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

[2023] AATA 4048

Jagan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4048 (19 September 2023)

Division:GENERAL DIVISION

File Number:          2023/4554

Re:Vincent Jagan  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member McLean Williams

Date of decision:               19 September 2023

Date of written reasons:         5 December 2023

Place:Brisbane

Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 June 2023 to not revoke the cancellation of the Applicant's visa.

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

Member McLean Williams

Catchwords

MIGRATION – Mandatory cancellation of visa – failure to pass character test – whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 99 applied – Special Category (Class TY) (Subclass 444) visa – citizen of New Zealand – protection of the Australian community – seriousness of offence – risk of reoffending – domestic violence – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Khalil v Minister for Home Affairs [2019] FCAFC 151
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member McLean Williams
5 December 2023

INTRODUCTION

1. On 19 September 2023, the Tribunal affirmed the decision made by the Delegate of the Respondent dated 26 June 2023 to not revoke the cancellation of the Applicant's visa, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).

2. In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the Written Reasons for its decision.

3. In Khalil, the Full Federal Court said:

   [41]The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.

   …

   [48]What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…

   [Emphasis added]

4. On 22 February 2022 a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s visa under section 501(3A) of the Act on grounds that the Applicant did not pass the character test.[1]

   [1] Exhibit 1, G3, 10.

5. On 2 March 2022 the Applicant made representations, seeking revocation of the cancellation decision (‘the revocation request’).[2]

   [2] Exhibit 1, G12.

6. On 26 June 2023, the Minister’s Delegate considered the Applicant’s revocation request, and decided that the power in s 501CA(4) of the Act was not enlivened. Accordingly, the Applicant's visa remained cancelled (‘the decision’).[3]

   [3] Exhibit 1, G3, p.18.

7. The Applicant then applied for a review of the decision in the General Division of the Administrative Appeals Tribunal, on 28 June 2023, which was within the nine-day statutory review period.[4] The Tribunal has jurisdiction to review the decision, pursuant to s 500(1)(ba) of the Act.

   [4] G2.

8. The Hearing of this application for review took place on 5 September 2023. At the Hearing, the Tribunal heard oral evidence from the Applicant.

9. The Tribunal also considered the documentary evidence submitted by both the Applicant and the Respondent, as detailed in the attached Exhibit Register, now marked as Annexure A to these reasons.

   BACKGROUND

10. The Applicant is a 50-year old male citizen of New Zealand.[5]

    [5] G27.

11. The Applicant first arrived in Australia in August 1983, when aged 9, although he thereafter returned to New Zealand.[6] In June 2003, when aged 29, the Applicant migrated to Australia on a permanent basis.[7]

    [6] G27.

    [7] Transcript p. 6.

12. The Applicant was last granted a Special Category (Class TY) (Subclass 444) visa (‘the visa’) on 7 November 2012.[8]

    [8] Exhibit 3, at [3].

    Criminal Offending

13. The Applicant’s criminal record in Australia reflects the following:[9]

    [9] Exhibit 2, TB1, pp. 1-3.

Court	Date	Offence(s)	Court Outcome
Beenleigh Magistrates Court	March 2022	Contravention of Domestic Violence Order (Aggravated Offence) (in November 2021) Common Assault Domestic Violence Offence (in November 2021) Wilful Damages Domestic Violence Offence (in November 2021) Contravention of Domestic Violence Order (Aggravated Offence) (in November 2021)	Conviction recorded on all charges 24 months’ probation
Beenleigh Magistrates Court	September 2021	Contravention of Domestic Violence order (in June 2021)	Conviction recorded 12 months’ imprisonment
		Obstruct Police Officer and Wilful Damage of Police Property (in June 2021)	Conviction recorded on all charges 6 months’ imprisonment
		Breach of Bail Condition	Conviction recorded 3 months’ imprisonment
		Possess Utensils or Pipes etc for Use (in January 2021)	Conviction recorded 1 month imprisonment
		Producing Dangerous Drugs (in January 2021) Possessing Dangerous Drugs (in January 2021) Contravention of Domestic Violence Order (in January 2021) Contravention of Domestic Violence Order (in February 2021) Contravention of Domestic Violence Order (in March 2021)	Conviction recorded on all charges 12 months’ imprisonment
		Possessing Anything Used in the Commission of a Crime defined in Part 2 (in January 2021)	Conviction recorded 9 months’ imprisonment
		Obstruct Police Officer (in January 2021)	Conviction recorded 6 months’ imprisonment
Brisbane Magistrates Court	December 2011	Commit Public Nuisance (in November 2011)	No conviction recorded $250.00 fine

1. As indicated above, the Applicant was sentenced to a term of imprisonment for 12 months on 13 September 2021 in relation to domestic violence, breach of bail, drug offences and police offences. On 22 February 2022 the Applicant was notified that his visa had been cancelled under s 501(3A) of the Act, on the basis that he had a “substantial criminal record”, as he had been sentenced to a term of imprisonment of more than 12 months, and was at that point serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State of the Commonwealth (ss 501(6)(a) and 501(7)(c)).[10]

   [10] G28.

2. On 2 March 2022, the Applicant requested revocation of the cancellation of his visa.[11] In his Request for Revocation of a Mandatory Visa Cancellation under s501(3A), the Applicant provided the following reasons for the requested revocation:[12]

   ‘Resided in Australia from [sic] last 26 yrs. With good behaviour. These are my first offences.

   Carer for elderly parents. Ages 82 and 72 years.

   I have six children and I have three of them under 18 years.  I am responsible for them.

   Two grandchildrens [sic].  They are Australian citizens.

   De facto relationship with Australian citizen from one year.  Currently she needs me as her partner.

   I can’t leave my parents alone in Australia at their 80’s of age.

   My children need me because they are underage, and it will effect [sic] their mental health.

   I was serving as a diesel fitter in Australia for 20 years.’

   [11] G12.

   [12] Ibid, p. 72.

3. On 26 June 2023 a Delegate of the Minister decided under s 501CA(4) not to revoke the visa cancellation decision.[13]  This is the decision which is now subject to review before the Tribunal.

   [13] G3.

   Consideration of the Applicant’s Criminal Conduct

4. The Applicant has been subject to domestic violence orders since July 2019. The initial order required the Applicant to be of good behaviour towards his former spouse ‘JW’ (‘the aggrieved’) and to not commit any acts of domestic violence against the aggrieved.[14]

   [14] TB1, pp. 4-8.

5. In August 2019, the order was further amended, to prohibit the Applicant from remaining at, entering, or attempting to enter the workplace of JW. In March 2021, a temporary domestic violence order was put in place further prohibiting the Applicant from remaining at the home of JW, or of approaching within 100m of JW, without her prior written consent.

6. On 13 January 2021, the Police were called by JW to come to her residence. [15] JW told the police that the Applicant had been acting in a strange and erratic manner, and that he appeared to be drug-affected. Fearful for her own safety, JW had locked herself inside the house, behind a glass sliding door. The Applicant had then picked up a chair and had threatened to throw it through the glass door, before kicking at the door, thereby dislodging the door from its track. This behaviour contravened the Applicant’s domestic violence order.  

   [15] G9, p. 55.

7. When the police arrived, the Applicant admitted to the police that he had kicked the sliding door and conceded that he was not being of good behaviour, yet informed the police that he was of the impression that the domestic violence order had already expired.[16]  Despite the domestic violence order, the Applicant had also been living with JW at the time.

   [16] TB1. p. 14.

8. While in the course of investigating the aforementioned domestic violence incident, the police also discovered 42 cannabis plants on the premises, ranging from 9 centimetres to 1.4 metres in height, as well as approximately 685 grams of harvested cannabis leaf, which was had been laid out, in batches, for drying.[17] There were also drug utensils found by the police, including a water pipe, scissors, electric scales, an electric grinder, hydroponic items and a black plastic ‘grow tent’ containing a hydroponic system complete with watering, lighting and fans.[18] Two additional cannabis plants were found by the police to be growing inside the grow tent.[19]

   [17] TB1, pp. 20-21.

   [18] TB1, p. 16.

   [19] TB1, p. 22.

9. The Applicant admitted to the Police that he had grown the plants (together with JW), and further admitted that he had used the utensils to smoke cannabis, ostensibly as part of an effort to ‘self-medicate ongoing mental health concerns’.[20] During the Tribunal hearing, the Applicant elaborated:[21]

   [20] TB1, p. 21.

   [21] Transcript, pp. 15-1.

   ‘I was diagnosed with PTSD in 2018.  I did some research and cannabis was to help that.  So I went to my GP, got a prescription, went through all the (indistinct) of being able to be accepted to the program, and then was accepted to the program, and then began taking cannabis very regularly.  Weekly then. 

   And so that was through a program where they would – –

   MEMBER:  So that was prescribed cannabis?‑‑‑Yes.  

   So was that in tablet form, or?‑‑‑Oil form and flower. 

   All right, so that was really – that was legal.  That was legal cannabis?‑‑‑Yes. 

   All right. 

   MS TATTERSALL:  And so as I understand it, at a certain point you left that legal program and started obtaining cannabis yourself?‑‑‑Yes. 

   And so when did that happen?‑‑‑I’d say 13 – say 16 weeks before the offence. 

   So when you say before the offence?‑‑‑The very last offence. 

   So the last offence. 

   MEMBER:  So you’re getting your cannabis legally, but you left that program and started just buying it yourself illegally, did you?‑‑‑No, I started producing it. 

   Growing it?‑‑‑Yes. 

   Right?‑‑‑I did all my research.  I did my research on the Port Arthur massacre, and the first officer that came on site there, he has PTSD, and cannabis helped him.  Other drugs also helped him, but he’s had to go out of the country to source these to make himself better. 

   Yes, and why did you decide to start growing your own and not just keep getting it from the source you were getting it from previously legally?‑‑‑I wasn’t working at the time.  It was a financial thing basically. 

   All right, okay, so you were short of money so you thought well I’ll do a bit of DIY?‑‑‑Yes.   ‘

10. Whilst subject to police questioning in relation to these drug matters, the Applicant became increasingly agitated, and expressed that he ‘wanted to go for a walk’.[22] The Police ordered the Applicant to stop as he started to walk away. Yet the Applicant refused, such that he was placed under arrest. While being arrested, the Applicant ‘tensed up’, and demanded that the Police fight with him. Expecting trouble, the police unsheathed a taser, however were able to use verbal techniques to calm the Applicant, without their needing to deploy the taser. This conduct resulted in the Applicant being further charged, this time with ‘Obstruct Police Officer’.

    [22] TB1, p. 15.

11. The Applicant again breached the domestic violence order in each of February, March and June 2021.[23] The offence of wilful damage to police property occurred during the June domestic violence order breach, when the Applicant spat in the back of a police vehicle while he was being arrested.[24] The sentencing Magistrate described this behaviour as ‘inappropriate, and in times of worldwide pandemic, unacceptable.’[25] The offending on this date also resulted in Mr Jagan’s conviction for breach of bail.

    [23] TB1, p. 2.

    [24] TB1, p. 35.

    [25] G7, p. 48

12. In a statutory declaration dated 27 July 2022, the Applicant provided the following explanation for the circumstances that had led to his committing the offences for which he was charged and ultimately, convicted:

    7I lived with [JW] on a property in Logan on which she was aware and was involved in growing Cannabis.

    8In order to protect [JW], I accepted the blame despite the fact that she was equally guilty of the drug offences with which I was charged.

    9[JW] convinced me that she would help me and wrote a letter to the parole board, and I was picked up from her on 14^th of September 2021.

    10[JW] collected me from prison and held me there under duress for approximately six (6) weeks and most days I was confused and wished I would be back in prison.

    11I was desperately trying to adjust from prison life and get my life together, but she made this impossible for me.

    12I felt alone at the time and could not reach for anyone to help.

    13[JW] denied me from access to my own medication and to my own phone as well as money and she controlled my relationship with my family and friends which resulted in zero communication between myself and them.

    14I was not allowed to access any social media as when I tried to do so she became very aggressive, jealous and possessive over my wanting to communicate with my family and would call the police at the drop of a hat.

    15On most occasions when she called the police, she was so intoxicated that the police had difficulty in understanding her.

    16I was forced to drive her everywhere and she never left me alone without her anywhere.

    17 I did all the driving to the markets, and she controlled the entire days and weeks.

    18There were constantly disagreements and arguing with her and I continued to work for her business all day, every day, without any income.

    19We were not sleeping in the same room, and I tried to stay distant from her which made her behaviour even worse and ultimately, we were completely dysfunctional as [JW] realized this more, her behaviour worsened towards me.

    20I decided to pack up my belongings and leave a fact that then made her bitter and spiteful towards me when she realized that I was going to leave her.

    21I asked her for money so that I could renew my Drivers Licence and work licences as she had my wallet and my debit card. She told me that she had the money to give and that if I had any money, I had to give it to her and then alerted calling the police which as a result I was returned to prison.

    22I believe around this time; my medication was not given to me properly and I was found by police hanging in a tree where she left me.

    23I believe I had a mental breakdown due to mental, emotional, financial, and social abuse after leaving prison after three (3) months and being held in captivity by [JW].

    24I did not receive any support that I needed, and I was not in a good state of mind when I left prison on the 14th of September 2021.

    25[JW] claimed that she feared for her life but on social media she expressed her love and devotion to me, she forever loved me and that she was still engaged to me.

    26I have tried to organise the collection of my belongings from the property which she is renting, and she has refused to allow anyone except me to go and pick up the belongings.

    27I did not have the support that I needed, and I continue to be unable to go and pick up my belongings as I have a zero-contact order, as to not further breach any domestic violence orders.

    28It is because of [JW’s] conduct with me that she has put me in a position where I now face deportation and she continues to punish me in that way.

    29I want to avoid her as much as possible and should I be successful in the revocation of my Visa cancellation, I intend to live far away from her in Ballina in Northern New South Wales with my present de-facto partner Brooke Fox and her children.

    30I have now had a lot of time to reflect, and I clearly see the people in my life sincerely care for and love me with no agenda but affection and support.

    31I have decided to free myself from the relationship with [JW] and do not wish to put my family through anything like this again.

    32I am remorseful and contrite and wish to have a chance to make the right decisions for myself and my immediate family.

    33I should state that I had no previous criminal history prior to the relationship with [JW].[26]

    [26] G19, pp. 102-103, 105.

13. In his Personal Circumstances Form dated 21 March 2022, the Applicant stated, ‘I have been in Australia 26 years and have no other criminal history, not even a traffic fine’.[27] However, it was later disclosed that the Applicant had incurred traffic offences in the past, and that the Applicant’s New Zealand criminal history reveals him to have been convicted of drove a motor vehicle in a dangerous manner on 7 April 1997, for which he received a fine and had been disqualified from driving.[28]

    [27] G13, p. 87.

    [28] G5, p. 43.

    Character references

14. The Tribunal did not have the benefit of any oral testimony relating to the Applicant’s character, but had regard to written statements from each of the following:

    (a)Ms Brooke Fox (the Applicant’s partner);

    (b)Mr Dhani Jagan (the Applicant’s father);

    Ms Brooke Fox

15. The Tribunal did not have the benefit of any direct testimony from Ms Fox (who the Applicant now claims as his fiancée), such that her evidence could not be properly tested.  However, an unsigned statutory declaration from Ms Fox was provided by the Applicant, as part of the Tribunal’s G-documents.[29] This document at least appears to have been created for the purpose of a partner visa application, rather than being a document created for the purposes of this application for review.  The Tribunal notes it to be unsigned, and undated. 

    [29] G20.

1. The unsigned statutory declaration from Ms Fox reads as follows:

   1I first met my fiancé Vincent Jagan, at the start of 2019 through mutual friends we instantly became close and found we have a lot in common and as we both were going through similar circumstances of being stuck in toxic relationships we were able to relate and be a support for each other. We both knew that we were both more than friends but remained close and have grown over time to realise that we want to be life partners and want to be together. Which will mean if he is forced to be deported my children and I will leave also to stay together.

   2July 2nd 2019 my ex partner of 23yrs and father my three children passed away from cancer, Vince has been a major part of our family healing he is a kind, empathic, calm caring mentor for my children they feel safe and secure with Vince in our lives he has grown a strong bond with my children we need him in our lives to move forward from losing their biological parent. We do not want to lose someone else that is a part of our immediate family circle. That will bring us once again more trauma and hardship. Vince and I have plans to build a healthy future together for our children and ourselves. When we are altogether we are all happy.

   3After meeting in 2019 we both knew we wanted to be together and were prepared to wait knowing that we eventually will be able be to make it work. 2020 we remained in constant contact and saw each other when we could until we moved in together November 2020. Noting’ that at the time of meeting each other we were both on the way out of our previous relationships and as we are both loyal people were stuck working through our emotions and trauma of being with partners that were volatile and abusive we always remained a constant source of support and understanding in that period of time for each other. Our relationship grew stronger. My children and I couldn’t have got through that period of time with out him.

   4Vince and I bring the best out in each other he is my best friend and want to see him happy and be the best people we can be for our families especially our children we support each other fully in every aspect of our lives and want to start a new chapter move forward and work hard to provide and be good members of our community, together I know that this can be achieved 100%.

   5I can confidentially say that both of us realise that we were both very motivated and compatible and could do many things if we were together.

   6Soon I realised that Vincent Jagan was the man of my life and I loved him very much. If Vincent is to be deported it will bring much emotional, and mental despair we don’t know anyone over seas we have no support and will bring with it much financial hardship not just for my family but Vincent’s immediate family he has an elderly father brothers and four children here in Australia, he was still paying child support for his youngest son [J] up until the time of his incarceration and will continue to when released until he is independent and desperately wants to be apart of his children and grandchildren lives.

   …

   (i)     The length of time the persons have lived together:

   (ii)    Vincent my two girls and I lived peacefully we were happily living together over that 9-month period from August 2020 – June 2021 he was then incarcerated.

   (iii)    The degree of companionship and emotional support that the persons draw from each other:

   (iv)    We are planning to get married as soon as possible we want to spend the rest of our lives together. We are each other’s rocks and do not want to be apart we support each other always.

   I rely upon him for my emotional support. He is my friend and companion and mentor

   (v)    Whether the persons see the relationship as a long term one:

   (vi)    Yes we see this relationship as long term and don’t want to be in a position of moving to a different country where we have no one know known as well as it would be financially crippling for us and our responsibilities as parents and would be detrimental toward the mental health of all involved. [30]

   [30] G20, 107-110.

   Mr Dhani Jagan

2. The Tribunal also had reference to a statutory declaration dated 4 July 2022 from Mr Jagan (Snr), the Applicant’s father.[31] In that document Mr Dhani Jagan stated:

   [31] G22.

   1I am the father of Vincent Jagan, the subject of these proceedings

   2I presently have five (5) children of whom Vincent is one, Seema Jagan born on…December 1968 aged 53 years who resides in New Zealand, Dennis Jagan born on…January  1970 aged 52 years whom presently resides with my wife and myself at Boronía Heights, Marcus Jagan born on…October 1976 presently residing in the Sunshine Coast and James Matiu Jagan born on…June 1978 who resides in Perth.

   3Vincent lived with my wife and myself until two (2) years prior to his incarceration. At that time he moved in with his former de-facto [JW].

   4I arrived in Australia with my family in 1999 and have resided here since that time and have continuously lived in Australia since arrival and consider Australia my home.

   5My relationship with Vincent is a very close one. I moved to Australia because of him.

   6He also has a close relationship with his other siblings who reside in Australia. He would meet with his siblings on a regular basis including James who lives interstate and Marcus who lives on the Sunshine Coast.

   7My wife and I are presently retired and financially by way of board and help around the help around the house with mowing and repairs to the home.

   8During the time that Vincent lived with us, he never participated in the taking of any narcotics nor indeed trading in any illicit drugs.

   9As I am aware from what Vincent has told me, it is because of his former de-facto [JW] who was involved in the illicit drug trade and Vincent foolishly accepted the responsibility for that.

   10It is the intention that if he is permitted to remain in Australia that he will continue to live with myself, my wife, and his brother Dennis as he did before the unfortunate events leading to his imprisonment.

   11It is the intention of my wife and I to come to Australia, relying on him to be able to look after us. He is an educated person and is capable of attaining a good salary and would be of help to us.

   12I understand that he may be in a de-facto relationship with Brooke Fox who presently resides in New South Wales, but we would be trying to talk Vincent into convincing his present de-facto partner to move up to Queensland to live with us.

   13If Vincent is removed from Australia this will cause irreparable harm on myself and my wife. We are very close and have a lot of affection for him and always look to him to support us.

   14I believe that he is a person of good character, despite the various criminal convictions.

   15The breaches of the Domestic Violence Orders arose out of an unfortunate and violent relationship from which he had suffered with his former de-facto [JW].

   16I therefore plead with the department to have compassion on Vincent and more so on us.

   17I am presently 81 years of age, and my wife is 70 years of age.

   18The impact of removal will be particularly on my wife Miri Jagan.

   19The removal of Vincent from Australia will also impact severely on the remaining of his brothers with whom Vincent is very close as we had grown up as a tight family unit.

   20

   Vincent also has four (4) children. The eldest Miri Jagan born on [redacted]  December 1984 who is married and lives in Brisbane, Dhani Jagan born on

   
   …

   January 1994 aged 25 years of age who is employed as a prison officer in Grafton, New South Wales, Lily Jagan born on…June 1999 lives with Tina Fai who is the mother of all the children and [J] born on…August 2006 who attends high school who also lives with their mother.

   21Vincent had regular contact with his children and has always paid child support for them but continues to pay the child support for [J].

   22His removal from Australia would not only impact the emotional and psychological wellbeing of the children despite their various ages but also financially on the youngest child, given the fact that Vincent is paying child support. [32]

   [32] G22, 113-1114.

   Rehabilitation

3. During his time in immigration detention the Applicant had participated in a Certificate II course in Engineering Pathways.[33] It is to be noted that the Applicant is already dual

   
   

   trade-qualified as both a motor mechanic, and as a diesel fitter.

   [33] G11.

4. In addition, the Applicant also self-nominated for, and was ‘wait listed’, to undertake a Substance Abuse Intervention (Short) course.

5. The Tribunal was also presented with course completion certificates for the following further rehabilitation courses:[34]

   (a)‘Domestic violence 101’;

   (b)‘Respectful Man’; and

   (c)‘Positive Parenting Program’.

   [34] G24-G26, 117-119.

   ISSUES

6. The Tribunal considers the issues to be:

   (a)whether the Applicant passes the character test as defined in s 501CA(4)(b)(i); and

   (b)if he does not, whether there is another reason why the cancellation decision should be revoked (under s 501CA(4)(b)(ii)), having regard to the principles outlined in the Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’).

   LEGISLATIVE FRAMEWORK

7. As the Applicant was sentenced in September 2021 to a term of more than 12 months imprisonment, the Tribunal finds that he has a ‘substantial criminal record’ and cannot pass the character test. Failure of the test arises as a matter of law.[35]

   [35] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].

8. Consequently, the task for the Tribunal is to exercise the discretion in s 501CA to consider whether or not to exercise the power to refuse the visa application. In considering whether to exercise the discretion, the Tribunal is bound to comply with any directions made under the Act by virtue of s 499(2A). As such, the Ministerial Direction is applicable.

9. The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in s 501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:

   6. Making a decision

   Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

10. The principles contained within paragraph 5.2 of the Ministerial Direction are as follows:

    1Australia 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.

    2Non-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.

    3The 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.

    4Australia 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.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.55(2) (Expectations of the Australian Community) [sic] 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.

11. Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account when exercising its discretion, these being:

    (1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);

    (2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);

    (3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);

    (4)the best interests of minor children in Australia (‘Primary Consideration 4’); and

    (5)expectations of the Australian community (‘Primary Consideration 5’).

12. The Ministerial Direction then stipulates at paragraph 9 the ‘Other Considerations’ which must also be taken into consideration, being the:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

13. These considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

    ‘...Direction 65 [now Direction 99] 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’.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

14. Paragraph 8.1(1) of the Direction provides that when considering the need to protect the Australian community from harm, the decision-maker should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.  Decision-makers should also 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.

    Nature and seriousness of the Applicant’s conduct

Paragraph 8.1.1 of the Ministerial Direction prescribes factors to which decision-makers must have regard in considering the nature and seriousness of a non-citizen’s criminal offending or other conduct.

44.The Applicant readily concedes the seriousness of his own conduct.[36]

[36]  Exhibit 4.

1. The Respondent contends that the Applicant’s offending should now be viewed by the Tribunal as “very serious” because of the following:

   ·the Applicant has been convicted of public nuisance offences on 12 December 2011;[37]

   ·the Applicant has been convicted of multiple contraventions of domestic violence orders, and of obstructing police;

   ·the Applicant has been sentenced to seven terms of imprisonment, and has been a frequent offender, given that 12 offences were committed in less than six months between 13 January 2021 and 1 June 2021.[38]

   [37] Exhibit 3, at [23].

   [38] Exhibit 3, at [34]-[35].

   Risk to the Australian Community

2. Paragraph 8.1.2(1) of the Ministerial Direction provides that when considering the need to protect the Australian community from harm, decision-makers should have regard for the government’s view that the Australian community’s tolerance for any risk of future harm lessons as the seriousness of the potential harm increases.  In assessing the risk posed by the non-citizen to the Australian community, decision-makers must consider, cumulatively:

   (i)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (ii)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to time spent in the community since the non-citizen’s most recent offending.

3. The Respondent submits that:

   ‘The Applicant’s criminal history is such that a broad range of harm may befall members of the Australian community if he were to reoffend. If the Applicant were to reoffend by committing family violence, the nature of the harm that may result includes physical harm to members of the community. Offending of that nature may also have ongoing psychological consequences for the victims and others. Further drug offending would result in the continuation of drugs being circulated in the community.’[39]

   [39] Exhibit 3, at [38].

4. The Respondent submits that the protection of the Australian community now weighs ‘heavily’ against revocation. The Respondent then submits the following to support the proposition that the risk of further offending by the Applicant is ‘unacceptable’:[40]

   (a)The absence of expert evidence before the Tribunal ‘to adequately explain why the Applicant has offended in the past’, or in relation to the likelihood of the Applicant reoffending in the future;

   (b)It can be inferred that the Applicant was a regular user of cannabis given that the Applicant was found in possession of 42 cannabis plants and a further 685 grams of cannabis leaf, yet there is ‘no evidence that the Applicant has undertaken any rehabilitation programs or counselling regarding drug use’;

   (c)While the Applicant has completed some courses relating to domestic violence, he maintains that ‘domestic violence issues… were caused by [the victim JW, the Applicant’s ex-partner]’,[41] thus ‘demonstrating a concerning lack of insight and acknowledgement of his own wrongdoing. He also seeks to shift responsibility for at least in part, to [his ex-partner, JW]’.

   (d)The Applicant’s statement paints him as the victim and [JW] as controlling and manipulative. ‘He claims that she held him in captivity after he was released from prison in September 2021, that she isolated him from his family, that she was financially controlling and that she denied him access to his phone and medication' , yet, there is no independent evidence to corroborate any of this.

   (e)Given the Applicant’s history of committing domestic violence offences, the Tribunal is ‘entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past.’[42]

   [40] Exhibit 3, at [39].

   [41] G16, p.96.

   [42] Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [36].

1. Regarding the risk of re-offending, the Applicant submitted that he ‘was in a toxic relationship where she controlled everything in our whole relationship. She argued with my parole officer, my employment officer and withheld medication.’[43] The Applicant submitted that had been ‘living in a hostile environment with a highly volatile partner.’[44] The Tribunal is seemingly asked to infer that, as the Applicant is now away from this toxic relationship, the Applicant will present as no further risk to the Australian community.

   [43] G13, p.84

   [44] Ibid.

2. In his final oral submissions before the Tribunal, the Applicant also specifically indicated that he “wanted to make note of TB1 page 63”,[45] (here referring to a ‘QP9’ narrative of a domestic violence incident between the Applicant and JW on 17 August 2020), which “pretty much sums up my relationship with [JW]”.[46]  That document records:

   [45] Transcript, p. 63, line 27.

   [46] Transcript, p.63, line 36.

   ‘MO

   The aggrieved and respondent were at home when they became involved in a verbal argument over infidelity. As a result the respondent has verbally abused the aggrieved, taken her mobile phone and attempted to punch her in the throat.

   …

   GENERAL REPORT

   General report breach DV narrative:  Police attended and the aggrieved reported the matter as per M/O. At the time the aggrieved was highly intoxicated and stated that the respondent had taken her mobile phone and house keys and refused to return it. The aggrieved further stated that the respondent had verbally abused her and attempted to assault her which resulted in a picture frame being knocked off the wall. The aggrieved was unable to provide details of how and when the assault took place and was solely focused on the return of her keys and mobile phone. While speaking to police the house keys were located on the floor within the lounge room with the aggrieved was seated. After police rang the aggrieved mobile phone, it was located in the bedroom attached to the charger where the aggrieved stated she had left it. No injuries were sighted on the aggrieved. Once the items were located, aggrieved did not wish any further police involvement and was happy for the respondent to remain at the location. Respondent was spoken to and denied all allegations by the aggrieved. The respondent stated the aggrieved had been consuming alcohol for a number of hours and was intoxicated. The aggrieved told the respondent to have a shower as she accused him of having multiple affairs. The respondent then decided to leave the address to diffuse a potential situation. Respondent has commenced to pack his vehicle and was assaulted by the aggrieved and scratched on the face. The respondent then fled to the garaged area where he waited for the police as he was concerned the aggrieved would make false allegations against him.

   …

   Supplementary report

   Police attended the address and spoke with both parties. At the time the aggrieved was heavily intoxicated and was solely focused on the respondent returning her mobile phone and house keys. The aggrieved stated she was assaulted and verbally abused by the respondent however could not elaborate on details. Police located the items inside the house, in the same spot the aggrieved stated she had lost them, the aggrieved was happy for the respondent to stay and stated she was never fearful of him.

   The respondent was spoken to and provided police with a conflicting version of events. The respondent stated that the aggrieved had pulled his hair, punched him, and scratched him to the face and threatened to have him charged with breaching the dv order.

   At present, police have insufficient evidence available to commence proceedings against the respondent. The aggrieved was intoxicated and unable to provide a clear version of events. Nil injuries sighted on the aggrieved. Injuries sighted on the respondent no assault complaint forthcoming for the respondent.’

3. The Tribunal accepts that the incident on 17 August 2019 paints a picture of the Applicant having been in a highly volatile and dysfunctional relationship with JW, in which her behaviour had also contributed to an unhealthy dynamic between them. The Tribunal also accepts that, on this particular occasion, the Applicant was not charged with breaching the DVO. However, this incident does not detract from the fact of the Applicant having been convicted on other occasions (on his own confession) of other acts of domestic violence against JW.  It remains an issue of concern to the Tribunal that the Applicant here seeks to minimise the significance of his own conduct.

   Nature of the harm should the Applicant engage in further criminal or other serious conduct.

4. In the event the Applicant were to remain in Australia and were to engage in further similar criminal conduct in the future, then the Tribunal would be apt to categorise the nature of that prospective harm as ‘serious’.

   Likelihood of the non-citizen engaging in further criminal or other serious conduct in the future

5. There is no specific evidence before the Tribunal going towards the question of the risk of the Applicant re-offending in the future.

6. Although the risk of the Applicant re-offending - in the event that he is to be allowed to remain in Australia - is apt to be lower now than was the case prior to the Applicant having been imprisoned and detained in immigration detention; and although the Applicant has now undertaken at least some rehabilitative courses, the Tribunal has not had sufficient evidence of rehabilitation placed before it to be confident that the Applicant is now either ‘very unlikely’ to re-offend, or is at least now only a ‘low risk’ of reoffending.  In the circumstances, the Tribunal is entitled to speculate as to what might happen in the future by reference to evidence of what has already occurred in the past.[47] On the basis that domestic violence appears to have infused the Applicant’s relationship with JW, the Tribunal considers there remains an unacceptable risk that the Applicant will reoffend in a similar fashion in the future, and the risk of that now gives rise to a serious risk of harm to members of the Australian community, as well as to the prospect of further public burden for Australian law enforcement and criminal justice resources. 

   [47] Ibid, note 27.

   Conclusion: Primary Consideration 1

7. The Tribunal considers that protection of the Australian community now weighs heavily against revocation of the visa cancellation decision.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

8. Paragraph 8.2 of the Ministerial Direction specifies that the family violence consideration is relevant where the non-citizen has been convicted of an offence that involves family violence or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in family violence and the non-citizen has been afforded procedural fairness. Family violence includes violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful (paragraph 4 (1) of the Ministerial direction). Paragraph 4(1) also specifies that a “member of the person’s family” for the purposes of the definition of family violence includes “a person who has, or has had, personal relationship with the relevant person.” The Respondent submits that the Applicant’s former partner JW now fits within this category.  The Tribunal accepts that submission as correct.

9. The Respondent submits that the Applicant’s conduct for which he was convicted on 13 September 2021 and on 30 March 2022 constitutes “family violence” for purposes of the Ministerial Direction, and, that the Applicant committed eight family violence offences within an 11-month period. The Respondent also submits that the Applicant’s conduct has clearly increased in seriousness over time from verbal threats, to actual physical assault (paragraph 8.2(3)(a) the Ministerial Direction).

10. The Applicant submitted that, ‘just because of a volatile relationship with one person am I in this predicament. She just won’t let me go peacefully. Keeps creating more drama.’[48]

    [48] G13, p. 87.

11. The Respondent contends that this consideration now weighs heavily against revocation.[49]

    [49] Exhibit 3, p. 13.

    Conclusion: Primary Consideration 2

12. The Tribunal considers that notwithstanding the Applicant having entered pleas of guilty to charges for domestic violence offences, the Applicant continues to diminish his conduct and to attribute responsibility for his actions to his primary victim, JW. This reveals a concerning lack of insight.

13. The Applicant’s domestic violence conduct must be categorised as ‘serious’, and is obviously concerning.  By reason that heavy weight against revocation of the visa cancellation decision has already been applied by the Tribunal in relation to Primary Consideration One – in circumstances in which a large proportion of the Applicant’s criminal conduct in Australia entails domestic violence offending – no additional adverse weight will now be applied by the Tribunal on account of Primary Consideration Two.

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

14. Paragraph 8.3 of the Ministerial Direction requires the decision-maker to have regard to the strength nature and duration of the visa applicant’s ties to Australia.

15. The Applicant has the following immediate family members in Australia:

    ·his partner and her three children;

    ·four biological children;

    ·two grandchildren;

    ·his two parents;

    ·three brothers.

16. Further, the Applicant claims to have 8 aunts and uncles, 27 nieces and nephews, and 16 cousins also residing in Australia.[50]

    [50] G13, p.83.

17. The Applicant submits that his de-facto partner would be ‘devastated,’ in the event of a negative outcome. He further stated: ‘We have had a solid co-dependent relationship for 12 months. After having lost her husband I have been there for her. She will be devastated. [and she will] Fall into depression.’[51]

    [51] G13, p.78.

18. The Minister accepts that this primary consideration weighs in the Applicant’s favour, yet submits that it does not outweigh the first, second and fifth Primary Considerations, each of which it is submitted now weigh ‘heavily’ against revocation.[52] 

    [52] Exhibit 3, p.14, at [58].

19. The Minister notes that only one family member (The Applicant’s father) has provided a signed statement in support of the Applicant.[53] Furthermore, the Respondent submits that, although the Applicant claims to be engaged to Ms Fox, and maintains that they had commenced cohabiting in November 2020, the evidence before the Tribunal tends to suggest that their period of cohabitation was only for a few weeks; and there is now a handwritten letter before the Tribunal from the Applicant to Ms Fox dated 10 July 2021 that reveals that the Applicant had, by that stage, already ended their relationship, with the Applicant having written to Ms Fox:

    ‘…. Please don’t visit me in here. Even by video call. I am working it out with my wife. Things are still up and down but I have faith we can work at it. Sorry you have to hear this in a letter. I feel happy yet sad about you contacting me. Maybe a bit scared too. I am also ashamed of how I ended it with you. Wasn’t right of me to just bail like that. Remember it was all my doing. No fault of yours.

    …. I do appreciate the special times we had together and am truly sorry for my actions ending it. But please don’t make arrangements to see me. I just can’t be there for you as you are for me. ‘[54]

    [53] G22, p. 113.

    [54] G21, p. 112.

20. On the basis of this evidence, the Tribunal proceeds on the basis that the Applicant is no longer in any relationship with Ms Fox.

21. The Applicant first travelled to Australia as a foreign visitor in August 1983 when he was nine years of age and arrived in Australia on a more permanent basis when aged 29. The Applicant has now been living in Australia for 20 years.  As such this is not a case wherein the Applicant has lived in Australia during and since his ‘formative years’.[55]

    [55] Ministerial Direction, paragraph 8.3(4)(a)(i).

22. The Minister accepts that this primary consideration now weighs in the Applicant’s favour yet submits that it does not outweigh the First, Second, and Fifth primary considerations, each of which should be assessed as weighing heavily against revocation.

    Conclusion: Primary Consideration 3

23. The Tribunal concludes that Primary Consideration Three does weigh in favour of revocation of the visa cancellation decision and is assessed as requiring that ‘some’ weight now attach in favour of revocation.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

24. The Applicant stated that he has a close relationship with all of his children, in particular his youngest child, J.[56]

    [56] G19, p. 104.

25. In relation to his 16 year old son, J, the Applicant stated, ‘I provide a father figure role to my son. I see him once a fortnight. We have an awesome bond [J] and I and I will be as devastated as will he. He will think I have abandoned him.’[57] In relation to the impact on his son if he had a negative outcome, he said, J ‘will not have any more close contact with his biological father. Our bond will be broken. He will be sad and depressed. Won’t have anyone as his father.’[58]

    [57] G13, p. 80.

    [58] Ibid.

26. The Applicant submits that he has developed a strong parental relationship with his de-facto partner’s children who are aged 21, 17, and 13.[59] Yet, the Respondent Minister contends that the exact nature of the relationship between the Applicant and Ms Fox remains unclear, and the Tribunal is entitled to conclude that the evidence is insufficient to allow it to reach a conclusion regarding any strong parental relationship as between Ms Fox’s children and the Applicant.[60]   

    [59] G19, p 104.

    [60] Exhibit 3, at [63].

27. In relation to the youngest two of his de-facto stepchildren, the Applicant stated that if he had a negative outcome, ‘[they] will too be devastated. We have connected well and are developing a great bond. First their father passes and then I will be taken away from then too. Just when they are starting to come out of their shells.’[61]

    [61] G13, p.80.

28. However, in light of the evidence regarding the tenuous nature of the relationship between the Applicant and Ms Fox, the Tribunal concludes that no additional allowance should now be made in this deliberation in relation to consideration of the best interests of the children of Ms Fox.

29. The Tribunal notes that the Applicant’s son J is in his late teens, and will therefore shortly attain adulthood.

30. The Applicant also claims to have two Australian grandchildren.[62] Yet, the Respondent submits that the information that has been provided about these children is inadequate, and is now wholly insufficient to allow the Tribunal to reach a conclusion ‘either way’ regarding the best interests of these children, such that no weight ought now be given in favour of the Applicant, on account of these children. [63]  The Tribunal accepts that limited information exists in relation to these grandchildren, yet does not accept that their interests can be completely discounted.

    [62] G19, p. 105.

    [63] Exhibit 3, at [64].

31. Although the Respondent accepts that revocation would be in the best interests of the Applicant’s son J, the Respondent submits that very limited weight should now be given to this primary consideration in circumstances wherein:[64]

    (i)the Applicant’s relationship with J has been marked by lengthy absences given the time spent by the Applicant in custody, and in immigration detention;

    (ii)it is unlikely that the Applicant will provide a positive parental role in the future, given his criminal history. In all events J will soon turn 18 years of age, in August 2024;

    (iii)exposure to negative conduct of the kind previously engaged in by the Applicant would no doubt have an adverse impact on J;

    (iv)there is no independent evidence on the impact of any separation from the Applicant upon J.  They may maintain contact by electronic means and would be open to J to travel to New Zealand in order to visit the Applicant; and

    (v)J lives with his biological mother who fulfills a parental role.

    [64] Exhibit 3, p. 15.

    Conclusion: Primary Consideration 4

32. The Tribunal concludes that some weight in favour of revocation of the visa cancellation decision should now attach on account of Primary Consideration 4.  Weight attaches primarily in relation to the best interests of the Applicant’s son J, yet with some further weight in favour of revocation also provided on account of the best interests of the Applicant’s grandchildren.

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

33. Paragraph 8.5 (1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizen to remain in this country. Paragraph 8.5 (2) of the Ministerial Direction further provides that it may be appropriate not to revoke the mandatory visa cancellation of such a person simply because the nature of the character concerns or offending is such that the Australian community would expect that the person should not continue to hold a visa, particularly where a person has committed acts of family violence, and/or crimes against government representatives or officials due to the position they hold, or in the performance of their duties.

34. Overall, the Respondent contends that this primary consideration now weighs ‘heavily’ against revocation.

35. The Applicant has not sought to specifically address this Primary Consideration.

    Conclusion: Primary Consideration 5

36. The Tribunal concludes that, in light of the expectations in paragraph 8.5 (1) of the Ministerial Direction, Primary Consideration Five now weighs heavily against revocation of the visa cancellation decision.

    OTHER CONSIDERATIONS

37. It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    Legal consequences of the decision

38. None of the material before the Tribunal gives rise to any suggestion that Australia’s non-refoulment obligations are enlivened in respect of the Applicant.  Nor has the Applicant submitted that the legal consequences of cancellation affords ‘another reason’ the visa cancellation should be revoked.  In these circumstances the Tribunal gives this other consideration neutral weight.

    Extent of impediments, if removed

39. Paragraph 9.2 of the Ministerial Direction requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in terms of establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country, here taking into account: the Applicant’s age and health; whether there are substantial language or cultural barriers; and any social medical and/or economic supports available to them in that country.

40. The Applicant described his concerns about returning to New Zealand thus:

    ‘I would have to find an address to live.

    I would have no support of family there.

    I would be starting all over again at my age.

    Have to sort medication and help.’[65]

    [65] G13 p.87.

41. The Applicant has a number of family members residing in New Zealand, including approximately 4 aunts and uncles, 11 nieces and nephews, and 15 cousins.[66]

    [66] G13 p. 83.

42. The Applicant is now 50 years of age and has not declared any physical health conditions.  He has declared currently taking mirtazapine, as a mood stabiliser, and olanzapine for depression.[67] There is however no evidence before the Tribunal of any formal mental health diagnosis. Nor is there any suggestion that the Applicant would be unable to access these medications in New Zealand.

    [67] G7, p. 86.

1. The Applicant, as a citizen of New Zealand, will have the same access to social, medical, mental health support and economic support as is the case for all other New Zealand citizens. The Applicant also spent the first 19 years of his life in New Zealand, such that it cannot be said that New Zealand is a country that is unfamiliar to him. The Applicant is also a qualified mechanic and diesel fitter with many years of experience and there is nothing to suggest that the Applicant would not be able to quickly secure paid employment as a diesel fitter in New Zealand.

2. In all the circumstances, only limited weight is applicable to this consideration in favour of revocation of the visa cancellation decision.

   Impact on victims

3. There is no evidence as to the impact of revocation or non-revocation decision may have the victim of the Applicant’s offending. Accordingly, this consideration now weighs neutrally.

   Impact on Australian business interests

4. The Applicant does not claim, and nor is there is no evidence to suggest, that a non-revocation decision would significantly compromise delivery of a major project or important service in Australia.

5. This ‘other’ consideration would therefore appear to be not relevant and is weighed neutrally by the Tribunal.

   CONCLUSION

6. The Tribunal is required to weigh all the Considerations, in accordance with the Ministerial Direction:

7. Primary Consideration (1), Protection of the Australian community: The Tribunal determines that the Applicant’s prior criminal conduct should be categorised as ‘serious’, and that Primary Consideration One now weighs heavily against revocation of the visa cancellation decision.

8. Primary Consideration (2), Family violence: The Tribunal considers that the applicant’s domestic violence conduct must be considered to ‘serious’.  By reason that heavy weight against revocation of the visa cancellation decision already been applied by the Tribunal in relation to Primary Consideration One, no further adverse weight is applied by the Tribunal on account of Primary Consideration Two.

9. Primary Consideration (3), Strength nature and duration of ties to Australia: The Tribunal considers that some weight attaches to Primary consideration (3) in favour of revoking the visa cancellation decision.

10. Primary Consideration (4), Best interests of minor children: The Tribunal considers that some weight attaches to this Primary Consideration in favour of revoking the visa cancellation decision.

11. Primary Consideration (5), Expectations of the Australian community: The Tribunal considers that this consideration weighs heavily against revocation of the visa cancellation decision.

12. Other Consideration (a), Legal consequences of the decision: The Tribunal determines that this consideration weighs neutrally.

13. Other Consideration (b), Extent of impediments if removed: The Tribunal considers that only limited weight attaches to this consideration, in favour of revocation of the visa cancellation.

14. Other Consideration (c), Impact on victims: This consideration weighs neutrally;

15. Other Consideration (d), Impact on Australian business interests: This ‘other’ consideration now weighs neutrally.

    DECISION

16. In light of the foregoing enunciation of reasons for decision and now pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 June 2023 to not revoke the cancellation of the Applicant's visa.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

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

Associate

Dated: 5 December 2023

Date of hearing:	4 September 2023
Applicant	Self-represented litigant
Solicitor for the Respondent:	Ms Elle Tattersall (Special Counsel)
Sparke Helmore Lawyers

ANNEXURE A

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents	R	-	07 July 2023
2	Supplementary G Documents ‘Tender Bundle’	R	-	18 August 2023
3	Respondent’s Statement of Facts, Issues and Contentions	R	18 August 2023	18 August 2023
4	Applicant’s Statement	A	24 July 2023	24 July 2023