he argued with his ex-partner when she wanted to leave the house and he did not want her to go. While they were arguing, Mr Hill was making repairs to an internal door. He hit an internal window with his elbow, making it crack. Mr Hill then left the premises. He cooperated with police and made full admissions. Mr Hill said his ex-partner had approached him in a wrong manner and was aggressive to him. He said she knew how to say things to hurt his feelings and this triggered him, so he hit the window with his elbow. He said she walked out of the house but came back, so he left. He said she had the keys to the car but didn’t leave while he was out. When he returned, he said they talked it out.
On 28 June 2017, he was charged with four counts of possession of property suspected of being the proceeds of an offence. He pleaded guilty and was convicted on 18 July 2019. A sentence was not imposed, and a forfeiture order was made.
On 20 July 2017, he failed to appear in accordance with an undertaking and was convicted and fined. This is one of several failing to appear or breach of bail offences between August 2017 and August 2018. Mr Hill said during this time he was caring for the children because his ex-partner was hospitalised due to a mental illness.
On 28 June 2017 police were called to Mr Hill’s residence after a report of domestic violence. When the police arrived, Mr Hill grabbed a black bag and jumped over a side fence, seeking to avoid police and throw away the bag. Police found qualities of cash and what was described by the sentencing judge as a very significant amount of methylamphetamine and a quantity of cocaine, with a total value of approximately $30,000.[2] Mr Hill was arrested but declined to be interviewed. After being charged, he failed to appear on three occasions.
[2] G8/53
After he failed to appear, the sentencing judge remarked that he then entered a timely plea, however there was no further cooperation with police regarding the quantities of highly dangerous drugs.[3] The sentencing judge also remarked that although Mr Hill became addicted to drugs at the age of 19, there was no concrete evidence of rehabilitation. Mr Hill was convicted of possession of dangerous drugs and property suspected of being the proceeds of crime. On one count, he was sentenced to a term of imprisonment of three years and six months, on another a term of two years and six months, and a third for a period of six months, all of which were served concurrently. Regarding the proceeds of crime, a conviction was recorded but he was not further punished.
[3] G8/53
On 7 September 2017, he was arrested for contravention of a domestic violence order. He was convicted and sentenced to 3 months’ imprisonment. Mr Hill agreed with the police facts, which stated he repeatedly punched holes in the plasterboard walls after being told he could not live there with his partner any longer. At interview, he said he had become enraged at being kicked out of the house.
On 22 June 2018, he was charged with a variety of offences including fail to stop a motor vehicle, assaulting a police officer, an offence relating to the use of an incorrect number plate for a vehicle, failure to register his vehicle and driving an uninsured vehicle.
Mr Hill generally agreed with the police facts.[4] These state that while stopped at a traffic light, the police spoke to Mr Hill who was driving the adjacent car and asked if the car was his. After this, police observed the car make a right turn which they followed, activating the lights and siren. The car slowed and then made a sudden turn, then accelerated.
[4] TB1/56
Once police located Mr Hill stopped in the vehicle, the police officer reached into the window on the driver’s side and turned off the engine using the key. Mr Hill grabbed the officer’s hand and pulled it away from the key, restarted the car and wrestled the police officer’s hand. This resulted in a charge of assaulting a police officer.
Mr Hill climbed out of the passenger door and ran off. He was found soon after hiding in a yard. He acknowledged the number plates on the car belonged to another vehicle, and he had used the plates so his car appeared registered. The car’s correct registration had expired. Mr Hill acknowledged it was also uninsured.
Mr Hill said he had just finished work and was taking his workmates home. At the time he did not have a license. He said if he was caught with his friends in the car it would look bad for them, so he dropped them off and came back down the same road. He took off when he saw police. He said at this time his ex-partner was in hospital and his children were with his auntie. He thought that if he was apprehended, he would go straight to jail as he was on bail.
On 7 July 2018, he was charged with possessing a dangerous drug. He pleaded guilty and was sentenced on 18 July 2019 to a term of imprisonment of six months. Seven days later, on 14 July 2018 he was again arrested for possessing dangerous drugs. He pleaded guilty and was sentenced to a term of imprisonment of six months.
These offences were all addressed together at sentencing on 18 July 2019 on charges of possessing the proceeds of crime, breach of the domestic violence order, obstructing police, failing to stop and the two possession of dangerous drugs charges.
Mr Hill was convicted without further penalty for possessing the proceeds of crime, with a forfeiture order made for the cash. In relation to the breach of a domestic violence order, the sentencing magistrate stated there was no physical violence, but there were somewhat controlling behaviours where Mr Hill was punching holes in a plasterboard wall. The sentencing magistrate notes Mr Hill was cooperative in relation to the breach of the domestic violence order and in relation to the traffic offences. He was not cooperative regarding the drug offences.
Mr Hill was imprisoned in October 2018.[5] All terms of imprisonment to which Mr Hill was sentenced for these offences were served cumulatively over three and a half years, with the result that he was eligible for parole on 6 January 2020.
[5] Acting Magistrate Schubert (G7/50) states the date of imprisonment was 29 October 2018, however Justice Douglas of the Supreme Court of Queensland states he was in custody from 20 October 2018 (G8/54). Mr Hill states he was imprisoned from September 2018.
On his release from prison, Mr Hill was taken into immigration detention and is currently detained on Christmas Island.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a substantial criminal record, and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
A person does not pass the character test if he or she has a “substantial criminal record”.[6] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[6] Section 501(6)(a) of the Act.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[7]
[7] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[8]
[8] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 79, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The matters to be decided in this case are whether the Applicant does not pass the character test; and if so, whether there is another reason the decision to cancel the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 6 March 2019, Mr Hill was sentenced to a term of imprisonment of three years and six months. As this is more than 12 months, he has a substantial criminal record as defined in s 501(7)(c) and does not pass the character test.
The remaining question is whether there is another reason the decision to cancel the visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether the cancellation of Mr Hill’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in Paragraph 6.3, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[9]
[9] Paragraph 7(1)(b) of the Direction.
Principles that inform the decision-maker
Paragraph 6.3 of the Direction sets out a number of principles that inform the decision-maker, they are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

The Tribunal has considered these principles in looking at the primary and other considerations.
The Primary and Other Considerations
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations, being:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The Other Considerations which are to be taken into account where relevant are provided in a non-exhaustive list in Paragraph 14(1) of the Direction, these considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection[10] Colvin J, in applying the identical condition to Paragraph 8(3) from Direction 65 stated, at [23], that while generally Primary Considerations should be given greater weight, the Direction:
… requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[10] [2018] FCA 594.
An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the Primary Considerations may outweigh the Other Considerations in accordance with Paragraph 8(3), Other Considerations can outweigh the Primary Consideration in the circumstances of the case.

THE PRIMARY CONSIDERATIONS

Protection of the Australian community

Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and the seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(1)Nature and Seriousness of Conduct
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. In working through these factors:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
Mr Hill has been convicted of assault occasioning actual bodily harm. Crimes involving violence are viewed very seriously in accordance with paragraph 13.1.1(a).
Mr Hill has been convicted of breaches of a domestic violence order involving damage to property. While this was part of controlling behaviour and could reasonably be inferred to cause fear in the victim, these did not entail physical violence to the victim.
The assault against the police officer involved grabbing at the officer’s hand while the officer attempted to gain possession of the car key.
The Minister sought to rely on other reported breaches of the domestic violence order, however convictions were not recorded for these alleged breaches. At best, it can be concluded that the police were called for alleged incidents of domestic violence on two other occasions.
Mr Hill’s convictions for beach of a domestic violence order and towards police officers are viewed very seriously. However, the level of violence is not of the degree that is often the case in these matters, and accordingly less weight is placed on this factor. The conviction for assault occasioning actual bodily harm is viewed very seriously.
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
The breaches of a domestic violence order for which Mr Hill was convicted involved damage to property in the presence of his ex-partner, which could be reasonably presumed to have caused her apprehension or fear. Despite the police having been called to the premises regarding alleged incidents of domestic violence, only two breaches have been established.
The domestic violence order does not require Mr Hill to stay away from his ex-partner or his children, but is expressed to require him to be of good behaviour towards his ex-partner and children and not to expose them to domestic violence.
The convictions for breach of a domestic violence order are viewed very seriously.
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
Mr Hill has been convicted of obstructing or assaulting police on three occasions, with one occasion being when he was a minor. Most recently the assault attracted a penalty of imprisonment for two months served concurrently with other sentences. This reflects the gravity with which the Court viewed this offence. This related to the police officer’s attempt to remove the keys from the car Mr Hill was driving. The previous offence resulted in a sentence of community service. Obstructing and assaulting a police officer in the performance of their duties is serious.
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
The period of imprisonment for the drug offences of three years and six months is a considerable term and reflects the gravity of this offence. This sentence was served concurrently with a period of imprisonment of two years and six months and two periods of six months for other drug offences, as well as a term of imprisonment of three months for breaching the domestic violence order. Mr Hill was sentenced to a period of two months’ imprisonment for obstructing or assaulting a police officer, and 50 days for failing to stop a motor vehicle. Mr Hill has also been sentenced to a number of bonds, fines and a period of community service. He received suspended sentences for breaching bail.
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
Mr Hill has been convicted of numerous offences over a long period of time, and the frequency of his offending weighs against him.
In terms of increasing seriousness, the Tribunal is not satisfied there is a trend of increasing seriousness, as his record shows isolated serious offences in the context of overall low-level offending. The serious offences, while all having a relationship to drug use, are not of a type that the Tribunal considers a trend.
f)The cumulative effect of repeated offending;
The cumulative effect of breaching the domestic violence order is seen by the last breach resulting in a term of imprisonment. There is also a cumulative nature of the drug offences, with Mr Hill being charged with two offences of possession of a prohibited substance occurring within a week of each other. This was after he had been charged with the more serious drug offences, and after he said he had a period of abstinence from drug use.
Mr Hill has also repeatedly failed to appear or breached bail with 8 offences of this nature.
The number of offences for which Mr Hill has been convicted weighs against him.
It is not suggested Mr Hill has provided any false or misleading information as contemplated by 13.1(1)(g). As Mr Hill has not previously been warned or advised of the consequences of further offending, and no offences have been committed while he has been in immigration detention, 13.1(1)(h) and (i) do not apply.
(2)Risk to the community
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. It states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(a) Nature of the harm
In looking to the nature of the harm to the Australian community should Mr Hill reoffend, the Tribunal has looked at the likelihood of him reoffending in a similar way as in the past. This involves assault occasioning actual bodily harm, assaulting or obstructing police officers, breaching the domestic violence order and drug offences, where the quantity involved suggested to the sentencing judge he was selling drugs.
The harm involved if Mr Hill were to assault a person is significant, as a single punch can have devastating consequences. That said, the circumstances of the assault are unclear. Given Mr Hill’s version of events and the sentence imposed, the Tribunal does not consider the Minister has established that Mr Hill punched the person from behind, the type of injury suffered by the victim, or the role of the victim in incurring the injury. Mr Hill admitted he punched the other person, and the nature of the harm is that a person could be severely injured should Mr Hill reoffend in a similar way.
The breaches of a domestic violence order by Mr Hill involve damage to property. The nature of the harm is controlling or causing apprehension or fear to his ex-partner and a cost to the owner of the property.
The sentencing judge stated the drug offences were of a level that implies sale of drugs, perhaps at a wholesale level. The drugs involved were methamphetamine and cocaine. The Minister provided extracts from the Final Report of the National Ice Taskforce 2015,[11] which states that unlike cannabis and heroin, ice is an extremely powerful stimulant, which for some people can trigger psychological disturbance or violence or aggressive behaviour. Long term use can damage the brain and cause impaired attention, memory and motor skills. It is more likely to cause dependence than other drugs and has a very long withdrawal and recovery phase.
[11] TB3/61-66
The Minster also provided an extract from the National Drug Strategy 2017 – 2026.[12] However, this does not include detail of the nature of the harm to individuals or the community from methylamphetamine or cocaine, but rather states the health, social and economic harms from alcohol, tobacco and other drugs.
[12] TB4/67-74
The nature of the harm should Mr Hill reoffend is a combination of the harm caused by domestic violence, the use and supply of drugs and the risk involved in assault, which when combined, the Tribunal considers to be serious.
(b) Likelihood of engaging in further criminal or other serious conduct
Much of Mr Hill’s offending history is related to his use of drugs or alcohol, and he acknowledges he was intoxicated at the time of the more serious assault charge. The most serious offence involved having a quantity of drugs, and Mr Hill acknowledges he was supplying drugs to others to fund his lifestyle. It follows that whether he abstains from using drugs will have a substantial effect on his likelihood of future offending.
Mr Hill concedes that on some occasions his offending was due to alcohol or methamphetamine use. He said his use of methylamphetamine was worse than his use of alcohol.
Mr Hill became addicted to methylamphetamine at 19 years of age, and first used the drug in 2012. He was using every week or every month to socialise but said he did not use when he was with his family.
Mr Hill said in 2016 and 2017, he started depending on methylamphetamine and using it as a source of income to supply to people he knew. He was able to work during the week and only used methylamphetamine on weekends. He said he was not much of a drinker at that time, but that his past alcohol use was at its worst during 2015 – 2016. He said in the period 2014 – 2016 he would drink, but only when he could afford it. He stopped school when the baby was coming, had no money and was living with his partner and her parents, which limited his ability to purchase alcohol.
Mr Hill said that generally he does not enjoy drinking, other than a beer or two after work. However, he said he would continue to drink alcohol if his visa was reinstated at events such as his cousin’s wedding.
Mr Hill did not think he will return to using methylamphetamine because it has a big impact on his family, and it is ‘ugly to be on’. It was put to him that even after he was arrested with a quantity of drugs, he continued to use methylamphetamine. Mr Hill said he was off it a couple of months but then caught up with a friend who had just been released from jail and was convinced to use again thinking it was a one-off thing. He said he had used three to four times with his friend and was caught. He said he had stopped using for between 8 and 12 months before he relapsed.
Mr Hill acknowledges he had a significant problem with methylamphetamine in the past and started selling it. After he lost his job and his family, all he had were friends who were doing methylamphetamine with him. He had five friends who were homeless and doing drugs with him. Mr Hill said it was hard to come off methylamphetamine and easier to come off alcohol. He said the triggers for his drug use were being hurt, someone being treated bad, avoiding dispute or friction, and being around toxic people. He then added frustration and stress, not feeling good enough and the smell to the triggers. He stated he has learned to identify the triggers and to think about this before he does it as there is ‘always a point at which you can go back.’ Mr Hill says it is now two years since he has used methylamphetamine as he has been in prison or immigration detention.
Mr Hill provided certificates for completing the following courses:
·     Recovery from Substance Abuse;
·     Keeping Safe: Harm minimisation, sexual health education, safe tattooing, sharps safety;
·     Red Cross save-a-mate alcohol and other drug emergencies;
·     Impacts of Crime;
·     Planning for Change;
·     Physical and Psycho-Social Effects of Drug and Alcohol use;
·     Kicking Habits, alcohol and drug program;
·     Circuit Breaker: New Tools to Mend Relationships; and
·     Man Up.
Mr Hill has completed a significant number of rehabilitation courses and could identify the triggers for his drug use. He provided completed workbooks for the change programs and domestic violence programs, which show he has actively engaged in these courses.
A reference from the facilitator of the Man Up course was provided stating she had observed changes in Mr Hill over the course of the program.
A reference from Ms Burton, a Pacific Islander elder and Director of Community Support for Pacific Connect and Support Inc.[13] states the service has been in contact with Mr Hill since his incarceration and he has been responsive to support from the organisation. Ms Burton describes him as taking positive steps towards rehabilitation, identifying triggers for violence and learning how to deal with stress. Ms Burton said the organisation can support Mr Hill if he is released into the community.
[13] Exhibit A.
He has previously relapsed while in the community after a period of 8 – 12 months of not using drugs. On his relapse, he was charged twice with possession of drugs, with the second offence occurring a week after the first offence.
Mr Hill says he has now been drug-free for two years while in prison and in immigration detention. While his ability to abstain in the community is untested, and he has previously relapsed in the community, the prospect of him relapsing is reduced through the rehabilitation courses he has undertaken and his active engagement in those courses.
Mr Hill said he has generally been employed and will not have difficulty finding work as he is a hard worker. He provided a letter from the General Manager at Australian Framing Solutions stating he was employed as a wrench gun operator. The period of his employment was not specified. His employment is a factor that would reduce the likelihood of him reoffending.
Mr Hill says on his release, he will return to live with his parents. This is the same household that he says triggered his drug use due to the abuse he suffered. When questioned if this was still a violent household, Mr Hill said the household is different now. He said the violence is in the past and it is no longer a violent household. His stepfather is now a Minister, has started a church and helps people. His mother is always busy assisting others in the community.
Mr Hill said his offending occurred in the period he was not living with his parents, and therefore this environment could not be said to cause the offending. He said the offending occurred when he was living at his ex-partner’s uncle’s house and he had to leave there after the offences, so he returned to live with his parents.
Neither Mr Hill nor the Minister called Mr Hill’s stepfather or mother to give evidence, which means there is limited information before the Tribunal. On the information before it, the Tribunal concludes he will have a place to stay with his stepfather, mother, stepsisters and his grandmother on release, and will have his basic needs met until he can find a job. This is a protective factor. While he states that the environment has changed and is no longer abusive since his stepfather started the church, many of his offences occurred after his stepfather started the church. The protective factor of living with his family and extended family is reduced as he says this environment was abusive in the past and led to his drug use, and his offending continued after the environment purportedly changed in 2009. Nevertheless, the Tribunal accepts no oral evidence

Mr Hill has actively engaged in rehabilitation and has learned new skills to manage his emotions, and his risk of reoffending has reduced accordingly. He has reasonable job prospects and a home environment to which he can return, which includes his extended family with the migration of his grandmother to Australia. However, he has relapsed in the past and his ability to abstain in the community on a long-term basis is untested. The risk of reoffending is reduced, but still present.
In balancing these considerations, this factor weighs slightly against Mr Hill and in favour of not revoking the cancellation of his visa.
When the nature and seriousness of the conduct and the risk to the Australian community are combined, this consideration weighs against Mr Hill and in favour of not revoking the cancellation of his visa.
The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Hill has a number of children in his life. He has three children, two stepsisters and 4 nieces and nephews. While the individual interests of the children must be considered, it is convenient to look at the interests of the children in family groups.
Mr Hill’s children
Mr Hill has three children; J1 who is 11 years old, M who is 6 and J2 who is 3. Mr Hill said if he is required to leave Australia it will be heartbreaking for his children, and they will be affected by not having a father as a role model.
Prior to his imprisonment, Mr Hill lived with his children and ex-partner and played a parental role. Mr Hill said none of the children have health concerns. No distinction was drawn between the needs of each of Mr Hill’s children. There was no information on the views of the children before the Tribunal.
His ex-partner is a citizen of New Zealand and is Maori. In a written statement, Mr Hill says they have now decided to separate in the best interests of him, his ex-partner and their children. This means that if he is removed from Australia, he will be separated from his children.
Mr Hill said his ex-partner has been diagnosed with schizophrenia. Prior to his imprisonment, she was not doing well and had been admitted to hospital. While she was in hospital, Mr Hill said he was caring for the children and paying his auntie to look after them while he was at work. This was between 2016 and 2017, and he said he needed to make sure she was out of hospital and well enough to look after the children before he went to prison. He said she has not been in hospital again since this period as she is now on medication, sees a doctor and is able to look after the children.
A statement from Mr Hill’s ex-partner declares that the children love him very much.[14] It was submitted by the Minister that little weight can be placed on this statement as Mr Hill’s ex-partner was the victim of the domestic violence incidents. While it is not difficult to contemplate circumstances where a person who has experienced domestic violence may feel coerced to provide a statement favourable to the perpetrator, caution should be used before inferring that information is less reliable because it comes from the victim of an offence. Neither party called Mr Hill’s ex-partner as a witness, and the Tribunal does not consider it has sufficient information before it to do other than accept her statement at face value.
[14] G19/223
A letter from Mr Hill’s mother dated 6 August 2020[15] states she has been taking the children to visit him in prison, and has been taking care of them physically and financially on Mr Hill’s behalf until Mr Hill is able to take over his role as a father to his children. The Tribunal infers that she would continue to have a role in the life of Mr Hill’s children if he were required to leave Australia.
[15] G20/224
Mr Hill has been unable to see his children since he has been in immigration detention but has maintained contact with them by Facetime. This shows he can maintain contact with them in other ways. Mr Hill states he pays child support for the children and, given his reasonable prospects of employment, the Tribunal finds he will continue to provide them with financial support.
The Tribunal is satisfied Mr Hill plays a parental role for his children, and they visited him in prison. Prior to his imprisonment, he played a primary parental role while his ex-partner was in hospital and in this time made arrangements for the care of the children while he was at work. He has been absent while in prison and in immigration detention but has remained in contact. His youngest child is 3 years old, and the eldest is 11 years old, and there is a lengthy time for which he will be required to play a parental role.
Mr Hill has been convicted of offences involving a breach of a domestic violence order, but said the children were not present on the occasion when the glass window was broken. Nevertheless, Mr Hill’s behaviour was described as controlling by the sentencing judge. Disputes between parents that involve violent or controlling behaviour can reasonably be expected to have a negative impact on the children. The parties state they have now separated, and that negative impact is less likely given this separation. There is no direct information before the Tribunal on the impact of his behaviour on his children, or of the likely effect of being separated from the children. There is no evidence that he has abused or neglected the children and there is no direct evidence that they have suffered any physical or emotional trauma from his conduct. He stated in oral evidence he did not use drugs when he was with his family.
Mr Hill’s ex-partner states the children love him very much, and it can be inferred that ongoing physical separation would have an adverse impact on them. While in immigration detention, Mr Hill maintained contact with the children using Facetime, and this would also be available to him if he were to leave Australia, however he would not be able to assist in the day to day care of the children. This is of some importance if his ex-partner were again to become unwell.
The Tribunal considers it is in the best interests of Mr Hill’s children that he remain in Australia, and this weighs heavily in his favour due to the parental role he plays, and the length of time over which he could be expected to play a parental role for his children.
Mr Hill’s stepsisters
Mr Hill has three stepsisters, C who is 15 years old, M who is 12 and G who is 10. He said his sisters came and stayed with him, have a lot of interaction with his own children, and that they are close. He plays in the band in church with his stepsisters. He said if he is required to leave Australia it will be hard for his sisters as he will have let them down. He says he walks them to school, make sure they have lunches and help with their homework.
His stepsisters have both parents playing a parental role. They are relatively young, and if Mr Hill were to live with the family, he will have extensive involvement with them in the future. There is no information before the Tribunal on the effect of Mr Hill’s prior conduct on his stepsisters, or any known views of his stepsisters.
The Tribunal considers Mr Hill’s stepsisters will maintain their contact with Mr Hill’s children if he is required to leave Australia. While they could be expected to feel sad if Mr Hill was required to leave, he does not play a primary parental role in relation to these children, and he can maintain meaningful contact as a stepbrother through other means of communication. This weighs in favour of revocation, but to a lesser degree than the interests of his own children.
Mr Hill’s nieces and nephews
Mr Hill’s brother has four children N, Z, S1 and S2 in Australia who are approximately 11, 6, 4 and 3. The children live with their mother, together with Mr Hill’s ex-partner and their three children in a house purchased by his ex-partner’s parents.
Mr Hill’s brother returned to New Zealand approximately two years ago, and Mr Hill says he has been trying to re-establish himself and is currently living in a hostel. This means his nieces and nephew do not have a father who is physically present.
Mr Hill said he is close to his nieces and nephew as his brother and his family have always lived next door, or close by, and he cared for the children when needed. He said he is a role model to them and an uncle. He did not identify the individual needs of each of the children.
Mr Hill said if he is required to leave Australia his brother’s children will be affected as he has been a role model to them and has been there as an uncle when they needed him. He said when he took his children on activities, he would also take one or two of his brother’s children depending on how many would fit in the car. He said it is bad enough that his brother is not here, but he could at least be there for his brother’s children. He said his absence would have the same impact on his nieces and nephew as it would on his own children.
There is no information before the Tribunal on the impact of Mr Hill’s prior conduct on these children or any known views of the children. There is no evidence before the Tribunal that Mr Hill has abused or neglected these children or that they have suffered physical or emotional trauma as a result of his behaviour.
The Tribunal accepts that due to the ties between the families, and as his brother’s children live with his children, Mr Hill has a close relationship with his brother’s children. As his brother is not in Australia, the role he can be expected to play in the future with these children is increased.
The interests of these children weigh in Mr Hill’s favour towards revoking the cancellation of his visa.
Overall, the best interests of the children weigh heavily in favour of revoking the cancellation of Mr Hill’s visa.
Expectations of the Australian Community
Paragraph 13.3(1) of the Direction sets out the third of the Primary Considerations and provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(5) and (7) of the Direction provides:
(1)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
This Primary Consideration has been considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (‘FYBR’),[16] Charlesworth J clarified that, ‘It is not for the decision-maker to make his or her own assessment of the community expectations’[17] and that this provision ‘concerns what the government has deemed the community’s expectation to be’.[18] Justice Stewart agreed with Charlesworth J that the effect of this provision is to deem what community expectations are,[19] and that it is not for the decision-maker to decide what community expectations are.[20]
[16] [2019] FCAFC 185 (‘FYBR’).
[17] Ibid [67].
[18] Ibid [68].
[19] Ibid [89].
[20] Ibid [93].
As a result, this weighs against Mr Hill, and in favour of not revoking the cancellation of his visa.
However, the weight to be given to this factor is a matter to be decided. The guiding principles state that Primary Considerations should generally be given greater weight than Other Considerations.[21] The Tribunal considers the guiding principles also require the length of time Mr Hill has been in Australia, that he arrived as a child, the best interests of his children and the contribution he has made to the community through working and volunteering in his stepfather’s church to be taken into account.
[21] Paragraph 8(4) of the Direction.
When these other factors are taken into account, the Tribunal considers this factor weighs somewhat against Mr Hill and in favour of not revoking the cancellation of his visa.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in Paragraph 14(1) of the Direction, include (but are not limited to):
(3)International non-refoulement obligations;
(4)Strength, nature and duration of ties;
(5)Impact on Australian business interests;
(6)Impact on victims; and
(7)Extent of impediments if removed.
International non-refoulement obligations
It is submitted, and the Tribunal finds, that non-refoulement obligations would not apply to Mr Hill’s circumstances as he would be removed to New Zealand.
The strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
Mr Hill arrived in Australia on 9 April 2005 when he was 12 years old and has remained in Australia other than a brief departure between 19 December 2006 to 31 January 2007. He has lived in Australia for 15 years. His first conviction is recorded on 25 March 2008, approximately three years after he arrived.
His contributions to the community are through employment, and he has generally been employed, with some periods of unemployment, which he explained at hearing was between 2013 – 2015 for two to two and a half years.
Mr Hill’s stepfather, who is the founder and pastor at Gods Greatest Love Church, provided a reference in which he states Mr Hill has always respected him and his mother as parents and has assisted with cleaning and finances for the housing they provided in their home to ‘all types of people from prostitutes, drug addicts to rapists.’
He said he played in the band for the Church and spoke as a youth pastor in the church. He said his family ran a festival to bring the community together. He has assisted in church events and with jobs like cutting grass, getting food and looking after children in the church community. He said his parents give biblical advice, and the family supports people who are affected by domestic violence and drugs.
Overall, Mr Hill’s arrival at a young age weighs in favour of revoking the cancellation of his visa. The weight of this factor is reduced by his offending commencing three years after arrival but is increased by the periods he has been employed and through his volunteer work with his stepfather’s church.
Mr Hill has three aunts in Australia; P who came to Australia in 2005 or 2006, and S and E who came in the last 5 years. These are the children of his mother’s sister. His grandmother moved to Australia approximately a year ago.
Mr Hill has extensive family ties in Australia. Other than the children affected by this decision, whose interests are outlined above, he has his mother, stepfather, three cousins and his grandmother in Australia. Mr Hill’s aunt cared for his children while he was working, and their mother was in hospital. Mr Hill would live with his parents, grandmother and stepsisters if released from immigration detention. Despite there being no direct evidence from extended family members before the Tribunal, the families appear to operate together, with close ties between the children and the extended family, consistent with Samoan culture.[22]
[22] >
The strength, nature and duration of Mr Hill’s ties to Australia weigh heavily in his favour and in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While Mr Hill provided a reference from a previous employer, there is nothing to indicate Australian business interests would be affected, and in particular there is no information to show non-revocation would significantly compromise the delivery of a major project or delivery of an important service in Australia.
Impact on victims

Paragraph 14.4(1) of the Direction provides that decision-makers must have regard to the following where relevant:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The only victim who has provided information to the Tribunal is Mr Hill’s ex-partner. She states that they are no longer in a relationship but stay in contact for the children. His previous partner states Mr Hill is a kind, reliable and loving person and their children love him very much.
Insofar as the victim’s family is concerned, which in this case includes Mr Hills’ children, it is not in their interests for his visa to remain cancelled. There is no information available from the victim of the assault.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Hill is young and able to work. He would not have family support in New Zealand to provide housing or other basic needs and would be required to re-establish himself. He would not have language or cultural barriers and would be able to access social, medical and economic support in New Zealand. His brother is in New Zealand.
While he is able to access supports and does not have language or cultural barriers to his return, Mr Hill would not have his family support and would need to re-establish himself. Overall, the Tribunal considers this factor is neutral.
CONCLUSION
Mr Hill has been convicted of a number of offences, with the most serious offence being a drug offence. While he has a number of convictions, he has not previously been warned about the impact of his behaviour on his visa.
The quantity of drugs in his possession suggested an intention to supply to others at a low wholesale level, with the associated harm this could cause to the Australia community. He has been convicted of an assault, and low-level assault or obstruction of police officers. He has displayed controlling behaviour towards his ex-partner and was convicted of two breaches of a domestic violence order.
He has undergone rehabilitation courses and has shown active engagement in these courses. References from the facilitators of two of these courses state they have noticed changes in him. If released from detention, he has some protective factors in his life that reduce his risk of offending such as his children, his ability to seek employment and the support of his family. The protection of the Australian community weighs against Mr Hill and in favour of not revoking the cancellation of his visa.
There are a number of children that would be affected by a decision not to revoke the cancellation of Mr Hill’s visa. If his visa remains cancelled, he will be permanently separated from his three children while they are relatively young. His brother now lives in New Zealand, which means he will have a greater role in the lives of his nieces and nephew if he remains in Australia. The best interests of children in Australia weigh heavily in favour of Mr Hill and revoking the cancellation of his visa.
The expectation of the Australian community is that Mr Hill’s visa remain cancelled.
Of the other considerations, the strength, nature and duration of ties weighs heavily in favour of revoking the cancellation as his immediate and extended family are nearly all in Australia, and the extent of impediments if he is removed is neutral. International non-refoulement obligations and the impact on Australian business interests do not apply. There is limited information available on the impact of victims.
In general, primary considerations are to be given greater weight than other considerations. In this case, one primary consideration weighs heavily in favour of revoking the cancellation, and the other two primary considerations weigh against revoking the cancellation of the visa. Of the Other Considerations the strength, nature and duration of ties weighs strongly in his favour.
The decision in this case is finely balanced. In these circumstances the gravity of the consequences of permanent removal from Australia require rigour in looking to the outcome. The risk to the community should Mr Hill reoffend is reduced due to rehabilitation he has undertaken in drug use, family violence and anger management. Other than one assault causing harm the offences he has committed have not been characterised by direct physical violence to others. He has not previously been warned of the effect offending on his visa status. If his visa remains cancelled Mr Hill will be separated from his children for whom he has played a parental role.
Taking all the considerations into account, and in particular the best interests of children in Australia, the Tribunal finds that there is another reason the cancellation of Mr Hill’s visa should be revoked. Mr Hill should remain aware that any further instances of offending will again raise the prospect of his visa being cancelled.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation of Mr Hill’s visa.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

160.

……………………[sgnd]………………………….

Administrative Assistant Legal

Dated: 17 November 2020

Date of hearing: 26 – 27 November 2020 (by video conference)

Representative for the Applicant:
Ms Jennifer Samuta, Samuta McComber Lawyers

Representative for the Respondent: Mr Jake Kyranis, Sparke Helmore Lawyers

[2020] AATA 5946

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing