Holland and Minister for Immigration and Border Protection (Migration)

Holland and Minister for Immigration and Border Protection (Migration) [2017] AATA 1104 (17 July 2017)
Division:GENERAL DIVISION
File Number(s): 2017/2343
Re:Mark Andrew Holland
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mr D. J. Morris, Member
Date:17 July 2017
Place:Perth

The Tribunal affirms the decision under review.
.......[sgd............................................................
D. J. Morris, Member
CATCHWORDS
MIGRATION – Mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – violence – Ministerial Direction No. 65 applied - applicant does not pass character test – whether discretion should have been exercised – the protection of the Australian community from criminal or other serious conduct – expectations of Australian community – best interests of minor children – other considerations – pattern of conduct and seriousness of offences – reviewable decision affirmed
LEGISLATION
Criminal Code Act Compilation Act 1913 (WA), ss 301(1), 313(1)(a)
Migration Act 1958, ss 499(2A), 500(1)(ba), 501(1), 501(6), 501(7)(c), 501CA
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Cronin and Minister for Immigration and Border Protection [2014] AATA 29
NHHV and Minister for Immigration and Border Protection [2017] AATA 995
Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372
SECONDARY MATERIALS
Direction No. 65, Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. (Instrument made on 22 December 2014)
REASONS FOR DECISION
D. J. Morris, Member
17 July 2017
BACKGROUND

This is consideration of an application lodged under section 500(1)(ba) of the Migration Act 1958 (the Act) for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Respondent) dated 21 April 2017 and notified to the Applicant on 24 April 2017 not to revoke the mandatory cancellation under section 501(3A) of the Act of a Class BN Subclass 136 Skilled (Independent) visa held by Mr Mark Andrew Holland.
Mr Holland was born on 30 July 1991 in the United Kingdom. He is a citizen of the United Kingdom. He migrated to Australia at the end of 2006 (G29, p.151). At that time, he was aged 15. His parents and siblings also migrated at that time.
On 1 May 2015, Mr Holland was convicted in the District Court of Western Australia at Perth under section 301(1) of the Criminal Code Act Compilation Act 1913 (WA)(the WA Criminal Code) of the offence of Unlawful Wounding. He was sentenced to a term of imprisonment for two years dated from 4 November 2014.
On 6 May 2015, Mr Holland was convicted in the Rockingham Magistrates Court of the offence of Common Assault In Circumstances Of Aggravation Or Racial Aggravation under section 313(1)(a) of the WA Criminal Code. He was sentenced to a term of imprisonment for four months from 6 May 2015. At the same hearing, the Applicant was convicted of seven counts of Breach Of Violence Restraining Order, one count of Damaging Property, and two counts of Breach Of Protective Bail Granted Conditions, and was sentenced to imprisonment for one month on each charge (concurrent).
On 25 January 2016, Mr Holland was advised in writing that the Minister for Immigration and Border Protection (the Minister) had cancelled his visa under section 501(3A) of the Act on the basis that Mr Holland did not pass the character test (set out in section 5016(a)) because of his substantial criminal record, as defined in section 501(7)(c) of the Act, and because he was at that time serving a sentence of imprisonment of twelve months or more.
On 27 January 2016, Mr Holland requested revocation of the mandatory visa cancellation. On 24 April 2017, a delegate of the Minister decided under section 501CA(4) of the Act not to revoke the visa cancellation decision. Mr Holland then lodged an application for review of the delegate’s decision by the Administrative Appeals Tribunal under section 500(1)(ba) of the Migration Act.
The hearing was held on 7 July 2017. Mr Holland was represented by Mr David Blades, of counsel. The Respondent was represented by Mr Ashley Burgess. Mr Holland gave evidence in support of his application and was cross-examined. The Applicant called five witnesses who gave evidence in person and one witness who gave evidence by telephone.
The Tribunal had before it a volume of documents provided by the Respondent (‘G’ documents). It also admitted into evidence the following documents during the course of the hearing:
·Respondent’s Statement of Facts, Issues and Contentions, dated 20 June 2017 (Exhibit R1);
·Applicant’s Statement of Facts, Issues and Contentions, lodged on 2 June 2017 (Exhibit A1);
·WA Department of Corrective Services Individual Management Plan for Mark Andrew Holland, printed on 22 June 2017 (Exhibit A2);
·WA Department of Corrective Services form – Offenders Seen By Visitor date range 04/11/2014 to 03/03/2017 relating to the minor son of the Applicant (Exhibit A3);
·Statutory Declaration by Mark Holland, made at Christmas Island on 22 June 2017 (Exhibit A4);
·Statutory Declaration by Jessica Prowse, made at Parmelia, Western Australia, on 31 May 2017 (Exhibit A5);
·Statutory Declaration by Gillian Holland, made at Port Kennedy, Western Australia, on 29 May 2017 (Exhibit A6);
·Statutory Declaration by Emma Holland, made at Port Kennedy, Western Australia, on 29 May 2017 (Exhibit A7);
·Statutory Declaration by Keren Holland, made at Port Kennedy, Western Australia, on 29 May 2017 (Exhibit A8);
·Statutory Declaration by Denise Condo, made at Baldiris, Western Australia, on 3 July 2017 (Exhibit A9);
·Statutory Declaration by Terry Flynn, made at Secret Harbour, Western Australia, on 2 June 2017 (Exhibit A10); and
·Volume of Summonsed Records (205 pages) produced by the Commissioner of Police, Western Australia, to the Tribunal on 11 May 2017 (Exhibit R2).
ISSUE AND LEGISLATION
The issues for consideration by the Tribunal are:
(i)whether Mr Holland passes the “character test”; and
(ii)if not, whether there is another reason why the decision of the delegate of the Minister not to revoke the mandatory cancellation of Mr Holland’s visa should be set aside, taking into account the relevant consideration in Direction No. 65.
The character test
Section 501(1) says that the Minister, or the Minister’s delegate, may refuse or cancel a visa if the person applying for the visa does not satisfy the Minister that the person passes the character test. This power is discretionary. The character test is defined in section 501(6) of the Act.
Subsection 501(6) sets out the grounds for failing the character test. It states, in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a)The person has a substantial criminal record (as defined by subsection (7); or…
Subsection 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
For the purposes of the character test, a person has a substantial criminal record if:
…
(c)The person has been sentenced to a term of imprisonment of 12 months or more;…
Counsel for the Applicant, Mr Blades, in his written submissions (Exhibit A1, para.34) stated:
The issue for the Tribunal is, it being accepted that the applicant does not pass the character test by reason of his substantial criminal record, whether it should exercise its discretion to revoke the mandatory cancellation of the applicant’s visa based on the considerations set out in the Direction.
The Tribunal had before it (G17, p.92) a National Police Certificate recording disclosable court outcomes relating to Mark Andrew Holland, the Applicant.
The Certificate listed 17 court appearances by Mr Holland and some forty-three separate charges of which he has been convicted at various court hearings in the Magistrates and District courts of Western Australia. The first court appearance in the Certificate was on 11 September 2009 and the most recent entry was on 6 May 2015. A number of matters resulted in sentences of imprisonment, some of them served concurrently.
It is a matter of fact that Mr Holland was convicted of the crime of Unlawful Wounding for which he was sentenced to a term of imprisonment for two years. He therefore fails the character test by operation of section 501(7)(c) of the Act. The Tribunal so finds.
DIRECTION NO. 65
Section 499 of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Relevantly, the Direction includes the following provisions:
(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 vulnerable members of the community such as minors, 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 a 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 should 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.
In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part C, which is divided into primary considerations and other considerations.
Primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia affected by the decision; and
c)Expectations of the Australian community.
Other considerations set out in paragraph 14 of the Direction are: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations.
Substantial criminal record
It is necessary to emphasise that the Tribunal cannot reconsider Mr Holland’s convictions in considering this matter. The Tribunal agrees with the conclusion of Deputy President Forgie in Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372 (Zheng), when she said at [121]:
It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves or question whether they were properly reached. I cannot question whether the essential elements of each offence were made out and must accept that they were.
The Tribunal notes that Mr Blades, for the Applicant, and Mr Holland, in his evidence, did not dispute the nature of the offences he committed, or his convictions for them. It is, however, necessary for the Tribunal in coming to a conclusion about whether the Minister’s delegate made the correct and preferable decision in relation to the exercise of discretion not to revoke the mandatory cancellation of Mr Holland’s visa to consider the circumstances surrounding the offence for which he was imprisoned for a sentence of more than twelve months. The Tribunal also considers the offence and other offences in the context of the Applicant’s general conduct.
On the evening of 23 November 2014, the Applicant was travelling on a suburban train in company with his then partner and another friend. His Honour Judge Birmingham of the WA District Court stated, in his comments on passing sentence on 1 May 2015 (PG18, pp.96-97) set out what eventuated:
During the train ride you viewed a video clip that you had downloaded from YouTube about Aboriginal people and began to repeat sentences from the video and talk in a mock Aboriginal accent. You were loud, drunk, aggressive and repeatedly swearing and yelling racially motivated comments. The victim was a man of Aboriginal descent. He heard you from his location further down the train but within the same carriage. He was with his brother. Together, they walked up to where you were seated and sat opposite you and your companions and had a conversation with you and asked you to stop your comments.
You indicated you would but then continued and continued to argue the point. A heated discussion resulted and the victim approached you and pulled back his fist, as one might expect for a person who’s been effectively denigrated by you on the train. You challenged him to a fight if he was going to do so and you stood up from your seat with an empty beer bottle in your right hand and struck him on the left cheek with a beer bottle, causing the bottle to shatter and causing a large laceration on the victim’s left cheek and smaller laceration near his left eye. A fight ensued in which you and the victim were stopped by members of the public who rendered the victim medical assistance as he was bleeding profusely from his wound. The train stopped at the Perth Underground train station where Transit Police entered and escorted parties off the carriage. The victim was conveyed to Royal Perth Hospital and it was ascertained that he had a significant wound to his left cheek requiring microsurgery and suturing.
Mr Holland was charged with Unlawful Wounding and released on bail. After being arrested for the offence but before the matter came to Court, the Applicant made postings on the social media site, Facebook, which Judge Birmingham referred to in his comments (PG18, p.97):
It was considered by me to be significant that your postings on Facebook were not just limited to an expressed attitude towards Aboriginal people, but also to people of other ethnic origins including Chinese, Malay, Indian, Jews. You seemed to exhibit unhealthy aspects in your makeup that required some consideration.
At the time of this offence, Mr Holland was aged 21 years and His Honour noted that “for a young man, you have a lengthy criminal history” (PG18, p.102).
The Tribunal noted that the range of offences for which Mr Holland has been convicted since 2009 include trespass, stealing, unlawful wounding in circumstances of aggravation, breaching community release orders, breaching protective bail conditions, breaching bail granted undertakings, multiple breaches of violence restraining orders, obstructing public officers, disorderly behaviour in public, and, in addition, a range of motor vehicle offences.
Mr Blades objected to Summonsed Records provided by the WA Commissioner of Police being admitted on the grounds that part of this bundle of records contained charges, as distinct from convictions, and unsigned incident reports. The Tribunal accepted the Summonsed Records into evidence as relevant background to the Applicant’s conduct but made clear at the hearing that these are official records provided by the Commissioner but they are a computer-generated print out and little weight is given to any charges which did not result in conviction nor to incident reports which are not able to be tested by questioning the officers who made them. However, to the extent that the bundle of records also includes records relating to offences which have been admitted by Mr Holland, they do carry weight as forming part of the background of the Applicant’s character and the exercise of the discretion by the Tribunal as to whether the delegate’s decision not to revoke the mandatory cancellation of the visa was the correct and preferable decision in the circumstances.
Protection of the Australian community from criminal or other serious conduct
The nature and seriousness of the conduct (Paragraph 13.1.17)
The Applicant accepted that he committed a serious offence in the incident on the train. In direct response to questioning from the Tribunal, he said that he fully accepted responsibility for his actions.
The offence for which Mr Holland was imprisoned by sentence of the District Court was a violent assault which resulted in a serious facial injury to a person which necessitated surgery. In the hearing, and in the statutory declarations tendered, a number of witnesses put forward the view that some of Mr Holland’s offence history could be attributed to the circle of friends and acquaintances he was mixing with at the time, with the suggestion that they were a bad influence and egged him on. That may have been the case with some of the offences he committed when younger, such as some of the traffic offences. But this is plainly not the case in this particular serious offence. Mr Holland was actually in the company of his then partner, Ms Prowse, who became the mother of their son, when he committed this violent assault. The assault was with a weapon. It resulted in a serious wound and surgery for the victim.

The Tribunal also notes, as did the sentencing judge, that the altercation which resulted in Mr Holland’s conviction for assault stemmed from remarks denigrating persons of Aboriginal descent. Mr Holland compounded this by posting racist remarks on the Facebook social media site before he was sentenced. At this hearing, when asked specifically about this, Mr Holland said his remarks posted online at that time were about “Aboriginal people in general, not that person in particular.” He agreed in cross-examination that he also made remarks in the same forum about people of Chinese, Asian, Malay and Jewish descent and that he had an earlier conviction of throwing a smoke bomb into a Chinese restaurant (Exhibit R2, p.9) but said that was a drunken prank and that he didn’t intend to hurt anyone. He also agreed that this was the same restaurant which he had graffitied, for which he was also convicted.
On 6 May 2015, at the Magistrates Court of Western Australia at Rockingham, Mr Holland was convicted of six charges. The presiding Magistrate said (PG19, p.111):
“In my view, the most serious offence is the aggravated common assault. That was committed despite a violence restraining order protecting the person. The violence is not at the higher end of the scale, though. I take that into account.”
The circumstances of this assault were outlined in the Summonsed Records (Exhibit R2). The Tribunal takes into account Mr Blades’ submission that the statement of material facts is unsigned and cannot be tested, but Mr Holland agreed in cross-examination to the essential facts of the offences, so I repeat two short extracts here (Exhibit R2, p.152):
The accused was inside the main bedroom with the victim and refused to leave the address. The accused became aggressive when told he had to leave by the victim. The accused has then grabbed the victim by the left wrist and pushed her on the bed and was face to face with the victim. During the altercation the accused was acting in an emotional and abusive manner towards the victim there by [sic] breaching the restraining order.
(Exhibit R2, p.154):
After the physical altercation between the accused and the victim in the main bedroom where he has assaulted the victim, the accused has picked up a bedside lamp from the bedside drawer and thrown it against the bedroom wall, causing it to break. The bedside lamp cover was also damaged. The accused was the only person in the bedroom at the time of the bedside lamp being damaged.
In cross-examination, Mr Holland agreed that his young son was present on this occasion.
The Tribunal views this particular offence gravely. Domestic violence in any form is a very serious matter, particularly when the act of violence takes place when a child is present or in the vicinity. I note that Mr Holland said that he pushed Ms Prowse onto a bed and the Magistrate’s remarks that the assault was not at the higher end of the scale. But the serious nature of the unlawful conduct is compounded by the fact that Mr Holland was at the time under a violence restraining order, by the fact that he also damaged property, and by the fact that their son was in the house.
Mr Burgess referred in his submissions to the recent decision in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 (Ahori), in which the victim of domestic violence had provided a character reference in favour of an applicant. Senior Member Sosso said:
“Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting. The fact that the Applicant breached the Protection Order of itself is sufficiently serious to make a prima facie finding of lack of good character. There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character.”
The Tribunal respectfully agrees with Senior Member Sosso’s conclusions. The facts in this matter are similar to Ahori, in that Mr Holland was also subject to a judicial order which he breached, he committed an act of domestic violence and criminal damage in what must have a frightening situation for his former partner and possibly for his young son.
The Tribunal’s conclusion is that this primary consideration weighs heavily against the Applicant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Paragraph 11.1.2)
Since the first offence for which Mr Holland was convicted in October 2008 when he was aged 17 (PG5, p.18), Mr Holland went on to commit forty-three further offences. He was convicted of ten counts committed in 2009; three counts in 2010; one count in 2011; eleven counts in 2012; seven counts in 2013; and eleven counts in 2014. Some of these were serious offences and many were breaches of various orders made by courts, notably twelve breaches of violence restraining orders.
In spite of a variety of sanctions being imposed by the courts, including community based orders, intensive supervision orders and bail conditions, he has consistently breached these orders. He conceded in direct questioning from the Tribunal that he had breached “a majority” of the orders made in an attempt both to protect others and to regulate his behaviour by placing him away from circumstances where he might re-offend.
There was evidence before the Tribunal of Mr Holland’s conduct in prison. In the Individual Management Plan review approved on 2 August 2016, Mr Holland was reduced to “minimum” security and transferred from Acacia Prison to Karnet Prison Farm to facilitate visits. The Plan recorded (Exhibit A2, p.1):
1.5 Prisoner Behaviour
Mr Holland resides in November block (self care) with Earned level of supervision. Staff report that Mr Holland is usually polite towards them. He generally follows the rules and instructions as required and is not considered to be a management concern. Mr Holland appears to interact well with the other prisoners and he maintains his cell and personal hygiene to a good standard.
Mr Holland is enrolled in the Vocational Training Building and Construction Course and receives a level 3 gratuity. Staff report that Mr Holland is polite and respectful towards them. He follows the rules and instructions as required and is not considered to be a management concern. Mr Holland is a very hard worker and completes everything he sets out to do in a quick and timely manner. He completes his tasks to a high standard and goes beyond his duties. Mr Holland appears to interact well with the other students and attends all his scheduled classes.
The Tribunal notes that Mr Holland offered to teach other prisoners his trade of bricklaying while incarcerated and built an Anzac Memorial within the grounds of the prison. It would seem on the objective evidence that he has been a well-behaved prisoner, which is to his credit and shows some evidence of rehabilitation.
It is hard to measure the risk of the Applicant re-offending. Mr Flynn, his former employer, gave evidence that he would be prepared to re-employ him if Mr Holland were allowed to remain in Australia, and said that he had been a good employee. However, Mr Flynn also showed in his evidence scant knowledge of Mr Holland’s offence history, saying he knew about the altercation on the train, but was unaware of any other assaults. It may be that Mr Holland has learned his lesson by his period of imprisonment, but the difficulty for him is that he had a regular pattern of unlawful behaviour from adulthood, and it has not abated; on the contrary it has increased in seriousness.
Judge Birmingham said in his remarks (PG18, p.101):
“Your previous behaviour as detailed in your criminal history indicates a persistent defiance and disregard for the law, both in respect of orders including violence restraining orders and orders or disobedience of authority.
…
You seemingly have a capacity for disregard for the law and if it involves a question of violence, that seems to be within your capacity. It’s little wonder that the psychologist suggests that you pose a moderate to high risk of reoffending in a violent way unless all of those issues that she identified in paragraph 13 of her report are addressed.”
Mr Holland said in his written statement (G4, p.11):
I have changed my ways and behaviour since [being] in custody. It has been a wake up call and I realised my behaviour was not acceptable. I just want to do my time and return home to my son.
In the recent case NHHV and Minister for Immigration and Border Protection [2017] AATA 995 (NHHV), Senior Member Isenberg said at [56]:
“It is not sufficient for the Applicant to say, following his many periods of incarceration and his more recent detention, to now say that he is motivated to become and remain a law-abiding member of the community. He has had multiple opportunities in the past. When he first came before the judicial system he was dealt with leniently in the hope he would stay out of trouble. However his offending continued.”
I distinguish this case from NHHV in that Mr Holland has had served only one sentence of imprisonment (albeit concurrent terms for multiple offences). However, like the applicant in that case, Mr Holland has also had multiple opportunities to reform his behaviour since 2008 and he did not. I also note there was no evidence before the Tribunal of any more recent psychological report of Mr Holland which might have provided an independent and more contemporary assessment of his likelihood of re-offending than the report done before his sentence for Unlawful Wounding.
The Tribunal finds that this primary consideration weighs against the Applicant.
Best interests of minor children in Australia affected by the decision (Paragraph 13.2)
Mr Holland has a son, an Australian citizen born in September 2013, with Ms Prowse, now his ex-partner. He told the delegate that he spoke to his son every day by telephone and was visited by him when in prison every fortnight. There was evidence before the Tribunal (Exhibit A3) of very regular visits to the prison by the Applicant’s son.
Mr Blades told the Tribunal that Mr Holland loved his son deeply and was committed with Ms Prowse, to whom he had reconciled, to bring up their son together. Mr Holland said (Exhibit A4):
My son is the biggest part of my life and I want to be a part of his life and show him the correct way of growing up. I want to help him not follow in my footsteps and not go down the same terrible path I did. I had my son [named] with former partner Jessica Prowse. We are still in contact and she is supportive of me and my rehabilitation. She is upset about the situation and my separation from [my son].
Ms Prowse stated (Exhibit A5) that when they were together Mr Holland had been hardworking and employed as a bricklayer/labourer who strove to support his family:
Unfortunately our relationship ended in quite a bad way, and I resorted to getting a Violence Restraining Order against Mark in September 2014. Mark was a toxic, unstable person and I felt unsafe. This resulted in Mark receiving 4 months jail time for breaches of the VRO, but I accept some responsibility as I did not abide by the conditions of the order either.
The Tribunal noted that Mr Holland had undertaken a number of rehabilitative courses while serving his sentence (PG22, p.26), including a course called “Toddler Time” which allowed him to interact with his son during visits, and also, importantly an Alternatives to Violence Project “Peaceful Pathways” and Acacia Prison “Stopping Family Violence” Program. He has also undertaken some trade courses whilst in prison which will enhance his employment skills.
The Tribunal accepts the consistent evidence of Mr Holland’s relationship with his son and his desire, in his future conduct, to provide a better role model and to be a good father, in cooperation with his former partner.
Mr Blades drew the Tribunal’s attention to the decision of Deputy President Hotop in Cronin and Minister for Immigration and Border Protection [2014] AATA 29 (Cronin) and contended that the interests of Mr Holland’s minor child weigh in favour of revoking the mandatory cancellation of the visa. Mr Burgess submitted that Cronin was clearly distinguishable because in that case there was evidence that refusal to grant a visa would have a significant adverse effect on the mental health, general wellbeing and financial circumstances of Mr Cronin’s de facto partner. The facts in this case are different.
Taking into account the Respondent’s submissions that each case turns on its own facts, the Tribunal accepts Mr Blades’ general point in terms of this primary consideration and finds that this primary consideration weighs in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Expectations of the Australian Community (Paragraph 11.3)
The Respondent reiterated the phrase in the Direction that 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.
Mr Blades said that the Applicant has shown remorse and has a strong network of family support. Mr Blades said that the Australian community was not vengeful and was fair-minded, and the Tribunal agrees with that characterisation.
Some of Mr Holland’s violent acts in the past have directly affected other members of his family. One of his sisters stated in her statutory declaration (Exhibit A7):
“Several years ago I filled [sic] a VRO against Mark because his behaviour had gotten so out of hand that I needed him to be away from our family. The stress he was causing everyone was getting too much. Our family home was always the target of vandalism and my poor parents were subjected to so much abuse from Mark and his so-called friends. They would break into our home, damage our property, threaten to steal our belongings, and on one occasion I remember a guy Mark use[d] to hang out with threaten to stab my father to death. This was when I decided enough was enough. I could no longer stand by and allow my family to be subjected to such hatred and violence on a weekly basis.”
It is clear to the Tribunal, though, that since that time things have improved and the members of his family who gave evidence, including the author of Exhibit A7, have reconciled with the Applicant and want to help him rebuild his life if he is allowed to stay in Australia. That is to their significant credit.
The Tribunal considers that there is no difference in the Australian community’s expectations of citizens or non-citizens in regard to being law abiding. Both groups of people are expected to obey the laws of this country, just as Australian citizens are expected to obey the laws of other countries they visit. Mr Holland committed two significant crimes against a person which led to terms of imprisonment. He pleaded guilty and was convicted. On the evidence he has been a well-behaved prisoner. There is some evidence that he has rehabilitated.
Non-citizens in this country are here as guests of the nation. Whatever visa they hold, it is a revocable permission to reside in this country. In Mr Holland’s case he committed his first offence aged 17. He then went on to regularly commit a string of offences each year until he was incarcerated at the end of 2014. Some of the offences were at the less serious end of the scale, particularly traffic offences. But others were more serious. There has been an escalation, and the more recent crimes have been violent. One has involved domestic violence, committed in the presence of his son. There has been evidence of racial motivation in some of the unlawful acts Mr Holland has committed, and this is a particularly unpleasant element for which the Tribunal considers the Australian community would have little tolerance.
The Tribunal finds that this primary consideration weighs against the Applicant.
Other considerations (Paragraph 14)
Paragraph 14 of the Direction requires decision-makers to consider four other factors (other considerations) when considering whether a visa should be refused or cancelled.
International non-refoulement obligations (Paragraph 14.1)
This other consideration is not relevant in this case. No evidence was advanced by either party that Mr Holland would be at risk of harm if he returns to the United Kingdom.
Strength, nature and duration of ties (Paragraph 14.2)
Mr Holland came to Australia aged 15 with his family eleven years ago. His parents and siblings live here. He has spent his adult life here and gave evidence he had not returned to the United Kingdom since arriving. He has an Australian citizen child. Mr Blades said removal from Australia would have a ‘devastating’ impact on the Applicant.
There is no doubt that Mr Holland has strong familial ties in Australia. Balancing that is that it was just some two years after his arrival in Australia that he committed his first offence, and he has continued to commit multiple offences each year since arriving. The Direction requires a decision-maker to give less weight to this consideration when the non-citizen began offending soon after arriving in Australia, which is the case with the Applicant.
Mr Holland has faced the courts many times. The justice system has, since 2008, attempted to modify his behaviour in a variety of ways before he was eventually sentenced by two courts to concurrent terms of imprisonment. I accept the evidence from his family that they want to use their best endeavours to help him reform his behaviour, and that he had rebuilt his relationship with them, but his past actions do not give the Tribunal complete confidence that will be successful.
The Tribunal notes Mr Holland’s evidence that he has worked as a bricklayer since he left school until imprisoned. His former employer gave evidence that he was a good worker. The prison authority echoed this view. I consider he has made a positive contribution in his employment history to Australia.
This other consideration, on balance in spite of the pattern of offending beginning soon after arrival, weighs marginally in favour of revoking the mandatory revocation of Mr Holland’s visa.
Impact on Australian business interests (Paragraph 12.4)
This other consideration relates to the impact if a non-citizen’s visa is refused on the delivery of a major project or important service in Australia and is not relevant to Mr Holland’s application.
Impact on victims (paragraph 14.4)
Mr Blades accepted, in submissions, that the victims of Mr Holland’s criminal conduct were physically injured as a result of his actions. The Tribunal does note, however, that one of the victims, Ms Prowse, gave evidence in favour of Mr Holland and reiterated that she wanted to work with him in terms of raising their son. There was no evidence submitted relating to the other victim, other than that Mr Holland had had no contact with him since the offence, which the Tribunal accepts.
Extent of impediments if removed from Australia (paragraph 14.5)
Mr Holland is a young man in good health. The Tribunal notes that there are no language or cultural barriers which he would be expected to encounter if he returned to the United Kingdom. Evidence was given that the only close relatives Mr Holland has in the United Kingdom are elderly grandparents and there would be restrictions on what support they could give him.
The Tribunal considers, however, that Mr Holland’s consistent work history and trade skills would be to his advantage in his home country. I note that, as a British citizen, Mr Holland would have the same access to the range of governmental supports available to other citizens in that country, including assistance in job-seeking, the National Health Service and social security system.
CONCLUSION

The Tribunal has carefully considered all the evidence before it, in writing and at hearing. There are some considerations that I have found weigh in favour of the Applicant. I believe that he realises the seriousness of the crimes he committed. I also believe that becoming a father has been a revelatory experience for him, which has given him incentive to significantly improve his personal conduct.
Whether Mr Holland has rehabilitated has not been able to be tested. He asked not to be assessed for parole on the quite reasonable basis that it would have meant his transfer to Christmas Island detention centre and effectively preclude the possibility of visits from his young son, and when he was released at the end of his sentence he was taken into immigration detention as a non visa-holder and transferred to Christmas Island.
The Direction stipulates that not every consideration is of equal weight. The Applicant committed a serious crime against a vulnerable member of the community. No contemporary psychological reports were before the Tribunal with an assessment of Mr Holland’s likelihood to re-offend. The only reference to such a report was in Judge Birmingham’s sentencing remarks (PG18, p.102) referred to above. Given the period of imprisonment, and the reported good conduct of the Applicant in prison, I cannot say whether the contemporary risk would still be “moderate to high”. But I conclude on the past pattern of criminality that there is some risk.
It is my conclusion that Australians have a low tolerance for visa-holders who have committed such a large number of offences as Mr Holland has in such a short space of time. It is understandable that his family became exasperated by his unlawful behaviour.
I am mindful that separation from his young son will be particularly hard for the Applicant, and I accept the genuineness of his relationship with him and that this has contributed somewhat to his remorse for his past actions. However, what has weighted heavily in this consideration is the pattern of Mr Holland’s criminal conduct. His commission of offences continued and became more frequent. It only stopped with his imprisonment. The seriousness of the nature of the offences he committed rose. I largely discount the number of traffic offences the Applicant committed several years ago, but I cannot overlook a consistent pattern of disregard for the authority of the courts with his breaches of orders, his commission of an act of domestic violence, and a particularly serious assault where a bottle was thrust into the face of another person, breaking it and causing injury.
On this basis, weighing up the primary considerations and the other considerations, the Tribunal concludes that the delegate’s decision dated 21 April 2017 and conveyed to the Applicant on 24 April 2017 was the correct and preferable decision.
The Tribunal finds that the Minister’s delegate correctly exercised his discretion under section 501CA(4) of the Migration Act 1958 not to revoke the visa cancellation decision dated 17 December 2015.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 84 (eighty four) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

………[sgd]………………………………
Administrative Assistant
Dated: 17 July 2017

Dates of hearing: 7 July 2017

Counsel for the Applicant: Mr David Blades

Representative for the
Respondent: Mr Ashley Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2017] AATA 1104

17 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Dates of hearing:	7 July 2017
Counsel for the Applicant:	Mr David Blades
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers