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

Kaio and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 633 (25 January 2023)
Division:GENERAL DIVISION
File Number: 2022/9167
Re:Kaleb Kaio
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member A Julian-Armitage
Date of decision: 25 January 2023
Date of written reasons: 31 March 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 3 November 2022 to not revoke the cancellation of the Applicant’s visa and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa.
.................[SGD]..................
Member A Julian-Armitage
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – whether the Applicant passes the character test – whether there is another reason why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 90 – substantial criminal record – decision under review set aside and substituted with a decision revoking the original visa cancellation.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Home Affairs v Buadromo (2018) FCR 320
PNLB and the Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna and Minister for immigration and Border Protection [2016 AATA 301
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Member A Julian-Armitage
31 March 2023
INTRODUCTION AND BACKGROUND

Kaleb Blayne Kaio (“the Applicant”) is a 36-year-old citizen of New Zealand (born in 1986). He first came to Australia on 26 March 1998. He appears to have settled in Australia in January 2001 and came and went from Australia on a number of occasions until
[1] Exhibit 1 (G documents bookmarked G1 -G23, hereafter referenced as per relevant bookmarks). G18.
30 September 2013[1] after which he has remained onshore.
OFFENDING
The Applicant has a history of offending spanning a period of 7 years throughout his migration history in Australia. The Check Results Report (“Criminal History”) contained in the material furnished to the Tribunal provides the Applicant’s convictions for the period from 27/02/2014 to 03/06/2021.[2] The material before the Tribunal further indicates that the Applicant has also accumulated a criminal history in New Zealand (“Overseas Criminal History”).[3] These records state that the Applicant has committed a number offences dealt with judicially on separated sentencing occasions and with a varied ambit of sentences imposed including; fines and a term of imprisonment with a fixed non-parole period. The Applicant’s offending has included:[4]
[2] G4.
[3] Ibid.
[4] Ibid.
·Wilful damage;
·Committing public nuisance x 3;
·Breach of probation orders;
·Failure to appear in accordance with undertaking;
·Assault or obstructing a police officer x 2;
·Assaults occasioning bodily harm whilst armed / in company x 2;
·Unlawful assault occasioning bodily harm;
·Contravention of police protection notice;
·Contravention of domestic violence order (aggravated offence).
On 7 February 2022, the Applicant was notified that his Class TY Subclass 444 Special Category (Temporary) visa (‘visa’) had been mandatorily cancelled pursuant to

section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[5] The visa was mandatorily cancelled on the basis that the Applicant did not pass the character test as he had a substantial criminal record and had been sentenced to a term of imprisonment of more than twelve (12) months which he was serving on a full-time basis in a custodial institution. On 21 February 2022, the Applicant made written representations to the Respondent seeking a revocation of the mandatory cancellation decision.[6] That decision was considered by a delegate of the Respondent who, on 3 November 2022, published the decision to deny the revocation sought.[7]
[5] G19.
[6] G11.
[7] G3.
On 8 November 2022, the Applicant made an application to this Tribunal for review of the delegate’s decision refusing to exercise the discretion to enliven the powers in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[8]
[8] G2.
The hearing of this application proceeded before me on 10 January 2023. The Applicant gave oral evidence throughout the hearing with both parties given the opportunity to provide closing submissions by 24 January 2023 . The Respondent and the Applicant provided the further submission and over and above these closing submissions, the Applicant, who was self-represented, provided multiple further post-hearing submissions on 16 and 19 January 2023 to which the Respondent’s replied by way of closing addresses dated 23 January 2023 which were a compilation of the submissions filed prior to the hearing and included the evidence adduced throughout the hearing.[9]
[9] Exhibit 11.
The hearing also received written evidence which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
The 84^th day of this matter occurred on 26 January 2023.[10] On 25 January 2023, I caused a short-form decision to be published such as to ensure the Tribunal met its obligation pursuant to s 500(6L)(c) of the Act.[11] I now publish my detailed written reasons for that short-form decision.
[10] See s 500(6L)(c) of the Act.
[11] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act to the delegate of the Respondent on 21 February 2022. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo in relation to the manner in which the balance of factors when determining whether there are grounds for the revocation of a cancellation of visa:[12]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13]
[12] (2018) FCR 320.
[13] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at [31] (Collier J, with whom Logan and Murphy JJ agreed).
ISSUES
There are, therefore, two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
;
…”
Consequently, failure of the character test arises as a matter of law.[14]
[14] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
On 6 May 2021, the Applicant was convicted of ‘Contravention of domestic violence order (aggravated offence)’ and sentenced to a term of imprisonment of 12 months.[15] The Applicant’s criminal offending as explained previously includes other offences that he has committed for the time he has been living in Australia.
[15] G3.
The 12 month term of imprisonment in the present case is sufficient to satisfy me, and I find, that the Applicant does not pass the character test as he was sentenced to imprisonment for a period of 12 months or more (s 501(6)(a) and s 501(7)(c) of the Act) in relation to his offending.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made pursuant to the Act. In the present case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion and relevantly states 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.”[17]
[16] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
[17] Direction No 90, at para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” pursuant to ss. 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct, such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community), is so serious that even strong countervailing considerations may be insufficient in some circumstances; even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction, respectively, stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[18]
[18] Ibid, para [8].
The Other Considerations which, where relevant, I must take into account, include but are not limited to;
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.”[19]
[19] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1) information from independent and authoritative sources should be given appropriate weight;
(2) Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3) one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As detailed above, the Applicant has amassed a significant offending history both in Australia and New Zealand. The offending history in Australia is contained in 3 pages of single text[20] which has involved the use of considerable law enforcement and judicial resources.
[20] G4, pages 27-29.
I will now apply the relevant sub-paragraphs of Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This sub-paragraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed “very seriously” by the Australian Government and the Australian community.
The Applicant was convicted of various violent offences which have included family violence, unlawful assault occasioning bodily harm whilst in company, assault or obstruct police and contravention of domestic violence order (aggravated offence).
I am of the view that the offences relating to domestic violence are more appropriate to the discussion pursuant to 8.1.1(1)(a)(iii) with the offences against police also more appropriately to be dealt with elsewhere.
Despite the above 2 categories of offence that I will deal with later, purely on the basis of the remainder convictions for unlawful assault occasioning bodily harm whilst in company (convicted 25 September 2018 and 12 June 2020), on the basis of these offences, the view of the Australian Government and community is that they are ‎”very serious”.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph looks for the commission of crimes of a violent nature against women or children, regardless of the sentence imposed.
The Applicant’s violent offending in this content has been in the context of family violence and will be dealt with below.
Paragraph 8.1.1(1)(a)(iii)
This sub-paragraph refers to acts of family violence contained in an Applicant’s criminal history. If such offending is contained in the Applicant’s history, it is viewed “very seriously” by the Australian Government and the Australian Community.
There is a history of violence relevant to this sub-paragraph which has been the catalyst for the Applicant finding himself serving a term in custody and subsequent mandatory cancellation of his visa. There was an incident involving his mother in the context of domestic violence following an argument [21]with a domestic violence order made on
3 February 2014. In addition to this offence, the Applicant again committed domestic violence on his then partner on 25 December 2019 with the police issuing a protection notice later replaced with a domestic violence order.[22] On 27 April 2020 a further domestic violence Order was made protecting the Applicant’s partner which is in effect till
[21] TB page 158-165.
[22] TB page 135 and 143.
[23] TB page 147.
6 Jan 2025.[23]
On 20 November 2020 the Applicant was convicted of breaching a police protection Order (on 23 March 2020) involving the Applicant’s partner and on 6 May 2021 he was convicted of 2 counts of contravention of domestic violence Order (aggravated offence) for which he was sentenced to 12 and 9 months respectively.
Given the Applicant’s history of violence relevant to this sub-paragraph, involving his mother and his partner, it is without doubt conduct that attracts the operative effect in favour of a finding that the Applicant’s conduct is regarded as “very serious”.
Paragraph 8.1.1(1)(b)
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

The Applicant’s offences against police officers in the performance of their duty is relevant to the operation of this sub-paragraph. His history contains 2 offences of this category which involved the Applicant resisting arrest. Offences of this nature unquestionably engage the operation of sub-paragraph 8.1.1(b)(ii) and are therefore considered ”serious” in nature.
Paragraph 8.1.1(1)(c)
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
In the application of this sub-paragraph, I am precluded from taking into consideration sentences the Applicant received for violent offending against women,[24] acts of family violence[25]and any sentence he may have received relating to causing a person to enter into or become a party to a forced marriage.[26]
[24] Paragraph 8.1.1(1)(a)(ii).
[25]Paragraph 8.1.1(1)(a)(iii).
[26] Paragraph 8.1.1(1)(b)(i).
The Applicant has received sentences for offences that are not precluded by this paragraph which attract its operation which include various sentences for several public nuisance, failure to appear, wilful damage, breach of suspended sentences and not to go on a railway track. For these offences he has received fines, suspended sentences fully invoked, probation periods and actual custodial sentences.
Therefore, it is evident from the range of sentences the Applicant has received that Courts’ reflect a finding that his criminal conduct in Australia has been ‘serious’ in nature.
Paragraph 8.1.1(1)(d)
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s offending has involved 14 Court appearances from February 2014 to June 2021 with a variety of sentences for a number of public nuisance, assaults and domestic violence contraventions.
I am satisfied that the Applicant’s offending has been frequent and that the sentences imposed on him have shown a trend of increased seriousness in nature. Thus, on a whole, his offending in Australia has been serious in nature.
Paragraph 8.1.1(1)(e)
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. The Applicant’s series of offences demonstrates a number of cumulative effects. There appears to be a trend in his offending that shows a complete failure to comply with the lawful requirements within the Australian legal framework. This is particularly so given the offences involving assault or obstruct police in the course of their duty. Furthermore, the Applicant’s offences in relation to several failure to appear and breaches of suspended sentences in his criminal history.
In addition, the Applicant’s sentencing does not appear to have had any deterrent effect leading to more severe sentences. As his criminality has progressed, he has received a full suite of sentences. The earlier non-custodial or wholly suspended sentences did not serve to reflect on his offending as he then committed more serious offences and breaches such as the domestic violence order leading to him having to serve a considerable custodial sentence.
This pattern of offending on a cumulative basis has led me to find that the Applicant’s offending in Australia has been serious in nature.
Paragraph 8.1.1(1)(f)
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is nothing contained in the evidence to show that the Applicant has breached this provision.
Paragraph 8.1.1(1)(g)
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to 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 Applicant has made a number of trips to Australia prior to finally settling here. I have been furnished with his movement history dating back to 26 March 1998. I have not been provided with any passenger cards, nor has the Respondent raise any issues such that I can make a determination in respect to this sub-paragraph.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction. Taking into account the particular applicability to the relevant sub-paragraphs, I am of the view that the totality of the Applicant’s unlawful conduct can be readily characterised as “serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following 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;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non-citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that, if the Applicant were to re-commit any of his previous offences, individual victims and/or the Australian community could suffer physical, psychological and other damage (through use of resources such as judicial and health including financial).
If he were to re-offend by committing domestic violence, the nature of physical harm could conceivably lead to a fatality and at best to psychological segues on the victim with long term consequences with financial burdens on the health system in this country.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
Disappointingly, I have not been provided with a clinical expert opinion in relation to the Applicant risk of recidivism. The evidence before me details the Applicant’s recognition that his offending is based on his substance abuse, namely alcohol.
I have also been furnished with copies of the Department of Corrections’ formal assessments of the Applicant’s risk of re-offending. The most recent assessments were dated 6 May 2021 and 14 January 2022 with a score of 19 out of a possible 22.[27]
Evidence of rehabilitation achieved by the Applicant by the time of this decision
[27] TB, pages 68 and 83.
As raised above, the Applicant suffers from substance abuse which commenced when he was merely 14 years old and escalated to a level where he has consumed a great deal of alcohol[28] over short periods of time mainly weekends.
[28] G11, page 65.
I note the Applicant has undertaken a number of courses with relevance to his offending and the Tribunal has been provided with emails confirming this. The courses are White Ribbon Australia: Prevention of Violence Against Women for Workplaces consisting of 5 modules, a domestic violence course and anger management course and engaging in
[29] G14, page 74 to 78.
self-help applications and self-help books on anger management and combating alcoholism (in detention). Both he and his partner are connected to a domestic violence support service (DV connect) in order to deal with the Applicant’s past issues that have led him to offend.[29]
In addition, the Applicant gave evidence of his insight into his past offending and his substance abuse. He said, during the hearing of his matter, that “I know what I have done, I am not that person anymore, I am remorseful especially [in relation to] SM”. He also told the Tribunal that he intends to seek support from community organisations, if he is permitted to remain in Australia, such as DrugArm and other such organisations.
(iii) Conclusions about risk
The overall evidence in relation to recidivist risk leads me to find that he is a low to moderate risk of re-offending. He is well aware that the return to a pattern of offending such as he has engaged in, it would most likely lead to an exposure to the real risk of a cancellation of his visa and removal from Australia. I am persuaded that he is now well aware of this and also the fact that he needed to turn his life around.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
As this matter does not involve the refusal of a visa but an application for the revocation of a mandatory cancellation of the Applicant’s visa, this sub-paragraph is not relevant in the determination of this application.
Conclusion: Primary Consideration 1
With respect to the weight attributable to Primary Consideration 1:
(a)I find that the nature and seriousness of the Applicant’s criminal conduct has been “ serious”;
(b)I find that should the Applicant re-offend, the nature of the harm to individuals or the Australian community would be “serious” and would involve physical, psychological and material harm to individuals and/or the Australian community.
(c)I have assessed the Applicant’s recidivist risk as low to moderate based on the Applicant’s remorse, insight and motivation for change coupled with the Department of Corrections assessment of his risk (19/22).
Taking all the material before me into account, I am of the view and find that this Primary Consideration 1 carries a certain, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.   the extent to which the person accepts responsibility for their family violence related conduct;
ii.     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.    efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
In applying the provisions of paragraph 8.2 of the Direction, it is necessary to identify who the members of the Applicant’s family are and whether his conduct against any of those family members constitutes acts of family violence.
In reference to the person who form the Applicant’s family, I am satisfied that the relevant persons pursuant to this paragraph are his mother and partner. I must now determine whether the Applicant’s conduct amounted to family violence as defined by the Direction which defines it as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes a family member to be fearful.”[30]
[30] Paragraph 4 of the Direction.
On the basis of the evidence before me, and as mentioned above, it is obvious to me that the Applicant has committed acts of family violence against his partner and mother.
As previously stated earlier, the Applicant has voiced his remorse both in writing and orally at the hearing of his matter and undertaken courses by way of rehabilitation to prevent the reoccurrence of this behaviour. His partner has also provided a statement[31] delineating their plans and strategies for the future in order to address the Applicant’s past substance abuse and anger management which have been at the root of this type of offending. Furthermore, the Applicant’s evidence has shown that he has acquired a great deal of insight into his offending, not just in relation to family violence, but generally and has formulated plans to re-offend in future.
[31] G13.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs moderately, but not determinatively, against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination as to whether non-revocation under section 501CA is, or is not, in the best interests of a child who would be affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively, contain further stipulations and provisions. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision, about whether to refuse or cancel the visa or not to revoke the mandatory cancellation decision, is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of the relevant minor children
Prior to an application of the factors speaking to the allocation of weight to this Primary Consideration 3, it is necessary to identify the minor children relevant to this element of the consideration.
The is no evidence of any minor children who would be affected by a decision in Australia.
Conclusion: Primary Consideration 3
I assess Primary Consideration 3 as neutral for the reasons above.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
It is clear that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing harm. The Australian community expects non-citizens to obey Australian laws while in Australia. [32] The Direction provides:-
“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 governments views as articulated, without independently assessing the community’s expectations in the particular case.[33]
[32] Paragraph 8.4(3) Direction 90.
[33] Paragraph 8.4(4) and Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With respect to the requirements of paragraph 8.4(1) of the Direction, the expectations can be expressed as:
·the Australian community expects that non-citizens will obey the Australian laws while in Australia; and
·where a non-citizen has either breached the above expectation or there is an unacceptable risk that the non-citizen will breach the above expectation;
then the Australian community expects the Australian Government to not allow the

non-citizen to enter or remain in Australia.

It follows that, given the nature of the Applicant’s offending, the Australian community’s expectation, in the ordinary course, would expect the Australian Government to not allow the Applicant to remain in Australia.
Furthermore, paragraph 8.4(2) directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)    acts of family violence; or
(b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)     worker exploitation.
As mentioned previously, the Applicant has committed acts of family violence. He has also been convicted for committing offences against police in the course of their duties and assaults occasioning bodily harm. The commission of these offences triggers the operation of paragraph 8.4(2) resulting in the Australian community’s expectation that the Government can and should cancel the Applicant’s visa.
Finally, the issue remaining to be determined is whether there are any factors which modify or affect the Australian community’s expectations. This determination is assisted by paragraphs 5.2(4) and (5) of the Direction which provides:
(1)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(2)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have participated in or contributing to the Australian community for only a short period of time;
(3)Australia may afford a higher level of tolerance of criminal or serious conduct by non-citizens who have lived in Australia most of their lives; and
(4)the nature of the non-citizen’s conduct or harm that would be caused if the conduct were to be repeated may be so serious that even strong counter balancing considerations may be insufficient to justify a positive visa outcome to the non-citizen.
“Limited stay” visas are not defined in the Act, however, for present purposes as the Applicant was the holder of a visa that allowed him to remain in Australia indefinitely this principle does not apply to him.
With respect to the provision of (2), the Applicant has lived in Australia since January 2001 when he was around 15 years old and attended school here in Sydney. He left school after completing year 7 and has worked as a labourer since December 2018 to December 2021 for several employers on a steady basis.[34] Thus contributing to and participating in the Australian community for more than a “short” period. Hence the Australian community’s tolerance is not affected by the principles contained in paragraph 5.2(4) of the Direction.
[34] G11, page 66.
With respect to (3) and as stated previously, the Applicant has resided in Australia since he was 15 years old (despite coming and going on a number of occasions) and he is now 36 years old. Clearly, he has spent a large part of his life here meaning that the Australian community’s tolerance of his criminal or other serious conduct is higher than usual.
In respect to (4), I am not of the view that the harm that would be caused by his re-offending would negate any favourable considerations for the purpose of this principle. This is based on my view that the Applicant’s criminal conduct and resulting harm has not been such as to negate any applicable countervailing circumstances.
88.Therefore, I am of the opinion that the Australian community’s expectations are higher in tolerance of the Applicant’s criminal conduct than usual. Despite this, he has breached the overall expectations of the Australian community and his offences within the realm of family violence and involving police in the course of their duty and as such the Australian community expectation is that the Government can and should cancel his visa.[35]
[35] Direction paragraph 5.2(3).
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a certain, but not determinative level of weight against the revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs in turn.
Other Consideration (a): International non-refoulement obligations
From the evidence before me in both written and oral form, the Applicant’s possible removal to New Zealand would not breach Australia’s international non-refoulment obligations. Therefore, this consideration is not relevant in this case.
Other Consideration (b): Extent of Impediments if Removed
Paragraph 9.2 of Direction requires a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 36 year old man who suffers from Type 1 diabetes. In addition, he also has unresolved substance abuse issues.
As a citizen of New Zealand, the Applicant would not endure any language or cultural issues as that country enjoys very similar language and cultural aspects to those in Australia which he would be familiar with.
The Applicant claims to have a sister in New Zealand along with other members of his extended family. It is conceivable that they would assist him to adapt socially should he be required to return. In addition, the medical and economic support available to him in

New Zealand would not be too dissimilar to what is available here in Australia.[36] The only concern in this respect could arise as a result of the Applicant experiencing difficulties in establishing himself in New Zealand after such a long period of residence in Australia.
[36] Tera Euna and Minister for immigration and Border Protection [2016 AATA 301 at para 101.
In respect to each of factors stated in paragraph [92] for this Other Consideration, I find that there is a very slight amount of weight in favour of the revocation of the cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant’s domestic violence victim and partner, Ms SM has provided a written statement dated 6 July 2022 who claims to have met the Applicant some shy of 5 years ago now. She notes the changes in his life and advocates for the revocation of the cancellation of his visa. She states that she and the Applicant are committed to a life together and to undertaking “working on ourselves and our issues as a couple.”[37] No other material relevant to this Other Consideration was adduced by the parties.
[37] G13, page 74.
Therefore, I give this Other Consideration a slight amount of weight in favour of revocation.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I consider each in turn.
The strength, nature, and duration of ties to Australia
With reference to the first part of this Other Consideration, I will consider three elements. Firstly, I will assess the impact of a non-favourable decision on the Applicant’s, “immediate family members”, where those people have a right to remain in Australia indefinitely. Secondly, I will assess the impact of a non-favourable decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Thirdly, I will assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
This initial exercise requires me to identify the Applicant’s immediate family in Australia. The Applicant’s immediate family consists of his mother and his partner. The Applicant did not call evidence from his mother. He has provided evidence, both orally and in written form as to the close relationship he has with his mother. This is particularly so as he has never known his father and was raised by her. In his undated statement,[38]he feels a strong responsibility to “look after her and make sure she is well. She is my main concern because in our Maori culture it’s the sons [sic] responsibility to bring her back to our home land for burial. She told me already that’s my duty as her son”.
[38] G16, pages 80 and 81.
As related above and I won’t repeat, the Applicant’s partner has also provided a statement professing her feelings for him. Whilst she does not explicitly go into the effect of a

non-revocation decision, it can be implied that this family member would find it very difficult if her partner was not permitted to remain in Australia.
Based on the evidence, I therefore find that both the Applicant’s mother and partner will be adversely impacted should the Applicant be removed to New Zealand.
Strength, nature, and duration of ‘other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a child.
The Applicant’s other ties in Australia comprise of Patiora Kaiser who has also provided a statement which, in the main, is a character reference. He also has an uncle, aunt, eight nieces and nephews and five cousins in Australia.[39] There is little to no evidence about how these other ties will be impacted by a non-revocation decision.
[39] G15.
The Applicant has, according to the delegate dealing with the original revocation request,[40] has resided in Australia for 19 years spending only 4 years and 11 months out of Australia since he was 12 years old. He has developed ties through his contributions to the community and voluntary work for the Salvation Army as a forklift driver and through his various workplaces.
[40] G3, page 24.
I will now refer to the two tempering sub-elements in paragraph 9.2(a) of the Direction which requires me to allocate less weight if the Applicant began offending soon after his arrival in Australia. It appears from his criminal history that the Applicant’ first offence in Australia took place in January 2014. This is a considerable period after his arrival and in my view should not be considered to be “soon after arriving in Australia”. Therefore, I provide a neutral weight to this first of the two tempering elements.
The second of the two elements require me to assess the extent of the Applicant’s contributions to the Australian community. In this regard, I find that he has made contributions through his employment which would have required him to pay taxation on his income . I also find that he has made contributions as a volunteer forklift driver for the Salvation Army thus contributing to the Australian community.
Strength, nature, and duration of “other ties” – family and other social links
There is evidence that the Applicant has a significant number of family here in Australia. Apart from his mother and partner, he has an uncle, aunt nieces and nephew and cousins here in Australia. As I stated earlier I have insufficient evidence to consider the impact a non-revocation decision would have on these family members.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. In the present circumstance, I find that there is no evidence to establish the relevance of this Other Consideration.
Weight allocable to Other Consideration (d): links to the Australian community
In relation to the first part of this Other Consideration, namely the strength, nature and duration of the Applicant’s ties to Australia, and having analysed its three elements, I find that this Other Consideration weighs heavily in favour of revocation.
Finding: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant ;
(b)extent of impediments if removed: very slight weight in favour of revocation;
(c)impact on victims: slight weight in favour of revocation
(d)links to the Australian community: heavy weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is “another reason”, pursuant to the Direction , to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction and find as follows:-
·      Primary Consideration 1: carries a certain but not determinative level of weight against revocation;
·      Primary Consideration 2:   carries a moderate , but not determinative level of weight against revocation;
·      Primary Consideration 3: carries neutral weight; and
·      Primary Consideration 4:   carries a certain, but not determinative, weight against revocation.
I have outlined the weight attributable to the Other Considerations above in [114].
Therefore, my overall view of the evidence, as is relevant to the Primary and Other Considerations in Direction 90, favours the revocation of the delegate’s decision on

3 November 2022, to the extent that the Applicant’s visa status allowing him to remain in Australia should be restored.
Consequently, I find that there is “another reason” as to why the mandatory cancellation decision on 7 February 2022 should be revoked pursuant to my above findings as per s501CA(4)(b)(ii) of the Act.

DECISION

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and makes a decision in substitution to revoke the original visa cancellation.

I certify that the preceding 120 (one-hundred-and-twenty paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage

.............[SGD].............
Associate
Dated: 31 March 2023

Date of hearing:

Date of final submissions:

10 January 2023

24 January 2023

Representation for the Applicant:

Self-represented

Solicitor for the Respondent

Mr Chris West (Sparke Helmore Lawyers)

ANNEXURE A- EXHIBIT REGISTER

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

(G1-G23, paged 1-121)

R

Various

18 Nov 2022

2

Tender bundle (1-6, paged 1-266)

R

Various

21 Dec 2022

3

Statement of Facts, Issues and Contentions (19 pages)

R

20 Dec 2022

21 Dec 2022

4

Post-Hearing Submission- Applicant-Course completion details for the following courses:

·     A Respectful man;

·     Community and Family Service program;

·     Drug Arm counselling;

A

Various

19 January 2023

5

Post-Hearing submissions- Applicant- Closing statement

A

19 January 2023

19 January 2023

6

Post-Hearing submissions- Respondent- Closing statement

R

23 January 2023

23 January 2023

[2023] AATA 633

25 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Standing

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (G1-G23, paged 1-121)	R	Various	18 Nov 2022
2	Tender bundle (1-6, paged 1-266)	R	Various	21 Dec 2022
3	Statement of Facts, Issues and Contentions (19 pages)	R	20 Dec 2022	21 Dec 2022
4	Post-Hearing Submission- Applicant-Course completion details for the following courses: · A Respectful man; · Community and Family Service program; · Drug Arm counselling;	A	Various	19 January 2023
5	Post-Hearing submissions- Applicant- Closing statement	A	19 January 2023	19 January 2023
6	Post-Hearing submissions- Respondent- Closing statement	R	23 January 2023	23 January 2023