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

JRVP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 218 (5 February 2024)
Division:GENERAL DIVISION
File Number: 2023/8401
Re:JRVP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of Decision: 5 February 2024
Date of Reasons: 19 February 2024
Place:Brisbane

On 5 February 2024 the decision under review was affirmed with written reasons to be provided within a reasonable period.
..................[SGD]...................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – long history of offending including violent offences and family violence – limited rehabilitation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
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
Senior Member R Bellamy
19 February 2024

The Applicant is a 52 year old citizen of New Zealand who came to Australia in 1980 when he was nearly eight years old. He has an extensive criminal record that includes violent offences, contraventions of domestic violence orders and serious driving offences. The most recent visa held by him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”). His visa was recently cancelled on character grounds. He has asked the Tribunal to revoke that cancellation.
SOME PRELIMINARY MATTERS
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In February 2023, the Applicant was sentenced to imprisonment for two years and six months for unlawful stalking. While serving that sentence, a delegate of the Minister (“the Respondent”) cancelled his visa, as the legislation required, because he did not pass the character test and he was serving a full-time custodial sentence.
The Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Respondent decided not to revoke the cancellation and the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act. As the Applicant does not pass the character test, the sole issue for determination is whether there is another reason why the cancellation should be revoked. If there is, I should set aside the original decision.[1]
[1] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place in person on 17 and 18 January 2024. The Applicant did not have legal representation. However, he had some supporters in the hearing room. Two of those supporters, Eddy and Marie (as they wished to be addressed), assisted him by helping him locate relevant documentary evidence, questioning witnesses and making submissions. The Applicant and his mother gave evidence. I am grateful to Ms Ho, who represented the Respondent, for the assistance she provided to the Applicant and the Tribunal.
The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. The evidence includes the revocation request and written submissions made on behalf of the Applicant. The Applicant’s mother completed the revocation request and a fellow detainee called John wrote the submissions. The Applicant said the contents of these documents reflect what he wanted to say. However, he also said his mother included information that was not known to him. Further, it became apparent in the hearing that John had included information that did not come from the Applicant. For example, the submission complained that there is not enough research into how ethnic make-up could determine the possible causes of cancer. The Applicant was unable to explain or elaborate upon that in the hearing. For that reason, I have given precedence to the evidence given by the Applicant in the hearing over the contents of these documents.
The police provided records, under summons, of protection orders that were made against the Applicant. These are heavily redacted to conceal the names of the persons whom the orders were made to protect. In most instances, it was possible to deduce the identity of the protected persons with reference to other information in the records or other evidence, including the Applicant’s oral evidence.
In this decision, I have used pseudonyms to protect the identities of victims of family violence and children who are the subject of family court orders. I have provided some information without the usual level of detail for the same reason.
During the hearing, the Applicant denied offences, or facets of offences, of which he had been found guilty by a criminal court. Where, in the context of the mandatory cancellation of a visa on character grounds, the Tribunal is invited to make a finding of fact that is contrary to a finding made by a court exercising criminal jurisdiction, HZCP v Minister for Immigration and Border Protection[2] applies. The Tribunal is not permitted to make a finding that is contrary to an essential finding made by a court that enlivened the decision-maker’s jurisdiction. Such findings would relate to the facts and circumstances essential to establish guilt and inform the appropriate penalty. The Tribunal is therefore bound to accept the essential findings made by Clarke J in February 2023, when he convicted and passed sentence on the Applicant, because that conviction and sentence provided the basis for the mandatory cancellation of the Applicant’s visa, which ultimately led to the reviewable decision. With respect to other offending, the Tribunal should exercise extreme caution in making any findings contrary to the essential findings made by the courts: a heavy onus of proof applies.
[2] [2019] FCAFC 202.
There were some allegations that did not result in charges, and some charges that were not pursued. The Applicant denied some of these in the hearing. The allegations are contained in contemporaneous police records that were based on accounts given to the police and observations made by the police. There was no evidence before me suggesting that the police who created those records had reason to record anything other than what they were told and what they witnessed. Some information was provided to the police by people who did not know the Applicant, and therefore presumably had no reason to make false allegations against him. Some information was provided by current and former partners who, according to the Applicant, were illicit drug users. I accept as a general proposition that sometimes people in tumultuous relationships may make false allegations and it is something to keep in mind when assessing this evidence. Some information was provided to the police by the Applicant’s mother who later denied having given the information. None of the other people who made allegations gave evidence in this proceeding, and it would have been impractical and inefficient for that to have occurred. It was not necessary to make a finding with respect to some of the unproven allegations, so I refrained from doing so. However, I have made findings beyond what was proven or admitted to by the Applicant in relation to three offences against a particular victim, Alana, and some offending involving the Applicant’s mother and explained my reasons.
Following the hearing, I was provided with a transcript of the sound recording of the hearing. The transcript contains some errors. The sound recording, and these written reasons, provide a more accurate record than the transcript.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia. Being able to 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.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa 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.
·Australia generally may afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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.
·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 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) 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 five Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence;
(3)strength, nature and duration of ties to Australia;
(4)best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa.
BACKGROUND
The Applicant was born in 1972 in New Zealand. In 1980, just before his eighth birthday, he first came to Australia. I accept his evidence that he had a violent upbringing. which he said was normal for “the time and the town”.[3] He was educated to Year 8, and left school at age 15 or 16 to do a motor mechanic apprenticeship and help look after his younger step-siblings.
[3] Exhibit A1, Applicant’s Clinical Record, page 26.
The Applicant has a lengthy history of criminal offending and traffic infringements. It is unnecessary to mention all of his convictions: I have left out matters such as failure to appear in accordance with bail undertakings and unlicensed driving.
At the age of 17, he was convicted of a couple of drugs offences (with the convictions being recorded) in the Children’s Court. The following year he was caught driving disqualified and driving with smooth tyres. He received fines, and a good behaviour bond with supervision for three years. He appealed against the conviction for disqualified driving. He did not succeed but his sentence was altered.
The Applicant was a heavy drinker, mostly consuming alcohol on weekends, between 1990 (age 18) and 2022. He recently told a psychiatrist in immigration detention that he tried cannabis as a teenager but did not like it. However, there is evidence that he cultivated it in 2009. He also told the psychiatrist that he might have tried amphetamines once at a party but did not engage in regular use.[4] This too, was not correct. He used methamphetamine over several years and only stopped when he was most recently incarcerated in June 2022.
[4] Exhibit A1, Applicant’s Clinical Record, page 68.
Between April 1991 (aged 19) and August 1995, the Applicant lived in New Zealand before returning to Australia.[5]
[5] Exhibit G, G Documents, G2, pages 194 to 196.
In April 1996, the Applicant was fined and his license was disqualified for a month for low range drink driving. He was caught drink driving twice more that year and convicted and punished accordingly. He unsuccessfully appealed against one of those convictions.
In March 1998 the Applicant moved back to New Zealand, although he occasionally visited Australia for short periods. In late 2002, he returned to Australia. In 2005, the Applicant spent several months in New Zealand before returning to Australia.[6] On 7 December 2005, on his flight back to Australia, he completed an Incoming Passenger Card. In response to the question “Do you have any criminal convictions”, he marked the “No” box.[7] In the hearing, the Applicant said he was drinking on the plane and misinterpreted the question, thinking it was asking about his New Zealand history.[8] However, there is nothing in the wording of the question, or the card in general, to suggest the question was limited in that way. The most favourable interpretation for the Applicant is that he answered the question carelessly.
[6] Exhibit G, G Documents, G2, pages 194 to 196.
[7] Exhibit G, G Documents, G2, page 61.
[8] Transcript, page 17, lines 9 to 13.
In October 2006, the Applicant found his girlfriend (the victim) naked in bed with another man. A fight between the men ensued. The Applicant smashed the victim’s car, forced his way back inside the unit and spat in his girlfriend’s face, then fought the man again.[9] In the hearing, the Applicant recalled that the other man had told him he should not be there which had outraged him and he lost his temper. He said the car window was damaged accidentally when the fight moved outside. He said he could not recall spitting in his girlfriend’s face, and he never saw her again except when he returned to repair the front door and fix the car. The Applicant was later fined for common assault and two offences of wilful damage. This is significant because it occurred before the Applicant underwent chemotherapy which he claims made him prone to angry outbursts.
[9] Exhibit R2, Supplementary G Documents, SG5, page 16.
In 2008, the Applicant was diagnosed with testicular cancer. He had one testicle removed and underwent chemotherapy until 2010. During this time, his girlfriend at the time was pregnant, but the relationship broke up before the child was born.
In January 2009, the Applicant had twins by a different girlfriend, Alana, who was 18 years old at the time. The Applicant was 36 years old. The Applicant did not observe that Alana had any substance abuse or mental health problems at the time. They lived together in his mechanic’s workshop but after she had their twin babies (I will refer to them as “the twins”), she and the twins moved in with her parents.
In December 2009, the Applicant was caught under the influence of alcohol in the passenger seat of a vehicle that Alana was driving on her learner’s permit. The car was unregistered and uninsured.
According to the Applicant, for three years after having chemotherapy, he was still sick, and his memory has never really been the same since. He was not able to work, so he lost his business. He also thinks that he became quite aggressive after the chemotherapy and would “fly off the handle”.[10] After losing his business, he worked for another business, making motorbikes.
[10] Transcript, page 165, lines 28 to 43.
In August 2010, the police received information that the Applicant was asking about acquiring two 9mm handguns for personal protection because people were “after him”. An undercover officer met with him and agreed to supply the guns. He was then arrested, and the police found the agreed amount of cash in his vehicle. They searched his home and found:
·     a Glock pistol magazine;
·     a box of ammunition;
·     glass pipe for smoking of amphetamines; and
·     12 cannabis plants in a sophisticated atmospherically controlled room.[11]
[11] Exhibit R2, Supplementary G Documents , SG9, pages 36 to 37.
The police report noted that the Applicant was living there with his girlfriend and his two children, but in the hearing he denied this, claiming it only looked like children lived there because he had bought cots in preparation for the twins spending time there.
In November 2010, the Applicant was fined for several offences arising from this episode, including for possession of weapons and ammunition. In the hearing, the Applicant denied that there was a pistol magazine or ammunition at his home. He also initially said his friend had guns “on him” and he said he would have a look. He later admitted that he had tried to get the guns. He said he found out that customers of the business he worked for were members of an Outlaw Motorcycle Gang (“OMCG”) so he stopped working for that business. The OMCG then took items of his property and he was afraid of what else they would do to him.[12]
[12] Transcript, pages 24 to 28.

I am satisfied that the Applicant tried to buy two handguns illegally. If it is true that he thought outlaw bikies were after him, it is extremely concerning that he was planning to have his children stay at his home. He claimed that the marijuana was for his own use as the chemotherapy was hard on him, however, this explanation is not contained in the police report.
In August and September 2012, there had been some trouble between the Applicant and his mother, although the details are not known to me. On 27 August 2012, a Domestic Violence Order (DVO) was made against him, and it was varied on 23 September 2012. The conditions included that he was prohibited from remaining on his mother’s premises.[13] The varied order was served on the Applicant around 12.30pm on 9 October 2012. Around an hour later, he contravened the order by going to her home. She was not home, but someone else was, and they told the Applicant that he was not supposed to be there. He was unconcerned. He “nailed up” the garage, preventing anyone else from accessing the garage and he said “If I see my mother, I’m going to kill her.”[14]
[13] Exhibit R2, Supplementary G Documents, SG10, page 157.
[14] Exhibit R2, Supplementary G Documents, SG9, page 55.
In the hearing, he said his mother got the DVO because they had an argument, and that he had attended the house because she threatened to put all his things, including a valuable collectable car, onto her driveway and he thought the car would be stolen quickly. He said he had nowhere else to store the vehicle. He did not think to ask the police to assist him to store it in circumstances where there was a DVO.[15]
[15] Transcript, page 35.
At around 5pm that day, the police tried to arrest the Applicant after Alana reported that he had been violent to her. He reacted in a hostile manner and adopted an angry demeanour. He verbally abused and swore at the police. He resisted their efforts to arrest him. In a recorded interview, he said he knew he was not supposed to be at his mother’s house but he had nowhere else to go.[16] He was subsequently fined for “assault or obstruct police officer”.
[16] Exhibit R2, Supplementary G Documents, SG9, page 55.
Alana had made several reports to the police on 9 October 2012. The earliest in time related to an incident she said occurred in March 2012. The police report indicated that the Applicant had slapped Alana in the head and pinned her onto the lounge room couch, pressing his elbow hard against her chest. She struggled and screamed for help. He continued to try and force her down, yelling abuse at her. She slid off the couch, onto the floor and tried to run and hide in the bathroom. He chased after her with a baseball bat, raised it high in the air over her head, but he was interrupted by neighbours knocking at the front door to assist her. The Applicant’s mother later took Alana to a medical centre, where she was treated for a large bruise on her chest and a large lump on her head. She also underwent precautionary brain scans.[17]
[17] Exhibit R2, Supplementary G Documents, SG9, pages 48 and 49.
The Applicant was not charged in relation to this report. However, he was charged and convicted of public nuisance for conduct he engaged in immediately afterwards that resulted in police attending. The Applicant had taken the baseball bat outside and hit the windscreen of the car he shared with Alana several times. When neighbours gathered on their front lawns, he yelled “What the fuck are youse (sic) looking at” and “Fuck off back inside you cunts or [you’re] next”, and he continued to yell obscenities before leaving. The police arrived after he had gone.[18] A DVO was made two days later. It included two children (presumably the twins) and four other people as protected people.[19]
[18] Exhibit R2, Supplementary G Documents, SG9, pages 48 and 49.
[19] Exhibit R2, Supplementary G Documents, SG10, pages 157 and 158
When the police spoke with the Applicant, he denied having assaulted Alana and claimed he smashed the windscreen of the car to stop her from driving the vehicle.[20] In the hearing, he said he was out of control and did not recall Alana being injured. He said he and Alana were living together but she was leaving him. He did not want her driving with the children in the car because she had been drinking, so he smashed the windscreen.[21] There is no evidence to corroborate his claim that Alana had been drinking. I do not accept that he smashed the windscreen for noble reasons.
[20] Exhibit R2, Supplementary G Documents, SG9, pages 48 and 49.
[21] Transcript, page 31.
In the hearing, the Applicant indicated that he did not consider hitting the car with the baseball bat to be threatening behaviour. He said:
“I don’t see it as threatening behaviour…I didn’t hit anybody with it. Like, threatening behaviour to me would be whacking them with the baseball bat. Smashing the car window, I look at it as something different as I was trying to stop her from driving and put the kids in the car because of the situation”.[22]
[22] Transcript, page 106, lines 5 to 20.
The Applicant was asked “Did you say before that threatening – that threatening behaviour would be hitting her with a baseball bat?” to which he replied “That’s how I would see it”.[23] When asked “that’s more than a threat, though, isn’t it? That’s actually carrying out an assault?”, he indicated that back then he thought differently.[24] However, his earlier evidence clearly referred to his beliefs now, so I think he changed his evidence when pressed on the issue. I am satisfied that his initial evidence reflects his current attitude.
[23] Transcript, page 106, lines 5 to 20.
[24] Transcript, page 106, lines 21 to 25.
The next report was that on a date between 1 July 2012 and 8 October 2012, the family were staying with the Applicant’s mother. The Applicant punched Alana in the head, causing her to fall back onto the bed. She suffered a seizure and lost consciousness. His mother came to check on her and saw the Applicant standing over her with his hands around her throat yelling “You’re faking it, you stupid bitch, you’re faking it.” His mother pushed him away and called an ambulance. When Alana regained consciousness, she refused to go to the hospital for fear that the police would be contacted and the Applicant would get into trouble. The report noted that Alana was terrified of the Applicant.[25] The Applicant was not charged in relation to this incident, which is consistent with Alana not wanting any action taken. When this alleged incident was put to the Applicant in the hearing, he said “I’m not too sure about that one”.[26]
[25] Exhibit R2, Supplementary G Documents, SG9, page 49.
[26] Transcript, page 33, lines 4 to 5.
Alana also reported that between 1 September and 8 October 2012, she was inside, going to the front door to let her mother and the twins inside. The Applicant pushed her against the door, threw her onto the couch and punched her three or four times causing her mouth to bleed and her face to become numb. He then said “Go and clean yourself up before the kids come in.” She went to the bathroom and stayed there for a while, waiting for the Applicant to calm down. She was afraid to report this to the police. Nor did she tell her mother because the Applicant had given her a black eye before and she did not want her to know what had happened. When the police were interviewing the Applicant, before they got to this particular matter, he became irate and terminated the interview.[27]
[27] Exhibit R2, Supplementary G Documents, SG9, pages 49 and 50.
In the hearing, the Applicant said Alana tackled him, they got into a little scuffle, they both went over onto the couch, he landed on her, and he saw she had a bleeding lip.[28]
[28] Transcript, page 33, line 40 to page 34, line 2.
Alana’s final report was that on 8 October 2012, while in the process of moving to her own place, she put the twins into their child car seats and the Applicant started abusing her, saying she should not take the children away. He called her “bitch” and “slut”. She said she needed fuel money to get home. The Applicant threw coins at her through the open car window. She said “How am I going to find the money now?” and started to reverse the vehicle out of the driveway. The Applicant yelled “Smartarse Cunt”, leaned through the window, and punched her in the stomach and head. She suffered a seizure and lost consciousness. This was witnessed by the children. The Applicant’s mother pulled Alana out of the car and laid her down on the driveway until an ambulance arrived. Alana was so terrified of the Applicant that when the police met her at the hospital to obtain a statement, she refused to make one. It appears she changed her mind a little later. When questioned about this, the Applicant admitted to the police that he yelled but he denied having assaulted her.[29]
[29] Exhibit R2, Supplementary G Documents, SG9, pages 50 and 51.
The DVO was varied on 11 October 2012 to add conditions that essentially prohibited the Applicant from going anywhere near Alana and the other protected persons. The Applicant was present in court when the order was varied, and the Magistrate explained it to him.[30]
[30] Exhibit R2, Supplementary G Documents, SG10, pages 156 to 157.
In the hearing, the Applicant admitted to having yelled and thrown coins. He said he was drunk but he acted more from anger than alcohol. In November 2013, he was convicted of assaults occasioning bodily harm. There is no allegation that the coins injured Alana. Accordingly, I am satisfied that the court accepted that the Applicant had punched Alana. I give the court’s finding more weight than the Applicant’s denial.
I now turn to consider whether I accept the three allegations made by Alana that resulted in charges which appear to have been dropped later. They all involved the Applicant hitting her. This is not uncharacteristic behaviour: it is established that he hit her on 8 October 2012. In relation to two of the incidents, Alana gave the police the names of witnesses, being her two neighbours and the Applicant’s own mother. It would seem unusual to put these witnesses forward if the allegations were false. In one alleged incident she had a bleeding lip, and the Applicant did not deny that. Her explanation for how she came to have a bleeding lip seems more plausible than his. Moreover, the Applicant’s attack on the car, verbal abuse of witnesses, and his tantrum when being interviewed by the police indicate a severe lack of self-control in the period in which the alleged assaults occurred. It is well known that the fact that a charge is dropped does not mean there was no substance to it: there could have been other reasons. Considering all the evidence, I think it more likely than not that the Applicant did physically assault Alana as described in the police reports.
On 30 December 2013, the Applicant contravened the DVO relating to Alana by attending at her front door. She refused to co-operate with the police on this occasion. The Applicant told the police that he was only there to see his children and he refuted the terms of the DVO. He was subsequently found guilty and released without penalty or the recording of a conviction.
From 2014 to 2020, the Applicant worked as a mechanic until his employer closed the business.
In March 2014, the DVO relating to Alana expired and she and the Applicant started living together. A police report indicates that in June 2014, Alana’s father had accompanied her home to get some clothes for her children and he stood outside to make sure the Applicant did not hurt her. Upon the Applicant seeing her father, he became enraged and tried to attack him. Alana intervened to protect her father and she got hurt. A neighbour called the police and later told the police that Tara’s father seemed afraid of the Applicant and Alana seemed concerned about the children in the car.[31] No charges resulted from this incident, but a temporary DVO was made.[32] Following the issuing of the temporary DVO, a DVO was subsequently made that was to operate until July 2016.[33]
[31] Exhibit R2, Supplementary G Documents, SG6, pages 20 to 21.
[32] Exhibit R2, Supplementary G Documents, SG10, pages 158 to 159.
[33] Exhibit R2, Supplementary G Documents, SG10, pages 153 to 156.
In the hearing, the Applicant claimed that Alana’s father was “getting smart to me, and stuff. He knew that I’d explode. So I did, basically”. He said that he got into an altercation, Alana jumped on him and he pushed her off, then went after her father. Her father fell over, got up and ran. There were other allegations in the police report which the Applicant denied.[34]
[34] Transcript, page 39 to page 40, line 30 to line 34.
On 1 December 2015, the Applicant went overseas with the intention of working on a boat for around 10 months. However, his mother contacted him and told him to come home and look after the twins. According to her evidence, she saw a news report showing the twins roaming the streets in a poor condition, looking for food. She contacted child welfare and took the children into her care. At first, the children lived with her and her partner in Town M where she had previously relocated. She thinks the twins were five years old at the time but other evidence suggests they were seven. She recalled wanting to know where the Applicant was and being told by a friend that he had gone to Egypt. She asked him to come back, and he moved to Town M and lived with her and the twins.
The Applicant claimed that the department in charge of child welfare had been trying to take the children from Alana because she did not have a stable home and was “running from house to house”. The police raided her house and found a meth lab there. He said her boyfriend was abusive to the children without specifying how. He said he told his mother “We need to take these kids back, you know, and give them a proper life. This is not how I want my kids to be brought up”. His mother then collected the children from Alana and got a DVO against her. It is not apparent why the Applicant went overseas with the intention of being away for 10 months in these circumstances.
When the Applicant returned to Australia on 8 December 2015, he again indicated on an Incoming Passenger Card that he did not have any criminal convictions.[35] In relation to that, he said “I don’t know what I was thinking. I really don’t”.[36] His mother said he is dyslexic “and he’d put the wrong thing down no matter what”.[37] However, he answered many questions on the card such as those relating to his personal details and the number of his flight, so I do not accept that dyslexia had anything to do with it.
[35] Exhibit G, G Documents, G2, page 157.
[36] Transcript, pages 46, lines 24 to 25.
[37] Transcript, page 186, lines 15 to 23.
In March 2016, the Applicant took the children to see Alana’s parents. Later, according to police records, Alana arrived and there was an argument about custody issues. The police were of the view that the Applicant had breached the order by inviting Alana over to visit the children. The Applicant told the police that he thought the DVO had expired.[38] He was subsequently convicted and fined for breaching the order.
[38] Exhibit R2, Supplementary G Documents, SG9, page 80.
In the hearing, the Applicant claimed he had a letter from Alana’s parents stating that he could attend their house (where Alana no longer lived) as long as Alana was not there. Alana and her boyfriend arrived while he was there and used their vehicle to block him in. He thought her boyfriend was going to bash him, so he asked her sister to call the police. However, the police facts do not mention a letter or Alana’s boyfriend blocking him in or threatening him. Further, he would not have thought he needed a letter if he thought the DVO had expired, so what he told the Tribunal is not consistent with what he told the police.
In December 2016, the Applicant engaged in the dangerous operation of a motor vehicle. The police report indicates that he accelerated, spinning the wheels, roaring past a witness who was preparing to drive out of his driveway with his three children in the car. The witness beeped his horn. The Applicant beeped back, continued on, turned around and sped back along the street revving his engine, travelling at what several witnesses described as between 80 and 90 km/h in a 50km/h zone. Maintaining that speed, he drove past the front of the witness’s vehicle, missing it by about 1.5 metres, swerved into an intersection and pulled the handbrake which caused the vehicle to slide for around 7 meters into the intersection. He did a 180 degree turn whilst sliding and ended up facing back the way he had come from, with smoke coming from the tyres. He was revving his engine loudly and he took off again spinning his wheels. Witnesses said that when he slid into the intersection, there were four young girls with scooters close by and that it was incredibly dangerous as he could have easily slid into them at the speed he was travelling.[39] The Applicant later pleaded guilty to dangerous operation of a vehicle.
[39] Exhibit R2, Supplementary G Documents, SG9, page 84.
In the hearing, the Applicant said Alana had come to see the children and that they had an argument. He was angry and outraged, and he went driving to try to calm down. When the witness beeped at him, he became annoyed and decided to annoy the witness. He denied having made his tyres smoke. He said the girls were nowhere near him as they were about 10-20 meters behind him.[40] As the police account is based on what several eye witnesses reported, I find it to be more reliable than the Applicant’s account.
[40] Transcript, page 48.
It is extremely concerning that the Applicant sought to downplay the seriousness of this behaviour, and he did not seem contrite or ashamed when discussing it in the Tribunal. It is also concerning that he deliberately drove the way he did on a public road in order to calm down, effectively making his psychological discomfort into a safety hazard for the general public.
According to a police report on 16 January 2017, the Applicant had an argument with his mother after she refused to let him borrow her car. He kicked and punched the front sliding door screen causing it to come off the frame, and he repeatedly punched the fridge, causing dents. He picked up a chair which was on the verandah, threw it, then turned and shouted, “You’re next”. She tried to leave the address and the Applicant shouted “I hate you, I hate you, I hate you, you are a fucking cunt, you’re a fucking dog”. He approached her in an aggressive manner yelling “I should just hit you” and “You are lucky I don’t just smash you”. She fled, fearing for her safety but did not initially contact the police through fear of what the Applicant would do.
The following day, the Applicant entered his mother’s place of work, behaving aggressively, making her feel fearful and alarmed. The Applicant left and went to her home. He made such a disturbance, shouting and swearing, that a neighbour contacted her. She then spoke with the police. They went to her home and upon arrival could hear the Applicant inside. They took up with him and he was extremely aggressive. He squared up to the police in a highly aggressive manner and approached them with both fists clenched shouting “Fuck off” repeatedly. He finally complied when threatened with a taser.
The Applicant’s mother told the police that she was terrified of what the Applicant would do to her and his two children who were in her custody. She described him as a physically intimidating person and said she had moved to Town M to escape from him as he had been physically abusive to her in the past.[41]
[41] Exhibit R2, Supplementary G Documents, SG9, pages 88 and 92; Exhibit R2, Supplementary G Documents, SG7, page 23.
That day a temporary DVO was made against the Applicant and a subsequent DVO was made a few days later.[42] On 27 January 2017, the Applicant was convicted of “wilful damage - domestic violence offence” and “assault or obstruct police officer”. He was put on probation for nine months.
[42] Exhibit R2, Supplementary G Documents, SG10, pages 152 to 153.

In the hearing, the Applicant said he lived with his mother at the time, and that he was very drunk and was shocked when the police entered the house. He told them to “F off” and that he was not coming out. They then opened the back door with the keys and walked in. He was only aggressive when they were outside and he was inside.[43] This is not consistent with the police account of what happened. He also claimed that his mother has never been afraid of him.
[43] Transcript, page 51, lines 10 to 20.
The Applicant’s mother too said she has never been afraid of the Applicant. She said she attended the police station because she did not like the people the Applicant was associating with. She felt he was getting out of control with his bad temper. She made a complaint and gave them the keys to her house. She recalled the police asking her if she was afraid of the Applicant and she claimed to have told them she was not. She considers that she overreacted. Also, the Applicant was stressed because her partner had suffered a heart attack and they were close. She said the Applicant was asleep and he woke up with four police around his bed, shaking him. She denied having moved to Town M to get away from him, claiming she moved there to be with her partner. When asked if the Applicant had said anything to her that was upsetting during the incident, she said she could not remember.[44]
[44] Transcript page 174, line 44 to page 175, line 5; page 175, line 43 to page 176, line 40; page 184, lines 22 to 30.
The Applicant’s mother was not there and her account of what occurred when the police arrived differs from the Applicant’s account and the police account. Her claim that she was not afraid of the Applicant also differs markedly from the police account which is detailed and ostensibly based on what she told them at the time.
Even though the Applicant’s mother gave this evidence under affirmation, and she had previously put forward a similar narrative after his visa was cancelled for the first time in 2017, I do not accept it. She has a vested interest in the Applicant remaining in Australia, and it is natural for any loving mother, which I believe she is, to be sympathetic to their child and give them the benefit of the doubt. While she may believe the Applicant behaved the way he did because, in the context of her partner’s heart attack, she overreacted and the police took the Applicant by surprise, the objective facts do not support this. She merely argued with the Applicant and reported highly aggressive behaviour. The police warned the Applicant before entering his home. The only person who overreacted was the Applicant. I prefer the contemporaneous police records over the Applicant’s mother’s evidence in relation to this event. I find that the Applicant’s behaviour on this occasion caused his mother to feel afraid.
In March 2017, the Applicant’s mother’s partner passed away.
In May 2017, the Family Court made final orders that placed the twins in the care of the Applicant’s mother. One order required the Applicant to attend counselling and/or an anger management program.[45] The Applicant thought he had attended one or two sessions. He said the lady who conducted the sessions was leaving, so they gave him to someone else who could not deal with him as they were not suitably qualified for his case. He gave up after that. He believed that he did not have a problem.[46]
[45] Exhibit G, G Documents, G2, page 93.
[46] Transcript, page 151, line 21 to page 152, line 10.
According to a police report, in July 2017 the Applicant was caught driving with methamphetamine in his system. He gave evidence that he may have been using that drug at the time, and he attributed this to stress and being with Kerri, a former girlfriend.[47] However, he was not with Kerri until 2020. There is evidence that he was using methamphetamine throughout the period of 2017 to 2022,[48] although he claimed it was occasional, social use.
[47] Transcript, page 52, lines 3 to 17.
[48] Transcript, page 69, lines 33 to 34.
On 12 July 2017, the Respondent’s Department sent a notice to the Applicant warning that his visa might be cancelled under s 116(1)(e)(ii) of the Act on the basis that he may be a risk to the health or safety of an individual or individuals.[49] The notice made reference to several offences committed by the Applicant including his domestic violence offences, weapons offences, and offences against the police. It stated:
“Your past and current criminal conduct demonstrates a propensity for offences of a violent nature and the repetitive aspects of your behaviour indicates a disregard for Australian values and laws…As a result, it appears that your presence in Australia is or may be a risk to the safety of an individual”.
[49] Exhibit R2, Supplementary G Documents, SG1, pages 1 to 4.
On 27 July 2017, an email purporting to be from the Applicant, and copied to his mother’s email address, was sent to the Department, giving reasons why his visa should not be cancelled.[50] Those reasons included:
“I don’t believe that I am a danger to anyone, as my mother over reacted in January, and gave the police the door key, as I was asleep I didn’t know what was happening at the time.
As I have been living with my mother since she broke her right hand in February.
As I have 2 children living in her care I have been helping her with the housework, cooking, taking 2 children to school and childrens sports.
In may she fell over going to work and broke her left hand in 3 places and had been in hospital got a metal plate and screws in there, she cannot work or do anything until sept/October.
So once again I have been doing everything for her.
I am not abusive to her, there are no problems, I do everything for her as she only has one hand again.
My 2 children depend on me they are only 8 and my mother has custody of them.”
(Errors in original)
[50] Exhibit R2, Supplementary G Documents, SG2, page 5.
The email attached a letter written by his mother that included:
“I’m not scared of JRVP. He has not been violent or abusive to me. Also it is my fault that the police came and arrested him when he was asleep and he didn’t know what was happening”.[51]
[51] Exhibit R2, Supplementary G Documents, SG2, page 7.
In early September 2017, another email was sent from the Applicant’s mother’s email address but purportedly from the Applicant, that included:
“…i have had to help look after my children by taking them to school and sports, doing housework cooking meals. My mother 3 months ago fell on the road going to work and broke her arm in 3 places and has had an operation and has a metal plate and screws inserted in her arm.
Being as my mother is 65 this year she needs my help with my 2 children as she has had custody for 2 years now and is going for legal custody”.[52]
(Errors in original)
[52] Exhibit R2, Supplementary G Documents, SG3, page 8.
Later in September 2017, the Applicant’s visa was cancelled. In the hearing he claimed to have thought his visa was cancelled because he completed an “immigration card” incorrectly[53], which I note occurred two years earlier and was not mentioned in the notice from the Department. He said he did not understand the letter he was sent. His mother also gave evidence that she thought the matter related to an arrivals card, referring to a meeting with a man who talked about the Applicant having filled in an arrivals card incorrectly.[54] The Applicant indicated that he had discussed the matter with his mother.[55] There was no mention of an arrivals card in any of the correspondence the Applicant and his mother sent in response to the notice.
[53] Transcript, page 53, lines 37 to 43.
[54] Transcript, page 186, lines 15 to 23.
[55] Transcript, page 53, line 45 to page 54, line 3.
The Applicant successfully appealed the cancellation of the visa in the Migration and Refugee Division of this Tribunal (“MRD”). He and his mother gave evidence in the hearing. His criminal history is set out in the reasons for that decision but there is no mention of an incoming passenger card.[56] When it was put to him that the first email he sent in response to the notice squarely addressed the stated reason why his visa was at risk of being cancelled and he was asked “So it really looks like you did know the reason for the visa cancellation?” he said “I suppose, yes”.[57]
[56] Exhibit G, G Documents, G2, pages 175 to 179.
[57] Transcript, page 114, lines 1 to 5.
In late April 2017, two laptop computers and an iPad were stolen from a school. In February 2018, one of the laptops was electronically tracked to the Applicant’s address, but by the time the police conducted a search, it was gone.[58] The Applicant and his mother gave somewhat inconsistent evidence about this, both claiming ignorance that the laptop was stolen, but suffice to say the Applicant was later found guilty of possessing property that may reasonably be suspected of being tainted property.[59]
[58] Exhibit R2, Supplementary G Documents, SG9, page 96.
[59] contrary to s252(1) of the Criminal Proceeds Confiscation Act 2002 (Qld)
On 5 June 2018, the Applicant was sentenced to two years of probation for that offence and for dangerous operation of a motor vehicle. He was ordered to submit to drug testing and do anger management counselling. A District Court Judge later described his non-compliance thus:
“You attended only two out of 10 appointments with the mental health, alcohol and other drugs service. You failed to attend urinalysis testing on 9 occasions. You tested positive to methamphetamines and amphetamines on five occasions. You failed to report on five occasions and you failed to engage with a domestic and family violence counselling, despite being referred to it.”[60]
[60] Per Allen J, at 14-18.
The Applicant’s reason for non-compliance was that he thought the anger management course was for dangerous driving and the drug testing was for the stolen laptop. He was outraged that he had to do drug testing for a stolen laptop that (according to him) he did not steal. He did not see the incongruity in his objection to being drug tested at a time when he was in fact using illicit drugs.[61]
[61] Transcript, pages 55 to 56.
The Applicant indicated that the organisation providing the anger management counselling passed him from one counsellor to another, then they decided he required someone more specialised in anger management, so he was passed on to someone else which involved a wait of around six months.[62] However, this was also what he said about the Family Court ordered counselling. He did not engage at all with counselling under the probation order. In relation to his failure to engage with the requirements of his probation, he said he was in denial and did not think he needed it.[63]
[62] Transcript, page 55, line 38 to page 56, line 7.
[63] Transcript, page 56, lines 19 to 29.
In October 2018, the cancellation of the Applicant’s visa was set-aside by the MRD. Per standard procedure, the Respondent’s department was not involved in the hearing. The MRD decision indicates that the Applicant blamed Alana for his offending: he said the relationship was highly dysfunctional owing to her mental health problems, and that his substance abuse and violence occurred in that context.
The Applicant’s mother described him as indispensable as she had a badly broken arm and was working full time. She was only able to work full time because the Applicant resided with her and shared the parental tasks. Surprisingly, when I asked the Applicant’s mother in the hearing if she recalled ever speaking with him after he got his visa back about behaving himself so he could continue to provide support to her and the children, she could not recall a conversation like that.[64]
[64] Transcript, page 186, lines 39 to 44.
I am satisfied that by the time of the MRD hearing, at the very latest, both the Applicant and his mother knew his visa had been cancelled because of criminal offending. However, the Applicant claimed that he did not come away from that experience thinking he had to behave himself. He still did not think he had a problem. When asked “And did you think at the time that without you in the household, there would be a negative impact on your kids, the twins?”, he answered “Without me there, they’re going to be growing up without a father and a mother...And they’d only had their grandmother in their life. And every child needs a parent”.[65] Yet he continued to offend.
[65] Transcript, pages 57 to 58.
After the MRD hearing, the Applicant commenced a relationship with Bella, who was around 20 or 21 years old. He was in his mid-late forties at the time. Bella moved in with him, in the downstairs section of his mother’s house. In March 2020, Bella gave birth to their child.
According to a police report, after Bella gave birth she moved away, fearing that the Applicant might follow her and take their baby. She had received numerous profane, abusive, threatening text messages from the Applicant up to the birth of the baby which caused fear and anxiety. She told the police about some previous instances of physical violence, none of which she reported at the time. The Applicant denied any violence and I will not take this further.
Bella also told the police that the Applicant used to verbally abused her, calling her c-nt, slut, junkie and fat and this escalated when she became pregnant. This was emotionally draining and upsetting.[66] The Applicant admitted that he sent Bella text messages with profanities, verbal abuse, and threats in them. He said that he did it because she was using methamphetamine while pregnant. He admitted that they both used drugs when they lived together, but claimed he stopped when he found out about the pregnancy, and he wanted her to stop too. He said he threw her out when she was five months pregnant and would not stop using methamphetamine. He admitted to having sent some of the abusive messages after he threw her out. He said he did not contact child welfare as he did not want the baby taken from Bella and that he was “trying to help”.[67]
[66] Exhibit R2, Supplementary G Documents, SG8, pages 25 to 26.
[67] Transcript, pages 60 to 62.
In April 2020, a police protection notice was issued to protect Bella from the Applicant. This was followed by a temporary DVO and then a DVO.[68] The Applicant claimed that the DVO was initially going to operate for 18 months but he asked for five years. He agreed that a DVO preventing him from having contact with Bella would effectively prevent him from having contact with his child.
[68] Exhibit R2, Supplementary G Documents, SG10, pages 146 to 147 and page 160.
By 31 August 2020, the Applicant was in another relationship, this time with a next-door neighbour, Kerri. That day, she had left her home and as she passed the Applicant’s driveway, he attempted to reverse his car into hers. He followed her and when she parked, he pulled up next to her. She told him to leave her alone and, as she attempted to turn right, his car collided with the driver’s side of her car. He then chased her, screeching his tyres, producing smoke, and driving dangerously close behind her vehicle. She was frightened and worried that he wanted to hurt her, so she drove with urgency to her relative’s house and parked on the front lawn. The Applicant arrived and punched her driver’s side door and windscreen yelling at her to open the door, saying threatening and abusive things to her. The police received 000 calls from her and others, and when they arrived, she was upset and crying. Her car had dents and scratches caused by the Applicant. When Allen J later sentenced the Applicant for this, His Honour said it was “obviously a distressing and terrifying course of events” for Kerri.[69]
[69] Exhibit R2, Supplementary G Documents, SG9, page 108.
A police protection notice was issued on 31 August 2020.[70] The Applicant was subsequently convicted of dangerous operate or interfere with vehicle and threatening violence – discharge firearms or other act.
[70] Exhibit R2, Supplementary G Documents, SG10, page 160.
The Applicant’s mother believed that Kerri was a drug user and told the Applicant early on that she did not approve of her drug use. She was not aware of the Applicant’s drug use. She once caught Kerri coming in the front gate and told her she was not welcome, and she did not come over after that.[71]
[71] Transcript, page 188, line 38 to page 189, line 10.
On 22 September 2020, the Applicant was caught in possession of dangerous drugs and drug related utensils.
On 24 September 2020, a temporary DVO was made against the Applicant, two days after a report of an incident between him and Kerri.[72] This was to remain in in force to 14 October 2025.[73]
[72] Exhibit R2, Supplementary G Documents, SG9, page 109.
[73] Exhibit R2, Supplementary G Documents, SG10, page 151.
At around 5am on 1 October 2020, Kerri was driving back to Town M from another town (“Town Y”). She ignored several phone calls from the Applicant. She then got a call from a friend telling her the Applicant was in his own vehicle on the side of the road behind a rock, waiting for her to drive past. When she travelled past, he waved at her indicating that she should stop. She kept driving. He followed and pulled in behind her vehicle. She stopped in front of a marked police wide load vehicle that was travelling in the same direction to let the Applicant go past her as she was afraid the Applicant wanted to hurt her. He drove past her yelling through his open window “I’ll come at you head on, you stupid slut”.
Kerri resumed driving and the Applicant later overtook her and braked suddenly, causing Kerri to fear she would crash into him. He continued this behaviour for several minutes until Kerri was able to overtake his vehicle and travel behind the police vehicle. The Applicant then sped up behind her and she feared that he would ram her car from behind. He overtook her again and applied the brakes aggressively. Kerri overtook him on an access road, and he then commenced overtaking her, so she pulled over completely to let him pass. He then moved his car to side swipe her as he passed. Kerri did a U-turn and drove to a nearby service station and contacted the police for assistance. She did not see the Applicant’s vehicle again.[74]
[74] Exhibit R2, Supplementary G Documents, SG9, page 109.
In the hearing, the Applicant denied this offending. He claimed he had been driving from Town M to Town Y and he had pulled over to decide whether to continue on to Town Y. Rather unconvincingly, he said he first did a U-turn before stopping to make his decision. This would explain why his car was facing Town M. Kerri happened to drive past while he was deciding. He decided not to continue to Town Y. He claimed he merely travelled along the same highway as Kerri and he overtook her. He denied having tried to ram or side-swipe her, having yelled at her or having slammed on the brakes. He rhetorically asked how she could have heard him yelling while travelling at 100km/ph. However, it was not alleged that they were travelling at that speed. The allegation was that Kerri was stopped when he yelled at her. He pointed to the police presence in support of his denial that he did anything wrong.[75] However, there could be explanations for the lack of intervention by the police who were tasked with escorting a wide load.
[75] Transcript, page 63, line 27 to page 65, line 38; page 92, line 12 to page 93, line 45.
The Applicant was convicted, following a guilty plea, of “dangerously operate or interfere with vehicle” essentially on the basis of the facts set out above. Allen J described this as “once again, a terrifying course of events for [Kerri] but one which carried with it a very real potential for serious injury or death to both [Kerri] and [the Applicant].”[76] In the Tribunal hearing, the Applicant claimed that he had told a Legal Aid lawyer that some of the allegations were not correct but he was told to plead guilty so he did. Given his previous rage induced dangerous driving, and the improbabilities in his account, I am not prepared to go against the court’s findings.
[76] Exhibit G, G Documents, G2, page 53.

On 21 October 2020, the Applicant went to a residence to collect money he claimed was owed to him. He kicked and hit the front screen door, and aggressively ripped the screen door off its hinges, destroying it. The Applicant later apologised to the victim and paid to have the door repaired.[77] He was later remanded in custody.
[77] Exhibit G, G Documents, G2, page 54.
While on remand, the Applicant arranged for associates to get Kerri to make a statutory declaration effectively withdrawing her allegations against him so he could get bail. According to the police report, Kerri found a handwritten unsigned note in her letterbox that said “Drop the Charges on JRVP or Lookout”. She also received messages from the Applicant’s mother and mutual acquittances to “drop the charges”. The Applicant’s mother went to her home and told her to get her ID as she had a Justice of the Peace (“JP”) booked for 5.30pm. She gave Kerri a statutory declaration to sign, which she did because she was scared. The police listened to the recordings of several phone calls between the Applicant and his mother in which he instructed her to obtain the statutory declaration for a bail application, and between the Applicant and associates in which he instructed them to help his mother locate Kerri to sign the statutory declaration.[78]
[78] Exhibit R2, Supplementary G Documents, SG9, pages 126 to 127.
In the hearing, the Applicant claimed that a friend, “Dan”, told him that Kerri wanted to make a statement, and he said “well, as long as she writes the truth then that’ll be right and I’ll be okay with it”. He denied having asked his mother to arrange for the statement to be done, saying “somehow my mum got involved by taking her down there when [Dan] was supposed to take down there”. He denied knowing anything about the note in the letterbox.[79]
[79] Transcript, page 98.
According to the Applicant’s mother, Dan telephoned her and said Kerri wanted to tell the truth. The Applicant then called her and said “You need to get [Kerri] or speak to her to tell the truth. She needs to tell the truth. [Kerri] needs to do a stat dec to tell the truth because she’s lying.” His mother replied, “I know she’s lying.”[80]
[80] Transcript, page 189, line 35 to page 191, line 16.
First, this account differs from the Applicant’s in which he denied having asked anything of his mother. Second, his mother said Kerri was lying even though all she knew of the allegations was “He chases her up the road, she chases him up the road. The police come. He gets arrested” and she had not witnessed any of it.[81]
[81] Ibid.
The Applicant’s mother said that she attended Kerri’s ’s property and Kerri said “I didn’t tell the truth. I need to put it right”. Kerri asked the Applicant’s mother to write the statutory declaration. After attending the JP, she told Kerri to take it to the police. However, Kerri came back saying “I’ve got my statement here because the police said if they take it, I’m going to go back to jail.” The police later accused the Applicant’s mother of having forced Kerri into her car, which she denied.[82]
[82] Ibid.
The Applicant said he pleaded guilty to attempting to pervert the course of justice because he could not get Legal Aid funding to contest the charge and he could not contest it without a lawyer. When asked why Dan did not make a statement exonerating him, he did not give a responsive answer.[83] When asked if he thought about getting the recordings to exonerate himself, he said that would have meant going to trial,[84] which seems an unlikely assumption to make especially given his extensive experience with the criminal justice system.
[83] Transcript, page 99, lines 1 to 5.
[84] Transcript, page 99.
Further, it would be surprising if the police made allegations that were not supported by the contents of tape recordings that were referred to in those very allegations. The accounts given by the Applicant and his mother are conflicting in key aspects. I am not prepared to go against the facts accepted by the District Court, which were that the Applicant enlisted the help of others, including his mother, to persuade Kerri to sign a statutory declaration that purported to exonerate him and express her desire that the charges not proceed, because she was scared and wanted to avoid further harassment and potential violence, having received threatening notes and phone calls.[85]
[85] Exhibit G, G Documents, G2, page 54.
While the Applicant was in gaol, he did some rehabilitative courses. Around the beginning of October 2021, he was released on bail after having spent 11 months on remand. He got a job at a Go Kart track, fixing Karts for free during the day and being paid to be a track marshal at night.[86] He took up this work after the business where he previously worked had closed.
[86] Exhibit G, G Documents, G2, p 84; transcript, page 38, lines 25 to 27.
On 8 October 2021, a temporary DVO was made by Kerri against the Applicant to remain in force until 11 November 2021.[87]
[87] Exhibit R2, Supplementary G Documents, SG10, pages 149 to 150.
On 5 November 2021, the Applicant, according to police records, stood on the footpath and in the front yard of Kerri’s home and screamed abusive statements including “lippy you cunt! You weren’t home last night”, “you haven’t been home for two nights”, “I bet you were out seeing other men, like you always are. but that’s right fuck JRVP”, “get fucked” and “dog”. He also told her not to come near him again. Kerri’s family, with whom she lived, contacted the police.[88] In the hearing, the Applicant said that he could not recall that.
[88] Exhibit R2, Supplementary G Documents, SG9, page 110.
A week later, the Applicant was convicted of contravening a DVO and fined $400. At that time, another DVO was made while the Applicant was in court. The order prohibited him from having any contact with Kerri or going near her, and it was to remain in force to 10 October 2026.[89] The Applicant was also remanded in custody, but it appears he was released soon after.
[89] Exhibit R2, Supplementary G Documents, SG10, page 149.
The revocation request, dated in 2023, indicated that the Applicant’s mother had a mild heart attack from stress “last year”,[90] presumably 2022. When asked about the mild heart attack, she said it happened the “first time [the Applicant] got arrested”, so it is unclear whether the heart attack occurred during the first or second extended period in custody. She said she had to work full-time to pay the bills and look after the twins and “ended up having a minor heart attack”. She now takes tablets and “can’t have any stress”. She also attributed the stress to the Applicant’s relationship with Kerri. She said even when the Applicant went to gaol, Kerri was still there and:
“at the time it was just so much stress. And when he got out of jail, it was very stressful because she would not stay away. She was turning up with bottles of bourbon and sending him emails, saying, ‘If you don’t go and buy me this two-point-something drugs, I’m going to go to the police and I’m going to tell them that you’re seeing me.’ She was a nightmare, and it was just so much stress”.[91]
[90] Exhibit G, G Documents, G2, page 82.
[91] Transcript, page 180.
Both the Applicant and his mother said they had asked the police for help, but the police did not do anything.
On 1 and 23 January 2022, the Applicant was caught drug driving.[92] He recalled having used methamphetamine in the days before 1 January 2022.[93]
[92] Exhibit R2, Supplementary G Documents, SG9, pages 130 and 134.
[93] Transcript, page 149, lines 32 to 45.
On 6 May 2022, the Applicant was convicted and sentenced by Allen J in the District Court for the offences committed between August and October 2020 as follows:
·Attempting to pervert justice – imprisonment for three years;
·Dangerously operate or interfere with vehicle, previous conviction against section (x 2) – imprisonment for two years;
·Threatening violence – discharge firearms or other act (x 2) – imprisonment for 12 months; and
·Wilful damage – imprisonment for six months.
This offending was later described by another District Court Judge as incredibly serious.[94] At the time, the Applicant had spent 338 days in pre-sentence custody (remand). All sentences were concurrent and suspended for three years. The Applicant claimed that, at the time, he did not realise how serious the three year suspended sentence was. He did not think he had a problem.[95] His mother said that just before the last period in gaol, the Applicant attended some counselling, tried to “get his act together” and was learning to control his anger. However, sometimes the counsellor did not show up as they had to come from a nearby town.[96]
[94] Clarke J at G2, page 49.
[95] Transcript, page 70, lines 15 to 30.
[96] Transcript, page 188, lines 14 to 23.
The Applicant almost immediately re-offended, contravening both the DVO and the good behaviour obligation of his suspended sentences. Between 16 May and 9 June 2022, he called Kerri multiple times. On 29 May 2022, Kerri awoke to see the Applicant standing at the foot of her bed. She yelled at him to leave and had to push him out. On 7 and 8 June 2022, the Applicant walked into Kerri’s front yard. He had also been sending her text messages asking where she was during the day, calling her a liar when she responded she was not home, and asking who was visiting her house and why certain doors were opened or closed. He threatened that he would “fuck her up” and told her to “watch out”, as well as calling her derogatory names such as a dog, a c-nt, a piece of sh-t, and a liar. He continued to message her after she told him she no longer wished to speak to him. On 11 June 2022, the police arrested the Applicant and remanded him in custody.[97] He denied having breached the DVO in any way.[98]
[97] Exhibit G, G Documents, G2, page 48.
[98] Exhibit R2, Supplementary G Documents, SG9, page 135.
In the hearing, the Applicant said he did not think his behaviour was stalking or wrong until he was charged. He was misled about Kerri’s intentions and thought they were getting back together. With respect to the messages, he said that Kerri used to talk to him like that and he was responding in kind. Several times he said he wished her texts were in evidence.[99] However, had Kerri sent abusive text messages to the Applicant, and there is not a hint of this in the police records or the court’s findings, it would mean that her behaviour was terrible, but it would not excuse his behaviour.
[99] Transcript, pages 71, 101 and 102.
On 28 February 2023, after having spent 262 days in pre-sentence custody, the Applicant was convicted of unlawful stalking and sentenced to imprisonment for two years and six months. In addition, the suspended sentenced was fully invoked. The sentences were ordered to be served cumulatively, with a parole release date of 1 May 2023. A further DVO was made against the Applicant, to operate until 28 February 2026.[100]
[100] Exhibit R2, Supplementary G Documents, SG10, page 146.
In passing sentence, Judge Clark said:
“…it seems abundantly clear to me that you are quite simply a perpetrator of domestic violence. It’s borne out by your past offending and your offending here. Your need to control your former domestic partner – to keep tabs on her; to dominate her; to threaten her; to coerce her; to control her; to cause fear to her; and to generally emotionally abuse her is self-evident.”[101]
[101] Exhibit G, G Documents, G2, page 47.
While in gaol, the Applicant was of good behaviour. He did mechanical work and taught other inmates. He has also been of good behaviour in immigration detention. His visa was cancelled in April 2023, and he entered immigration detention in June 2023.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to 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. I 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. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s criminal history spans over 30 years. His proven offending conduct and conduct to which he has admitted, includes:
·episodes of driving under the influence of drugs or alcohol;
·three episodes where the Applicant used his vehicle to menace and endanger another driver. In two of those, he targeted a former female partner (Kerri). In the third, he also endangered several children;
·two episodes of physical violence, including one against the mother of his children (Alana) in front of those children;
·an episode of attempted physical violence (against Alana’s father) in which a third party (Alana) got hurt trying to stop him;
·four episodes of damaging property, with verbal abuse and/or threats made on three of those occasions (including against his mother, Alana and bystanders);
·ongoing verbal abuse including threats, obscenities and derogatory names against two current or former female partners (Bella and Kerri);
·stalking;
·multiple contraventions of DVOs;
·two episodes of obstructive, aggressive, threatening behaviour towards police when performing their duty;
·possession of a firearm and ammunition, and an attempt to obtain two handguns;
·a dishonesty offence involving a stolen computer and an attempt to pervert the course of justice that involved the intimidation of a female victim of his crimes;
·cultivation and possession of cannabis; and
·possession of methamphetamine.
In addition to this, I am satisfied that on three occasions between March and October 2012, he violently attacked Alana.
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)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)…;
(ii)crimes committed against…government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)…;
(iv)…;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The violent offences, including the family violence, are very serious. The offences against the police are serious, as is the pattern of contravening DVOs. While most of the sentences imposed on the Applicant were lenient, he was finally sentenced to substantial (concurrent) periods of imprisonment in 2022 for attempting to pervert the course of justice, dangerous driving (x2) and wilful damage, indicating that the court considered this offending to be serious. In 2023, Clarke J ordered the Applicant to serve the suspended sentences and he imposed a substantial sentence of imprisonment for stalking.
The Applicant’s offending was reasonably frequent while he was living in the wider Australian community. I do not detect a trend of increasing seriousness as the Applicant has maintained a level of serious offending for many years. The cumulative effect of his repeated aggressive offending is that multiple members of the community and their family members have been terrorised and harmed. He has also placed quite a burden on police resources which have been diverted many times to deal with his behaviour and obtain protection orders for his victims. He has made it hard for the police to perform their functions by being threatening and obstructive, and by attempting to pervert the course of justice, which Allen J described as something that strikes at the heart of the justice system. In addition to the physical injuries suffered by the victims of the Applicant’s violence, it can readily be inferred that the victims of verbal or physical abuse suffered adverse psychological impacts.
The cumulative effect of the Applicant’s repeated driving offences is that road users and pedestrians have been exposed to increased risk of serious injury or death.
On two separate occasions, the Applicant provided false information on Incoming Passenger Cards by indicating that he did not have any convictions. The cancellation of the Applicant’s visa in 2017 served as a formal warning about the consequences of further offending on his immigration status, yet he continued to offend.
The Applicant’s offending behaviour over an extended period can be described as aggressive, intimidating, bullying, reckless and dishonest. Overall, it is very serious and attracts heavy weight against revocation of the cancellation of his visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Here, I 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.[102]
[102] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
The Applicant has been in custody since June 2022 (19 months) during which time there have not been any reported infractions. His good behaviour has occurred in environments where other people sometimes behave badly and there is stress and aggression around. However, there is also a high degree of structure and surveillance. Drugs and alcohol are not as easily accessed as they are in the wider community, and the Applicant does not have social access to females. When he was in the wider community, there was a well-established pattern of conduct whereby if he was displeased with someone, he reacted in a way that was, in the Respondent’s words, wildly disproportionate, violent, threatening, and aggressive. He was impervious to court orders, directions from the parole service, and rehabilitation courses. He was undeterred by the previous cancellation of his visa, an 11 month period of incarceration and a three year suspended sentence hanging over his head. In the hearing, he readily admitted that he blamed his victims and did not think he had a problem at the time.[103] He agreed with the proposition that he previously thought he was right about everything so he could do whatever he wanted.[104]
[103] For example, at transcript, page 88, lines 25 to 30.
[104] Transcript, page 150, lines 44 to 45.

The Applicant now claims to have reformed after having been “in denial” about his wrongdoing. In written submissions, he acknowledged that he has a problem, and he needs help. He expressed remorse for his offending and his “deepest apologies” for the pain and suffering he caused to Kerri and others. He accepted that he was abusive and controlling to Kerri, and he said “I take full responsibility for my behaviour” and that he is committed to seeking help and support to ensure that he never hurts anyone again.[105]
[105] Exhibit A3, Applicant’s Submissions – ‘Index of Relevant Material’, page 567 .
The catalyst for this change was, according to the Applicant, the most recent period in gaol where he did not consume alcohol and he did some rehabilitation courses. He referred to the effect his absence had on his family, his mother suffering a stroke from stress and him thinking she was going to die. The twins were getting into trouble at school, his daughter was crying on the phone, and he was unable to help his son with certain things. He said seeing them struggle made it “hit home”.[106]
[106] Transcript, page 112.
The Applicant’s mother did not suffer a stroke: she suffered a mild heart attack. The Applicant knew his family was struggling during the earlier period of imprisonment. His mother was working full-time in her late sixties, having suffered two broken wrists. She and his children were without his financial, practical, and emotional support. That did not lead him to reform. Accordingly, I am sceptical about his claim that the most recent period in custody has brought about an unprecedented change in attitude.
If the Applicant gets his visa back, he plans to live in Town M with his mother and children, support them, work in the mines and later work as a mechanic. Kerri no longer lives next door to the Applicant’s mother and the Applicant does not have any contact with her.
It was not disputed that alcohol consumption, anger and attitudes toward women were factors that contributed to the Applicant’s offending, although lack of respect for the law and unwillingness to hold himself to a decent standard of behaviour clearly played into it.
When not in custody, the Applicant is a heavy drinker.[107] According to him, on a Friday night in Town M, the whole town was at the pub, and it was normal for him to have 10 or 12 drinks “because everyone else is drinking probably more”.[108]
[107] Exhibit A1, Applicant’s Clinical Record, pages 1 to 109.
[108] Transcript, page 22, lines 23 to 38.
The Applicant engaged in some courses targeting violence and domestic violence in this recent period in custody. They include:
·Workplace Violence;
·Domestic Violence (8 hours); and
·Anger Management (5 hours).
He also engaged in a resilience program which he called “Think before you act”.
The Applicant has been doing drug and alcohol counselling in immigration detention. Further, he regularly attends the SMART Recovery program there. He claimed that he was not tempted by alcohol anymore. Given the lengthy period of abstinence in custody, I accept that. However, his consumption of alcohol had a social aspect to it. When it was put to him that one of main ways that people socialise in Town M is at the pub, and there is not much else going on, he said he hoped to work 10 out of 14 days in the mines so he would not be in town going to the pub like he used to. I accept that there is a zero-tolerance policy for alcohol and drugs in the mines and that this will act as a protective factor while he works there.
However, when it was suggested that being away for 10 out of 14 days would limit his ability to contribute around the house, he said he could either stay on site or come home. He will obviously have access to the pub when he does not stay on site.
I accept that the Applicant has not used methamphetamine since he was taken into custody. He will have access to it in the wider community, but he cannot get away with using it while working in the mines which is a protective factor.
The Applicant has arranged to attend counselling in the community to target drugs and alcohol, anger management and domestic violence. This is with the same service that he described as unreliable and not equipped to deal with him. I have some concerns about the availability of suitable counselling and the Applicant’s commitment to engaging with it.
The Applicant will rely on the support of his family and friends. However, these people were around him when he was offending. He put forward some character references from friends, family, and former employers. I accept, based on these character references, that he has some positive attributes including a good work ethic and willingness to help people in need. He is loved by his immediate family and liked by people in the community. However, his good qualities did not prevent him from offending.
The Applicant conceded that he needs more help with respect to relationships with women. He admitted that he does not have a clear understanding of a healthy relationship with a female partner and what it involves. He wants to learn more about healthy relationships.
The Applicant still has some ways to go in terms of understanding the significance of behaviour. For example, he thought smashing a car windscreen was not threatening behaviour and he downplayed the seriousness of some of his offending.
The submissions that were written by John mentioned the Applicant’s Māori heritage, so I asked the Applicant what he wished to say about that. His father, who was rather absent during his childhood and is now deceased, was Māori. His mother is not. The Applicant said it was embarrassing being a New Zealand Māori, not knowing what tribe he was from. He said other Māori people would “palm me off” because of it[109]. Members of his mother’s family shunned him because he was “black”. This caused anger to build up inside him. The Applicant has not done any counselling for this specific issue. When asked if it is something that could contribute to further offending, he simply indicated that he is determined to behave better.[110]
[109] Transcript, page 129.
[110] Transcript, page 130.
I am not satisfied that the limited amount of rehabilitative work the Applicant has done is enough to change entrenched behaviour. Nor am I confident that the awakening he claims to have had, and his commitment to change, will manifest in changed behaviour if he gets his visa back. I think there is at least a moderate risk that the Applicant will fall back into very familiar behaviour that includes family violence, generalised violence, and serious traffic offences, among other things.
The harm from more of this kind of offending includes serious physical harm or death to individuals in the community including intimate partners or former partners, possibly to road users or pedestrians, and serious psychological harm that is not confined to the immediate victims but is likely to affect members of their families.
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that 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.
I am not only to consider family violence that is the subject of a conviction. I am to consider information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, where the non-citizen has been afforded procedural fairness. Here I must take into account, relevantly:
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.
I have identified offences the Applicant committed against, or in the presence of, women and children. I have also identified allegations contained in independent, authoritative sources that I accept, having given the Applicant the opportunity to respond to those allegations and having considered the evidence put forward in response. I should point out that I do not consider that a contravention of a protection order is, of itself, family violence. It is the conduct that contravened the protection order that could constitute family violence. Where an act of family violence contravened a protection order, that adds to the seriousness of the conduct.
The Direction defines family violence to include violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful.
The Applicant’s mother is obviously a member of the Applicant’s family. He caused her to feel fear when he aggressively damaged property in her home and verbally abused and threatened her there.
The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
There is not enough information about the incident in 2006 to determine whether it qualified as an act of family violence.
The Applicant said Alana became pregnant on their first date. Therefore, she was not only in an intimate relationship with the Applicant, she was also the mother of his children from the outset. She later became his former partner, while remaining in his children’s life, albeit to a limited extent. I am satisfied that at all relevant times she was a member of his family. The Applicant committed multiple acts of family violence against her in which he caused her fear and physical injury. Their children witnessed at least one incident. Some of these acts of family violence were committed while there was a current DVO.
Alana’s father was, at the time, his defacto father-in-law and grandfather of his children. I am satisfied that he was a member of the Applicant’s family when the Applicant tried to attack him which caused him to feel fearful.
The Applicant verbally abused and threatened Bella who was pregnant with his child. I am satisfied that she was a member of his family and that his verbal abuse caused her fear.
Kerri and the Applicant never lived together but they were in a long-term on-and-off intimate relationship. He twice menaced her with his car, and he approached and verbally abused her, all of which caused her fear. His stalking activity caused her to be afraid inside her own home. In that sense, it was also coercive. I am satisfied that the Applicant committed several acts of family violence against Kerri while she was a member of his family.
The Applicant contravened protection orders time after time. Had he complied with them, much of the family violence would have been avoided.
As the Government’s concerns about family violence are proportionate to the seriousness of the family violence engaged in, I assess the Government’s concerns to be very substantial. Further, the acts of family violence were relatively frequent, being perpetrated against four women and one man over a 15-year period. I have addressed many of the matters relevant to this Primary Consideration under Primary Consideration 1, and I adopt that analysis here.
The Applicant did not fully accept responsibility for his acts of family violence, as he denied some of it. The Applicant has not demonstrated an understanding of the impact of his behaviour on his victims, including his children, beyond the superficial acknowledgement of the impact on Kerri that was included in the submissions written by John. While he has had some relevant treatment, he needs more.
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
I will address the remaining Primary Considerations out of order.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[111]
[111] Paragraph 8.4(1) of the Direction.
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 specific kinds including acts of family violence and the commission of crimes against government representatives in the performance of their duties. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community[112], although in this case, the Applicant does pose a risk of harm.
[112] Paragraph 8.4(3) of the Direction.
Paragraph 8.4(4) of the Direction provides the following guidance on how the expectations of the Australian community are to be determined:
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.
This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Applicant has repeatedly breached the expectations of the Australian community, despite the efforts of the justice system to contain and rehabilitate him. He has demonstrated contempt for court orders and a general lack of regard for the law and the safety of others. Some of his offending is very serious. He has committed acts of family violence and offended against police officers on duty. Giving him his visa back could well result in individuals in the community, likely women, being harmed.
The Applicant had a violent and somewhat difficult childhood, and he has experienced what he calls cultural alienation. This is unfortunate and goes some small way to explaining his unregulated aggression. However, he has had many years to address his issues in a healthy way, and the justice system provided opportunities and encouragement, yet he chose not to do that.
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here I am to consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I should also consider the strength, duration, and nature of any family or social links generally with persons in that category. I should give more weight to the Applicant’s ties to children in that category.
In addition, I should consider the strength, nature, and duration of any other ties the Applicant has to the Australian community. In particular, where a non-citizen has been ordinarily resident in Australia during and since their formative years, that warrants considerable weight in their favour regardless of when their offending commenced and the level of that offending. The length of time a non-citizen has resided in Australia should be given more weight if they have contributed positively to the Australian community in that time. Less weight should be given where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant lived in Australia from 1980 to 1991, when he was aged eight to 19. He left again in 1998 and later resumed living in Australia in 2002. I am satisfied that he was ordinarily resident in Australia during some of his formative years, and most of his adult years, and this warrants considerable weight in his favour. In the years he has lived in the Australian community, he has made some contribution. He has generally been in gainful employment, he ran a mechanic business for three months while the owner was sick without seeking payment, and he occasionally helped fix people’s cars for free. For a couple of years, he drove his son’s sporting team to away games every two months, and he helped with club events like barbeques. In prison, he taught inmates how to use machinery.
The Applicant’s close family are his twin children, aged 15, and his mother, aged 71. I accept that despite some turbulence in his relationship with his mother, they have a loving, supportive relationship. I also accept that despite some periods of absence, the Applicant loves his children and they love him. He remains in contact with them in detention.
When the Applicant lived with them, he contributed financially, and he helped with household chores. Now, the Applicant’s mother works five days per week in order to pay the bills, and she does the household chores with help from the twins. She is their sole carer except for when they spend holidays with their other grandparents. They do not want to live with their other grandparents as they find it boring without their friends and the activities they enjoy. This is not an option anyway given the court orders. The Applicant’s mother does not have anyone else who can provide financial or practical support, although she has a brother who lives close by with adult children and she has friends for social and emotional support.
The Applicant’s mother wants the Applicant to help financially as she does not think she can keep working full-time given her age and physical condition: she has weak bones and has suffered two broken wrists and broken ribs in the past. The Applicant would send financial support to her from New Zealand if he could, but he does not think he would be able to. She wants his financial and emotional support, and help with the house and his children.
The Applicant’s son, Alfie, has been working at MacDonald’s earning $70 per week, and he does some work experience with a mining company. He intends to stay living there and help with bills. Alfie wrote a letter in which he mentioned activities he used to do with the Applicant, and his upset at not having the Applicant around. He would like his father to support him with a career working in the mines. He has a strong bond with his father and does not want to live with his mother. He said “grandma is getting to the stage where she doesn’t want to look after children”.

Alfie wanted to give evidence in the hearing in support of the Applicant. In the end, he did not as it was too upsetting, and I think that was a sensible decision. He may be 15 but he is still a child. My impression is that Alfie is a responsible, helpful boy who is doing his best in a difficult situation. Unfortunately, he has been playing up and getting into trouble at school since the Applicant was incarcerated. He gets teased because his father is in gaol, and he is angry with his father for that. The Applicant wants to remedy this and be present to support Alfie and his sister, Annie, who is also getting into trouble at school. Annie is “a little slow” so she does not have a job, but she is doing work experience and the Applicant’s mother thinks she too can have a career in the mines. They are currently in year 10 and once they finish their schooling in year 12, they can start paid apprenticeships. Currently, the family cannot afford to travel to New Zealand to visit the Applicant if he is deported. In three years, they will be 18 and likely to be earning a wage. They will also be entitled to government income support, subject to the criteria that apply.
I am satisfied that it would benefit the Applicant’s mother and children emotionally, practically, and financially if the Applicant were to return home. I am also satisfied that his children would cope better at school. The weight I allocate on this basis is moderated by the risk that he will engage in offending that will affect them, most obviously family violence towards his mother or in the presence of his mother or children. I acknowledge his mother’s evidence that he has not been any trouble to her since 2017, and I acknowledge the lack of evidence that he has ever been violent to his children.
The Applicant has other friends and relatives in the community with whom he has positive, longstanding connections. However, there is no evidence that they would be significantly affected by his deportation. None depend on him, and most of his relatives only see him once or twice a year at family gatherings.
The Applicant has a daughter, Jemma, who has her own children. They live in New South Wales. He was not involved in her childhood but he has been in contact with her for some years. He has never met her children and a court order prevents her from taking them to Queensland.[113] He claims there are other biological children of his in Australia with whom he would like to build relationships, and he thinks it will be harder to do that from New Zealand.
[113] Transcript, page 82, lines 20 to 28; G2, page 69.
He thinks there is a 15 or 16 year old daughter, who was born around the time the Applicant was undergoing chemotherapy. The dates he gave indicated that she could not have been his biological child, however, he said he did not know the birthdays of his children other than the twins. He never previously sought to have contact with her, and he never paid child support despite the child support agency telling him to. In the past year, he made contact with her. It seems nothing much has come of this.
The Applicant claims to have a son and daughter by an ex-partner, who he thinks are around 17 and 21, respectively. It is not clear whether they are here or in New Zealand. Again, he has only recently sought to make contact with them after having no contact except when the girl was a baby. Nothing much has come from this.
He claims that another son by a different lady is 18 years old and lives in Australia. He has not had contact with this man since he was three months old.
The Applicant has never met Bella’s daughter and in fact, he asked for the DVO against him to be extended to five years, virtually guaranteeing he could not have contact until the child was five years old. When asked about this in the hearing, he did not express regret. He expressed no interest in having any contact with this child despite his claims that her mother is a drug user.
The Applicant’s recent interest in establishing relationships with claimed biological children came about, according to him, because he realised his life is miserable and a mess. He wants to rectify his relationships before there is no chance. He did not express any real specific intention or desire to provide financial or other support to them.
I am not persuaded that the Applicant’s apparent interest in reconnecting with these people is anything other than self-serving, given the child who clearly needs another parental figure in her life, if what he says about Bella is true, is the one he has no interest in. Whether further approaches would be welcomed by these people is a matter of speculation. I allocate no weight either way with respect to these claimed children.
Overall, I allocate heavy weight in favour of revocation of the visa cancellation under this Primary Consideration.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I must determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision. Where there is more than one child affected, the best interests of each child should be given individual consideration to the extent that their interests may differ.[114]
[114] Paragraph 8.3 of the Direction.
The Direction sets out a number of factors to take into consideration, which can be summarised as far as they are relevant thus:
·     the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where there have been long periods of absence;
·     the extent to which the Applicant 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 Applicant’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 Applicant 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 suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
The Applicant is the biological father of Alfie and Annie. When they were babies, he did not live with them but visited them regularly. There were periods in their childhood when they lived together but these periods were marred by the Applicant’s violence against their mother. Since being taken from their mother, they have primarily been cared for by their paternal grandmother. When the Applicant lived with them, he lived on a different floor and he did not associate with them when he was consuming alcohol or affected by methamphetamine, which must have limited the time he spent with them. He cooked dinner for them, took them to school and took them out to do activities like jet-skiing. He built a motorhome and took them to places in it. He was involved in Alfie’s sports. He took them on the long drive to and from their other grandparent’s home for holidays.
I accept that the children miss having the Applicant around and doing the things they used to do together. His absence has been detrimental. While they could maintain contact if the Applicant was in New Zealand, I accept that Alfie wants the Applicant to live with them. I am satisfied that it would be in the best interests of both children for him to remain in Australia so he can live with them and parent them. However, I am cognisance of the risk that he will re-offend in a way that could impact them, e.g. commit family violence in front of them.
The children were in a position of helplessness when Alana was not taking good care of them because the Applicant was effectively barred from having contact with them. That came about because of his behaviour. Alfie is currently being bullied because the Applicant is in gaol. Again, that is the result of his behaviour.
I allocate no weight for any other claimed minor children for the reasons given under Primary Consideration 3.
Taking into account the best interests of the children referred to above cumulatively, this Primary Consideration weighs moderately in favour of the 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. The legal consequences of the decision (Other Consideration (a)) are either the Applicant’s legal re-entry into the Australian community or his deportation to New Zealand. These are the intended alternative outcomes. Therefore, this Other Consideration is neutral. Any impact the Applicant’s removal would have on Australian business interests, arising from him possibly working in the mines or as a mechanic, is so insignificant that it does not attract any weight so Other Consideration (d) is also neutral.
EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account:
(a)the Applicant’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 the Applicant in New Zealand.
The Applicant is nearly 52 years old. He has been in remission for testicular cancer since 2010 and he is checked every six months. There is no suggestion that he could not have these checks in New Zealand. He is medically obese, having gained weight in gaol. He suffers from diabetes mellitus type 2 which is related to hypertension. Since entering immigration detention, he has experienced some heartburn. He has medication and is on a special diet. He was diagnosed with alcohol abuse disorder based on past consumption and a lesion was found on his liver which he thinks is related to his past alcohol consumption. He also suffers from intermittent knee pain following a fall in gaol that tore his meniscus, and for a period, he had his arm in a brace. However, even with these conditions, he sees himself working in the mines and in a mechanic’s business. His diabetes is managed in detention, and he is being educated on how to manage it in the community. The Applicant was concerned that he would not get the right medical care in New Zealand, and he thinks his medication is not available there. However, he admitted he does not know what things are like there.[115]
[115] Transcript, page 79, lines 24 to 38.
New Zealand is a developed country. In circumstances where the receiving country is New Zealand, the cultural, linguistic, and political circumstances are matters of common knowledge. In the absence of any contrary evidence, I take into account that the Applicant would have access to government benefits and health care similar to those available in Australia.
The Applicant lived in New Zealand as a child and adult. He speaks English which is widely spoken in New Zealand. He expressed some concern that he would be seen as a foreigner and that he has been alienated from his Māori culture. However, these concerns were vague and speculative. I am not satisfied that he would face any substantial language or cultural barriers there.
The Applicant is not in contact with anyone in New Zealand. I accept that initially he will not have any familial or social support. However, he has the proven ability to make friends. He will be able to obtain government income support and he has skills as a mechanic. He claimed he was mostly unemployed when he lived here before because he is not good with Japanese cars and those are prevalent in New Zealand. He is good with American cars and some European cars. I do not find this convincing as there are commonalities between all types of cars, e.g. if a person can change a tyre, check the oil or replace a battery etc on one car, they can normally do it on any other vehicle. Further, he built a motorhome and fixed Go Karts without having undertaken specialised training, indicating that his skills are not narrow. I am satisfied that the Applicant has skills that can be applied to earn income in New Zealand.
I accept that the Applicant will experience emotional hardship in New Zealand, being isolated and away from his family, although he will be able to communicate with them. He will face the challenges of applying for welfare, looking for a job and accommodation and accessing medical and rehabilitation services. However, these are temporary challenges that he can overcome.
This Other Consideration weighs to a limited extent in favour of revocation of the mandatory cancellation.
Impact on victims
Paragraph 9.3(1) of the Direction relevantly states:
“Decision-makers must consider the impact of the…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…who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.”
The Tribunal does not have the benefit of evidence from any of the Applicant’s many victims, except for his mother and Alfie. His mother wants him to get his visa back. Her interest in that outcome arises from her familial relationship with him. Where she gave evidence as a victim, it was to effectively deny that she was a victim, and I did not accept that evidence. I have taken her interests as the Applicant’s mother, and as the grandmother and carer of his children, into account under Primary Consideration 3. In doing so, I was cognisant of the risk that he would re-offend against her.
I think it would be artificial and unnecessary to allocate further weight to her interests under this Other Consideration. In reaching this conclusion, I am guided by the Federal Court’s reasoning in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[116], concerning the way the Tribunal in that case treated the interests of Mr Bale’s wife who was a victim of his domestic violence.[117]
[116] [2020] FCA 646.
[117] A previous iteration of the Direction applied in that case however the terms of this Other Consideration were substantially the same.
In that case, Perram J made the observation that where the crime in question is a crime against a member of the family unit, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap, and that Mr Bale sought to take advantage of that apparent overlap.[118] Paragraphs 26 and 27 of His Honour’s judgment provide guidance on how the apparent overlap is to be dealt with. His Honour said:
“I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously…”.
[118] [21].
The same reasoning applies to Alfie, who is a victim of the Applicant’s offending because he witnessed at least one episode, although he was very young and may not remember it.
This Other Consideration is neutral.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1, 2 and 5 weigh very heavily, heavily, and heavily (respectively) against revoking the cancellation of the Applicant’s visa. The circumstances of the Applicant’s mother and his twin children evoke sympathy, and it is regrettable that they will have to carry on without the support that he could provide if he were living with them and working in gainful employment. However, he had already caused a great deal of harm in the Australian community through his crimes and other serious conduct, and the risk of further serious harm should he be allowed to re-enter the wider community, is at least moderate. There are not sufficiently strong countervailing considerations to justify revoking the cancellation decision. Primary Considerations 1,2 and 5 combined easily outweigh Primary Considerations 3 and 4 and Other Consideration (b) combined. There is not another reason to revoke the cancellation of the Applicant’s visa.
I note that I have taken into account some conduct that was not the subject of a finding of guilt to an offence and was not admitted to by the Applicant. Even if I had not done that, and only taken into account the conduct that was the subject of guilty verdicts or admitted to by the Applicant, Primary Considerations 1, 2 and 5 combined would still outweigh Primary Considerations 3 and 4 and Other Consideration (b) combined, just not by as much of a margin.
DECISION
The decision under review is affirmed.

I certify that the preceding 218 (two hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

..............................[SGD]..............................
Associate
Dated: 19 February 2024

Dates of hearing: 17 and 18 January 2024

Applicant:
In person

Solicitor for the Respondent Ms Gabrielle Ho
Clayton Utz

ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G

G-Documents (G1 to G6, paged 1 to 263)

T

Various

21 November 2023

A1

Applicant's Clinical Record (paged 1 to 109)

A

Various

29 December 2023

A2

Applicant’s QPS Documents (paged 1 to 182)

A

Various

29 December 2023

A3

Applicant’s Submissions – ‘Index of Relevant Material’ (paged 1 to 39)

A

Various

29 December 2023

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 32)

R

22 December 2023

22 December 2023

R2

Respondent’s Supplementary G Documents (SG1 to SG10, paged 1 to 160)

R

Various

22 December 2023

[2024] AATA 218

5 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Standing

Dates of hearing:	17 and 18 January 2024
Applicant:	In person
Solicitor for the Respondent	Ms Gabrielle Ho Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G	G-Documents (G1 to G6, paged 1 to 263)	T	Various	21 November 2023
A1	Applicant's Clinical Record (paged 1 to 109)	A	Various	29 December 2023
A2	Applicant’s QPS Documents (paged 1 to 182)	A	Various	29 December 2023
A3	Applicant’s Submissions – ‘Index of Relevant Material’ (paged 1 to 39)	A	Various	29 December 2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 32)	R	22 December 2023	22 December 2023
R2	Respondent’s Supplementary G Documents (SG1 to SG10, paged 1 to 160)	R	Various	22 December 2023