Kare Kare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 498

Kare Kare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 498 (12 March 2020)

Division:GENERAL DIVISION

File Number:          2019/8507

Re:Jacobi Tipene Ataarangi Kare Kare

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Arends

Date:12 March 2020

Place:Brisbane

The decision under review is affirmed.

...............................[sgd].........................................

Member Rebecca Arends

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 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

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

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

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 Arends

12 March 2020

THE ISSUE BEFORE THE TRIBUNAL

1. Mr Jacobi Tipene Ataarangi Kare Kare (“the Applicant”) is a 36 year old citizen of New Zealand who was born on 2 March 1984[1]. He relocated to Australia, at the age of 17 on 15 September 2001 and since that time he has spent a total of 30 days outside Australia.[2]  The most recent visa granted to him was a Class TY Sub-class 444 Special Category (Temporary) Visa (“visa”) on 3 January 2005.[3] 

   [1] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 1.

   [2] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 8; and Exhibit R1, G-Documents, G-9.

   [3] Exhibit R1, G-Documents, G-9.

2. On 17 May 2019 the Applicant was convicted of dangerous operation of a vehicle (adversely affected by an intoxicating substance) (the “dangerous driving offence”) for which he was sentenced to imprisonment for 12 months.[4]

   [4] Exhibit R1, G-Documents, G-8, page 52.

3. On 5 June 2019, while he was serving that sentence, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) decided to mandatorily cancel his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[5]

   [5] Exhibit R1, G-Documents, G-3.

4. The Applicant subsequently wrote to the Respondent requesting a revocation of the decision.[6] On 19 December 2019, pursuant to s 501CA(4) of the Act, the Respondent decided not to revoke its decision.[7]

   [6] Exhibit R1, G-Documents, G-15.

   [7] Exhibit R1, G-Documents, G-7.

5. The Applicant lodged an application with this Tribunal on 20 December 2019 seeking a review of the Respondent’s decision not to revoke the cancellation of his visa.[8] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.[9]

   [8] Exhibit R1, G-Documents, G-2.

   [9] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.

6. The hearing of this application proceeded on 27 February 2020 and received oral evidence from the Applicant, the Applicant’s partner, a representative of a Drug and Alcohol Residential Rehabilitation Program, and the Applicant’s most recent employer. The Tribunal additionally received the written evidence that is listed in the attached exhibit list, marked “A”.

   THE APPLICANT’S OFFENDING HISTORY

7. The Applicant has a history of criminal offences[10], traffic infringements[11] and fare evasion[12] commencing in 2003 when he was 19 years old.

   [10] Exhibit R1, G-Documents, PG-8.

   [11] Exhibit R2, Respondent’s Tender Bundle, TB3, pages 38 to 41.

   [12] Exhibit R2, Respondent’s Tender Bundle, TB3, page 42.

8. On 30 November 2003, the Applicant committed the offences of entering a dwelling with intent to commit an indictable offence in the night, and stealing. He says, about this offence, that he was very drunk and does not have a good memory of what happened however he later learned that he had walked into his friend’s home in a caravan park and taken his video player.[13]

   [13] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 20.

9. On nine occasions between October 2004 and October 2015, the Applicant was caught driving without a license or driving within a period of disqualification from having a license. In addition, on 20 December 2008 he was caught driving unlicensed, in an uninsured and unregistered vehicle.[14] The Applicant has never held an Australian driving license. Accordingly every time the Applicant has driven a motor vehicle in Australia, he has done so illegally.[15]

   [14] Exhibit R2, Respondent’s Tender Bundle TB4, pages 54 and 55.

   [15] Transcript, page 61, lines 19 to 23.

10. On five occasions between July 2007 and October 2015, the Applicant was caught driving under the influence of alcohol. This does not include the dangerous driving offence on 23 November 2018. His blood alcohol concentrations on those five occasions were, respectively:

    ·.097% - on 7 July 2007;

    ·.132% - on 15 August 2007;

    ·.185% - on 2 October 2009;

    ·.163% - on 1 May 2011 for which he was sentenced to a period of three months imprisonment, fully suspended for 18 months; and

    ·.181% - on 17 October 2015 for which he was sentenced to four months imprisonment, suspended for 18 months, and for disqualified driving he was he was put on probation for 12 months and ordered to attend a drink-driving program.

11. On 29 October 2007, the Applicant committed a public nuisance, pounding and kicking on the doors and windows of private residence. He left when the police arrived and was later apprehended in an intoxicated state with his pants around his knees.[16] The Applicant claims to have no memory of that offence.[17]

    [16] Exhibit R2, Respondent’s Tender Bundle, TB1, page 4.

    [17] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 21.

12. On 14 October 2010, the Applicant failed to appear in accordance with a bail undertaking.

13. On 27 October 2011, the Applicant committed the offence of “assault or obstruct police officer” when the police were called to a domestic disturbance where he was trying to force his way into the residence. The police report records that his:[18]

    “… breath smelt strongly of intoxicating liquor and that his speech was slurred and his eyes bloodshot, he was drunk”.

    [18] Exhibit R2, Respondent’s Tender Bundle, page 10.

14. The Applicant swore at police, struggled when they tried to detain him and had to be handcuffed.[19] The Applicant claims, by way of explanation, that he was in a relationship with the woman who lived at the address, he had been at home minding her son while she was out, and when she came home she brought another man with her, took the man into the bedroom, and told the Applicant to leave, so he was very upset. He said he had been drinking that night but was not drunk as he was looking after his partner’s son.[20] I prefer the contemporaneous police records to the Applicant’s evidence with respect to whether or not he was intoxicated, and I find that he was intoxicated.

    [19] Exhibit R2, Respondent’s Tender Bundle, TB1, page 10.

    [20] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 27; and Exhibit R1, G-Documents, PG-15, page 77.

15. On 24 October 2014, the Applicant committed a public nuisance when he repeatedly used obscene language while talking loudly into his mobile phone while on a train platform. When asked by police to desist, he continued to swear loudly.[21]

    [21] Exhibit R2, Respondent’s Tender Bundle, TB1, page 14.

16. On 1 December 2017, the Applicant’s current partner obtained a domestic violence order (“DVO”) against him. The Applicant and his partner both gave evidence about how this came about, and their evidence was, for all relevant purposes, consistent.  In the words of the Applicant:

    “…me and my partner…we were having… a couple of little quiet drinks and stuff…. The kids were asleep.  Yes, having a good night drinking and we went to bed together, that was good.  Then woke up early the next morning, which I always do every morning.  It was a weekend.  Yes, woke up that morning, started cleaning the house and stuff, which I do all the time… Then my son [Son’s name redacted] wakes up.  So I go and grab them, you know, get them all dressed up and changed… you know, more fun in the sun and bonding time for the weekend while mum’s still sleeping.  Then apparently my partner said I still looked a bit intoxicated, like still look a bit drunk from the night we had.  Yes, I had my son with me.  Then it happens.  Then I started having a little drink again.  Then I was taking [Son’s name redacted] downstairs.  Then my partner could see me, like she’s thinking that I was going to drop [Son’s name redacted] down the stairs or stuff like that, but I said, ‘No, I’ve got him.  I’ve got him.  He’ll be right.’  Then she said she wanted [Son’s name redacted] because she had the feeling that I was going to drop him down the stairs, and I said, ‘No, I want [Son’s name redacted]  because I want to spend more time with him’, but she’s saying, ‘You almost tripped down the stairs with [Son’s name redacted] in your arms.’  Then I said, ‘But I didn’t.’  So she called the cops…” [22]

    [22] Transcript, page 15, lines 10 to 31.

17. The Applicant’s partner gave the following evidence about this incident:

    “When the order was made basically Jake had been drinking all night and he wanted to look after our son, but I felt like he was too intoxicated and he was stumbling around and I was worried that he was going to fall down on top of him, especially walking up and down the stairs, so I told him to give [Son’s name redacted] back to me, and he refused.  He said that he was fine and said he wanted to spend time with his son.  I kept trying to get [Son’s name redacted] off him, but he wouldn’t give him to me, so I decided to call the police.”[23]

    [23] Transcript, page 69, lines 19 to 25.

18. Under cross examination, in the following exchange, the Applicant conceded that he was, in fact, intoxicated on the morning in question.

    Mr Kyranis:     What time did you start drinking that day?

    Applicant:       Probably would be about 8.30 or something. 

    Mr Kyranis:And how many drinks would you have had between 8.30 and when Rochelle asked you to hand [Son’s name redacted] back?

    Applicant:       I probably had about, like, four.  

    Mr Kyranis:     Do you agree that you were intoxicated on that day?

    Applicant:       Yes, pretty much, yes.[24]

    [24] Transcript, page 34, lines 41 to 47.

19. The Applicant admitted in his oral evidence that he knew, at the time of this incident, that he was intoxicated.[25] The child in question is the biological son of the Applicant and his partner, and he was approximately 10 months old at the time.[26]

    [25] Transcript, page 35, lines 24 and 25.

    [26] Exhibit R1, G-Documents, PG-16, page 88.

20. In the early hours of the morning of 23 November 2018, after having spent most of the previous night consuming alcohol, the Applicant decided to drive to work. At approximately 5.30am, the Applicant drove onto the wrong side of the road, mounted the kerb, and struck a power pole which stopped his vehicle outside of a school. The force of the collision snapped the pole in half, bringing down power lines. This caused live electrical wires to fall onto the vehicle, road, footpath and front yards of residential houses, and it left several houses without electricity. That particular laneway was typically used by members of the public socially and for work purposes, and is lined by residential dwellings, businesses, a kindergarten that provides before and after school care, a public footpath and a primary school. After the crash, road users used their vehicles to block the road off to protect the community from the live electrical wires. At 6:54am, nearly 90 minutes after the crash, police took a blood sample from the Applicant which showed that he had a blood alcohol concentration of .251%.[27] There is no evidence before the tribunal that any person was injured by the collision.

    [27] Exhibit R2, Respondent’s Tender Bundle, TB3, page 50.

21. The Applicant gave evidence that he had been drinking the night before because he was depressed about problems in his relationship with his current partner. He initially described his behaviour as follows:

    “Then, yes, I just kind of lost the plot because I broke up with my relationship and my son was more important to me than - you know, just lost - so then I started drinking and stuff, being a bit down and stuff and drinking.  Then woke up, but I was still intoxicated, so I started driving to work.  Then somehow I fell asleep or something and blacked out, so I was asleep.  Then I had an accident.[28]

    [28] Transcript, page 14, lines 40 to 45.

22. The following exchange that occurred in cross examination shed further light on the extent of the Applicant’s drinking prior to the accident:

    Mr Kyranis:Thank you.  Mr Kare Kare, when did you stop drinking the night before?

    Applicant: Would have been around about early morning, about 3 o’clock or 2.30.

    …

    Mr Kyranis:     What time would you have woken up?

    Applicant:       Probably about 4.30, quarter to 5.

    …

    Mr Kyranis:Yes, so between the night before and when you stopped drinking the next morning how many drinks - sorry, when did you start drinking the night before, what time?

    Applicant:       Before the accident?

    Mr Kyranis:     Yes?

    Applicant: Straight after work about, what, 5 o’clock in the afternoon.  No, sorry, sorry, I spent a little time with my son at the time.  Say about half past 6, 7 o’clock, half past 6.

    Mr Kyranis:Thank you.  How many drinks would you have had between half past 6 or 7 o’clock and 2.30 and 3 o’clock when you stopped drinking?

    Applicant: Probably had about, what, two and a half carton, and a couple of bourbons then.

    Mr Kyranis:     Sorry, was your evidence two and a half cartons?

    Applicant:       Yes.

    Mr Kyranis:     Of beer?

    Applicant:       Yes.

    Mr Kyranis:     Full strength beer?

    Applicant:       Yes, beer, and probably a four pack of bourbon.

    Mr Kyranis:     A four pack of premixed bourbons?

    Applicant:       Yes.

    Mr Kyranis:     Anything else?

    Applicant:       No. [29]

    [29] Transcript, page 31, line 9 to page 32, line 14

23. On 17 May 2019 the Applicant was sentenced to 12 months imprisonment with a non-parole period of four months for the dangerous driving offence. The learned sentencing Magistrate had this to say:

    “You have - in respect of your traffic matters, you are not a person of good character. You have a terrible, terrible traffic history. You have two previous disqualified drivings, you have seven previous unlicensed drivings and you have been convicted of driving with - under the influence of liquor on five previous occasions. And those occasions were because - in 2007 you were driving with .097, which is double the limit. In 2007 again, you were driving at .132, which is almost three times the limit. In 2009 you were driving at .185, which is nearly four times the limit. In May of 2011 you were caught driving at .163, which is about three and a-half times over the limit or approaching. And in 2015, you again, were found driving at .181, which is approaching three and a-half times over the limit. And this instance you are over five times the limit.

    You have had the advantage of probation, you have had the advantage of wholly suspended sentences and you have had the advantage of fines, but still, you still drive and put innocent lives and [sic] risk, driving at five times the limit.”[30]

    [30] Exhibit R1, G-Documents, PG-10, page 2, line 42 to page 3, line 9.

24. Between the commission of that drink driving offence and the date of sentencing, the Applicant committed further offences. On 29 December 2018, according to the Applicant’s partner, while they were in their home, he stood over her and shouted at her, pushed her, poked her in the face with his finger, and emptied a packet of chips on her.[31] She was frightened that he would harm her. [32] She said in oral evidence:

    “Basically Jake was just getting a bit too aggressive towards me trying to get me to do what he wanted, and he just took it a bit too far and I was frightened so I called the police.”[33]

    [31] Exhibit A1, Statement of Rochelle Marie Armstrong, 23 February 2020; and Transcript, page 72, lines 18 to 28.

    [32] Transcript, page 72, lines 41 to 43.

    [33] Transcript, page 69, lines 13 to 16.

25. The Applicant admitted in his oral evidence that he had consumed around “five cans” prior to the incident.[34] According to the police report, police arrested the Applicant and took him to the watch house. However, the Applicant refused to move from the vehicle bay into the holding cell, he adopted a fighting stance, he repeatedly lunged towards police with clenched fists and raised hands, and he repeatedly made threats to kill and injure police. Ultimately police tasered the Applicant so that he could be restrained and moved into a holding cell.[35] The Applicant was subsequently convicted of breaching the DVO (not being of good behaviour towards his partner) and obstructing police.[36] He was not convicted of any violence offence.

    [34] Transcript, page 33, lines 26 to 30.

    [35] Exhibit R2, Respondent’s Tender Bundle, TB1, page 32.

    [36] Exhibit R1, G-Documents, PG-8.

26. The Applicant’s explanation for his offending is that he was trying to get his partner to help him clean the house before his mother arrived for a visit later that day, and he was unhappy with her for not helping. He admits standing over her, shouting at her, poking her face twice and pouring chips on her, however he denies pushing her. In evidence before the Tribunal, when challenged about this denial, he said he could not have pushed her because she was lying down on the bed.[37] He contends that the police, before taking him to the watch house, had undertaken to bring him home in time for him to go to the airport to collect his mother, however once he was there they told him they would not release him until he had “sobered up”. He said he became angry that the police had not kept their word and he admitted that he had been tasered. However, he denied adopting a fighting stance, putting his fists up or making threats.[38] The Applicant was angry and intoxicated at this time. I prefer the contemporaneous police evidence about the conduct he engaged in to his evidence, and I accordingly find that he was physically threatening and made threats to harm and kill police. 

    [37] Transcript, page 32, lines 45 to 46.

    [38] Transcript, page 33, line 35 to page 34, line 10.

27. In the Applicant’s partner’s oral evidence she confirmed that the Applicant had pushed her. She said that she was standing up and she “kind of come back onto the cupboard”.[39] I prefer her evidence to the Applicant’s self-serving denial because she does not appear to have anything to gain by insisting that the Applicant pushed her, and the Applicant was intoxicated at the time of this incident. While I acknowledge that the Applicant was not charged or convicted of a violence offence, I am satisfied that, while subject to a domestic violence order that required him to be of good behaviour towards his partner, he stood over and shouted at her, poked her in the face twice, pushed her once, and emptied a packet of chips over her. 

    [39] Transcript, page 74, lines 1 to 3.

    LEGISLATIVE FRAMEWORK

1. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   (4)       The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

2. There is no question 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:[40]

   “…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…”[41]

   [40] [2018] FCAFC 151.

   [41] 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).

3. 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.

4. 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.[42] I will address each of these grounds in turn.

   [42] Ibid.

   Does the Applicant Pass the Character Test?

5. 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”.

6. The Applicant was sentenced to a term of imprisonment of 12 months. What matters in this context is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served[43]. It is conceded on behalf of the Applicant that he has a “substantial criminal record” and, accordingly, he does not pass the character test.[44] I am satisfied that the Applicant 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.

   [43] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”

   [44] Transcript, page 76, lines 13 to 15.

   Is There Another Reason Why the Cancellation of the Applicant’s visa Should be Revoked?

7. 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.[45]

   [45] On 28 February 2019, the former applicable direction, Direction No 65 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.

8. 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.

9. Paragraph 7(1) of the Direction provides that:

   (1)  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.[46]

   [46] The Direction, sub-paragraph 7(1)(b).

10. 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...

11. Part C provides for the decision-maker to take into account “Primary Considerations”[47] and “Other considerations”[48] The Primary Considerations are set out in paragraph 13(1) 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.

    [47] Paragraph 13 of the Direction.

    [48] Paragraph 14 of the Direction.

12. 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.

13. I note and emphasise 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:[49]

    “…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.”[50]

    [49] [2018] FCA 594.

    [50] Ibid, [23].

14. The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (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;

    (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;

    (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 for determining whether to exercise the discretion.

15. I now turn to addressing these considerations.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

16. 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.

17. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

    (1)The nature and seriousness of the non-citizen’s conduct to date; and

    (2)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

18. 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. Relevant (for present purposes), amongst those factors are:

    (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)…

    (h)…

    (i)…

19. Factor (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature are viewed very seriously. Factor (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant has not been convicted of any violent crime against children. He was convicted of “assault or obstruct police officer” on 27 October 2011 after he struggled with police when they tried to detain him. The conviction for obstructing police in December 2018 arose from the Applicant verbally and physically threatening police. This conduct against police is more relevant to factor (c) which I consider below.

20. The breach of the DVO in December 2018 involved physical contact between the Applicant and his partner to the extent that he poked her twice in the face and pushed her. However, she does not appear to have been injured, and the Applicant was not convicted of a violent crime against her. Behaving aggressively towards his partner in her home to the point that she felt frightened is abhorrent and it is certainly behaviour of a violent nature. However, the weight attributable to these factors (a) and (b) with respect to that conduct must be tempered by the facts that (1) the Applicant is not alleged to have caused injury, and (2) he was not convicted of a violent crime arising from it. Accordingly, I consider that some limited weight should be attributed to factors (a) and (b) in favour of non-revocation.

21. Factor (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. This factor (c) adds another dimension of seriousness to the Applicant’s offences against the police. On two occasions when police were called because of the Applicant’s antisocial and/or threatening behaviour toward members of the community, he engaged in conduct that could reasonably have caused officers to fear serious injury. On one occasion he physically struggled with officers who were trying to restrain him, and on the other occasion he verbally and physically threatened them which included threats to kill. Indeed, on the second occasion the Applicant’s threatening behaviour was such that officers considered it necessary to deploy a taser.

22. The Applicant’s behaviour in this regard constituted a direct challenge to the lawful authority that governs the community to which he now seeks to be returned. When he gave evidence before the tribunal the Applicant was asked if there were any reasons why he had problems with the police and the law. He said:

    “I just have an angry problem – anger problem…when it comes to, like, myself and police officers and stuff, and I’m not a bad guy.  I’m not an angry person, but I just have [sic] that angriness inside me that time, and yes, it wasn’t a very good thing to do.”[51]

    [51] Transcript, page 17, lines 1 to 8.

23. The Applicant’s explanation for his behaviour goes no way to mitigating its seriousness. Furthermore, threatening to harm or kill a police officer in the course of their lawful duty is the type of conduct that strikes at the heart of the criminal justice system. This factor (c) weighs heavily in favour of non-revocation.

24. Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the Courts for the Applicant’s crimes.   

25. The most serious offending is the drink-driving  and dangerous driving. The first three of the Applicant’s drink-driving offences attracted substantial fines, increasing from $1,000 to $1,650, and the Applicant was disqualified from holding a licence for periods of between six and nine months. Yet he kept offending. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. For the Applicant’s fourth drink driving offence, the court did impose a custodial sentence, albeit fully suspended. The Applicant was sentenced to three months imprisonment, wholly suspended for 18 months. When he breached that suspended sentence, its term was extended by three months. For the Applicant’s fifth drink driving offence along with disqualified driving, he was sentenced to four months imprisonment, wholly suspended for 18 months, put on probation for 12 months and ordered to attend a drink driving program. Each drink-driving offence attracted a greater punishment than the one before it, yet the Applicant kept offending. Ultimately, the Applicant was required to serve a period of imprisonment. When he was caught drink driving for a sixth time, with a blood alcohol reading of over five times the standard legal limit, the learned sentencing Magistrate emphasised the seriousness of his offending and concluded that “… there is no reasonable alternative to a term of imprisonment”[52] before imposing a sentence of 12 months imprisonment with a non-parole period of four months.

    [52] Exhibit R1, G-Documents, PG-10, page 59, line 30.

26. It is significant, in my view, that despite no injuries or fatalities resulting from the Applicant’s conduct on this occasion, he was nevertheless required to serve a period of actual imprisonment. This, to my mind reflects the very serious circumstances of his offending, being his very high blood alcohol concentration and the fact that this was his sixth drink-driving offence. The learned sentencing Magistrate made the following observations about the appropriate penalty:

    “…There has been a discussion between the parties as to what the range should be and it would seem - I settle on about 15 months, but I do - now that I have received this additional information which indicates that you have been going to some sort of counselling, I am going to temper that 15 months back to 12 months to take that into account. But a strong deterrent must go to you, Mr Kare Kare, that this sort of behaviour is finished. It will not be tolerated.

    The purpose to which I impose this sentence is to punish you to an extent in a way that is just in all the circumstances, to provide conditions that I consider will help you to be rehabilitated, to deter you and deter others from committing this or similar offences and to make sure that the community acting through this court, denounces the sort of conduct in which you have been involved and to protect the Queensland community from you. [53]

    …

    “I am of the view that a strong personal deterrent and a strong general deterrent must go out to people that drive in the manner that you did, particularly, with your history. You are to be released on parole on 16^th of September 2019… That means you are going to prison today, Mr Kare Kare, and you will be there until September…”[54]

    [Emphasis added]

    [53] Ibid, lines 10 to 22.

    [54] Ibid, lines 40 to 45.

27. The escalation in the severity of the sentences imposed, culminating in a head sentence of 12 months imprisonment with the requirements that the Applicant serve four of those months in custody, is indicative of the very seriousness nature of the Applicant’s drink-driving offending. The comments made by the learned Magistrate in the final sentencing episode serve to confirm this.   

28. The penalties imposed for the drink-driving offences and in particular for the dangerous driving offence favour a finding that the application of this factor (d) weighs heavily in favour of non-revocation.             

29. Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. On ten occasions between October 2004 and October 2015, the Applicant was caught driving without a license or within a period of disqualification from having a license. This is certainly frequent offending. When the Applicant was asked if he had ever wanted to go through the process of getting a license, he answered in the affirmative. When asked what had stopped him he said “I just kept messing up all the time, and I was trying to - you know, trying not to drive again and do my time, and - but I just kept messing up”.[55]

    [55] Transcript, page 61, lines 22 to 28.

1. The Applicant was fined for fare evasion on five occasions between 2011 and 2015. His explanation was “Apparently I didn’t have enough money to buy me a train ticket”.[56] While these may be relatively minor infringements they contribute to an overall impression that the Applicant considered compliance with the law to be a matter of convenience.

   [56] Ibid, lines 6 to 7.

2. Then there is the Applicant’s alcohol-related offending. In an eleven year period he committed six drink-driving related offences, and there was a general upward trend in the concentration of alcohol in his blood on each occasion, the sequence being: 0.097%, 0.132%, 0.185%, 0.163%, 0.181% and 0.251%. Further, the first five incidents were charged as “driving under the influence of liquor” whereas the sixth incident attracted the more serious charge of “dangerous operation of a vehicle (adversely affected by an intoxicating substance)” reflecting the fact that the Applicant drove onto the wrong side of the road mounted a kerb and struck a power pole with such force that it snapped in half.

3. Each one of those actions – driving onto the wrong side of the road, mounting the kerb, and bringing down live power lines - could have seriously injured or killed one or more members of the community. The Applicant’s actions put other road users, pedestrians and residents in grave danger. In addition he caused some residents to be without electricity.  As the Applicant concedes in his statement, he was “…lucky not to kill anyone or myself”[57].  The Applicant admitted that he had consumed two and a half cartons of full strength beer and four premixed bourbons in the 11 hour period before he drove to work and that he had only stopped drinking around three hours before the time of the accident. It can only be concluded that he knew he was heavily intoxicated when he decided to drive, and he does not claim otherwise. Furthermore, the Applicant did this despite the fines, suspended sentences of imprisonment and probation orders that had been imposed on him for previous drink-driving offences. The circumstances of the dangerous driving offence represent a significant jump in the seriousness of his drink-driving offending.

   [57] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 31.

4. I now turn to the obstruct police offences. There is a detectable increase in the seriousness of the Applicant’s defiant and disrespectful conduct towards police officers. The first obstruct police offence involved the Applicant struggling with police while he was intoxicated and they were attempting to restrain him. The second involved him adopting a fighting stance, lunging toward officers and making threats to kill. Such conduct is undeniably very serious. 

5. The Applicant’s criminal history includes only one offence connected to domestic violence, being the breach of the DVO in December 2018. He has provided written evidence to the Tribunal about three long-term relationships that he has had since 2003.[58] I accept his evidence in that regard. I am satisfied that the Applicant is not a repeat domestic violence offender, and I am cognisant that he has never been convicted of domestic violence. I am further satisfied that the conduct that gave rise to the breach DVO offence was, while serious because of its nature, at the lower end of the range of that type of serious conduct.

   [58] Exhibit A1, Statement of Jacobe Kare Kare.

6. The over-all pattern of the Applicant’s offending demonstrates that over a 15 year period, the Applicant had a serious problem with alcohol misuse and a disregard for the laws that govern the community and for the welfare of others that was only getting worse despite the efforts that had been made by the police and courts. Accordingly, application of this factor (e) weighs heavily in favour of non-revocation.             

7. Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending. The obvious effect of the Applicant’s repeat drink-driving related offending is that each time he drove while intoxicated he created a real and substantial risk of harming or killing members of the community, damaging property or interrupting amenities and services. While he appears to recognise that he was lucky not to kill anyone or himself, I would add that it was also very fortunate that he did not injure anyone, given the injuries that result from traffic accidents can be debilitating and lifelong. The cumulative effect of persons such as the Applicant driving while intoxicated is, at the very least - that other road users are never really safe.  The cumulative effect of the Applicant’s repeated drink-driving offending is sufficiently serious to support a finding that this factor (f) weighs heavily in favour of non-revocation.   

8. I do not consider factors (g), (h) or (i) of paragraph 13.1.1(1) of the Direction to apply to the Applicant’s offending or circumstances, so they do not require consideration.

9. Applying the relevant sub-paragraphs (a), (b), (c), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction to the facts and circumstances of the Applicant’s offending, I assess his offending to be very serious and I find that this weighs heavily against revocation of the decision under review.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

10. 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:

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

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that the decisions should not be delayed in order for rehabilitative courses to be undertaken).

11. It was contended on behalf of the Applicant that, in this case, the nature of the harm should he engage in further drink-driving was the creation of a risk that he would cause harm to others. The Applicant’s solicitor invited the Tribunal to assess “three levels of risk that the Tribunal needs to weigh up; one being the risk of future offending, the second being the risk of harm manifesting if he does offend and the third being the magnitude of the harm that will manifest if the risk of drink driving takes place because he’s reoffended.”[59] [Emphasis added]

    [59] Transcript, page 85, lines 41 to 45.

12. While I appreciate the point made by the Applicant’s solicitor, to my mind, inserting an assessment of the risk of harm resulting from further offending conduct would have the effect of watering down the risk assessment that paragraph 13.1.2 of the Direction calls for, and such an approach is not supported by the language used in the Direction. First, the words in paragraph 13.1.2(1)(a) “the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct” are silent as to how probable the causal relationship must be. Second, as a matter of practical reality it is often impossible to predict whether harm will result from offending or what type or severity of harm would result. To my mind, the overall objective of paragraph 13.1 of the Direction is properly served by applying paragraph 13.1.2 such that the decision maker identifies (1) the nature of the harm that could realistically result from the Applicant committing further offences or other serious conduct and (2) the likelihood of him committing further offences or other serious conduct. Accordingly, I respectfully decline to adopt the approach put forward on behalf of the Applicant.  

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

13. 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.

14. As I have observed, drink-driving, especially at the Applicant’s level of intoxication, have the potential to cause serious injury or death to others in the community. The Applicant’s drink-driving offences escalated in seriousness over time in terms of the concentration of alcohol in his blood. While, there is no evidence before me that the Applicant’s previous offences have, in fact, resulted in harm to any person, the risk of further similar offending resulting in injuring or killing members of the community is real and substantial. The nature of the harm to individuals or the Australian community should the Applicant continue to drive while intoxicated (and unlicensed) is very serious and potentially catastrophic.     

15. I have found that the Applicant’s offending against police officers escalated in that the second obstruct police offence was more serious than the first. The Applicant is not small of stature. His self-confessed anger towards police, coupled with his preparedness to resist arrest and threaten police both physically and verbally, creates the potential for serious harm to police officers in the performance of their duties.   

16. Should the Applicant engage in aggressive behaviour towards a domestic partner in the nature and degree of the conduct that breached the DVO, particularly while intoxicated, there is potential risk that he will inflict relatively minor physical or psychological harm on a domestic partner.

17. The particular public nuisance offences committed by the Applicant do not give rise to any readily apparent, tangible harm.

18. Having regard to the totality of the Applicant’s offending conduct, the nature of the harm to individuals or the Australian community were he to engage in further similar conduct ranges from minor to very serious and potentially catastrophic. 

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

19. There appear to be multiple factors that have contributed to the Applicant’s offending. His offending history is indicative of an attitude that compliance with the law is optional, he has a long-standing problem with alcohol mis-use, and he has anger management problems – although he denies that alcohol makes him angry.[60]

    [60] Transcript, page 35, line 46 to page 36, line 2.

20. What is more, in 2011 he was intoxicated while minding his (then) partner’s child while she was out, in 2017 he was so irresponsible with his infant son while intoxicated that his partner called the police, and in 2018 he was aggressive and abusive toward his partner while intoxicated in the family home, all of which is demonstrates a serious lack of appropriate boundaries concerning his alcohol consumption. The Applicant committed the majority of his offences, and certainly the most serious offences, while he was intoxicated. In his oral evidence, he described his relationship with alcohol as follows:

    Mr Kyranis:      When would you say that you started to drink heavily?

    Applicant:       Probably when, like, after my second child…in 2005/6. 

    Mr Kyranis:Would you say that between 2005/6 that your alcohol consumption was at its highest?

    Applicant:       Yes, pretty much, yes.

    Mr Kyranis: Between then and 2019 did it stay consistent? Did it get worse or better?

    Applicant:It got better until I moved to Mackay. Then once I got into the relationship with my partner I just kind of slipped back again, started drinking heavy after - yes, ever since I’ve been with Rochelle.

    Mr Kyranis:      When you say it slipped back, when did it get worse again?

    Applicant:       In 2017.

    Mr Kyranis:      Why did it get worse with Rochelle?

    Applicant: Because I just got relaxed. I was in a new relationship and I got comfortable, found a new job, found a new partner and stuff like that. Then when I had my son I was just drinking a lot because I was working a lot and relaxed a lot, and just I had my own little space to drink in by myself and stuff like that, and - - -

    …

    Mr Kyranis:In 2017, when you said that your drinking got worse, how much alcohol - how often were you drinking per week at that time?

    Applicant:Well, say, what I’d drink during the weekend, like, from Friday and stuff like that, not every day, but - so my partner doesn’t drink beer, so I’d just drink a whole beer to myself, a carton, but that would last me through the whole night and couple of friends will come around and stuff like that.  Yes.

    Mr Kyranis: So in 2017 you - is it the case that you wouldn’t drink during the week but you’d start drinking on Friday?

    Applicant:       Yes.

    Mr Kyranis:      And continue into the weekend?

    Applicant:       Yes.

    Mr Kyranis:      And in one sitting you would drink a carton of beer?

    Applicant:       Yes.

    Mr Kyranis:      Is that it?

    Applicant:       I can go more, but yes, I’ll go through a carton.  Yes.

    Mr Kyranis: And between 2017 - and the accident was in 2018 - was that level of drinking consistent?

    Applicant:       Yes.[61]

    [61] Transcript, page 36, line 42 to page 37, line 45.

21. In 2015, after his fifth drink-driving offence, the Applicant was ordered to attend a drink-driving program, however he did not do so. He claims that he was not told where to go.[62] In oral evidence he said he wanted to attend the course, but conceded that his reason for wanting to attend was that he had been ordered to do so by a court.[63]

    [62] Transcript, page 39, lines 15 to 31.

    [63] Transcript, page 40, lines 8 to 14.

22. Even after the dangerous driving offence on 23 November 2018, he did not stop drinking[64] or engage in any rehabilitation programs. It was not until over four months later, on 3 April 2019, that he attended an assessment for an alcohol course with Lives Lived Well. He attended one session of that course on 17 April 2019.[65] Similarly, the breach DVO and obstruct police offences on 29 December 2018 did not prompt him to address his issues with alcohol or anger. He attended one session of an Anglicare anger management course on 28 March 2019, three months after those incidents, and a second session on 3 April 2019, but he failed to attend a third session that was scheduled on 12 April 2019.[66] He was not on remand during this time – he was in the community on bail.[67]  

    [64] The Applicant gave evidence that he has not consumed alcohol since he became incarcerated (Transcript, page 36, lines 23 to 28), the inference being that he continued to consume alcohol until that time.

    [65] Exhibit A1, Letter regarding participation in rehabilitation – Lives Lived Well, page 25.

    [66] Exhibit A1, Letter regarding participation in rehabilitation – Anglicare North Qld, page 26.

    [67] Exhibit A1, Statement of Jacobe Kare Kare, paragraphs 31 and 33.

23. These limited efforts were undertaken as his court date for the dangerous driving and breach DVO offences loomed. He was sentenced on 17 May 2019.  In these circumstances, while the Applicant’s participation, albeit limited, in the Anglicare and Lives Lived Well courses looks like a step in the right direction, it has the appearance of having been motivated by a desire to minimise his sentence which does not give me confidence that he had, at that time, genuinely resolved to rehabilitate himself. (His sentence was, in fact, reduced from 15 months to 12 months because he had attended “counselling”, presumably these courses)  

24. The Applicant now contends that he has realised the error of his ways and is determined to change. In his statement to the Tribunal he says:

    “I understand that I have committed some very serious offences over the last 15 years. I understand that by drink driving I put the entire community at risk and it was only by dumb luck or the grace of god that I didn’t kill anyone or myself. I don’t want to put myself in that position again. I also understand that my drinking has caused me to respond poorly on a number of other occasions that have led me into trouble with the law. I understand this behaviour is not acceptable and my drinking does not excuse it, but only makes it worse… I now realise that in order not to lose my family, and give them the best life possible, I need to address my drinking and the other factors that put me in this position.”[68]

    [68] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 66.

25. The Applicant has attended a Life Skills course and a Mens Health course while in immigration detention.[69] He attended these courses voluntarily. However, it should be recognised that his decision to attend these courses was made in the context of his visa having been cancelled.

    [69] Transcript, page 19, lines 37 to 40; and Exhibit A1, pages 15 to 18.

26. If the Applicant is returned to the Australian community he will be able to immediately start a 12 week, Drug and Alcohol Residential Rehabilitation Program run by St Vincent de Paul Society.[70] Ms Tanya Thomson, a continuous care worker in that program, gave evidence in the hearing. Ms Thomson described a comprehensive rehabilitation program that included counselling and medical services along with modules designed to address substance abuse and other problematic behaviour such as a six week anger management course.[71] With respect to post-program support, she said a case manager will look at matters such as a participant’s emotional health, physical health, connection to community, family and relationships, finances and accommodation, work out where support is needed and “put some steps into place for moving forward”. Further, the last four weeks of the program includes “relapse prevention planning and exit transition planning”. The program can provide support for a participant for up to three months after they exit the program[72] however, “ultimately this is a voluntary program that people have to be prepared to make the changes that they need to make”.[73] Importantly, what can be discerned from Ms Thomson’s evidence is that after completion of the program the onus is on the participant to continue their rehabilitation.

    [70] Transcript, page 49, lines 38 to 42; and Exhibit A1, Letter regarding acceptance into residential rehabilitation program – St Vincent de Paul Society Queensland, page 27.

    [71] Transcripts, page 50, line 10 to page 51, line 11.

    [72] Transcript, page 52, lines 10 to 37.

    [73] Transcript, page 52 line 45 to page 53 line 2.

27. The Applicant first contacted the rehabilitation program in late January this year. In his oral evidence he explained his motivation for doing the program:

    “I’m willing to, you know, do this rehab thing for myself, my partner, especially for my kids, my boys.  I don’t want for my family to – bad situation.  I don’t want my son to look at me like I’m a bad alcoholic dad.  I’m willing to do this rehab thing, no matter what.  I’ll do everything to try and get back – to stay in Australia…I haven’t had a drink in, like, nine, 10 months.  It was good, because I’m really thinking about it, you know?  So, yes.  But it will be a good opportunity for me to do this rehab thing, and I’ll be willing to [give up] something that I love.” [74]

    [Emphasis added]

    [74] Transcript, page 20, lines 10 to 22.

28. The solicitor for the Respondent asked the Applicant about this:

    Mr Kyranis:Why is it just now that you’ve decided to pursue this rehabilitation in St Vincent de Paul?

    Applicant: Well, I’m just - I learnt my big lesson, made a big mistake and never thought this would happen to me, but I’ve just got a big knock on the back of my head about where I ended up right now, and just a big wake up call.[75]

    [75] Transcript, page 41, lines 14 to 18.

    …

    Mr Kyranis: Yes, you’ve been consuming alcohol a lot for a long time and now suddenly you want to do the rehabilitation with St Vincent de Paul?

    Applicant:       Yes.

    Mr Kyranis:      Is that because you have the prospect of deportation looming?

    Applicant: Pretty much, yes, and - or losing my family again, which I’ve already lost my family before, and I don’t want to lose my family again, (indistinct) lost now.  Sort of I learnt the right ways before even coming in here.[76]

    [Emphasis added]

    [76] Transcript, page 41, lines 24 to 30.

1. It is concerning that the Applicant’s apparent motivation for undertaking rehabilitation focusses on the consequences for him and his family of him being caught offending.[77] While he has, in his written evidence, acknowledged that he “put the entire community at risk” and that it was fortunate that his drink-driving did not kill anyone[78], and said “I also don’t want to kill anyone else or myself”[79], only once, in his extensive oral evidence did he express a desire to cease endangering members of the community, and then it was only after prompting from the Tribunal in the following exchange:

   Tribunal: …you come out of immigration detention and back into the community, and you think about having a drink and getting behind the wheel of a car, what is going to go through your mind then?

   Applicant:…I just want to make a big change and just so I can move forward and stop hurting my family too much, and especially my partner, Rochelle.  She’s hurt enough and, like, my family, they’re suffering more than me.

   Tribunal:         Not reoffending is about your family?

   Applicant:       Yes.

   Tribunal:         What about other people’s families?

   Applicant :      Yes, and their family too.[80]

   [77] The Applicant expresses similar sentiments at Exhibit R1, G-Documents, PG-16, page 93; Exhibit A1, Statement of Jacobe Kare Kare, paragraph 41; and Transcript, page 14, lines 10 to 12 and page 62, lines 22 and 23. 

   [78] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 66.

   [79] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 41.

   [80] Transcript, page 62, lines 10 to 27.

2. The Applicant demonstrates very little insight into the essential problem with his offending behaviour, including his drink-driving behaviour, being the harm that he could inflict upon members of the Australian community. His partner’s evidence does not assist him in this regard. She gave evidence that he has experienced a “wake up call’ because “basically all his drink driving that he’s done he’s never really had a big punishment that affects his life as much as this one”.[81] Nor does the Applicant, to my satisfaction, demonstrate a new-found respect for the law. He acknowledged in his written statement that his past behaviour was “not acceptable”[82] but he also sought to justify his aggressive conduct towards the police after he was detained for breaching the DVO in late 2018. There is no expert evidence before the Tribunal as to the Applicant’s level of insight into his offending, his attitude to compliance with the law (as distinct from his reluctance to have the consequences of being caught breaking the law visited upon himself and his family), his commitment to engaging in rehabilitation to manage his relationship with alcohol and his anger issues, or of his overall prospects of refraining from offending if he is returned to the wider community.

   [81] Transcript, page 71, lines 13 and 15.

   [82] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 66.

3. The Applicant claims that he has not consumed alcohol in the 9 to 10 months that he has been incarcerated.[83] However, prior to his incarceration he had a long standing – 12 year – habit of drinking excessively, and in his oral evidence he described consuming alcohol as something he loves. It cannot be assumed that, even after some ten months of sobriety in a regulated environment, he will continue to refrain from consuming alcohol if he is placed in an unregulated environment. The Applicant’s partner gave evidence that if he is returned to the community she will help him through rehabilitation and to make better decisions in the future[84], and she is willing to give up alcohol to help him[85]. However, she may also need some help to make better decisions. The Applicant committed the dangerous driving offence in a car that she had lent him a week previously so that he could, according to her, “move his stuff out and get to work”.[86] She had only just separated from him because he was drinking heavily and often got angry.[87] She admitted in her oral evidence that she knew he was unlicensed when she lent him the car. Her explanation for lending the Applicant the car at that time was:

   “Yes, I did, basically it was very silly of me to let him borrow my car, but at the time we had separated I just felt that it would be easier to give him that, so that he could get away from me so we could have some space.”[88]

   [83] Transcript, page 36, lines 23 to 28.

   [84] Transcript, page 70, lines 41 to 45.

   [85] Transcript, page 73, lines 11 to 15.

   [86] Exhibit A1, Statement of Rochelle Marie Armstrong, 23 February 2020, paragraph 15.

   [87] Exhibit R1, G-Documents, G-17, page 98.

   [88] Transcript, page 74, lines 7 to 10.

4. This is not an adequate explanation for lending a car to a person who is unlicensed and a heavy drinker, and it, unfortunately, calls into question the extent to which the Applicant’s partner is capable of supporting his rehabilitation.  

5. While I accept that the Applicant regrets the predicament he has put himself and his family in due to his offending, and I accept that he has not consumed alcohol while incarcerated, I am not satisfied on the evidence before me that the Applicant has good prospects of refraining from mis-using alcohol, drink-driving or otherwise offending if he is returned to the wider community.

   Conclusion: Primary Consideration A

6. I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to Principle 6.3(4). I find that the nature of the Applicant’s drink-driving related offending and his offending against police to date is very serious, and if he were to re-offend, the harm that would be occasioned to others includes harm that would be very serious and potentially catastrophic. 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. With particular regard to the drink-driving related offending, and considering all of the relevant factors in paragraph 13.1.1(1), I find that Primary Consideration A weighs heavily in favour of non-revocation. 

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

7. 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 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.

8. 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;

   ·the extent to which the person is likely to play a positive parental role in relation to the child;

   ·the likely effect that any separation from the person would have on the child;

   ·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;

   ·whether there are any other people who fill parental roles with the child; and

   ·any known wishes of the child.

9. The Applicant has two biological children from his previous relationship, “Child A” who was born in 2004 and is now 16 years old, and “Child B” who was born in 2005 who is now 14 years old. They live with their mother, her husband (their step-father) and three siblings.[89] According to the Applicant, he separated from the children’s mother in 2009 and he spent every weekend with them until 2013/2014 when he had difficulty with stable accommodation.[90] He has not seen them in person since he moved to Mackay, which was in 2015.[91] The last few times he spoke with them was: last October on his son’s birthday, a few times leading up to and including Christmas, January this year on his daughter’s birthday, and two weeks before the hearing.[92] It is not contended that the children are financially reliant on the Applicant.

   [89] Transcript, page 44, lines 15 to 20.

   [90] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 14.

   [91] Transcript, page 43, lines 17 to 19; and Exhibit A1, Statement of Jacobe Kare Kare, paragraph 15.

   [92] Transcript, page 44, lines 4 to 14.

10. I am satisfied that the Applicant was very much involved in these children’s lives until the youngest was approximately nine years old, and that for the last five years he has managed to stay engaged with them despite not being physically present. He will be able to continue to do that in New Zealand using telephone and digital communication. I am satisfied that he has played a positive parental role in their lives and it is fortunate that they have not been exposed to his alcohol-related anti-social behaviour over the last five years. The children’s mother and step-father fulfil parental roles for them and am I not aware of any reason why that would not continue. Moreover, they have less than two and four years respectively until they reach 18. The Applicant says he would like to attend special events in the children’s lives and he will not be able to if he is deported. There is no evidence from either child or from their mother about their wishes in relation to their future relationship with the Applicant, however I find that this aspect warrants some weight in favour of revocation. Over-all, the best interests of each of these children favours revocation to a minor extent.

11. The Applicant has a step-son, “Child C”, born in 2011 and a biological son, “Child D”, born in early 2017 with his current partner.[93] The Applicant moved in with his partner in August 2016, separated in November 2018 and reconciled with his partner at the beginning of May 2019. I note that the Applicant claims to have continued living in the family home during the period of separation[94] however his partner’s evidence is that he did not return to living in the family home full time during that period[95]. I prefer the evidence of the Applicant’s partner, however I accept that the Applicant still spent time in the family home during the period of separation. Child C and Child D lived with their mother during the separation and they continue to reside with her. The biological father of Child C will not agree to him moving to, or visiting, New Zealand.[96] Accordingly, the Applicant’s partner will not relocate with the children to New Zealand if the Applicant is deported.[97]

    [93] Exhibit R1, G-Documents, PG-16, page 88.

    [94] Exhibit A1, Statement of Jacob Kare Kare, paragraph 34.

    [95] Exhibit A1, Statement of Rochelle Marie Armstrong, 23 February 2020, paragraphs 15 and 16.

    [96] Transcript, page 70, lines 4 to 8.

    [97] Transcript, page 70, lines 13 and 14.

12. The Applicant says he has been a step-father and role model to Child C, since he was three years old.[98] Both the Applicant and his partner gave evidence that the Applicant has a loving relationship with Child C and that they do activities together such as camping and fishing, that the Applicant helps Child C with his homework and he prepares meals for him.[99] Since being in immigration detention and where he is able to use a mobile phone, the Applicant has communicated with his partner, Child C and D via Facetime every day.[100] The Applicant’s partner gave evidence that Child C has a difficult relationship with his father, that his father bullies him, and that contact with Child C’s father can be unpredictable.[101]

    [98] Transcript, page 13, lines 29 to 36.

    [99] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 17; and Statement of Rochelle Marie Armstrong, 23 February 2020, paragraph 30.

    [100] Transcript, page 70, lines 15 to 20.

    [101] Exhibit A1, Statement of Rochelle Marie Armstrong, 23 February 2020, paragraphs 24 to 29.

13. I accept that the Applicant was a consistent and generally supportive presence in Child C’s life from August 2016 to November 2018, a period of a little over two years, and that Child C will miss the Applicant’s physical presence in his life if he is deported. I am, however, deeply concerned that the Applicant engaged in excessive drinking in Child C’s home on a regular basis and that he was aggressive towards Child C’s mother in their home on one occasion. This kind of behaviour must detract from the extent to which the Applicant has played a positive parental role to Child C, and the extent to which he is likely to do so in the future unless he manages his relationship with alcohol. Child C’s mother fills the primary parental role for Child C and she will continue to do that whether or not the Applicant is deported. The Applicant has kept in frequent contact with Child C using FaceTime while in immigration detention and he can continue to do that if he is returned to New Zealand. Taking all these matters into account, the best interest of Child C weigh moderately in favour of revocation of the reviewable decision.

14. The Applicant’s youngest child, Child D, is now three years old. The Applicant lived in the same residence as him for a little under two years. I am satisfied that the Applicant was a loving, engaged and supportive father to Child D in that time. However, I have the same concerns that I have in relation to Child C with respect to the Applicant’s excessive drinking and inappropriate behaviour in Child D’s home. Child D was born with a hearing impairment and requires regular speech therapy (in Mackay) and occasional visits to Townsville for assessment. The Applicant’s partner gave evidence that she takes Child D to these appointments. The recommended frequency of speech therapy sessions is once per fortnight and sessions cost $90 each.[102] Child D is entitled to a subsidy for five sessions per year.[103] The Applicant’s partner cannot afford fortnightly sessions without the Applicant’s income. In his written statement, the Applicant said if he had to return to New Zealand he would try to send money to his partner but he is not sure how much money would be left over after paying his living expenses.[104] In oral evidence he expressed a firm commitment to send money back to his family.[105]

    [102] Transcript, page 68, line 45 to page 69, line 6.

    [103] Transcript, page 69, lines 1 to 6.

    [104] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 49.

    [105] Transcript, page 20, line 44 to page 21, line 2.

15. If the Applicant is deported, and his partner does not relocate to New Zealand (and her evidence is that she will not) then Child D will grow up without the Applicant’s physical presence in his life. This is no small thing. However, Child D’s mother currently fills the primary parental role for Child D and there is every indication that she will continue to do that. She impressed as a loving and capable parent. The Applicant has kept in frequent contact with Child D using FaceTime while in immigration detention and he helps him with his speech when they speak over the phone. He will have electronic and digital means to communicate with Child D if he is returned to New Zealand. Taking all these matters into account, the best interest of Child D weigh moderately in favour of revocation of the reviewable decision.

16. The Applicant recently learned that he has a biological child, who is around 10 years old, to an ex-girlfriend. He saw this child, Child E, twice shortly after he was born and has not seen him since then. He was told recently (exactly when is not clear) by Child E’s mother that Child E is his biological child.[106] There is no evidence before the Tribunal in support of a biological relationship between Child E and the Applicant. The Applicant’s mother and half-sister keep in touch with Child E and the Applicant currently speaks with Child E by phone around once every fortnight.[107] As the Applicant describes his relationship with Child E, it is extremely limited: he has had no physical presence in Child E’s life and they have only recently started communicating by telephone. There is no evidence before the Tribunal from Child E or his mother about Child E’s wishes concerning the Applicant or the likely impact the Applicant’s deportation would have on Child E. It appears that Child E’s mother fulfils the primary parental role for Child E, and there is no evidence of whether any other persons, such as a step-father or a grandparent, fulfil parental roles in relation to Child E. It is not apparent, on the evidence, what capacity or ability the Applicant would have to play a positive parental role to Child E if he is returned to the Australian community. Taking all of these matters into account, the best interests of Child E weigh slightly in favour of revocation of the decision under review.

    [106] Transcript, page 45, line 40 to page 46, line 20.

    [107] Transcript, page 46, line 42 to page 47, line 24.

17. In his written request for the original decision to cancel his visa to be revoked, the Applicant claimed seven other minor children whose best interests, he said, would be served by allowing him to stay in Australia.

18. One child, Child F, is the child of his partner’s sister whom he has not seen or had any contact with since he was a new born just before the Applicant was incarcerated.[108] Child F now lives in New Zealand[109] so I disregard the Applicant’s claim in relation to him.

    [108] Transcript, page 57, lines 1 to 10.

    [109] Transcript, page 57, lines 12 to 15.

19. Two further children are his half-sister’s child and step-child. The Applicant did not state their dates of birth on the form[110] and he did not mention the children at all in his statement. The last time he saw these children in person was before he was incarcerated[111], and he now speaks with them on the phone if they are with his mother and he is speaking with his mother. The Applicant describes a social relationship with these children[112] and conceded in the hearing that he does not provide financial support for them[113]. The Applicant does not claim to fulfil a parental role in their lives, there is no evidence that they are reliant on him in any way, and it appears that there are others who fulfil parental roles including his half-sister and her husband. A very limited weight in favour of revocation is attributable to Primary Consideration B with respect to these children.

    [110] Exhibit R1, G-Documents, PG-16, page 90.

    [111] Transcript, page 57, lines 23 to 47.

    [112] Exhibit R1, G-Documents, PG-16, page 91.

    [113] Transcript, page 60, lines 30 to 36.

20. The other four children claimed by the Applicant are the children of his friends. The family now resides in Townsville, with the parents filling the parental role in relation to all four children. There is no evidence to suggest that that situation will change. The Applicant describes a social relationship with the parents and children. He does not claim to fulfil a parental role, and he does not claim that the children are reliant on him in any way. A very limited weight in favour of revocation is attributable to Primary Consideration B with respect to these children.

21. I have found that Primary Consideration B:

    (a)Weighs slightly in favour of revocation with respect to Child A and Child B;

    (b)Weighs moderately in favour of revocation with respect to the Applicant’s step-child, Child C, and his youngest biological child, Child D;

    (c)Weighs slightly in favour of revocation with respect to the child, Child E, who he was recently told is his biological child: and 

    (d)Is of very limited weight in favour of revocation  with respect to his half-sister’s child and step-child and his friends’ four children. 

1. Over-all I find that Primary Consideration B weighs moderately in favour of revocation of the decision under review.

   PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

2. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[114] 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. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[115] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.

   [114] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.

   [115] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).

   The Evolution of the Australian Community’s “Expectations”

3. In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501”.[116]

   [116] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.

4. In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[117]

   “102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”

   [Underlining added]

   [117] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].

5. In Afu v Minister for Home Affairs (“Afu”),[118] Justice Bromwich said:

   “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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”

   [Underlining added]

   [118] [2018] FCA 1311 at [85].

6. In FYBR v Minister for Home Affairs (“FYBR”),[119] Justice Perry observed that:

   “It follows, in line with the authorities, that cl 11.3 of Direction 65[120] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [121]

   [Underlining added]

   [119] [2019] FCA 500.

   [120] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.

   [121] FYBR, at [42] (Perry J).

7. FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[122]

   [122] See FYBR v Minister for Home Affairs [2019] FCAFC 185.

8. Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:

   (a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[123]

   (b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[124]

   (c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[125]

   (d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[126]

   [123] Afu, at [85].

   [124] FYBR at [42].

   [125] FYBR v Minister for Home Affairs [2019] FCAFC 185, [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

   [126] Ibid, [77] (Charlesworth J) and [105] (Stewart J).

   Analysis – Allocation of Weight to this Primary Consideration C

9. In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following factors arising from the evidence:

   ·the Applicant arrived in Australia on a final basis in September 2001 when he was 17 years old;

   ·he has lived in Australia for 18.5 years he has held employment for most of that time. He does not claim to have undertaken any voluntary work in the community. Through being gainfully employed, he has made moderate positive contributions to the Australian community[127];

   ·he was first caught offending in November 2003 when he was 19 years old, having lived in Australia for a little over two years;

   ·the Applicant’s record of offending includes twelve offences in his criminal history, fifteen traffic infringements not including speeding, and five instance of fare evasion over a period of 15 years. These include offences that are very serious, having the potential to cause serious, potentially fatal, harm to members of the Australian community and an offence against a female domestic partner[128];

   ·his offending includes offences against police, and overall reflects a disrespect for the laws that govern the community that he wishes to re-enter and a lack of regard for the safety of the members of the community that he wishes to re-enter;

   ·his offending is additionally made serious by its repetitive nature; 

   ·there is a substantial risk that if he is returned to the wider Australian community he will engage in offending conduct that carries the very real risk of serious, potentially fatal, harm to individuals and the community;  

   ·he has two biological children from a former relationship who live with his ex-partner and with whom he keeps in touch, one biological child and one step-child with his current partner, and he has recently been told he has a biological child from a previous relationship with whom he now has some contact. These children are likely to be adversely impacted to some extent if the Applicant is removed from Australia;[129]

   ·his partner gave evidence that she will be devastated for herself and her children if the Applicant cannot remain in Australia.[130] She says that since he has been in detention it has adversely affected her mental state and left her struggling financially, and that she expects that “it’s only going to get worse” if he is deported[131], although there is no medical or psychological evidence before me that she suffers from a psychological illness. The Applicant intends to obtain employment if he is deported to New Zealand and continue to financially support his family although he has expressed uncertainty as to his capacity to do so. I have found that the Applicant’s absence from Australia will adversely affect both children:[132] and

   ·his mother and a half-sister moved to Australia around 2006 or 2007 and the Applicant doubts they would move back to New Zealand if he were to be deported.[133] In a letter of support[134], the Applicant’s mother says she loves him but she does not indicate how his absence from Australia will impact her or his half-sister.[135]

   [127] The Direction, paragraph 6.3(7).

   [128] The Direction, paragraphs 6.3(3) and 6.3(4).

   [129] The Direction, paragraph 6.3(7).

   [130] Exhibit A1, Statement of Rochelle Marie Armstrong, 23 February 2020, paragraph 47.

   [131] Transcript, page 70, lines 21 to 25.

   [132] The Direction, paragraph 6.3(7).

   [133] Exhibit A1, Statement of Jacobe Kare Kare, paragraphs 57 to 60.

   [134] Exhibit R1, G-Documents, PG-23.

   [135] The Direction, paragraph 6.3(7).

10. By his repeated drink-driving alone, the Applicant has breached the trust of the Australian community. The Applicant’s path to rehabilitation is, at best, in its infant stages such that he presently poses an unacceptable risk of re-offending. Taking into account the totality of his offending and all other relevant matters, I am satisfied that the Australian community would expect that the Applicant should not hold a visa and that a heavy level of weight is attributable to this consideration. Primary Consideration C weighs heavily in favour of non-revocation.

    Conclusion: Primary Consideration C

11. Taking all relevant matters into account, I find that this Primary Consideration C weighs heavily in favour of non-revocation of the decision under review.

    OTHER CONSIDERATIONS

12. 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

13. The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.

    (b) Strength, nature and duration of ties

14. The Applicant has lived in Australia continuously since he was 17 years old, and he is now 35 years old, meaning he has spent his entire adult life here. He has held employment for most of his time in Australia and he has an offer of employment should he be returned to the Australian community. He does not claim to have engaged in any voluntary or community work. I am satisfied that, through his employment, he has made a moderate contribution to the community. However, this must be balanced against the fact that he commenced offending two years after moving to Australia.[136]

    [136] The Direction, paragraph 14.2(1)(a).

15. The Applicant is part of a close family unit consisting of his partner, their child (Child D), and her child from a previous relationship (Child C). He has maintained a parental relationship with Child C since around August 2016 and Child D since he was born in 2017. The Applicant has two older children (Child A aged 16 and Child B aged 14) from a previous relationship with whom he keeps in contact. He has strong, enduring ties to these four children. His absence from Australia will adversely impact his partner and the children to varying degrees with the greatest impact on his partner, Child C and Child D. The Applicant has another biological child, Child E, in whose life he has had very little involvement.  His mother and half-sister live in Australia as do some of his cousins. He has some friends in Australia. I am satisfied that the Applicant has significant familial and social ties to the Australian community. The strength, nature and duration of the Applicant’s family and social links with persons in the Australian community warrant heavy allocation of weight in favour of revocation pursuant to paragraph 14.2(1)(b) of the Direction.

    (c) Impact on Australian business interests

16. 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

17. 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). The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any victims.  The Applicant’s partner, who was the victim of one of his many offences, gave evidence that she would be devastated if the Applicant could not remain in Australia and that she is suffering mentally and financially already due to his incarceration. She had received independent legal advice prior to making her statement in this matter to the effect that she was under no obligation to give evidence in these proceedings. Knowing that, and having heard her evidence, I am satisfied that she gave her evidence of her own free will and I allocate full weight to it. As the DVO breach was one of many offences, and not the most serious, only a slight degree of weight is attributable to this Other Consideration (d) in favour of revocation.

    (e) Extent of impediments if removed

18. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:

    (e)the non-citizen’s age and health;

    (f)whether there are any substantial language or cultural barriers; and

    (g)any social, medical and/or economic support available to that non-citizen in that country.

19. In his statement the Applicant said he does not have close family in New Zealand except for a half-brother with whom he is not in contact. He noted that he had not lived or worked in New Zealand for 20 years and that he left New Zealand for better work opportunities.[137] He does not claim to suffer from any medical conditions. In oral evidence, he added that being in New Zealand will be hurtful for him and his family, and he has been told that it is hard to “get houses” in New Zealand[138] although he did not explain that statement and there is no evidence before me that it is more difficult to secure accommodation in New Zealand than it is in Australia.

    [137] Exhibit A1, Statement of Jacobe Kare Kare, paragraph 64.

    [138] Transcript, page 20, lines 38 to 43.

20. When he gave evidence before the Tribunal, the Applicant conceded that he had been in recent contact with his half-brother although he said his he moves around a lot, has nine children and had broken up with his partner.[139] He said he has three aunts in New Zealand[140] although he claims the last time he contacted any of them was four years ago.[141] His current partner’s parents and two of her siblings live in New Zealand and the Applicant has a very good relationship with them.[142] The Applicant’s past employment involved manual labour, and his most recent employer was prepared to (and did) provide a letter of support and give oral evidence attesting to the Applicant’s good work performance.

    [139] Transcript, page 23, lines 23 to 25.

    [140] Transcript, page 23, lines 27 to 39.

    [141] Transcript, page 26, lines 13 to 18.

    [142] Transcript Page 69 lines of 36 to 40, and page 71, line 45 to 48

21. It is reasonable to find that the level of medical care and governmental/social support in New Zealand[143] is at or about the same level as that currently available to the Applicant in Australia. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[144] New Zealand is culturally and linguistically similar to Australia. The Applicant is in good health, he a positive relationship with his in-laws in New Zealand and he has some relatives there, he has a solid employment history and his most recent employer is willing to speak well of his work performance. To the extent that the Applicant may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not prevent him from successfully re-settling there.[145]

    [143] Section 14.5(1)(c) of the Direction.

    [144] Section 14.5(1)(b) of the Direction.

    [145] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.

22. Considering all of these matters, I am of the view that this Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.

    Findings: Other Considerations

23. 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: weighs slightly in favour of revocation; and

    (e)extent of impediments if removed: weighs slightly in favour of revocation.

    CONCLUSION

    Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?

24. 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, we have had regard to the considerations referred to in the Direction. We find as follows:

    ·Primary Consideration A weighs heavily in favour of non-revocation;

    ·Primary Consideration C weighs heavily in favour of non-revocation;

    ·Primary Consideration B weighs moderately in favour of revocation; and

    ·To the extent that Other Considerations (b), (d) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C.

25. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

26. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member Arends.

..................................[sgd]......................................

Associate

Dated: 12 March 2020

Date of hearing:	27 February 2020
Solicitors for the Applicant:	Mr Joel McComber
Sentry Law
Solicitors for the Respondent:	Mr Jake Kyranis
Sparke Helmore Lawyers

‘Attachment A – Exhibit Register’

File No:          2019/8507
Applicant:        Jacob Tipene Ataarangi Kare Kare (Applicant)

Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Heard on:       Thursday, 27 February 2020

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE RECEIVED	DATE OF DOCUMENT
R1	Section 501 G-Documents (paged 1-149)	R	13 JAN 20	undated
A1	Applicant’s Tender Bundle (paged 1-38)	A	24 FEB 20	undated
A2	Applicant’s Statement of Facts, Issues and Contentions	A	28 JAN 20	28 JAN 20
R2	Respondent’s Tender Bundle (paged 1-56)	R	7 FEB 20	undated
R3	Respondent’s Statement of Facts, Issues and Contentions	R	7 FEB 20	7 FEB 20