Kane and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 35

Kane and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 35 (21 January 2021)
Division:GENERAL DIVISION
File Number:2020/6862
Re:Troy Eden Kane
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:21 January 2021
Place:Brisbane

The decision under review is affirmed
........................[SGD]................................................
Member Rebecca 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. 79 – grievous bodily harm – driving under the influence of alcohol – best interests of minor children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Back and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1105
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
21 January 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 34 year old citizen of New Zealand. In November 2004, when he was 17 years old, he moved to Australia to join his family who were already here. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).[1]
[1] Exhibit G1 Section 501 G-documents, G2, page 14. This visa was granted to him on 11 November 2014.
On 5 April 2018, after the Applicant had been charged with grievous bodily harm, his visa was cancelled under s 116 of the Migration Act 1958 (Cth) (“the Act”), on the basis that he had a pending criminal charge and therefore his presence in Australia ‘is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community”.
On 21 May 2019 the cancellation of the Applicant's visa was set aside by the Migration and Refugee Division of the Administrative Appeals Tribunal.[2]
[2] Ibid, G2, pages 41 to 49.
On 20 January 2020, after the Applicant was convicted of grievous bodily harm, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under

s 501(3A) of the Act on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 15 February 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 28 October 2020, the Respondent decided not to revoke the cancellation.[5]
[3] Ibid, G2, 50 to 56.
[4] Ibid, G2 page 68.
[5] Ibid, G2 page 13.
The Applicant subsequently lodged an application for review in this Tribunal on 4 November 2020.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit G1 Section 501 G-documents, G1, pages 1 to 9.
The hearing of this application proceeded on 11 and 12 January 2021. The Applicant gave evidence via videoconference. The Applicant’s mother, father, a sister, a former employer and a missionary connected to his church gave evidence via telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
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. 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:[7]
“…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…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, [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, [31] (Collier J, with whom Logan and Murphy JJ agreed).
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.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9]
[9] Ibid.
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), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 22 July 2019, the Applicant was sentenced to a term of imprisonment of three years and six months with a non-parole period of 18 months.
Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
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 under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]
[10] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[11] The Direction, paragraph 13.
[12] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]
[13] [2018] FCA 594.
[14] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant grew up in New Zealand. When he was in his early teens his family moved to Australia. As he was doing well in school, his parents decided he should remain in New Zealand as a boarding student until he finished his schooling.[15] He came to Australia when he was 17 and became a slaughterman like his father. By all accounts, he was very good at that job and he worked consistently throughout his time in Australia. He was also an accomplished rugby player, playing for a local club for years. There was a culture of heavy alcohol consumption, including “binge drinking”, among players.[16]
[15] Transcript, page 45, lines 17 to 22.
[16] Transcript page 40, lines 31 to 32.
On 5 July 2007, the Applicant was caught drink-driving with a blood alcohol concentration of 0.121. He was fined and his license was disqualified for six months.
On 6 April 2008, the Applicant was caught driving unlicensed. He pleaded guilty to this offence in writing. His letter included the following statement:
“I wish to apologise your worship for my actions and choose to better myself sincerely by 1st: abiding (sic) the law and 2nd: To be a better citizen”.[17]
[17] Exhibit G2, SG3, page 383.
As a result of this offence, on 22 July 2008 a late-night driving restriction was placed on the Applicant for 12 months. That is, he was not allowed to drive between certain night-time hours.
Some five months later, on 20 September 2008, the Applicant was caught behind the wheel with a blood alcohol concentration of 0.103, within the restricted night time hours.[18] His license had been suspended only the previous week, although he said he was not aware of that. His license was disqualified for 12 months and he was ordered to complete 60 hours of community service.
[18] The offence is “drive/attempt to put in motion/in charge m/v under influence liq”.
On 8 March 2009, the Applicant contravened a police direction or requirement. The facts of this offence are not before me, but the Applicant indicated that it related to some traffic offences.[19]
[19] Transcript, page 18, lines 35 to 38.
On 6 December 2009 the Applicant committed a public nuisance. The facts of this offence are not before me.
On 28 August 2010, the Applicant drove in breach of a further late-night driving restriction.
On 18 February 2011, the Applicant was caught driving an unregistered vehicle.
On 8 July 2011, the Applicant was caught speeding by more than 20 km/h over the speed limit while drink-driving, registering a blood alcohol concentration of 0.096. His license was disqualified for six months.
On 22 October 2012, the Applicant was again caught driving an unregistered vehicle.
In November 2012, the Applicant’s child, a son, was born.
On 5 July 2013, the Applicant was caught drink-driving with a blood alcohol concentration of 0.173. His licence was suspended for 14 months.
On 15 March 2014, the Applicant committed a public nuisance and he was caught stealing. In relation to the public nuisance offence, the Applicant said that his brother was in a fight in Fortitude Valley and he went there to stop him so he would not be arrested but that they both got arrested. He could not recall what exactly constituted the public nuisance. He was released and as he was walking home, he went into a licenced premises and took a beer from a fridge behind the bar. He had money to pay for it but stole it because there was no-one around and he thought he could get away with it.[20]
[20] Transcript, page 21, line 35 to page 22, line 41.
On 26 April 2014, the police were called to the residence the Applicant shared with his then partner. The Applicant had come home the night before very intoxicated, continued to drink at home, and he and his partner had argued about the Applicant’s level of intoxication and drinking habits. When his partner had awoken the next morning, he was still drinking and heavily intoxicated. A further argument occurred regarding the Applicant’s level of drinking. At one point he was holding their young son and refused to allow his partner to take him. He ended up handing the child to a visiting friend. The Applicant and his partner pushed and shoved each other, his partner said she was leaving, and the Applicant said she was overreacting. At that stage his partner called the police. It does not appear that anybody was injured, and the Applicant’s partner did not want any further action taken.[21]
[21] Exhibit G2, Supplementary Section 501 G-Documents, SG2, pages 341 to 343.
On 19 September 2014, the Applicant was caught drink-driving with a blood alcohol concentration of 0.227. This was his fifth drink-driving offence. He lost his licence.[22] According to the Applicant, he subsequently lost his job because he lived in the country and could not drive to work. He went to Darwin to live with, and work for, his father. He stayed for between nine and 12 months before returning to Brisbane.
[22] Transcript, page 32, lines 39 to 41.
The Applicant’s licence has frequently been suspended due to traffic infringements and non-payment of fines. Many of the penalties imposed for his traffic and criminal offending were fines. In Queensland, unpaid fines are referred to the State Penalties Enforcement Registry (“SPER”). The Applicant currently owes around $8,000 to SPER despite having been in paid employment for the vast majority of his time in Australia. [23]
[23] Transcript, page 19, lines 20 to 25.
On 26 January 2017, the Applicant committed the offence that led to the cancellation of his visa. He told the Tribunal he could not recall the offence due to his level of intoxication,[24] although he said he had not consumed more alcohol on that occasion than he normally did at that time.[25] He ultimately pleaded not guilty, and his co-accused who had pleaded guilty gave evidence at his trial.[26] He was sentenced in July 2019. Some of the facts of the offending can be gleaned from the remarks of the learned sentencing Judge, Jones DCJ.
[24] Transcript, page 25, lines 12 to 40.
[25] Transcript, page 27, line 43 to page 28, line 2.
[26] Transcript, page 27, lines 36 to 40.
“…unlike your co-accused, you elected to proceed to trial. Quite clearly, and even this was accepted by your counsel, no sensible submission could be made about remorse in your case. The circumstances of the offending can be summarised in this way: the complainant was at the Royal George Hotel on Australia Day 2017 with a female acquaintance. They then began talking to a woman and her two sons, one of whom was only aged about 10 or 11. You were there with a group of your friends, and in particular the co-accused, one [name redacted].
Quite clearly, at the time this offending took place you were heavily intoxicated, to use your own words, you were wasted and, having regard to the evidence of Mr Thom and yourself about when you started drinking and when arrested, I think that is probably a fair description. In any event, what occurred then was the complainant, with the young boy, went into the toilets to put on some Australia Day tattoos. On the balance of the material before me I am satisfied that you entered the toilet first, in effect to scout it out to ensure that you would be able to, with your co-offender, assault the complainant.
After checking the bathroom out you then returned with the co-offender and what could only be described as a premeditated, vicious, cowardly attack on this man. It is a disgraceful performance. I am not prepared to find that it was a hate crime in the sense that you attacked the complainant because of his sexuality, and indeed he conceded that that was unlikely, you not having any previous contact with him, but what you did was, in effect, corner this young man in the toilet where, in the presence of a 10 year old child, you then proceeded to carry out, as I have said, a disgraceful, cowardly and vicious attack.
Now, I do not know whether the jury returned a guilty verdict on the basis of you being a party or you being actively involved in the punishment that was inflicted upon the complainant. I do not really think much turns on it. As I said, you went in, more probably than not, to scout the toilet out. You then got the co-accused, returned and at the very least held the door shut whilst the complainant was assaulted. Your co-accused was dealt with by Judge Kent QC, and I think he gives a fairly accurate description of what occurred that night.
He said that the complainant was beaten into unconsciousness and suffered a broken jaw and a broken nose and injuries to his teeth, as well as various other injuries. Surgical correction of the jaw fracture was required with a plate inserted, and there seemed to have been at least some degree of later complications in relation to that. Understandably the medical opinion supports the idea that without surgical intervention grievous bodily harm would have been suffered.
His Honour also said that on his view of things, for some reason which was not, to use his words, terribly clear, you formed a dislike to the complainant and attacked him in the toilet with your companion. It was unprovoked. It involved choking, stomping and punching him. His Honour also sentenced the co-accused on the basis that the stomping was inflicted by you. He was sentenced to three years suspended after 12 months. He has since been deported to New Zealand. You also hail from New Zealand. You were 30 years of age when you carried out this assault. You are now 32.
It would appear, as was the case with Mr Thom, the actual motive for attacking this man is unclear, whether it was just a drunken rage, the fact that he may have appeared gay, the fact that he was wearing a Wallaby jersey we will not know, but we do not need to know. All we need to know is what occurred that night, and I should put on the record that it occurred at the Royal George Hotel on Australia Day when, as the complainant said in his victim impact statement, it was a day when people, particularly those who wish to celebrate Australia Day, should be entitled to do so without being subjected to conduct of thuggery, as is the case here.
This is an extremely serious offence, in my view, and particular aggravating features are that, as I have said, I consider you to be the ringleader and you committed this offending, at least initially, before the boy did eventually run out of the toilets, while this young 10 year old was present. By reference to Judge Kent QC’s sentencing remarks, that does not seem to have been a matter which his Honour’s attention was directed to. It was not specifically directed to me, I must say, but I consider it to be an aggravating feature that Judge Kent did not take into account.
…
This assault has, unsurprisingly, had a significant impact on the complainant. His impact statement refers to, obviously, the pain and inconvenience that were caused by the actual assault. He speaks about fearing for his life, and having regard to the assault he described one can well understand that. He also talks about having to attend counselling, and his feelings of fear and anxiety. He also refers to the fact that he found it particularly disturbing that he had to attend the police station on a number of occasions for identification purposes. You, by proceeding to trial, made him relive yet again the anxiety and fear that he suffered.[27]
[Underlining added]
[27] Exhibit G1 Section 501 G-documents, G2, pages 32 to 35.

It is apparent that Jones DCJ accepted the factual findings made by Judge Kent QC who sentenced the Applicant’s co-offender in April 2018. The Transcript of the co-accused’s sentencing contains further details that I consider relevant. In that proceeding, the Crown informed the court as follows:
“…While looking at the complainant, who asked them if they needed to use the basin, [the Applicant and his co-accused] replied, “No” and then said, “Look at that faggott shit” referring to what the complainant was wearing, being a green and yellow jersey. They told [the child] to leave the bathroom, but he didn’t at that stage, so they asked him, “What’s he doing to you?”. [The child] replied, “Nothing, it’s fine” and then moved around the defendant and came and stood behind them at the door. When the complainant also went to leave [the Applicant] blocked his way.
The complainant then tried again to get pass (sic) the defendant, who grabbed him from behind and threw him onto the ground. The complainant’s head hit the ground and the defendant sat on the complainant’s chest and pinned his shoulders to the ground so he couldn’t get up. The defendant grabbed the complainant by the throat and choked him so the complainant had trouble breathing, while the [Applicant] came, held the bathroom door closed to prevent access by others to the bathroom. [The child], the child was allowed to leave at this point, but when the complainant asked them to stop both defendants laughed and the defendant said, “Fuck you”.
The complainant tried to reach the door while he was on the ground. The [Applicant] came, stomped on his face and began to punch him in the face. The defendant began to also punch him in the face, and the complainant thought he was going to die. The complainant lost consciousness shortly after this. The child told his mother about the situation and she went to the toilet. She was blocked from entering. Once she did manage to gain entry she located the complainant on the ground, and the defendant and his co-accused were identified at that stage by security.
Police attended the hotel and after speaking with the mother the defendants were arrested. They were intoxicated and unable to be interviewed at that stage. The complainant’s injuries included a fracture to the right jawbone, a fracture of the nasal bone, misalignment of teeth, and reduced opening of the jaw, bruising, swelling and scratches to his face, neck and right eye as well as numbness to the side of the right face.”[28]
[28] Exhibit G2 Supplementary Section 501 G-Documents, SG1, pages 301 to 304.
It is apparent in the following sentencing remarks of Kent QC DCJ that His Honour accepted the facts put forward by the Crown:
“…The circumstances of that offence are set out in the Crown’s statement of facts, which is a schedule that is an exhibit before the court, and I will not repeat it in fine detail. In summary, on Australia Day 2017, you and your friends were at the Royal George Hotel in Fortitude Valley, as were the complainant and his companions. For some reason which is not terribly clear, you formed a dislike of the complainant and attacked him in the toilets, with your companion [the Applicant]. That was unprovoked. It involved choking, stomping and punching him, although it is said that the stomping was inflicted by [the Applicant]. In a legal sense, there is no distinction between your responsibility for the various activities.
The complainant was beaten into unconsciousness and suffered a broken jaw and a broken nose, and injuries to his teeth as well is various other injuries. Surgical correction of the jaw fracture was required, with a plate inserted, and there seem to have been at least some degree of later complications in relation to that. Understandably, the medical opinion supports the idea that without surgical intervention, grievous bodily harm would have been suffered…”[29]
[29] Ibid, SG1, pages 313 to 314.
I am satisfied that the attack on the victim occurred as described in the extracted portions of the Crown’s submissions, the findings of Kent QC DCJ and the findings of Jones DCJ.
The victim to the offences provided a Victim Impact Statement that said:
“Being purposely cornered by two large men and locked in a toilet with no means of escape is with certainty the most terrifying moment of my life. In the first moments of being thrown to the ground and strangled I lost the ability to breath or even scream for help, I believed with certainty that if the assailant didn't stop, I was going to be killed on the floor of that toilet. In the last moments of consciousness, I reached for the door in one final attempted to get free but was met with bone breaking kicks to the face and repeated punches until I passed out. That absolute fear for my life is like nothing I have ever experienced and I often relive the experience when my mind is quiet.”[30]
[30] Ibid, SG1, pages 315 to 317.
The Victim Impact Statement went on to indicate that the victim:
·was in hospital for a week, in excruciating pain, undergoing surgery on his broken nose and having a plate inserted in his broken jaw. He subsequently suffered an infection in the plate in his jaw, requiring further surgery;
·was still waiting to have his teeth fixed from being damaged from the attack;
·no longer had feeling on the right side of his face due to nerve damage;
·spent 12 weeks after being released from hospital being cared for by his mother, which impacted her work, leaving him with a sense of guilt;
·continued to suffer intense pain throughout February and March 2017;
·lost the ability to eat and had to live on a liquid diet, causing him to lose around 20kg;
·attended multiple therapy sessions due to anxiety and fear that he was still a target to his attackers who, he knew, had been told his name when being served;
·believed his attackers were going to be track him down and attack him at home. For weeks he could not sleep and he was afraid to leave the house. He changed his name on social media and felt he would never be able to go out in public again knowing they were out on bail. He felt crazy and mentally unstable;
·could not work for several months. Having been “at a high” with his career before the attack he felt incapacitated and useless. He missed opportunities to progress his career and on his eventual return to work, he had lost all motivation. He felt that the months he had off work hurt his reputation and standing within the company;
·felt physically ashamed of his appearance, being too thin from weight loss, with his face swollen for a month, and worried that his nose would remain disfigured;
·had to make multiple trips to the police station for statements and to identify his attackers, which was a constant reminder of the assault and brought back anxiety and fear;
·returned to socialising after some months but found it hard to relax and enjoy himself and was always on edge. His friends were concerned for him whenever he went out and they felt they needed to escort him to public toilets;
·often reflects on what could have motivated the attackers to hate and humiliate his Australian heritage and then sadistically attack him in front of a child;
·knows that the attack is something that will preoccupy him in life although he tries not let it control his happiness or who he is anymore; and
·is hypervigilant and always feels fearful that he is not safe. He feels that he is physically and emotionally changed forever.
Nothing in the Victim Impact Statement was challenged and I accept it all.
Following the attack, the Applicant was charged and granted bail. Three months later, on 26 April 2017, he breached his bail conditions by failing to appear in court. He explained that he attended court late, and that the “Judge” (although he must have meant Magistrate) told him to wait outside and he would see him last. The Applicant waited until around 1pm or 2pm and then he left. He said he did not like being “called out” by the Magistrate in front of everyone, and he did not want to wait anymore.[31] On 31 July 2017, the Applicant was fined for that offence and put on a six month good behaviour bond.
[31] Transcript, page 23, line 45 to page 24, line 25.
During the period of that good behaviour bond, on 30 August 2017, the Applicant again breached his bail conditions by failing to appear in court. He said this time he got the date that he was required to appear wrong.[32]
[32] Transcript page 23 line 45 and page 24 line 5.
On 29 September 2017, the Applicant was observed by police walking along the street carrying a carton and drinking liquor from a can. As there was a warrant out for his arrest, he was taken to the police station and searched. He had in his possession a glass pipe with burnt residue inside it and a straw. He admitted that he had used the straw and the pipe a few hours earlier to smoke methamphetamine.[33] In the hearing the Applicant said he did not normally use methamphetamine, but he used it on that occasion because “I was going through the old feelings - I might be going to gaol and I was being kind of reckless and hanging out with the wrong crowd.”[34] When asked if he took thought it was a serious thing to take methamphetamine, he said he did not really think that much of it.[35]
[33] Exhibit G2Supplementary Section 501 G-Documents, SG2, page 335.
[34] Transcript, page 28, lines 40 to 45
[35] Transcript, page 29, lines 13 to 14
On 22 July 2019, the Applicant was found guilty of grievous bodily harm and sentenced to three and a half years imprisonment. He has been in prison ever since. He will soon be eligible for parole.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle 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. This paragraph stipulates that 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 A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
The Applicant and his co-accused, acting together, committed an abhorrent crime of violence. It is not only the attack itself but also the circumstances that inform its seriousness. The Applicant and his co-offender followed the victim to the toilet and trapped him there after the Applicant had first scouted the toilet. They used a derogatory slur, “faggott shit” before commencing their attack. They choked, stomped and punched the victim in front of a ten-year-old child which must have been terrifying for that child. They initially prevented the child’s mother from entering to help the victim. The attack was unprovoked. This crime of violence is beyond “very serious”. It is extremely serious. The fact that the Applicant was intoxicated in no way mitigates the seriousness of the offence. It was contended on behalf of the Applicant that the offence was the result of “the Applicant’s failure to control himself while intoxicated”.[36] This may refer to the following observations made by Jones DCJ:
“You have a 10 criminal history and a traffic history. Both are not particularly significant, save for two entries, one in 2009, so it is quite dated, but another in 2014, which would indicate, together with your traffic history, a problem with alcohol, and in respect of the criminal history a failure to control yourself while intoxicated.”[37]
[36] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions and attachments, page 8.
[37] Exhibit G1 Section 501 G-documents, G2, page 35.
However, I do not take His Honour to have made a finding that the Applicant was not in control of his actions. On the contrary, His Honour proceeded on the basis that the Applicant acted deliberately, and there is no evidential basis for any other conclusion.
The substantial period of imprisonment that was imposed, being three and a half years, reflects the objective seriousness of the offence. The non-parole period of 18 months is also substantial especially when one considers that it represents the earliest possible date that the Applicant could obtain early release and is not an automatic release date.
The relatively light penalties imposed on the Applicant for his frequent traffic infringements is perplexing when one considers the fact that fines, license suspensions and license disqualifications did not stop him from offending and the Applicant largely ignored fines, allowing them default to SPER. Not only did the Applicant continue to offend, his offending shows a trend in increasing seriousness. Five drink-driving offences between 2007 and 2014 show a persistent disregard for the road rules and the safety of others. The fourth offence involved blood-alcohol concentration of over three times the legal limit and the firth involved blood-alcohol concentration of over four times the legal limit, representing a trend in increasing seriousness in the Applicant’s overall offending even without the subsequent grievous bodily harm offence.
The cumulative impact of the Applicant’s offending is that he has put other road users at increased risk on numerous occasions, he has demonstrated disregard for the law and other members of the community by his frequent traffic infringement, petty offending and his offending while on bail. He ultimately caused grievous bodily harm to a member of the Australian community.
I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
In its totality, the nature and seriousness of the Applicant’s offending weighs very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The harm should the Applicant engage in further drink-driving, particularly with high range blood alcohol concentrations, includes serious injury or even death to other road users.
An indication of the harm to individuals in the Australian community from repeated violence of the kind the Applicant has previously inflicted can be found in the Victim Impact Statement discussed above. I need not repeat it. Suffice to say, it is extremely serious and can include significant physical, psychological and financial harm.
Likelihood of engaging in further criminal or other serious conduct
The Applicant’s traffic and other offending is largely, but not entirely alcohol related. He does not consider himself to be an alcoholic but to have engaged in binge drinking. This is supported by the weight of evidence and I accept it. He said he used to think of alcohol as fun, but he has no desire to drink anymore because of what it has done to his life.[38]
[38] Transcript, page 12, lines 32 to 36.
The Applicant was asked if he thought it was a serious thing to be driving under the influence of alcohol, to which he replied “Back then, no. Because you can see there there’s like, quite a few there”, referring to the totality of his drink-driving offences. He said he thought he was being a young, stupid person back then and he was not aware of what his actions would lead to.[39] Given the following evidence, it appears that the Applicant’s reference to “what his actions would lead to” was a reference to the consequences for him of engaging in alcohol related offending, namely being imprisoned:
·     the Applicant was asked “Did you know that it was illegal to drink drive?”, to which he replied “Yes”;
·     he was asked “Did you know that it increases the risk of car accidents if you’re drunk behind the wheel?” to which he replied “Yes”[40]; and
·     his father said that he had been aware of three instances of the Applicant driving under the influence. He said on the first occasion, he and the Applicant’s mother spoke to him, on the second occasion, “he got reprimanded and dealt with from me”, and on the third occasion the Applicant’s father thought it was “pretty ridiculous” because the Applicant was on the side of the street having a pie with his keys in his car so he (the Applicant’s father) did not do anything about that. He said he had told the Applicant that he had been quite fortunate that he had not killed or hurt anybody or himself.[41]
[39] Transcript, page 20, lines 32 to 40.
[40] Transcript, page 21, lines 12 to 19.
[41] Transcript, page 50.

When asked to explain the reasons behind the grievous bodily harm offence, the Applicant said he had been going through a rough patch with his ex-partner and not being able to see his son, so he leaned towards drinking to numb the pain which led him to go out partying most of the time.[42] This explains his drinking prior to the offence. It was contended on the Applicant’s behalf that he “recognises that he is in gaol because of his excessive alcohol”[43] which, to my mind, assumes that the alcohol made the Applicant offend and shows a failure on the Applicant’s part to fully accept responsibility for his behaviour.
[42] Transcript, page 12, lines 12 to 17.
[43] Exhibit A1 Applicant's Statement of Facts, Issues and Contentions and attachments, paragraph 14.
The Applicant’s mother said that during the period when the Applicant was having difficulty seeing his son, whenever the Applicant spoke about his son he would cry. [44] She advised him to see someone about getting medication but he did not do that.[45] The Applicant was living with his sister, Ms S, and her family at the time and attending the family’s church regularly.[46]
[44] Transcript, page 54, lines 24 to 25
[45] Transcript, page 61, lines 15 to 38.
[46] Transcript, page 29, line 45 to page 30, line 2
The balance of the Applicant’s offending, with the possible exception of the stealing offence, were not alcohol related and display a general disregard for the law.
The Applicant now says he is remorseful and will not re-offend. He made a similar representation to the Magistrates Court in 2008, stating that he wished to better himself, abide by the law and be a better person. He went on to re-offend five months later and many more times over the next nine years.
Some of the Applicant’s current expressions of remorse were that:
·     he has had a change of mindset because he does not want to go back to gaol;[47]
·     he is no longer that person that he was before coming to gaol, that coming to gaol has made him think a lot about the decisions he made in the past and he regrets all the bad decisions that led him to be incarcerated;[48] and
·     when asked if he now considered it okay to steal beer, he said “No” and when asked why he said “Just because, like, it was leading up to all these things of my past, all the drinking that I have done, look where it has led me to spend time in prison. And I just - this is not the life I want for my future.”[49]
[47] Transcript, page 12, lines 24 to 25
[48] Transcript, page 16, lines 1 to 8.
[49] Transcript, page 22, line 43 to page 23, line 3.
It was only when prompted by his lawyer that the Applicant mentioned the impact of his crime on the victim. He said he felt guilt over “what had happened to him” and that he was ashamed of his actions on that night.[50]
[50] Transcript, page 12, lines 38 to 44.
The Applicant’s regret for his offending is largely focused on the consequences that have been visited upon him, namely being imprisoned and losing access to his son. Similarly, his determination not to re-offend is entirely based on wishing to avoid further incarceration and separation from his son. For example, when asked if he would turn to methamphetamine if he was experiencing difficulty or stress in his life he said “I just need to look - look where I’m in now, you know, with my life. My life has basically gone to shit since I’ve been partaking alcohol and methamphetamine and I don’t want to do that in the future.”[51] At no point did he say he wished to avoid hurting anyone else or putting others at risk.
[51] Transcript, page 29, lines 15 to 20
There was some evidence from the Applicant’s father and a Mrs Sylvia Richens, a missionary and friend of the Applicant, that the Applicant had expressed remorse about the impact of the grievous bodily harm offence on the victim of that offence. However, the weight of evidence, including the findings by the learned sentencing Judge, does not disclose genuine remorse.
The day after that offence, the Applicant found out that the victim had been beaten up in the toilet and that he had been involved. He said he did not think he had done anything, except be present, because he could not remember.[52] He was given more details about the offence when he started going to court.[53] At this point he did not stop drinking alcohol or do anything indicative of remorse, regret or sympathy for the victim. He knowingly breached his bail at least once, and he used methamphetamine, knowing those behaviours were illegal.
[52] Transcript, page 27.
[53] Transcript, page 27, lines 1 to 23.
On 5 April 2018, the Applicant’s visa was cancelled because he had been charged in relation to the attack on 26 January 2017. He sought review of that decision and his visa was returned to him in May 2019. By his reckoning, he has not consumed alcohol in “maybe two years”[54], which would mean he stopped drinking around January 2019. That is, even after his visa was cancelled, he continued to consume alcohol.
[54] Transcript, page 31, lines 38 to 39
At some point, the Applicant sought help from his church to address his alcohol abuse. He asked the Bishop of his church for assistance. The Bishop put the Applicant in touch with Mrs Sylvia and Mr Ross Richens who were visiting missionaries from the United States. The Applicant said he used to ask the Richens to come and visit him every Friday night so he would not go to the pub.[55] He said previously he would go to the pub for a couple of drinks but then a couple would turn into all-night and he wanted the Richenses to help him stop drinking.[56] He attended sessions with them for a few months.[57] There is some conflicting evidence regarding the date when he sought this help, however I am satisfied that it happened in 2018 or 2019.
[55] Transcript, page 13, lines 10 to 15.
[56] Transcript, page 13, lines 25 to 35
[57] Transcript, page 13, lines 37 to 40
The Richenses provided written evidence and Mrs Richens gave evidence in the hearing. Mrs Richens is a retired real estate agent and member of the Church of Jesus Christ of Latter-day Saints, otherwise known as the Mormon Church. She and her husband spent some time in Australia doing missionary work. She confirmed that over a period of several months she and her husband visited the Applicant at his home. She estimated they had visited 10 to 12 times.[58] She said among the things they discussed was his offending and that he expressed shame, saying that he knew his behaviour contrary to everything he had been taught and contrary to the law. She said his whole demeanour would change when he spoke about it and that he felt very deeply of “having someone be hurt, but then also the repercussions of what that meant”.[59] She and her husband offered spiritual guidance, teaching the Applicant to seek help and strength from a higher power, namely God.[60]
[58] Transcript, page 81, line 45.
[59] Transcript, page 82, lines 35 to 41.
[60] Transcript, page 85, lines 1 to 15.
Ms Richens also confirmed that the Applicant had attended a 12 step program run by the church, which was based on the Alcoholics Anonymous 12-step program. She said while the program is a 12 step program, the effort is ongoing, so once a person has finished the 12 steps are they go back and start over again, and that after they feel under control then they help somebody else. Helping someone else is part of the recovery process.[61] The Applicant had difficulty attending the course because he did not have a driver’s licence, but Ms S sometimes drove him and sometimes he caught the train. Ms S estimates that he attended five or six sessions.[62]
[61] Transcript, page 86, lines 5 to 15.
[62] Transcript, page 74, lines 30 to 36.
Mrs Richens impressed as a genuine, well informed witness. I accept her evidence. However, despite the Applicant’s expressions of remorse and shame to her, he continued to contest the grievous bodily harm charge. This meant that some two and a half years after the victim suffered the attack, he had to face the Applicant in court, recount the details of the attack and possibly be cross examined about it. The Applicant was asked why he pleaded not guilty. He said he understood that if he was convicted after pleading not guilty he would only receive six months longer in prison than if he pleaded guilty and that “I didn’t want to come to gaol, you know, I thought if I come to gaol be deported and then I wouldn’t be able to see my son.” [63]
[63] Transcript, page 11, lines 40 to 45.
It was the Applicant’s legal right to plead not guilty. The fact that he did, in those circumstances and for the reasons he gave, shows an unwillingness to be held accountable for his actions and a lack of any real concern for the victim of his crime. The learned sentencing Judge did not accept that the Applicant was remorseful and nor do I. The Applicant has not undergone any further intervention since being sentenced (although he applied to undertake courses in prison).[64]
[64] Transcript, page 32, lines 3 to 4.
If the Applicant is allowed to return to the wider Australian community, he will live with his parents.[65] When asked why he would not turn to alcohol in a time of adversity he said:
“Because I have a big family that supports me and they’ve been there throughout this whole time. My dad’s my No. 1 role model in my life and he – he’d be there to help me through those tough times without leaning towards alcohol because it no longer interests me anymore.”[66]
[65] Transcript, page 15, lines 39 to 41.
[66] Transcript, page 29, lines 24 to 31.
However, the Applicant’s family were unable to curb his abuse of alcohol or offending previously. His father’s counsel with respect to drink-driving did not stop him from doing so. The Applicant even said that his family had started disliking him because of his drinking problem because when he became drunk he ended up being “a bit of a dick head”. He said members of his family had attempted to encourage him to stop drinking “All the time”.[67] He committed grievous bodily harm at a time while he was living in a supportive family environment and attending church regularly.
[67] Transcript, page 29, lines 35 to 41.
The Applicant contends that he is not addicted to alcohol, and that he has no interest in it anymore. I accept that he did not consume alcohol for around six months before being incarcerated, which is a relatively short period. It was contended on the Applicant’s behalf that he will be under the supervision of the parole service, and subject to drug and alcohol testing, until January 2023. However, the way in which the Applicant previously abused alcohol was not by drinking every day but by binge drinking on occasion. A random drug and alcohol test will not necessarily detect a return to binge drinking, and the Applicant will only be under parole supervision for two years.
Much emphasis was placed on the involvement of alcohol in the Applicant’s offending. However, his intoxication does not explain all of his offending and it only partly explains the drink-driving and violent assault. His offending as a whole displays a disregard for the law and the safety of others. Further, the violent assault displays a degree of moral turpitude which has neither been acknowledged nor addressed by the Applicant or any of his supporters. I acknowledge that he has not committed any offences since September 2017. However, he has previously gone for substantial periods without offending so this does not necessarily represent a significant change. The Applicant said he would not re-offend because he does not want to go to gaol or be deported, but he has not engaged in any psychological intervention such as cognitive therapy or a violent offenders’ course, nor does he plan to.
Several people provided letters of support for the Applicant, and some gave evidence in the hearing.
Bishop Kerr of the Applicant’s church said he has known the Applicant for 16 months through the church and had seen a willingness in the Applicant to “adjust his life to good”. He said observed a “mighty change” in the Applicant to make these corrections.[68]
[68] Exhibit G1 Section 501 G-documents, G2, page 104.
The Applicant’s sister, Ms S, spoke positively about the Applicant. She said he had lived with her and her family since 2016, contributing financially and sometimes minding her children. She encouraged him to attend her church and she said sometimes he would take the initiative to attend. She sometimes drove him to attend sessions of the 12 step course. Ms S impressed as a reliable witness and I accept her evidence. When she was asked if she would be able to help the Applicant in the event that he got his visa back and was not coping, she said she would provide moral support to him and if he needed her she would be there, for example if he needed her to drive him somewhere or pick up his son.[69] When asked if she thought she or her husband would be able to persuade the Applicant to see a doctor if she thought he needed medication or to avoid relying on alcohol or drugs, she said:
“Well, I would say I would encourage him to do things that are better for him, I would say. We would - you know, I would say to him, you know, bro, you know, you’ve got to think about in the long run what’s better for you. You know, is this going to help you in the end? Or is this going to end you back in - back to where you were before? You know, I would be a big encouragement to him, as I was for him when he was going to the recovery program that was held at my church…”[70]
[69] Transcript, page 72, line 41 to page 73, line 2.
[70] Transcript, page 73, lines 10 to 20.
Two of the Applicant’s aunts provided letters of support in which they spoke positively about the Applicant. The weight I am able to give their evidence is limited by the fact that both failed to adequately recognise and address the nature of his drink-driving and violent offending. One aunt stated “He will never intentionally set out to hurt or endanger others. It is not in his nature to do so.”[71] The Applicant’s other aunt said “Admittedly, he has strayed off the path of right previously but his intentions are always of good. Troy has never set out to hurt or endanger others... he has always shown empathy for those around him…”[72]
[71] Exhibit G1 Section 501 G-documents, G2, page 103.
[72] Ibid, G2, page 105.
It is not unusual for family members to see each other through rose-coloured glasses. This appears to be a case where “the views of such people are unlikely to serve as an accurate “touchstone” as to a person’s character”[73]. I would say the same of the Applicant’s parents. They described the Applicant as caring and kind, putting other people first before himself. In oral evidence they both referred to the Applicant having made a “mistake” and said he deserves a “second chance”.[74] The Applicant’s mother even went as far as saying “Made a mistake as in everyone makes mistakes”[75] which implied that she thought everyone capable of doing what the Applicant did and displayed an alarming lack of insight into the nature of his violent offending. When it was put to the Applicant’s father that the Applicant had already had a few second chances after drink-driving he agreed, and he further agreed, when it was put to him, that the index offending was a premeditated, brutal assault.[76]
[73] Back and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1105.
[74] Transcript, page 47, lines 6 to 9; Transcript, page 55, lines 1 to 9.
[75] Transcript, page 55, lines 30 to 33
[76] Transcript, page 51, lines 1 to 6.
The Applicant’s mother said that there was an incident involving the Applicant in the prison, that another inmate “smacked the back of his bottom. And Troy didn’t take to that to kindly”.[77] According to her, the Applicant told his father how he reacted, and his father said that he could have dealt with it a lot better than he did. The Applicant’s mother said she did not want to know how the Applicant reacted, saying “I wanted to shut my ears”. When I asked why she did not want to know how her son had behaved she said “because it’s a man. It’s a man with a man. Wow, wow” and later:
“I don’t like anyone, like, in that reference, touching my children. A bully, I don’t even know if it was a bully situation. If someone feels they can do that to someone else without consent, what do you think? How someone would feel to that?”[78]
[77] Transcript, page 58, lines 15 to 16
[78] Transcript, pages 58 to 60.
Neither the Applicant nor his father, who gave their evidence before his mother, were asked about this incident. I make no finding as to the Applicant’s reaction. My concern is that the Applicant’s mother took great exception to another inmate smacking the Applicant on the bottom, however she described his conduct in cornering a man in a public toilet and brutally attacking him as a “mistake”. Further she did not want to know how he reacted to something that he “did not take too kindly”. If the Applicant is returned to the wider Australian community, I have no confidence that his mother will temper or correct his behaviour. I have only slightly more confidence that his father will do that, given his apparent reluctance to acknowledge the seriousness of the Applicant’s conduct and his trivialisation of one of the drink-driving offences. I am satisfied that the Applicant’s sister would try but I am not confident that she would succeed.
The Applicant has a long history of engaging in behaviour that demonstrates disregard for the law and the safety of other members of the community. While I accept that he is highly motivated to stay out of prison and remain in Australia for his son, I am not satisfied that he has sufficient insight into the his drink-driving or violent offending to take the steps required to avoid engaging in this sort of behaviour in the future. Despite being free (and on bail) in the community for two and a half years between the grievous bodily harm offence and his incarceration, he did not engage in any violent offender programs or cognitive therapy in that time. His efforts at rehabilitation were confined to a course aimed at addressing his alcohol abuse, and he did not complete that course. I am not satisfied that the Applicant has adequately addressed the factors that contributed to his offending.
I consider there is a real risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.

The Applicant has one biological child, “Child A”, who was born in November 2012,[79] and is eight years old. When Child A was born, the Applicant and Child A’s mother were in a relationship however they separated around 2015.
[79] Exhibit G1 Section 501 G-documents, G2, page 76.
The Applicant’s father said that prior to the separation their family would see Child A at least once a week. The Applicant, his partner and Child A joined in family celebrations, and special occasions including Christmas, New Year and so on. They have a large family and Child A would play with his cousins.[80]
[80] Exhibit A1 Applicant's Statement of Facts, Issues and Contentions and attachments, statement of K Kane, 3 December 2020, paragraph 10.
According to the Applicant, the problems that led to the separation were “I think with my drinking and my losing my license and unable to go to work because I didn’t have a license…”[81] The Applicant lost his license in September 2014.[82] Child A would have been 22 months old at this time.
[81] Transcript, page 32, lines 38 to 41.
[82] Exhibit G2, Supplementary Section 501 G-documents, SG1, page 318.
The Applicant then went to Darwin to work with his father and stayed for between nine and 12 months.[83] In that time the Applicant spoke with his partner and Child A every one or two days and they visited him on one occasion for a week.[84]The relationship ended sometime after this visit while the Applicant was still in Darwin. Upon the Applicant’s return to Brisbane, he lived with his sister Ms S, who said he started living with her in 2016.[85]
[83] Transcript, page 33, lines 15 to 16.
[84] Transcript, page 33, lines 17 to 21; Transcript page 46 lines 25 to 26.
[85] Transcript, page 65, lines 20 to 23.
Child A continued to live with the Applicant’s ex-partner, and he spent every Friday and every second weekend with the Applicant.[86] The Applicant took Child A swimming, shopping for toys, taught him to play football, and they played PlayStation together.[87] He often took Child A and Ms S’s son who was around the same age out to do activities. He estimated that this arrangement with Child A lasted around one year.
[86] Transcript, page 33, lines 30 to 34.
[87] Transcript, page 14, lines 4 to 13.
The Applicant said sometimes his ex-partner stopped him from seeing Child A and blocked him from contacting her. He said it would happen if he did something wrong, or she got a new boyfriend who did not like her speaking to the Applicant.[88] Examples he gave of him having done something wrong were failing to return a bag of clothes that she had given him or having had a woman with him when he saw Child A.[89] Sometimes in retaliation the Applicant would miss paying child support for a week.[90] The Applicant initiated a mediation process but it did not come to anything. According to him, one mediation session was cancelled because his ex-partner had to work, and after it was re-scheduled he missed a phone call from the mediation service. He subsequently received a letter saying that the matter had been referred to the Family Court “because we tried to contact you”.[91] The Applicant’s family only saw Child A, post-separation, when he was with the Applicant.
[88] Transcript, page 34, lines 5 to 10.
[89] Transcript, page 39, lines 23 to 27.
[90] Transcript, page 34, lines 36 to 40
[91] Transcript, page 34, line 45 to page 35, line 25.
The last time the Applicant saw Child A was on his sixth birthday in November 2018. On that occasion the Applicant and his father had arrived unannounced at his ex-partner’s home after unsuccessfully trying to contact her. They brought birthday presents for Child A. While there was some conflicting evidence about this, I accept that there was not any inappropriate behaviour, and that Child A was happy to see the Applicant. It appears that there was a court order prohibiting the Applicant from attending the residence, and Child A’s mother told the Applicant and his father that they should not have come. However, I accept that the Applicant was not aware of any such prohibition.
The Applicant has since tried to contact Child A but his ex-partner has not allowed it.[92] The Applicant’s sister, Ms S, has tried to reach out to the Applicant’s ex-partner to no avail.[93]
[92] Transcript, page 39, lines 39 to 43.
[93] Transcript, page 39, lines 44 to 46.
The Applicant’s parents and Ms S have observed the Applicant and Child A together. They all attest to the positive and loving relationship between the two. Mrs Richins saw the Applicant with Child A on one occasion. She observed that he spoke very gently to Child A, and when he corrected his behaviour he did it gently and his son was very keen to please him. She thought the Applicant had cultivated a “very sweet” relationship with Child A.[94]
[94] Transcript, page 83, lines 5 to 15.
I am satisfied that there is a loving, positive relationship between the Applicant and Child A. I am further satisfied that if the Applicant is allowed to have contact with Child A, and if he abstains from abusing alcohol when he has Child A in his care and refrains from committing offences that could result in removal from Child A’s life, he will make a positive contribution in a parental role. However, it is apparent that Child A’s mother opposes any contact between Child A and the Applicant, and there remains a risk that the Applicant will abuse alcohol and/or re-offend.
I am satisfied that if the Applicant is deported, it is extremely unlikely that the Applicant will be able to re-establish contact with Child A. Child A will therefore not have his father in his life in any respect. While Child A has not provided any evidence about his views, I infer from the evidence of other family members that Child A would prefer to have the Applicant in his life and will be worse off without a positive father figure. If the Applicant remains in Australia, he will attempt mediation and, failing that, he will take court action to gain joint parental responsibility.[95] His father will provide any financial assistance that he can.[96] Accordingly, there is a chance that the Applicant could fulfil a parental role, albeit as a secondary caregiver, in Child A’s life if his visa is returned to him.
[95] Transcript, page 14, lines 25 to 28
[96] Transcript, page 46, lines 43 to 44.
It was contended on the Applicant’s behalf that without the Applicant in his life, Child A “would not receive any guidance in terms of religious beliefs or matters of conscience”.[97] There is no evidence to substantiate the assumption implicit in this contention that Child A is not currently receiving guidance in matters of conscience. Nor is there any evidence that exposing Child A to the Applicant’s particular religion would be more beneficial to Child A than exposing him to a different religion or not exposing him to any religion, and I do not accept that it would be.
[97] Ibid, page 13.
The Applicant’s relationship with Child A has been limited, with long periods of absence including a very long period when the Applicant chose to absent himself in 2015. Child A’s mother has always fulfilled the primary caregiver role and there is no suggestion that Child A is not well cared for. Child A’s mother will not allow the Applicant to even communicate with Child A so it seems unlikely that she will welcome the Applicant back into Child A’s life if he gets his visa back. Any involvement the Applicant will have with Child A will likely be limited. Further, the Applicant’s potential to play a positive parental role depends on him refraining from alcohol abuse and criminal offending which could see him incarcerated or deported. If the Applicant is deported, it is extremely unlikely that Child A would have any access at all to his father, being deprived of emotional or financial support that the Applicant could provide.
It was submitted on the Applicant’s behalf that the Tribunal must decide whether revocation is or is not in a minor child’s bests interests and if it is, the Tribunal may not “reduce” the weight this Primary Consideration is given based on the factors listed in paragraph 13.2(4) of the Direction. Paragraph 13.2(4) of the Direction provides for certain matters to be taken into account, where relevant, when determining “whether revocation is in the best interests of the child”. This would appear to support the Applicant’s contention. However, the Direction requires the decision maker to perform a balancing exercise with respect to the Primary Considerations and Other Considerations. That requires weight to be assigned to each of those considerations. The Direction does not stipulate a weight to be given to Primary Consideration B in the event that revocation is in the best interests of the child. I consider that part of the Tribunal’s function in this matter is to assign a weight to this Primary Consideration. Accordingly, I respectfully decline to proceed in the way submitted on behalf of the Applicant. Taking into account the matters listed in paragraph 13.2(4) of the Direction, I find that the best interests of Child A warrant moderate weight in favour of revocation.
The Applicant has claimed eight minor relatives, consisting of three brothers, two nieces and three nephews as children whose best interests would be affected by the decision.[98] He did not provide the dates of birth of any of the children however his sister Ms S, is the mother of five of the children and she informed the Tribunal in oral evidence that they are aged 16, 15, nine, four and two.[99] The Applicant lived with Ms S and four of those children (the fifth was not yet born) for three years. He bonded with the children and sometimes minded them for Ms S and her husband. He has contact with them through Ms S whom he phones once per week and speaks to when she is available.[100] If the Applicant gets his visa back Ms S hopes he will be involved in her children’s lives.
[98] Exhibit G1 Section 501 G-documents, G2, page 78
[99] Transcript, page 71, lines 1 to 26.
[100] Transcript, page 37, lines 23 to 25.
The ages of the Applicant’s three younger brothers are not known. Very little is known about them and their relationship with the Applicant. One of the Applicant’s aunts said the Applicant is a great big brother whose siblings adore him.[101] However, I take a guarded approach to her evidence for reasons I have stated above. The Applicant said he wishes to be a role model for his brothers and “show them what not to do”. However, he said they do not get into trouble.[102] There is no evidence that the Applicant’s younger brothers need a role model in their lives in addition to any role models they may already have.
[101] Exhibit G1, Section 501 G-documents, G2, page 103.
[102] Transcript, page 38, lines 23 to 35.
The Applicant’s nieces, nephews and brothers have both of their respective parents fulfilling parental roles and there is no suggestion that the Applicant would ever be called upon to fulfil such a role. They do not rely on the Applicant financially or emotionally. They would be able to communicate with the Applicant if he were deported. Overall, I am satisfied that revocation is in the best interests of these children but to a very minor extent.
Conclusion: Primary Consideration B
The best interests of the children mentioned above in totality weigh to a moderate extent in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation 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 hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[103]
[103] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia in 2004 when he was 17. He is now 34 years old;
·the Applicant committed some minor traffic offences in 2005 and 2006, relatively soon after moving here. His first serious infringement was a drink-driving offence in 2007. There followed more drink-driving offences, and in 2017 his most serious offence being grievous bodily harm;
·the Applicant’s offences include a serious violent offence;
·there is a real risk that he will re-offend;
·his offending as a whole demonstrated disregard for the laws regulating the community that he seeks to re-enter;
·the Applicant was involved in two football clubs, and a church congregation in Australia;
·he is a skilled slaughterman who has been consistently employed while in Australia. On two occasions he helped Ms S provide meals for homeless people; and
·if he is removed to New Zealand, it will adversely affect his immediate family (addressed below under Other Considerations, and some minor children, especially his son (addressed above under Primary Consideration B).
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of 17 and has lived in Australia for his entire adult life. He committed his first traffic offences in 2005 and 2006 and his first serious traffic offence in 2007, being a drink driving offence, only three years after moving to Australia. He is entitled to limited weight under paragraph 14.2(1)(a) of the Direction.
According to the Applicant, he had consistent employment as a slaughterman from 2004 until he was incarcerated, working for five different employers.[104] His last employer employed him from 2016 to 2019.[105] The managing director of that business provided a letter in which he described the Applicant as a reliable worker who relates well with his fellow workers, follows instructions and is always willing to do extra when required. He said he would have no hesitation in continuing to employ the Applicant.[106] He told the Tribunal that he would offer the Applicant work should he get his visa back and should there be a position available.[107] On two occasions in 2018, the Applicant accompanied his sister out to provide meals to homeless people, which is something that she did regularly.[108] The Applicant is entitled to moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.
[104] Exhibit G1, Section 501 G-documents, G2, page 82.
[105] Ibid, G2, pages 82 and 94.
[106] Exhibit G1, Section 501 G-documents, G2, page 95.
[107] Transcript, page 64, lines 27 to 30.
[108] Transcript, page 37, line 45 to page 38, line 13.

All of the members of the Applicant’s immediate family live in Australia including his son, his parents, and his eight siblings along with his extended family. The Applicant lived with Ms S and her family for three years, and he keeps in touch with them from gaol. The Applicant was employed, played sport as a member of sporting clubs, and attended church. I am satisfied that, If the Applicant is deported, it will cause emotional hardship to his immediate family and possibly some extended family, and it will be against Child A’s best interests.
The Applicant’s social and familial ties, and the impact on family members of his removal from Australia, weigh heavily in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). Both the Applicant and Respondent submitted that this Other Consideration carries no weight. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 34 year old year old man who is able bodied and does not claim to have any medical or psychological conditions. It is likely that he will suffer emotional hardship from his permanent separation from his son, Child A. His mother thinks he has previously been depressed due to his inability to have contact with Child A and that he will again suffer depression if he is deported. I accept that there is that risk.
It is reasonable to find that the level of medical care, including care for psychological conditions, and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia.
The Applicant is an experienced and skilled slaughterman. A former employer has provided a very positive reference and there is a letter of support before me from the father of a school friend describing the Applicant as a hard worker. I am satisfied that the Applicant could produce good work references to prospective employers in the abattoir industry in New Zealand and that he has reasonably good employment prospects. The Applicant will have the same access to social welfare as other New Zealand citizens.
The Applicant lived in New Zealand until he was nearly 17 years old. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.
The Applicant does not have any family residing in New Zealand; however, he will be able to maintain communication with his family in Australia in the same way that he does now while incarcerated.
It is likely that the Applicant will face some difficulty in re-establishing himself in New Zealand as he will have to secure accommodation, obtain a job or arrange income support and establish a support network. However, any such difficulty would be short-term only and would not prevent him from successfully re-settling there.
This Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs heavily in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 143 (one hundred and forty three) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.........................[SGD]...............................................
Associate
Dated: 21 January 2021

Date of hearing: 11 and 12 January 2021

Solicitor for the Applicant:

Mr Oszkar Denes

Denes Lawyers

Solicitor for the Respondent
Ms Rachael Law

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G18 pages 1 to 294)

R

-

13 NOV 2020

G2

Supplementary Section 501 G-Documents (SG1 – SG3 pages 295 – 397)

R

-

10 DEC 2020

A1

Applicant’s Statement of Facts, Issues and Contentions including attached:

·       Photographs;

·       Statement of K Kane;

·       Statement of the Applicant’s sister; and

·       Statement of Mike Eathorne

A

7 DEC 2020

7 DEC 2020

A2

Applicant’s Statement in Reply including attached:

·        Photographs;

·        Statement of K Kane;

·        Statement of Sylvia Richins;

·        Statement of Ross Richins;

·        Statement of Jane Chase

A

-

6 JAN 2021

R1

Respondent’s Statement of Facts, Issues and Contentions

R

23 DEC 2020

23 DEC 2020

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G18 pages 1 to 294)	R	-	13 NOV 2020
G2	Supplementary Section 501 G-Documents (SG1 – SG3 pages 295 – 397)	R	-	10 DEC 2020
A1	Applicant’s Statement of Facts, Issues and Contentions including attached: · Photographs; · Statement of K Kane; · Statement of the Applicant’s sister; and · Statement of Mike Eathorne	A	7 DEC 2020	7 DEC 2020
A2	Applicant’s Statement in Reply including attached: · Photographs; · Statement of K Kane; · Statement of Sylvia Richins; · Statement of Ross Richins; · Statement of Jane Chase	A	-	6 JAN 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	23 DEC 2020	23 DEC 2020