Hurinui and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Hurinui and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 86 (6 February 2023)
Division:GENERAL DIVISION
File Number:2022/9432
Re:James Piripono Hurinui
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member J Rau SC
Date:6 February 2023
Place:Adelaide

The decision under review is affirmed.
............................[sgnd.......................................
Senior Member J Rau SC
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 500
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
6 February 2022
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 26 November 2022, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”). The visa was cancelled on 7 March 2022 under section 501 (3A) of the Act on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being convicted of the offence of “unlawful assault occasioning bodily harm whilst in company” and sentenced to 2 year’s imprisonment.[1]
[1] Exhibit 2, G3, Attachment A, p 33.
The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 30 January 2023. The Applicant was self-represented. The Respondent was represented by Mr Tigiilagi Eteuati of Australian Government Solicitor.
The Applicant gave evidence by Microsoft Teams. The Applicant gave evidence in a direct and succinct manner. He made appropriate concessions, even when to do so, did not show him in a favourable light. I formed the view that he was generally a reliable witness. The Applicant was overwhelmingly focused on the welfare of his 4 children. This is entirely understandable, especially since the tragic death of their mother. This was a major consideration in this case.
The Applicant called no witnesses.
Background Facts
On 12 November 1974, The Applicant was born in Napier, New Zealand.[2] He identifies as Māori. He completed 8 years of schooling.[3] He left school at the age of 14 to support his pregnant partner.[4] He has a daughter in New Zealand who is now aged about 27 years.[5] The Applicant’s daughter has a son who is about 18 months old. The Applicant has not yet met his grandson. He keeps in touch with his daughter electronically.
[2] Exhibit 2, G3, Attachment I, p 61.
[3] Exhibit 3, SG1, p 343.
[4] Ibid, SG1, p 804.
[5] Ibid, SG1, p 608.
The Applicant is the eldest child in his family. His parents are deceased. He had 5 younger brothers and 2 younger sisters[6]. One of his brothers died last year. They all live in New Zealand. He told the Tribunal that he had 5 nieces and nephews also living in New Zealand. He is close to his family there, especially his oldest two surviving brothers. He told the Tribunal that if he were to return to New Zealand, his family would support him and look after him.
[6] Ibid, SG1, p 791.
The Applicant also has aunts, uncles, and cousins in Australia. He says that he is close to them. The evidence is that they have not been able, or willing to support his 4 Australian children on a permanent basis, since the death of their mother. This has had a particular impact on his 2 eldest boys, Child A aged 16 and Child B aged 13.
The Applicant had a minor criminal history in New Zealand. Annexed and marked “B” is a copy of the relevant NZ Police Criminal History Report.[7] He was a cannabis user in New Zealand.
[7] Exhibit 2, Attachment B, p 36.
On 14 December 2004 he came to Australia.[8] His intention was just to visit relatives, but he never returned.[9]
[8] Ibid, G3, Attachment I, p 67.
[9] Exhibit 3, SG1, p 804.
On 12 June 2005, he commenced a de facto relationship with [JT].[10] Ms [JT] had children of her own from a previous relationship. She identified as an aboriginal. They soon became methamphetamine (“ice”) users. This led to some serous, drug related offending by the Applicant.
[10] Exhibit 2, G3, Attachment K, p 68.
On 19 August 2005, the Applicant was involved in a violent robbery of a stranger.[11]
[11] Ibid, G3, Attachment A, p 35
On 3 September 2005, the Applicant was fined $150 for breach of a bail undertaking. No conviction was recorded.[12]
[12] Ibid.
On 21 September 2005, the Applicant was fined $ 250 for failing to take reasonable precautions in respect of a syringe or needle. No conviction was recorded.[13]
[13] Ibid.
On 21 July 2006, the Applicant was convicted of failing to appear in accordance with an undertaking and fine $750.[14]
[14] Ibid.
On 17 January 2007, the Applicant’s first son, Child A was born.[15]
[15] Ibid, G3, Attachment I, p 69.
On 26 April 2007, the Applicant was convicted various offences including robbery with violence and sentenced to 3 years imprisonment.[16] He remained in prison for 15 months before being released on parole.
[16] Ibid, G3, Attachment A, p 35.
The sentencing remarks of Judge Rafter SC in the QLD District Court Criminal Division, are as follows:
“[The Applicant], You have pleaded here today to one count of receiving stolen property, one count of fraud, one count of unlawfully using a motor vehicle and causing damage, one count of armed robbery with personal violence, a further count of unlawful use of a motor vehicle, one count of fraud and two counts of stealing.
The facts have been outlined in the schedule of facts tendered by the Crown Prosecutor, which is Exhibit 3. The most serious offences is, as the Crown Prosecutor indicated, that of armed robbery with personal violence. That offence was committed on the 19th of August 2005. On that date the complainant had parked her motor vehicle at the Red Bank Plaza shopping centre. Her nine year old son was a passenger in the vehicle. As she was getting out of the vehicle you approached her an grabbed her by the blouse, pulling her from the car. She observed that you had a screwdriver in your hand, although that was being pointed away from her. You pulled her handbag from her despite her resistance and then you got in her car and used the keys, which were still in the ignition, to drive away. You then stole $4000 from the automatic teller machine at Mitchelton using the complainants GE Finance mastercard and her PIN number that was in her handbag.
When you were interviewed by the police on the 7th of September 2005, you admitted committing those offences. You said that you had gone to the car park to steal a motor vehicle as you had a drug debt to “fix up”. You told the police you saw the complainant parking her vehicle and rushed over to pull her out of it, taking her handbag and driving off in the car. You then drove to Mitchelton where you used the PIN number and the card to withdraw the amount of $4,000.
That group of offences reflected in counts 4, 5 and 6 are serious indeed, as is indicated by the complainant’s victim impact statement, which is Exhibit 4. It is, as the Crown Prosecutor Mr Stark said, a very serious thing to commit an offence of that type, particularly in the presence of the complainant's young son.
Your Counsel, Ms Wilson, tells me that you have read the victim impact statement and I'm sure having done so you can appreciate the effect that this offence has had upon her. She says that since the event her family has been traumatised by your actions. She has been unable to go to any shopping centre alone and has to rely on other people to accompany her. She finds herself extremely jumpy when approached suddenly by people she's unfamiliar with. She says that she remains affected by the eventful her statement is dated 2 April 2007 and the offence, as I said before was on the 19th of August 2005. So, notwithstanding that passage of time the incident has continued to traumatise her.
The other offences on the indictment include receiving stolen property, including a television set, a digital disc player and stereo system, dishonestly obtaining a sum of money from the Cash Converters at Goodna and unlawfully using another motor vehicle, which is count 3 on the indignant. Counts 6 and 7 relate to stealing digital discs and a quantity of clothing, computer games and the like.
I take into account that you have entered pleas of guilty here today and that your plea was indicated at an early stage. You are 32 years of age and you were 31 to 32 at the time of the offences. You were born on the [redacted]. Although you have a prior criminal history an traffic history you do not have any similar offences to those for which you are being sentenced here today.
As you told the police, you have had a drug addiction and Ms Wilson has indicated that that related to amphetamines and she that said you have lost two jobs at a meatworks following drug tests at work, so you can appreciate from your own perspective the effect that drug addiction can have on you and it led you to committing these serious offences, particularly the offence of armed robbery.
It is necessary to impose a term of imprisonment. Your counsel accepts this. The most serious offence is the one of armed robbery. I am encouraged by the fact that you have, as I am told, been addressing your drug addiction and I hope you have turned the corner in that regard. You are in a stable relationship and you have a three month old child whom you are supporting a 12 year old daughter who lives with her mother in New Zealand.
In all of the circumstances, though, a term of imprisonment is required. As I indicated to counsel, the range is, I think, between three and five years as was submitted, but in all of the circumstances to enable me to give you certainty as to your release date and to enable you to be supervised upon that release I have decided that in respect of count 4 you should be sentenced to three years imprisonment and I will fix a parole release date of 25 July 2008.
In relation to counts 1,2,3,5,6,7 and 8 you are sentenced to 18 months’ imprisonment.
Convictions are, of course, recorded.”[17]
[17] Ibid, G3, Attachment E, pp 47-50.
The facts of this case, as found, were put to the Applicant during the hearing and he agreed that they were correct.
The Applicant says that he stopped using ice when he went to prison in 2007 and that he did not resume using until about 2017. He did however continue to use alcohol when he was back in the community.
On 15 May 2007, the Applicant was convicted of possession of dangerous drugs and fined $1800.[18]
[18] Ibid, G3, Attachment A, p 34.
A QLD Corrective Services report dated 18 June 2007 contains the following passage:
“There was no official or reported evidence of a pattern of intimidating or controlling behaviour towards others or poor anger management skills for the period surrounding the offending. [The Applicant] Admitted using intimidating behaviour during Commission of the current armed robbery offence but considered that behaviour uncharacteristic and expressed appropriate remorse for his actions. In recalling his anger management skills [the Applicant] cited ‘timeout’ As his usual means of dealing with heightened emotion /anger and denied any history of anger related violence. There was some evidence of problem solving skills deficits for stop police reports relating to the current offences indicated a significant drug debt and [the Applicant] admitted panicking and acting impulsively when faced with problems during the period surrounding the offending. [The Applicant] remarked, “I suddenly realised I had a huge drug debt so I went out and got the money and paid the whole thing off in one hit. That was my way of solving that problem.” There was also evidence of antisocial/pro-criminal a dude's an eye pattern of generalised problems. [The Applicant] Admitted that he was focused on the rewards of drug related criminal activity and rejected pro social influences in favour of spending time with criminal others. Poor links with common societal settings including education, employment an home were identified (mostly unemployed; itinerant lifestyle in the early stage of the offending period prior) and [the Applicant] report little difficulties due to the expense associated with daily and amphetamine abuse. Although [the Applicant] Consider the current sentence ‘too light’ he exhibited eye poor attitude towards community based intervention and remarked, “I know where I went wrong and don't think I need any help in making sure I don't reoffend (or words to that affect).” [The Applicant] explained that he ‘prefers to work and doesn't want to be called away to a program in the community. Little, if any, motivation towards custodial interventions was exhibited. A positive attitude towards general parole supervision was reported.
……
The MEDIUM risk level of general recidivism for this offender was supported by the administrator. [The Applicant] presented with treatment needs in the areas of Drug Abuse, Relationships and Criminal/Antisocial Attitudes.
……
No medical or physical barriers to intervention were reported however [the Applicant] exhibited little, if any, internal motivation towards therapeutic intervention. There was no evidence of anxiety or other psychological/psychiatric conditions; intellectual impairment, literacy deficits or cognitive distortion (accepted full responsibility for current life situation) and [the Applicant] denied any ethnic/cultural/religious issues (including communication/language barriers)/gender-related issues or parental responsibilities that may impede programme participation. Upon release [the Applicant] plans to reside in the wide Bay Area and wanted to responsivity issues were identified.
……
[The Applicant] Identified as Maori from northern New Zealand and advised that he moved to Australia in 2004. [The Applicant] reportedly endorses Maori culturally different and distinct beliefs and customs and uses a language other than English to converse with family members. [The Applicant] Denied residency in communities or neighbourhoods populated primarily by other Maoris and reported that he socialises with people from many different cultures and participates in mainstream Maori ritual and religious ceremonies/celebrations are like. No preference for specifically Maori/Indigenous-oriented health, education or welfare services was reported.”[19]
[19] Exhibit 3, SG1, pp 809, 812-14.
On 4 December 2007, the Applicant was issued with a notice of intention to cancel his visa.[20]
[20] Exhibit 2, G3, Attachment Q, pp 113-117.
A QLD Corrective Services assessment of the Applicant dated 4 April 2008 relevantly states:
“What programs/interventions for addressing offending behaviour and reducing community risk were recommended from the Offender Risk Needs Inventory – Revised (include rationale)?
The Offender Risk Needs Inventory-Revised was completed on the 15/06/07 and identified [the Applicant] as falling within the medium range (23 points) of risk of general recidivism at the time of the assessment
The following criminogenic needs were identified through the Offender Management Plan process:
·Alcohol and Drug Abuse
·Relationships
·Criminal/Antisocial Attitudes
Engagement in the following programs was recommended to address identified criminogenic needs:
·Pathways Program
·Making Choices Program
·Turning Point Program
Programs completed during current custodial period.
[The Applicant] has completed two sessions of the Transitions Program. He has not completed any of the recommended programs.
How did the individual response to programs/interventions during the review period? Describe in terms of motivation, attitude, attendance, conduct and/or otherwise demonstrate that the individual is developing alternatives to offending lifestyle.
Not applicable as [the Applicant] has not participated in any of the recommended programs.
Programs/Interventions for addressing offending behaviour and reducing community risk for the remaining time in custody (include rationale and list treatment needs which have not yet been met).
[The Applicant] is currently serving a 3 year sentence for robbery with actual violence; fraud x2; receiving; stealing x2; unlawful use of a motor vehicle x2; unlawful possession of stolen goods; driving without due care and attention; disorderly conduct and possess dangerous drugs. His sentence commenced on the 26.4.07, he has a court ordered parole date on the 25.7.08 and a fulltime discharge date on 25.4.2010.
Through ORNI-R process, it is recommended that [the Applicant] participate in the Pathways Program, Making Choices Program and the Turning Point Program. To date [the Applicant] has not participated in any of the above mentioned programs. It is recommended that he complete at least one of these programs during the next review period.
Any psychological history?
Information from his Immediate Risk Needs Assessment dated 27 April 2007 indicated no history of suicide attempts or self harm behaviour. At interview on the 01 April 2008 [the Applicant] denied any history of mental health issues.
Likely influence of offender’s family relationships? Describe in terms supportive factors.
[The Applicant] stated that he maintains support from his partner and their 1 year old son. He stated that his partner is unable to visit and they maintain contact via daily phone calls.
Willingness to undertake recommended programs.
At the interview, on the 01 April 2008 [the Applicant] stated that he was not prepared to participate in the recommended programs because he has a Court Ordered parole date of 25 July 2008 and will not have time to complete the programs. He stated that if he breaches his parole order and is returned to secure custody then he would be willing to participate in the recommended programs.”[21]
[21] Exhibit 3, SG1, pp 267-268.
On 8 April 2008, the Applicant was assessed as being a “high security” prisoner.[22]
[22] Ibid, SG1, pp 269-281.
On 2 May 2008, the Applicant declined an offer from QLD Corrective Services to participate in a “Transitions Programme”.[23]
[23] Ibid, SG1, p 265.
On 8 May 2008, the Applicant was advised that a decision had been made not to cancel his visa. He was however issued with a formal warning in these terms:
“Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[24]
[24] Exhibit 2, G3, Attachment Q, p 119.
On 25 July 2008, the Applicant was released on parole.[25]
[25] Exhibit 3, SG1, pp 221 and 478.
A Qld Corrective Services report dated 1 October 2008 relevantly states:
“[The Applicant] exhibited little, if any, internal motivation towards therapeutic intervention and a particular aversion to community based intervention, stating that he does not wish to be called away from work to attend programs.”[26]
[26] Ibid, SG1, pp 655.

On 7 April 2009, the Applicant’s second son, Child B was born.[27]
[27] Exhibit 2, G3, Attachment I, p 69.
On 29 September 2011, the Applicant’s daughter, Child C was born.[28]
[28] Ibid.
On 23 January 2012, a protection order was made against the Applicant in favour of Ms [JT].[29]
[29] Ibid, G3, Attachment F, p 52.
On 13 October 2012, the Applicant contravened the domestic violence order by, amongst other things, throwing a chair through a front window of Ms [JT’s] house.[30]
[30] Ibid.
The facts are as follows:
“On the 23^rd January 2012 at the Ipswich Magistrates court a protection order was issued with mandatory conditions naming the defendant as the respondent and [redacted] as the aggrieved.
The defendant was present in court when the order was issued.
At approximately 10pm on the 13/10/12, the defendant has attended [redacted] in an intoxicated state, the aggrieved his then asked the defendant to leave as she did not want him drinking alcohol around the kids. The defendant has then walked outside and picked up a metal framed garden chair and thrown in through the front window of the house, causing it to smash. The defendant has then left the location.
At approximately 10:50pm on the 13^th day of October 2012, Police attended the incident and observed the front window of the address to be completely smashed.
On the 13^th day of December at approximately 8:45am Police attended [redacted] in relation to another matter.
Police conducted patrols of the area locating the defendant at a nearby bus stop.
Police computer checks of the defendant revealed the defendant was wanted for questioning in relation to this matter.
The defendant then refused his opportunity to be interviewed in relation to this matter and was subsequently charged Ipswich Watch House.”[31]
[31] Ibid, pp 53-54.
These facts were put to the Applicant during the hearing and he agreed that they were correct. He said that he was drinking at the time.
On 13 December 2012, the Applicant contravened the domestic violence order by, amongst other things, assaulting Ms [JT].[32]
[32] Ibid, p 52.
The facts are as follows:
“……
It is at this point the defendant has then grabbed the aggrieved from behind and thrown her onto a bed and proceeded to punch the aggrieved with a closed fist to the back of her head and face.
The aggrieved has then asked the defendant to stop due to the fact the children had been standing in the room. The aggrieved has then told her daughter to call the Police at which point the aggrieved has then left the incident address.
The defendant has then followed the aggrieved on foot for a short time before walking away in another direction.
Police conducted patrols of the area locating the defendant at a nearby bus stop. The defendant then stated he did not mean to hurt the aggrieved but “just lost it”
The defendant then refused his opportunity to be interviewed in relation to this matter and was subsequently arrested and transported to the Ipswich Watch House where he was charged accordingly.
A signed notebook statement was obtained from the aggrieved in relation to this matter.
Defendant has breached Condition – to be of good behaviour towards the aggrieved and not commit acts of domestic violence.
Charge 2 of 2 // [DFVPA2012] 177(2) Contravene of domestic violence order
That on the 13th day of October 2012 at Goodna in the Magistrates Court District of Ipswich in the State of Queensland one [the Applicant] being a respondent against whom a domestic violence order had been made contravened the order namely the Protection order made on 23rd day of January 2012 in the Magistrates Court at Ipswich and [the Applicant] was present in court when the order was made.”[33]
[33] Ibid, pp 52-53.
These facts were also put to the Applicant during the hearing and he agreed that they were correct. He said that during this period in 2012-13, he was required to move out of the family home, but that the relationship continued.
On 9 August 2013, the Applicant was convicted of the abovementioned DV breaches and fine $750.[34]
[34] Ibid, G3, Attachment A, p 34.
On 29 April 2016, the Applicant was convicted of common assault and fined $450.[35]
[35] Ibid.
A document provided to the Tribunal by the Applicant is a letter of support from one [JL]. This letter says that in about 2016, the Applicant commenced a relationship with [JL].[36] It also says that he is close to her children and that they plan to marry if the Applicant is returned to the Australian community. The Applicant told the Tribunal that he had not read this letter before and that it was incorrect. He had not met Ms [JL] until about 2020, they had never been in an intimate relationship, he did not know her children and they had no plans to marry. This is curious to say the least, but given my view about the Applicant’s reliability, I accept his evidence on this point.
[36] Exhibit 4.5.
In late 2017, the Applicant’s relationship with Ms [JT] ended. She was pregnant at the time, although he was not aware of this until Child D was born the following year. The Applicant told the Tribunal that they were arguing, and he left because he did not want the situation to deteriorate further. In substance, I took him to be saying that he feared that family violence would occur if he remained. This period corresponded with him resuming his use of ice.
On 26 July 2018, the Applicant’s third son Child D was born.[37] The Applicant told the Tribunal that he doesn’t really know Child D at all. Their only contact is occasionally by phone.
[37] Exhibit 2, G3, Attachment I, p 69.
On 5 June 2019, the Applicant was convicted of breach of bail and failure to appear in accordance with an undertaking.[38]
[38] Ibid, G3, Attachment A, p 34.
On 20 October 2019, the Applicant was taken into custody.
On 31 October 2019, the Applicant was convicted on two counts of failure to appear in accordance with an undertaking, breach of bail. He was sentenced to 1 month’s imprisonment, suspended for 9 months.[39]
[39] Ibid.
On 11 November 2019, the Applicant was convicted of another breach of bail.[40]
[40] Ibid.
On 28 November 2019, the Applicant was remanded in custody.[41]
[41] Exhibit 3, SG1, p 172.
On 5 December 2019, the Applicant was further remanded in custody.[42]
[42] Ibid, SG1, p 168.
On 14 December 2019, Ms [JT] was tragically killed in a hit and run accident.[43]
[43] Exhibit 2, G3, Attachment L3, p 97.
The children were distributed between relatives. The youngest 2 went to stay with their maternal grandmother, where they remain to the present time. The elder 2 boys were eventually looked after by a succession of relatives and friends on the Applicant’s side of the family. There are no Family Court orders in place regarding the children.
On 30 January 2020, the Applicant was convicted of wilful damage, breaches of bail, burglary and unlawful use of a motor vehicle.[44] The sentencing remarks are as follows:
“[The Applicant], in sentencing you today it is a timely plea of guilty. For that I have reduced the penalty I would have otherwise imposed. You have got a rather poor history. From a criminal perspective, it is three pages. Only in October of last year were you sentenced to terms of imprisonment and they were suspended in relation to two failed to appear offences. You received a sentence of one month imprisonment suspended for nine months. They still hang over your head at the moment. You then had two breach of bail conditions where you got seven days on each of those matters, again suspended. This offending though it predated that sentence. Therefore, you have not breached that suspended sentence.
I note your history also shows other breaches of bail condition matters where you have been given fines. All up there are six failed to appear offences, four breach bail conditions, three breach of domestic violence orders. Your offending was perhaps most serious back in 2007 where you got a three-year term imprisonment for a robbery and associated 18 months for other like property offences, including the unlawful use of motor vehicles. I note you have expressed remorse in relation to the wilful damage charge, and, ultimately, through your plea of guilty today. Your personal circumstances are somewhat unique in that it was only late last year on the 14th of December when your wife passed away during a period where you were in custody.
I accept that there are some for children who need a parent, but they also need a parent who will do a lot better job than you have done in the past while you have been their father. I refer to the comparative cases and consider them as yardsticks in relation to the ultimate sentence. The enter premises and commit indictable offence from the 19th of October – you were matched to that offending by a fingerprint. That involved a break and enter into a motor vehicle. 16 September 2018, that is the burglary that involved the ring that is worth almost $4000 and numerous keys. That involved a dwelling that had a sliding door forced open. It involved the stealing of a motor vehicle from some of the keys that were stolen, and that was the matter where your DNA was received from a Pepsi can that you had - that had been stolen from the premises - had traces of your DNA on it when they found it within the premises.
So in sentencing you, I need to balance all of those factors. I need to consider a sentence that deters you and other people in the community from breaking into other people’s houses, from stealing their cars, from complying with your bail conditions. In doing so, that is a sentence that will protect the community. I have to balance your own issues in relation to mitigating circumstances, and I say that there are somewhat unique in relation to the passing away of your wife recently. Today I have regard to all matters stated in section 9 and 11 of the Penalties and Sentencing Act. I am satisfied it is appropriate, and no more severe in all circumstances, that you should be sentenced to terms of imprisonment. You will be convicted. The conviction is recorded. You will be sentence to the following terms of imprisonment.
Firstly, I will get the non-imprisonment sentences is out of the way which is the wilful damage charge from the 19th of June where you have punched a wall. For that matter in totality perspectives you will be convicted and not further punished with a conviction recorded. For the two breach of bail conditions where you have got other breach of bail conditions on history, you will be convicted and sentences to one months in prison and on each of those. For the enter dwelling and commit indictable from the 16th September, the associated unlawful use of a motor vehicle, the enter premises and commit indictable offences. For those matters, based on your history which includes like offending, which includes three pages, for that matter you will be sentenced to 18 months imprisonment for each of those matters.
You will also be ordered to pay restitution of $3921.91, but regarding your mitigating circumstances, it is going to be attributed mainly to the parole release date which I am going to fix after I state you have been held in presentence custody from the 30th of October to the 29th of January. That is 92 days or 93 days. I declare the whole period of imprisonment to be already served under the sentence, but I fixed the parole release day earlier than I otherwise would to take into account those factors, that is, on the 29th of February 2020. Unless there is anything further.”[45]
[44] Ibid, G3, Attachment A, pp 33-34.
[45] Ibid, G3, Attachment G, pp 56-57.
On 6 February 2020, QLD Corrective Services assessed the Applicant as a “high security” prisoner.[46]
[46] Exhibit 3, SG1, pp 630-634.
On 12 February 2020, the Applicant’s visa was cancelled under s501(3A).[47]
[47] Exhibit 2, G3, Attachment Q, pp 122-127.
On 13 February 2020, the Applicant made representations requesting a revocation of his visa cancellation.[48] In that document the Applicant stated inter alia:
[48] Exhibit 5.1.
“Please have a heart for my children and myself. On Saturday the 14th day of December 2019, my partner of 15 years and the mother of our four children, [JT], was tragically killed in a hit and run accident in Hattonvale. Our young children aged 13, 10, 8, and 18 months, are my only reason for needing to remain here in Australia. I talk to them as much as I can afford, but I need to be with them to help mourn and grieve in this tough time in our lives. She was our everything, but together we will get through this. Please help us to stay together. Thanking you so much.
……
I am a loving father who talks to my children every day. I am their father figure and will be in their life until the day I die. They have been very strong after the tragic death of their mother. I am so proud of them, but I am so anxious to be there with them to help them through this sad and emotional time we all are going thru. I will be the strength they need but I need them to help me mourn as well. Please look deep in your heart, to let us mourn together and I promise to never come before any Courthouse again. Thanking you.
……
My children, and I, will be severely impacted both emotionally and brokenheartedly, if my visa remains cancelled. We have been devastated and our hearts have been ripped apart by the death of my partner and the children's mother just before Xmas 2019. Please have a heart and let me go home to help my children and mourn our loss. I haven't seen my children since November 2019. I need to assure them that I will never leave them again. Please help me back to them.
……
I will never reoffend because my children need me more than any crime.
……
I have no risk of reoffending. My family and children are my only reason I need to be honourable.”[49]
[49] Exhibit 5.1, pp 3 and 10-11.
On 29 February 2020, the Applicant was released on parole. He told the Tribunal that he was not taken into immigration detention.[50]
[50] Exhibit 2, G3, Attachment A, p 33.
On 18 March 2020, the Applicant was convicted of having received tainted property on 4 November 2018.[51]
[51] Ibid, G3, Attachment A, p 34.
On 24 June 2020, the Applicant participated in a “Lives Lived Well” drug and alcohol treatment programme.[52]
[52] Ibid, G3, Attachment K, pp 92-93.
Also, between about June and December of 2020, the Applicant told the Tribunal that he was caring for his children. They spent a part of this period living with his new partner, Ms [W]. The Applicant said that this was not good for his children and that it didn’t work out. He was also using ice again for at least a part of this period when the children were in his care. This ended when he gave himself up to police. This was the last time that he spent with his children. They have only had electronic contact since.
On 15 September 2020, the Applicant was convicted on three counts of possessing dangerous drugs.[53]
[53] Ibid, G3, Attachment A, p 33.
On 28 November 2020, the Applicant was involved in a violent robbery.[54]
[54] Ibid, G3, Attachment C, p 38.
On 21 January 2021, the Applicant was advised that in light of his representations, his visa cancellation was revoked.[55] He was released from detention. It is notable that between making his representations on 13 February 2020 and 21 January 2021, he had committed yet another very serious offence.
[55] Ibid, G3, Attachment Q, pp 128-130.
On 28 January 2021, the Applicant was convicted of failure to appear in accordance with an undertaking on 17 December 2020.[56]
[56] Ibid, G3, Attachment A, p 33.
On 5 March 2021, the Applicant was assessed by QLD Corrective Services as a “high security” prisoner.[57]
[57] Exhibit 3, SG1, pp 492-494.
On 20 January 2022, the Applicant was convicted of various offences including robbery in company and assault occasioning actual bodily harm.[58] The sentencing remarks of Judge Dann of the QLD District Court relevantly say:
[58] Exhibit 2, G3, Attachment A, p 33.
“[The Applicant], You have pleaded guilty when arraigned before me today to one count of assault occasioning bodily harm in company, one count of robbery in company, and one count of kidnapping. The circumstances of the offending arise all on one day, which was the 28th of November 2020. At 9:30 PM that night, that each of you was in a group with two others to tender at a motel in Miami.
You both went to unit 2, you were ostensibly looking for a person called Dave or David. The complainant in respect of all of the offences was the manager of the motel. He approached you and asked if he could assist you and told you he did not know who Dave was. You then went to unit 15 then he followed you and asked you if you needed help. What followed for him then was an ordeal that went for in the order of three hours from 9:30 until a call to emergency services at 12:27 AM. The complainant told you that he was the manager of the hotel by putting his key in the door of the relevant unit. You, Mr [D] then king hit him to the back of his head and you both then bundled him into the unit.
At some point, Mr [D], you had obtained a hammer with a rusted head. Each of you demanded his phone and accused him of lying about not knowing who David was. The complainant gave you his phone. You both then told him to stay in the room and he would be safe. Notwithstanding that, you, Mr [D], then punched him twice in the face causing blood to splatter against the bathroom wall and he felt immediate pain to the right hand side of his face. You both then ransacked the room while continuing to accuse him of lying about knowing where David was. You demanded and took his keys and asked where the cash and the lock box of the business was. He told you that the money had been banked.
At some point then, Mr [D], you hit a wall in the unit room with a hammer. At this point , [the Applicant] did not know that you were in possession of the hammer. You then demanded, Mr [D], his wallet and removed $100 and took his credit cards as well. You then said, Mr [D], to him that:
I’m behind you with the hammer.
And [the Applicant] said:
We’re going to your car.
The pair of you matched him downstairs with [the Applicant] in front and Mr [D] behind holding the hammer. [The Applicant] got into the driver's side of the complainant's car using the keys that were on his motel keys. You, Mr [D], told the complainant to sit in the front passenger seat and you sat in the back passenger seat and it appears at that point [the Applicant] became aware that you had a hammer.
You then drove north on The Gold Coast Highway and the complainant unlocked his mobile phone at your direction. You, Mr [D], asked for his PIN number and he gave it to you. At about 10 o’clock you were recorded on CCTV going into Brian’s Tyre & Auto and withdrawing money and buying some food. Later on, $8000 from his account was transferred to [the Applicant’s] account after [the Applicant] told the complainant to read words on the screen to bypass the security function and ultimately a further $7000 in another account of the complainant was transferred out by you at some later point.
The driving continued for some length of time. At one point the vehicle was pulled off the road to avoid a police roadblock. At one point, Mr [D], you told the complainant that [the Applicant] really wanted the $10,000 and he should do what he wants because [the Applicant] was a dangerous man and you then both got back in the car. [the Applicant] was driving and he was driving north and he told the complainant that you, Mr [D], were a dangerous man and to do what Mr [D] said. So the claims would have been very frightening and intimidating. The car went past Garden City and ultimately you were found somewhere in Auchenflower and whilst you, [the Applicant], told the complainant to get out of the car and where the car would be found, it wasn’t left where you said it would be.
The complainant got out of the car and wandered briefly before members of the public assisted him to call his wife and emergency services. The car was intercepted by police being driven by an associate of yours at about 4 am the next morning. Ultimately, the robbery involved the $15,810 which was transferred to the complainant’s accounts by you and the $100 from his wallet. The kidnapping is comprised of taking the complainant’s car and his ongoing presence in it over a significant period of time. The complainant was admitted to the emergency department of the hospital at 2.05 am.
He had reduced jaw movement due to swelling on the right-hand side of his face, bruising and tenderness to the right-hand mandible, laceration around the right-hand side of his mouth, and a non-displaced fracture of his jawbone that extended through the coronoid process, which is above the angle of the jaw. About two weeks later police tracked you down to an associate’s house and you both fled from there.
Ultimately you, [the Applicant], were arrested and remanded in custody at the end of January 2021 and you participated in a formal record of interview during which you repeatedly lied to the police in direct contravention of CCTV footage about touching the complainant and you incredibly told the police the complainant had simply wanted to provide his money.
Ultimately, you conceded the complainant told you he was scared. You, Mr [D], were arrested and remanded in custody on the 20th of February 2021. You said to the police you were bored and went with [the Applicant] that night for something to do. To your credit, you admitted that you slapped the complainant in the mouth. You 45 agreed there was a hammer in the room and you had picked it up and smashed a whole in the wall to scare the complainant. You made admissions consistent with CCTV footage about going to the car and going into a shop and, ultimately, you accepted that the complainant would have felt intimidated by what occurred.
I should tell you gentlemen that the victim of your offending who is in Court today has provided a written victim impact to the Court. Your actions have had a daily impact on every aspect of his life every day. He still suffers pain from the injuries that you inflicted upon him, Mr [D], and he has headaches on an ongoing basis.
He has neck pain and stiffness; he wakes frequently because of that. He has nightmare most nights; flashbacks, and he lives in a constant state of heightened anxiety. He no longer feels safe in his own home. He has trouble dealing with people and going to and being involved in ordinary situations such as completing shopping or being in shopping centres and places where there are other people.
I make some observations to you both about the character of the offending. The prosecutor submitted, and I accept, that this was the senseless violence which escalated quickly. It would have been terrifying and frightening for the complainant and it is totally unacceptable in any form of civilised society in which we live. It was protracted conduct which extended over a period of several hours and it was perpetrated upon an innocent man who was at work when he was going about his normal daily affairs. Insofar as the offending might be characterised as opportunistic, and I accept to some extent that it was because the complainant was not your intended victim, it can also be characterised as chaotic and it engenders fear in people because it is so unpredictable. Neither of you is a youthful person and neither of you is an inexperienced person in life. The offending calls for strong denunciation, strong protection of the community, and strongly for personal as well as general deterrence. Now, if I can deal firstly, Mr [D], with you. You were aged at the time of the offending and you are 31 now. You are someone who has a relevant and serious criminal history which involves you appearing in the Courts in this state a total of 18 times before today. There are offences of violence in your history, the first of which – was assault occasioning bodily harm for which you were sentenced in March of 2009.
……
[The Applicant], you were aged 46 at the time of the offence and you are 47 now. Your counsel has provided some written submissions which I have read and considered. Before I get to those, I should deal with the fact that you too have a criminal history in Queensland which involves 15 appearances in Court prior to today. There is a relevant and serious entry for which you were dealt with in the Hervey Bay District Court in April of 2007 for charges which include robbery with actual violence whilst 20 armed for which you received a sentence of three years imprisonment and lesser sentences on other charges that day.
I have read the remarks of Judge Rafter SC and I note there are some significant points of comparison there in that it involved you stealing the car but also withdrawing money from an ATM using a MasterCard that you had stolen from that complainant. I note there is a gap in your offending until – from 2007 for five years and most relevantly, then, that you were sentenced in January of 2020 for burglary and committing an indictable offence, unlawful use of a motor vehicle, and entering of premises. You were sentenced to 18 months imprisonment with parole release after four months. You committed further drug offences and you committed this offending whilst you were on Court ordered parole and on a good behaviour bond from the subsequently dealt with drug offending and bail for the drug offences.
I have read a supervision report which has been tendered from your parole which identifies that you failed to report as directed when you were on parole, you failed to engage in interventions, and you committed further offences whilst on supervision and you are not considered suitable for Court ordered parole. You are a citizen of New Zealand and you are liable to be deported on completion of the custodial element of your present sentence. You moved to Australia when you were 30. You were relatively consistently engaged in work. You developed an addiction to drugs from about 2005. You are the father of four children. Your partner died in 2018 and you turned to drugs increasingly to cope with that gap in your life.
It is also significant to note you have not committed any armed robberies after the one which was dealt with in 2007 by Judge Rafter. It is a significant point of difference on the sentence that your role in the offending did not involve the level of violence perpetrated by Mr [D] and that you were not aware until the point that you and he were in the car that Mr [D] had the hammer in the car. Your liability for the assault occasioning bodily harm in company count proceeds on the basis of the party provisions in section 8 of the Code. I note, similarly for you, that there is an early plea of guilty and I note that you have a lesser criminal history than Mr [D].
You are also facing the fact of deportation. That, to my mind, is not particularly germane on the sentence. The relevant principles are cited in the decision of Norris about that. To my mind, the considerations most relevant are the lesser culpability in respect of the offences and the balance against that is the fact that you did not make the admissions when first dealing with police. Weighing all of those factors I have determined that the sentence for you in respect of the robbery in company and kidnapping count is a sentence of three years and nine months with a parole eligibility date after 12 – 12 months.”[59]
[59] Ibid, G3, Attachment C, pp 38-43.

On 2 February 2022, the Applicant was convicted of various drug related offences.[60]
[60] Ibid, G3, Attachment A, p 33.
On 23 February 2022, QLD Corrective Services again assessed the Applicant as a “high security” prisoner.[61]
[61] Exhibit 3, SG1, pp 621-624.
On 7 March 2022, the Applicant’s visa was cancelled under s 501(3A) of the Act.[62]
[62] Exhibit 2, G3, Attachment O, pp 103-109 and Attachment O1, p 110.
On 5 April 2022, the Applicant completed a 48 hour drug programme run by “Drugarm”.[63]
[63] Ibid, G3, Attachment M, p 98.
The Applicant has been employed for most of the time that he has been in Australia, aside from his periods of incarceration
The Applicant has been a user of alcohol and ice as discussed above.
The Applicant does not present with any history of physical or mental health issues, aside from his ice addiction. There is no expert report before the Tribunal to assist in an assessment of risk of re-offending.
If the Applicant were to be released into the community he plans to look after his 4 children. At present he has no plans regarding rehabilitation or counselling. The practical difficulties of looking after 4 children as a single father, would be significant. The probability is that the Applicant could not work and care for the children, without significant external help. The children’s maternal grandmother, who has had care of the youngest children since the death of their mother (but for a couple of months in 2020), may well not want to part with them. Although she has no court orders giving her custody, the Applicant is unwilling to attempt to remove Chid C and especially Child D from her care against her wishes. In summary, it seems most likely that the Applicant may only have an opportunity to care for the eldest 2 boys. He would however, abide by their wishes if they chose otherwise
The Applicant has an extensive criminal history,[64] commencing in August 2005, less than a year after arriving in Australia. A copy of his record of convictions is annexed hereto and marked “C”.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant fails the character test on account of being convicted of the offence of “unlawful assault occasioning bodily harm whilst in company” and being sentenced to 2 year’s imprisonment.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[65]
[65] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[66]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it 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.”[67]
[66] [2018] FCA 594.
[67] Ibid, [23].
offending HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure C.
The Applicant’s offending commenced shortly after his arrival in Australia as a 30-year-old man. His offending has continued.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been involved in serious acts of family violence as defined. This conduct has occurred in the presence of his infant children. The Applicant has been involved in armed robberies. This is extremely serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant’s criminal conduct has been very serious. It would certainly form a basis for finding that he does not pass the character test.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has had 2 significant custodial sentences. This is indicative of very serious offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s most recent offending is arguably the most serious offending, this suggests a trend of increasing seriousness, albeit with an interval between 2013 and about 2018.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending has been very serious. He has exposed his children and his former partner to family violence. He has been involved in robberies that have terrified his victims and made them fearful. The police and corrections system have been burdened by the Applicant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence of this.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
It is difficult to imagine a more extreme example of a person having had chances to redeem themselves, and instead, having doubled down by reoffending.
On 4 December 2007, just 3 years after arriving here, the Applicant was issued with a notice of intention to cancel his visa based on his criminal conduct. The Applicant made representations that he would not reoffend and that he wanted to remain here for his children. Based on his representations, a decision was made on 8 May 2008, not to cancel his visa. This was the clearest possible warning to the Applicant about the consequences of re-offending. He was given a second chance to prove himself.
He continued to offend, including acts of family violence, breaches of court orders and burglary.
On 12 February 2020, the Applicant’s visa was cancelled under s 501(3A) as discussed above. On 13 February 2020, the Applicant again made representations, promising not to reoffend, and saying that he wanted to remain here for his children, who were now even more dependant on him, because of the then recent tragic death of their mother. The Applicant pleaded for a third chance to prove himself.
On 28 November 2020, after making these representations and while still waiting on a decision regarding reconsideration of his visa cancellation, the Applicant was involved in a violent robbery.
On 21 January 2021, his visa was restored to him.
On 7 March 2022, his visa was again cancelled under s 501(3A), based on the 28 November 2020 offending.
The Applicant now essentially pleads for a fourth chance to prove himself, making essentially the same representations as he made in 2007 and 2020. His history of pleading for “another chance” and then reoffending, is damming.
I do not consider factor (f) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh extremely heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The potential for harm to the community should the Applicant re-offend is very significant. If the Applicant were to be returned to the community and to resume using ice, a prospect which his history suggests is likely, violent robbery is a real possibility. This could have devastating mental and possibly physical impacts on victims. The possibility of family violence, with a possible future partner, can also not be ignored. He has offended even when not consuming ice in the past.
Likelihood of engaging in further criminal or other serious conduct
There is no expert opinion available to assist the Tribunal in an assessment of risk. The Tribunal is left with the Applicant’s record and his assurances that he will not reoffend. The Applicant has undertaken a number of courses regarding family violence, substance abuse and so on. Many of these were online courses. He has reoffended after taking courses in the past.
I accept that the Applicant genuinely wants to be a father to his children and that this is a strong motivation for him to not reoffend. The best prospect of being reunited with all of his Australian children, depends on this.
That said, his record condemns him. He has given the same assurances about not re-offending before, and they have turned out to be worthless. His capacity to stay drug free in an uncontrolled environment is a significant risk factor. He has offended even when not using ice. The risk of re-offending is significant
Conclusion: Primary Consideration 1
Primary consideration number one weighs extremely heavily against revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As set out above the Applicant has a history of serious family violence.
He has undertaken some courses whilst in detention/ prison, but the impact of these, if any, is untested in an uncontrolled environment.
Conclusion: Primary Consideration 2
This consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     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);
·     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;
·     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;
·     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;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
This consideration is very complex in this case. Except for a brief period of a few months in mid-late 2020, the Applicant has not lived with his children, or been a primary caregiver, since late 2017. This is a very long time in the life of a young child. The Applicant told the Tribunal that he would not force the issue to make his children live with him, he just hopes to have them. For reasons that I will set out, I consider that this hope would be most unlikely to be realised, even if he were to remain in Australia.
The Applicant has committed acts of family violence in the presence of his children. He briefly cared for them when addicted to ice. This was totally irresponsible. If this were to occur again in the future, it would be potentially very dangerous, and certainly distressing for them.
Since 14 December 2019, the children have had no mother and have been separated from each other (except for a few months in 2020) and distributed amongst friends or relatives. Child C and Child D have had a degree of stability in their lives since their mother’s death. If these children were to be returned to the Applicant, this stability would be disturbed, especially if he were to reoffend.
The Applicant has been able to communicate with his children electronically since late 2019. If he were returned to New Zealand, he could continue to do so.
The relevant minor children in Australia are set out below:
(a)Child A is the Applicant’s first son with Ms [JT]. He is 16 years of age. He is an Australian citizen and has lived all his life here. He was living with his uncle and aunt after his mother died, however, the Applicant told the Tribunal that this relationship broke down some time ago. Child A is now living with the grandmother of one of his friends, Ms [SS].[68] It seems that Child A is quite unsettled. Ms [SS’s] expressed the view that if the Applicant were to be deported, this would “bring unnecessary heartache and hurt” to the family.[69] Child A’s uncle has expressed concerns about the impact upon Child A if his father is returned to New Zealand, having already lost his mother in an accident.[70] Child A is having behavioural problems. He would benefit from the presence of a stable father in his life. He is settled in Australia and has said that he would remain here if his father were returned to New Zealand. If the Applicant were to remain here and to re-offend, a prospect that I have assessed as significant, Child A would possibly be re-traumatised by having the stability of his living arrangements with the Applicant upset, and possibly losing his father to incarceration.
[68] Exhibit 4.1.
[69] Ibid.
[70] Exhibit 2, G3, Attachment L, p 94.
(b)Child B is the Applicant’s second son with Ms [JT]. He is 13 years of age. He is an Australian citizen and has lived all his life here. He was living with his aunt after the death of his mother, but this arrangement broke down. He is now living with a family friend, Ms [KS]. In her statement, Ms [KS] says:
“……
I have known [the Applicant] for over a 10 years and [Child B] since he was birthed into this world. [Child B] was raised by his mother [JT] and father in a loving home with his siblings in his early years building a strong and unbreakable bond within their family unit.
However, since [the Applicant’s] incarceration and the death of [Child B’s] mother [JT], the family has been broken and the children have often been housed by friends or family or anyone who has a heart and sees the predicament of their situation.
With that said, these last few years have seen [Child B] go from family member to family member who have families of their own and do not want to see [Child B] end up in some sort of foster arrangement with strangers or a ward of the State. Sadly, [Child B’s] family on both his mother and father’s side are no longer willing to take him in or support him.
Before [Child B] came to our residence him and his two younger siblings were staying with his grandmother [JT’s mother] who is caring for one of her other grandchildren. From the start [Child B] was on the outer with her as he questioned her method of parenting/caring which put her nose out of joint and therefore, he is no longer able to visit his grandmother’s house… at all.
From there he was then offered a room at his father’s cousins’ residence which worked out for several months until issues arrived over trivial matters such as electronics being confiscated as punishment for indiscretions. This was the tipping point for [Child B] which saw him run away. After several discussions with [the Applicant], it was decided that we should try my residence as he is comfortable with my family and children who are his age.
On the surface it seemed that the reasons for a lot of his relocations were mostly due to behavioural issues or problems with authority but after speaking with him (he was a little more open with me) I was able to find out the deeper underlying issues are prevalent.
When [JT] died, the world had basically ended for her children. [The Applicant] provided the comfort.
With families of our own we can only afford [Child B] a couch or spare mattress which is placed on the bare ground for him to sleep on ad most households, such as mine, are already overcrowded.
If possible we would like to stress the fact that if [the Applicant] was sent away it would be taken really hard by [Child B] and his brothers and sister. So please make a decision with your hearts as your decision would bare down on a family who are still struggling to get past a point in their lives where their future without their father and mother would be damaging.”.[71]
Child B’s aunt has expressed concerns about the emotional impact on Child B if his father is returned to New Zealand, having already lost his mother in an accident.[72] Child B is also having behavioural problems. He would benefit from the presence of a stable father in his life. The Applicant says that Child B would accompany him to New Zealand if he were to be returned there. The Applicant’s family in New Zealand would probably assist with their resettlement. As with Child A, if the Applicant were to remain here and to re-offend, a prospect that I have assessed as significant, Child B would possibly be re-traumatised by having the stability of his living arrangements with the Applicant upset and possibly losing his father to incarceration.
(c)Child C is the Applicant’s daughter with Ms [JT]. She is 11 years of age. She is an Australian citizen and has lived all her life here. She has not lived with the Applicant since she was 6. She presently lives with her maternal grandparents.[73] Child C’s grandmother and grandfather are in their 60’s and have health issues. They say that they would struggle to care for Child C and that Child C would suffer if her father were returned to New Zealand.[74] Child C would benefit from the presence of a stable father in her life. The Applicant would like to have custody of Child C if he were returned to the community. His evidence, however, suggests that he would probably defer to the child’s grandmother, if she wished to retain custody of the child. The Child’s grandmother would not want Child C to go to New Zealand if the Applicant returned there. He indicated that he would not press the issue. As with Child A and B, if the Applicant were to remain here and to re-offend, a prospect that I have assessed as significant, Child C would possibly be traumatised by having the stability of her living arrangements upset again and possibly losing her father to incarceration.
(d)Child D is the Applicant’s third son with Ms [JT]. He is 4 years of age. He is an Australian citizen and has lived all his life here. He does not know the Applicant other than by phone or facetime. He has never lived with the Applicant. Child D would benefit from the presence of a stable father in his life. He presently lives with his maternal grandparents.[75] As with Child C, Child D’s grandmother and grandfather are in their 60’s and have health issues. They say that they would struggle to care for Child D and that Child D would suffer if his father were returned to New Zealand.[76] The Applicant accepts that so far as Child D is concerned, his grandparents are the only carers that he has known, being too young to remember even his mother. The Applicant accepts that the best place for Child D, is to remain where he is. The Child’s grandmother would not want Child D to go to New Zealand if the Applicant returned there. He indicated that he would not press the issue. As with Child A, B and C, if the Applicant were to remain here and to re-offend, a prospect that I have assessed as significant, Child D would possibly be traumatised losing his father to incarceration.
[71] Exhibit 5.2.
[72] Exhibit 2, G3, Attachment L2, p 96.
[73] Ibid, G3, Attachment I, p 69.
[74] Ibid, G3, Attachment L1, p 95.
[75] Ibid, G3, Attachment I, p 69.
[76] Ibid, G3, Attachment L1, p 95.
In relation to all of his children the Applicant says:
“The impact my children will suffer will not only be heart breaking, but will also bring them emotional grief, abandonment feelings, with out both parents, they will struggle to realise the reason’s, my departure out of their lives, being so young. I also believe they will drop back into feeling the painful hurt, of losing another parent.
……
The impact all the children in my family will go through will hurt them deeply. I show them all love because I know that it will always be love that bonds us. We all need each other to get through the loss of their grandmother, mother, auntie who was taken from us too soon. please help my family to heal by not sending me home! Thank you.
……
My biggest issue about being sent home is the emotional, psychological, and physical well being of my children and all the minor relatives I have here. Losing me would trigger the pain felt after losing their mother, auntie, grandmother. I saw first hand the heartache all of our children went through, and I'd never thought they would suffer this way so soon in their young lives. Sometimes life is not fair but we as a family have tried so hard to nurture our young and in doing so have built a stronger bond as families do when going through a loss. I should have done better than to put my family through this. I accept my actions have put my own self in this predicament and I made huge steps to ensure that my addiction will not put the love for my family at risk again. I am truly sorry for the crimes I've committed and have been punished throughout the courts but please don't punish my babies for my mistakes. I will be a law abiding, honest and sober member of the community because the love for my children will never put me in this position again. Thank you”.[77]
[77] Ibid, G3, Attachment J, pp 76, 78, 84-85.
The Applicant has 2 adult stepsons and a stepdaughter. These are children from Ms Thomsen’s earlier relationship.
The Applicant’s stepdaughter (adult child of Ms [JT] has a child, Child E. Child E is about 8 years of age.
The Applicant says of his relationship with this child:
“My relationship with my step-grandchild Has always been loving ever since she was born. I have shown her a love as a grand father, and in return she has loved me as a grandchild. She is an amazing lovable bundle of joy, and has brought a lot of happiness to our whole family. But the loss of her grandmother was very difficult for her, and all of our family to bear. She has had trouble with understanding why her Nana is gone and I am worried she will struggle with the same way if I was to be sent home. She has been the light we needed as a family to try and push through our loss.”[78]
[78] Ibid, pp 78 and 84-85
The Applicant told the Tribunal that he had had no contact with Child E for over a year. He said that there would be no adverse effect on Child E if he returned to New Zealand.
The Applicant was asked whether there were any other children in Australia who would be adversely affected if he were to return to New Zealand. He said that there were not.
Having regard to all of the above, taken at its best from the Applicant’s perspective, (i.e. Assuming no re-offending) primary consideration 3 weighs in favour of revocation of the Applicant’s visa cancellation
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[79]
[79] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexures B and C.
(b)The other matters set out above.
Conclusion: Primary Consideration 4
Primary consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
This consideration is not relevant is this case and is therefore neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant lived in New Zealand until he was 30 years old. He is totally familiar with the culture and language in New Zealand.
The Applicant has suffered from substance addiction for many years. There is no reason to believe that the support services available to him for these problems in New Zealand would be inferior to those available in Australia. He has not identified any other health issues.
Social, medical and/or economic support available to the Applicant in New Zealand would be broadly comparable to that available in Australia.
The Applicant told the Tribunal that he would have the emotional and financial support of his family to assist him in reengaging with New Zealand society.
The Applicant would suffer some emotional hardship in being separated from at least some of his Australian children. Child B and possibly Child A, may go to New Zealand with him.
This consideration is weighs slightly in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no doubt that the Applicant’s behaviour has had a serious impact on his victims, however there is no direct evidence on this point.
This Other Consideration (c) is neutral
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia

Full Name

Relationship to you

Date of birth

Nationality

Country of Residence

[TT1]

Step Daughter

2000

Australian

Australia

[TT2]

Step Son

2001

Australian

Australia

ET

Step Son

2003

Australian

Australia

The Applicant’s request for revocation of a mandatory visa cancellation dated 17 March 2022, provides details of his family connections in Australia in addition to the minor children and stepchildren discussed above. This sets out the following: [80]
[80] Exhibit 2, G3, Attachment J, p 79.

The Applicant has had a history of employment in Australia. This is set out by him as follows:

Period

Occupation

Employer details (include name of company and telephone number, if available)

From

To

2004

2005

Beef Boner

A.M.H Dinmore

2008

2012

Packer

Jendra Farms

2013

2015

Labourer

National Polystyrene Systems Acacia Ridge

2016

2018

Labourer

Shapforths Civil

2020

2020

Centrelink

[81]
[81] Ibid, G3, Attachment J, p 81.

During the Applicant’s time in prison, no personal visits were recorded.[82]
[82] Ibid, G3, Attachment P, p 111.
There is no evidence of involvement in broader community networks or activities. The Applicant has undoubtedly however, developed some networks of acquaintances in the community.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs moderately in favour of revocation.
Impact on Australian business interests
There was no evidence on this topic so this consideration is neutral.
This Other Consideration (d), paragraph 9.4.2 of the Direction, weighs moderately in favour of. revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral.
(b)extent of impediments if removed: weighs slightly in favour of revocation
(c)impact on victims: neutral
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs moderately in favour of revocation; and
(e)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs extremely heavily against revocation.
Primary consideration 2 weighs heavily against revocation.
Primary consideration 3 weighs in favour of revocation.
Primary consideration 4 weighs heavily against revocation.
Other considerations, (a) and (c) are neutral.
Other consideration (b) weighs slightly in favour of revocation.
Other consideration (d) weighs moderately in favour of revocation.
In this case, the serious nature of the Applicant’s offending combined with the fact of him having ignored formal warnings regarding the consequences of him reoffending, overwhelm the countervailing, but complex considerations regarding the Applicant’s children in Australia.
Formal warnings regarding the consequences of reoffending, in my view, must be given significant weight. Public policy considerations require that such warnings should be treated with the utmost seriousness. A warning is a “last chance”. Having a subsequent visa cancelation under s 501(3A) revoked, was an extraordinary additional “last chance”. To have re-offend during the period of that reconsideration of whether there was “another reason” sufficient to revoke the 12 February 2020 visa cancellation, demonstrates total contempt for the laws of Australia.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
Decision
The decision under review is affirmed.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

..........................[sgnd].................................
Legal Administrative Assistant

Dated: 6 February 2023

Date of hearing: 30 January 2023

Advocate for the Applicant:

Self-Represented

Advocate for the Respondent:
Tigiilagi Eteuati
Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Respondent

Statement of Facts, Issues and Contentions filed 12 January 2023

2

Respondent

G-Documents filed 28 November 2022

3

Respondent

Supplementary G-Documents filed 24 January 2023

4

Applicant

Bundle of Documents filed 24 January 2023:

4.1 Statement from [SS] (undated)

4.2 Statement from [SB] (undated)

4.3 Statement from [JT] (undated)

4.4 Statement from Child B (24.01.2023)

4.5 Statement from [JM] Lane (undated)

4.6 Letter of Employment from Mr [MH] (20.01.2023)

4.7 Email from Applicant to [DW] (24.01.2023)

4.8 Certificate of Completion re Domestic Violence 101 (08.01.2023)

4.9 Certificate of Completion re Stress Management (09.01.2023)

4.10 Certificate of Completion re Depression Management (11.01.2023)

5

Respondent

Bundle of Documents filed 27 January 2023:

5.1 Documents considered by the delegate who made revocation decision (Various dates)

5.2 Joint Statement from [DW] and [KS] (undated)

Annexure B – Applicant’s New Zealand Offending History

Court

Court Date

Offence

Court Result

Morrinsville DC

31/10/1998

Drove With Excess Blood Alcohol Content/Breath = 111

Convicted and Sentenced: Fine - $600.00/6 Month Disqualification From Driving

Morrinsville DC

14/01/2001

Failed To Comply With Prohibition By Enforcement Officer

Convicted and Sentenced: Fine - $350.00

Annexure C – Applicant’s Australian Offending History

Court

Court Date

Offence

Court Result

Brisbane Magistrates Court

03/09/2005

Breach Bail Undertaking

No conviction recorded – fined $150

Brisbane Magistrates Court

21/09/2005

Fail to take reasonable care and precautions in respect of syringe or needle

No conviction recorded – fined $250

Hervey Bay Magistrates Court

21/07/2006

Failure to appear in accordance with undertaking

Convicted and fined $750

Hervey Bay District Court

26/04/2007

Robbery with actual violence armed/used personal violence

Conviction recorded: 3 years imprisonment

Hervey Bay District Court

26/04/2007

Receiving stolen property (on 16/03/05)

Fraud – Dishonestly obtains property from another (on 16/03/05)

Unlawful use of motor vehicles aircraft or vessels – use wilfully destroyed damaged. Removed (BTN 15/08 & 19/08/05)

Unlawful use of motor vehicle aircraft or vessels (on 19/08/05)

Fraud – dishonest application of property of another (on 19/08/05)

Stealing (2 charges on 02/03/206)

On each charge: conviction recorded – 18 months imprisonment

Hervey Bay Magistrates Court

17/05/2007

Possessing dangerous drugs

Convicted and fined $1800

Ipswich Magistrates Court

09/10/2012

Breach of order

Conviction recorded: fined $300

Ipswich Magistrates Court

09/10/2012

Failure to appear in accordance with undertaking

Conviction recorded: fined $200

Ipswich Magistrates Court

09/08/2013

Contravention of domestic violence order (on 13/10/2012)

Contravention of domestic violence order (on 13/10/2012)

Conviction recorded: fined $750

Ipswich Magistrates Court

29/04/2016

Common assault

Conviction recorded: fined $450

Ipswich Magistrates Court

05/06/2019

Breach of bail condition (BTN 08/11/2018 and 27/11/2018)

Failure to appear in accordance with undertaking (on 03/03/2018)

Conviction recorded: fined $800

Ipswich Magistrates Court

31/10/2019

Failure to appear in accordance with undertaking (on 09/09/2019)

Conviction recorded: 1 month imprisonment

Ipswich Magistrates Court

31/10/2019

Breach of bail condition (on 12/09/2019)

Breach of bail condition (21/10/2019)

Conviction recorded: 7 days imprisonment

Ipswich Magistrates Court

31/10/2019

Failure to appear in accordance with undertaking (on 22/10/2019)

Conviction recorded: 1 month imprisonment

Brisbane Magistrates Court

11/11/2019

Breach of bail condition (on 14/10/2019)

Conviction recorded: not further punished

Ipswich Magistrates Court

30/01/2020

Wilful damage (on 19/06/2019)

Conviction recorded: not further punished

Ipswich Magistrates Court

30/01/2020

Burglary and commit indictable offence (on 16/09/2018)

Unlawful use of motor vehicles aircraft or vessels (on 16/09/2018)

Enter premises and commit indictable offence (on or about 19/10/2019)

On all charges: conviction recorded – 18 months imprisonment

Ipswich Magistrates Court

30/01/2020

Breach of bail condition (on 05/07/2019)

Breach of bail condition (23/08/2019)

On all charges: conviction recorded – 1 month imprisonment

Toowoomba Magistrates Court

18/03/2020

Receiving tainted property (on 04/11/2018)

Conviction recorded: not further punished

Brisbane Magistrates Court

15/09/2020

Possessing dangerous drugs (on 13/04/2020)

Possessing dangerous drugs (on 13/04/2020)

Possessing dangerous drugs (on 13/04/2020)

On all charges: conviction recorded – recognisance $750

Richlands Magistrates Court

28/01/2021

Failure to appear in accordance with undertaking (on 17/12/2020)

Conviction recorded: 2 months imprisonment

Southport District Court

20/01/2022

Unlawful assault occasioning bodily harm whilst in company (on 28/11/2020)

Conviction recorded: 2 years imprisonment

Southport District Court

20/01/2022

Robbery in company (on/abt 28/11/2020)

Kidnapping (on/abt 28/11/2020)

Conviction recorded: 3 years 9 months imprisonment

Southport Magistrates Court

04/02/2022

Possessing dangerous drugs (on 02/11/2020)

Possess utensils or pipes etc for use (on 02/11/2020)

Conviction recorded: not further punished

[2023] AATA 86

6 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

*Full Name*	*Relationship to you*	*Date of birth*	*Nationality*	*Country of Residence*
[TT1]	Step Daughter	2000	Australian	Australia
[TT2]	Step Son	2001	Australian	Australia
ET	Step Son	2003	Australian	Australia

*Period*		*Occupation*	*Employer details (include name of company and telephone number, if available)*
*From*	To
2004	2005	Beef Boner	A.M.H Dinmore
2008	2012	Packer	Jendra Farms
2013	2015	Labourer	National Polystyrene Systems Acacia Ridge
2016	2018	Labourer	Shapforths Civil
2020	2020	Centrelink

Date of hearing:	30 January 2023
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Tigiilagi Eteuati Australian Government Solicitor

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions filed 12 January 2023
2	Respondent	G-Documents filed 28 November 2022
3	Respondent	Supplementary G-Documents filed 24 January 2023
4	Applicant	Bundle of Documents filed 24 January 2023: 4.1 Statement from [SS] (undated) 4.2 Statement from [SB] (undated) 4.3 Statement from [JT] (undated) 4.4 Statement from Child B (24.01.2023) 4.5 Statement from [JM] Lane (undated) 4.6 Letter of Employment from Mr [MH] (20.01.2023) 4.7 Email from Applicant to [DW] (24.01.2023) 4.8 Certificate of Completion re Domestic Violence 101 (08.01.2023) 4.9 Certificate of Completion re Stress Management (09.01.2023) 4.10 Certificate of Completion re Depression Management (11.01.2023)
5	Respondent	Bundle of Documents filed 27 January 2023: 5.1 Documents considered by the delegate who made revocation decision (Various dates) 5.2 Joint Statement from [DW] and [KS] (undated)

Court	Court Date	Offence	Court Result
Morrinsville DC	31/10/1998	Drove With Excess Blood Alcohol Content/Breath = 111	Convicted and Sentenced: Fine - $600.00/6 Month Disqualification From Driving
Morrinsville DC	14/01/2001	Failed To Comply With Prohibition By Enforcement Officer	Convicted and Sentenced: Fine - $350.00