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

[2020] AATA 5313

KXXH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5313 (15 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5977

Re:KXXH  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:15 December 2020

Date of written reasons:        7 January 2021

Place:Sydney

The Reviewable Decision dated 22 September 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – domestic violence offences – whether there is another reason to revoke the visa cancellation – Direction No. 79 – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 79, 90

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

FYBR and 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
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

WRITTEN REASONS FOR DECISION

Senior Member Linda Kirk

7 January 2021

1. KXXH (‘the Applicant’), a citizen of New Zealand, was born in 1985.[1]  He arrived in Australia on 25 June 1988.[2] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa.[3]

   [1] G2, 103.

   [2] G26, 325.

   [3] G2, 9.

2. On 28 August 2019, the Applicant was convicted in the Goulburn Local Court of Common assault (DV)-T2, for which he was sentenced to 12 months' imprisonment, with a non-parole period of six months, and Contravene prohibition/restriction in AVO (Domestic), for which he was sentenced to three months’ imprisonment.[4]

   [4] G2. 29.

3. On 7 November 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date, the Applicant was serving a sentence of full-time imprisonment at Goulburn Correctional Centre in New South Wales. The Applicant was invited to make representations about revoking the decision to cancel his visa.

   [5] G2, 139-145.

4. On 3 December 2019, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[6]

   [6] G2, 102-106.

5. In a letter dated 9 July 2020, the Department invited the Applicant to comment on further information received by the Department and which it noted may be taken into account when making the decision whether to revoke the Mandatory Visa Cancellation Decision.[7] On 3 August 2020 the Applicant emailed a letter of response to the Department’s invitation to comment.[8]

   [7] G35, 344-346.

   [8] G2, 122-124.

6. In a further letter dated 28 August 2020, the Department invited the Applicant to comment on further information it had received, this time relating to incidents in immigration detention involving the Applicant.[9] On 3 September 2019, the Applicant provided a signed letter of response addressing the incidents.[10]

   [9] G41, 356-357.

   [10] G44, 362-363.

7. On 22 September 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[11]

   [11] G2, 9-24.

8. On 30 September 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[12]

   [12] G1, 3-8.

9. The matter was heard at a hearing of the Tribunal on 1 December 2020. The Applicant attended the hearing via video-conference from Villawood Immigration Detention Centre (‘Villawood’). He was self-represented and gave oral evidence at the hearing. The Applicant’s fiancée, MS, gave oral evidence by phone.

10. The material before the Tribunal consists of:

    ·Respondent’s Statement of Facts, Issues and Contentions dated 23 November 2020 (‘Respondent’s SFIC’);

    ·Section 501 G-Documents filed 15 October 2020 (G1-G48, 368 pages) (‘Exhibit R1’);

    ·Materials produced under summons filed 6 November 2020 (SM1-SM6, 591 pages) (‘Exhibit R2’);

    ·Respondent’s Supplementary Submissions dated 11 December 2020;

    ·Applicant’s Statement of Facts’ Issues and Contentions dated 16 November 2020 (‘Exhibit A1’);

    ·Character Reference of MS (Applicant’s partner) dated 20 November 2020 (‘Exhibit A2’);

11. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

    LEGISLATION

12. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)     The Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii) …; and

    (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

13. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.

14. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

15. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:

    (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.

16. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 79

17. When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).

18. The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

19. The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.

20. Paragraph 6.2(1) of the General Guidance provides:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

21. The following Principles are set out in paragraph 6.3:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

22. Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:

    (1)  Informed by the principles in paragraph 6.3 above, a decision-maker:

    a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

    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.

23. In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.

24. In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

    … Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.

25. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations 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.

26. The other considerations are:

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties [to Australia];

    (c)       Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

27. Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.

    ISSUES FOR DETERMINATION

28. Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

29. There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[13] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):

    ... 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...[14]

    [13] [2018] FCAFC 151.

    [14] 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).

30. The issues for determination are:

    (a)whether the Applicant passes the character test; and

    (b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

31. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Background and employment

32. The Applicant was born in New Zealand in 1985,[15] and migrated with his parents to Australia in June 1988 when he was aged two years.[16] His family lived in Queensland and then moved to the Southern Highlands, New South Wales.  He attended primary and secondary school in the Southern Highlands.[17] When his parents separated, he remained with his mother and did not have contact with his father for 20 years.[18] He has two half-brothers, one of whom lives in Victoria and the other in New Zealand, and a step-brother in Australia.[19]

    [15] G2, 103.

    [16] G26, 325.

    [17] Transcript, 18; G2, 122

    [18] G2, 122; Transcript, 11.

    [19] Transcript, 19; G2, 116.

33. The Applicant completed his year 10 certificate and commenced work as an apprentice heavy vehicle mechanic.[20] He completed his four-year apprenticeship and qualified as a Heavy Vehicle Mechanic, and then was employed as head mechanic at a company in the Southern Highlands.[21] He worked for this company until 2014, working on the garbage trucks.[22] He then took six months off work following which he commenced employment with another company in the Southern Highlands where he was employed as workshop foreman until 2017.[23] In 2018 he worked as a labourer in Wodonga, Victoria. Most recently he was employed with a removals company in the Southern Highlands, where he did removals and also worked on the trucks.[24]

    [20] G2, 118, 122.

    [21] G2, 122; Transcript, 18.

    [22] Transcript, 18; G2, 118, 122.

    [23] G2, 118, 123.

    [24] G2, 118; Transcript, 17.

    Criminal history in Australia

34. The Applicant has a criminal history commencing in 2007, when he was aged 21 years.  His offences include: Common assault (two counts); Common assault (DV) (three counts), Contravene prohibition/restriction in AVO (Domestic), Supply a prohibited drug, destroy or damage property, Stalk/intimidate intend fear physical etc harm (domestic), Resist officer in execution of duty (DV) and Drive motor vehicle while licence suspended. The Applicant’s Nationally Coordinated Criminal History Check dated 10 January 2020 records the Applicant’s criminal history in Australia.[25]

    [25] G2, 28-30.

    Early offending

35. On 7 May 2007, the Applicant appeared in the Moss Vale Local Court, charged with Common Assault-T2. The offence related to an incident on 21 February 2007 that involved the Applicant pushing a person who was working as a traffic controller. He was sentenced to a 12 month bond not to assault, molest, harass or otherwise interfere with the victim or incite any third party to do so and ordered to pay costs of $67.[26] 

    [26] G2, 30.

36. On 15 June 2009 the Applicant appeared in the Moss Vale Local Court, charged with Common Assault-T2.  The offence was in relation to an incident on 21 March 2009 that involved the Applicant quarrelling and becoming aggressive with, and pushing, a security guard and resisting being restrained by security staff and police. He was ordered to pay a fine of $400 and costs of $73.[27]

    [27] G2, 30.

    Driving offences

37. On 7 July 2015, the Applicant appeared in the Moss Vale Local Court charged with Drive motor vehicle whilst licence suspended - 1st off,[28]for which he was sentenced to a bond of 18 months.

    [28] G2, 15, 30; SM2, 99.

38. On 20 October 2015, the Applicant appeared in the Moss Vale Local Court for:

    ·a call up of his Drive motor vehicle whilst licence suspended - 1st off offence;

    ·Drive motor vehicle while licence suspended - 2nd+off' in respect of which he entered into a good behaviour bond for 18 months, on conditions including that he 'attend for counselling, educational development, drug or alcohol rehabilitation'; and

    ·Drive motor vehicle while licence suspended - 2nd+off in respect of which he was sentenced to a term of imprisonment for 12 months, suspended on his entry into a good behaviour bond for 12 months with conditions including that he 'attend for counselling, educational development, drug or alcohol rehabilitation'.[29]

    [29] G2, 30.

39. The Applicant told the Tribunal that in 2015 when he committed these driving offences, he had full care and custody of his children and was working full-time. He found it very hard as he did not have family support.[30]

    [30] Transcript, 8.

    Domestic violence offences

    2016 offences

1. On 20 December 2016, the Applicant appeared in the Moss Vale Local Court, charged with:

   ·Common assault (DV)-T2;

   ·a call up of his Drive motor vehicle while licence suspended - 2nd+off offences.

2. The Applicant was convicted and sentenced to seven months’ imprisonment, with a non-parole period of four months.[31] This took into account the driving offence for which the Applicant had received a 12 month suspended sentence on 20 October 2015. Magistrate Ryan noted that the Applicant’s other driving offence from that date was still outstanding but took no action in respect of this.[32] 

   [31] G2, 30.

   [32] G2, 69-73.

3. The first offence was in relation to a domestic violence incident on 16 July 2016. The Applicant’s then-partner, AM, woke the Applicant to tell him she was unable to drive him to visit his children and he would have to catch the bus. The Applicant and AM engaged in an argument, then the Applicant kicked and punched her and pinned her down on the bed, squeezing her throat to the point that she lost consciousness.[33]

   [33] G4, p 221, SM2, 68-77, SM6, 566.

4. The Applicant told the Tribunal that he did commit the assault but pleaded not guilty to the offence. He now takes responsibility for his actions.[34]

   [34] Transcript, 7.

5. On 20 December 2016, the Applicant filed an appeal against the orders made by Magistrate Ryan in respect of his:

   ·     Common assault (DV)-T2 offence on the ground that he was not guilty;[35] and

   ·     Drive motor vehicle while licence suspended - 2nd+off offence on the ground that the penalty was too severe.[36]

   [35] SM2, 54-55.

   [36] SM4, 214-215.

6. The Applicant was granted bail on conditions, including that he comply with the Apprehended Violence Order (‘AVO’) for the protection of AW.[37]

   [37] SM2, 58-61.

7. On 31 December 2016 the Applicant committed the offence of Destroy or damage property.[38]  The NSW Police Fact Sheet relating to this offence describes the Applicant's conduct as follows:

   ·     the victim of this incident was Ms B, the Applicant’s then-partner;

   ·     the Applicant followed the victim’s sister, Ms R, into a hotel gaming machine room and yelled 'I just want my fucking money', which he repeated 2-3 times;

   ·     the Applicant then yelled at Ms R ‘where's [the witness] I heard he wants to bash me’, at which time the victim giggled and the Applicant said to the victim ‘what the fuck are you laughing at [Ms B], you fucking slut’;

   ·     the Applicant left the hotel and walked up to the victim’s car and kicked the rear passenger side door, causing damage;

   ·     Ms R notified police, who later arrested the Applicant at his home.[39]

   [38] SM1, 38-41,

   [39] SM6, 557-558.

8. During an interview with police, the Applicant admitted being inside and outside the hotel at the relevant times but denied committing malicious damage to Ms B’s car.[40]

   [40] SM6, 557.

9. On 9 January 2017 the Applicant was granted bail on condition that he ‘be of good behaviour’ and ‘not … consume alcohol or illicit drugs unless prescribed by a medical practitioner’.[41]

   [41] SM1, 41.

10. On 10 March 2017 the Applicant withdrew his appeal against the severity of his sentence for Common assault (DV)-T2, and Drive motor vehicle while licence suspended - 2nd+off.

    2017 offences

11. On 5 May 2017 the Applicant was convicted in the Campbelltown Local Court of New South Wales of the following offences: Resist officer in execution of duty (DV), Common assault (DV), Stalk/intimidate intend fear physical etc harm (domestic), and Destroy or damage property, and was cumulatively sentenced to six months’ imprisonment.[42]

    [42] G2, 34-68; G4, 223; SM1, 12-16.

12. The offences related to an incident on 12 January 2017, when police responded to two emergency calls reporting a domestic incident with another of the Applicant’s partners, BS. On arrival they heard a woman screaming and saying ‘Stop, stop it [Applicant], get off me!’ and saw a silhouette through a window which appeared to be a man with one arm down and the other raised and his hand in a fist. On entry police observed the Applicant pinning his partner to the bed with his left arm around her throat/upper chest and right arm raised. The Applicant was yelling and screaming incoherently, with drool and spittle coming from his mouth. The police yelled at him to stop, however he did not acknowledge their presence or stop the attack, and subsequently police deployed pepper spray at his face. The spray did not appear to have an effect, and police physically intervened. The Applicant struggled with police by thrashing his arms and yelling until subdued, handcuffed and removed from the room. While waiting for an ambulance to attend the Applicant continued to struggle with police by thrashing and kicking until physical force was again used to subdue him.[43]  In his sentencing remarks, Magistrate Spence stated ‘your behaviour was absolutely outrageous and unacceptable’.[44]

    [43] SM6, 554-556.

    [44] G2, 67.

13. The Applicant claims that the incident occurred when he and BS, who were both drug dependent and consuming excessive alcohol, had an argument. She attacked him with a vacuum cleaner pole which he removed and then he restrained but did not strike her.[45]

    2019 offences

    [45] Transcript, 7.

14. On 7 July 2019 the Applicant committed the offence Common assault (DV)-T2 against his fiancée, MS.[46] She was sleeping on the floor in the living room and the Applicant attempted to wake her up. He kicked her in the back and told her to ‘get up’. She walked to the bathroom where a verbal argument ensued. The Applicant then slapped her on the arm and held her by the throat applying pressure causing her discomfort and shortness of breath.  MS ran out the house in an attempt to seek refuge. The Applicant caught up to her, threw her down on the verandah, and slapped her in the face. The Applicant then walked off, holding her by the arm. As she attempted to break away, the Applicant threw her to the ground and kicked her in the back.[47]

    [46] SM4, 266-268.

    [47] SM6, 546-548.

15. On 7 July 2019 the Applicant was charged with assault, and on the same day the police applied for an AVO for the protection of MS.[48]

    [48] SM4, 273.

16. On 7 August 2019, the Applicant failed to appear in the Moss Vale Local Court and he was convicted in absentia and a warrant issued for his arrest.[49]

    [49] SM4, 309.

17. On 27 August 2019, NSW Police attended MS’s address and found the Applicant at the premises in breach of the conditions of the AVO in relation to MS.[50] The Applicant was arrested, and he was charged with breach of the AVO.[51]

    [50] SM6, 543-546.

    [51] SM4, 274.

18. On 28 August 2019 the Applicant was convicted in Goulburn Local Court for Common assault (DV) and sentenced the Applicant to 12 months’ imprisonment.[52] On the same date the Applicant was convicted of Contravene prohibition/restriction in AVO (Domestic) and sentenced to three months’ imprisonment.[53] The Applicant appealed the severity of the sentences, and on 31 October 2019 the Goulburn District Court confirmed both sentences.[54]

    [52] G2, 29, 31-33.

    [53] G2, 26, 31-33; G5, 348.

    [54] SM4, 257; G2, 28-29, G35, 347-348, SM4, 242.

19. In sentencing the Applicant on 28 August 2019, Magistrate Beattie stated:

    to call yourself her carer when you cannot be with her defies logic but more importantly to call yourself her carer when your behaviours towards her on 7 July when - I accept she is upset and there is those other issues and the needs for treatment and the mental health and so on. You are attempting to wake her up, kick her in the back to tell her to get up, get into the argument and I accept that is both ways. You are slapping her on the arm, holding her on the throat with your hand applying pressure. She runs out and tried to seek refuge elsewhere.

    You have then thrown her down onto the verandah and slapped her in the face. You are witnessed walking off, you are holding her arm and as she tries to break free you are throwing her on the ground and kicking her in the back. Now, you are saying you deny that part of it but the way the facts read is somebody has witnessed that behaviour. Any one of those matters is not what a carer does.

    … And it is not what someone in a domestic relationship does with their partner. Completely unacceptable. That sort of violence. Whatever the context, the background, the concern for her to get treatment, the volatility of the relationship, none of that justifies any of those behaviours.

    … It is disgraceful.[55]

    [55] G2, 32.

20. The Applicant told the Tribunal that he takes ‘full responsibility’ for his actions against MS. They are still together now and although they have had their ‘rocky patches’ they have ‘sorted it’ and he has her support ‘100 percent.’[56]

    [56] Transcript, 7; Exhibit A1.

    Other offences

21. The Applicant was convicted of supplying a prohibited drug, methylamphetamine, on 19 May 2016, 7 June 2016, 8 July 2016 and 9 July 2016, for which he was sentenced to a bond of 18 months on 17 July 2017.[57] The Applicant told the Tribunal that he was purchasing drugs for his own use and for a friend. He has always been a drug user, but he has ‘never been a drug dealer.’[58]

    [57] G2, 29; SM2, 121, 123, 125, 127, 130-136.

    [58] Transcript, 9.

22. The Applicant was issued with traffic infringement notices on 11 occasions during the period from 20 February 2012 to 17 February 2019.[59]

    [59] SM6, 552-553, 577-581.

    Apprehended Violence Orders

23. NSW Police obtained AVOs against the Applicant as follows:

    (a)on 7 January 2015, to protect the Applicant’s then-partner, CL, and their two children.[60] CL advised police that she held fears for her safety and that of the children due to the aggression shown by the Applicant;

    (b)on 3 August 2016, to protect the Applicant’s then-partner, AW;[61]

    (c)on 24 December 2016, to protect the Applicant’s fiancée, MS.[62]

    [60] SM2, 88, 138-145; SM6, 575-576.

    [61] SM6, 565-567.

    [62] SM2, 149-153; SM6, 558-559.

    Prior visa cancellation

24. The Applicant’s visa was first cancelled under section 501(3A) of the Act on 17 May 2017. He was detained at Christmas Island Immigration Detention Centre (‘Christmas Island’) from July to December 2017.

25. In a statement in support of his application for revocation of the visa cancellation, the Applicant contended he had been drug free for 10 months and had engaged in drug and alcohol courses, drug relapse programs and a domestic violence program.[63] He claimed that he planned to do parenting, decision-making and anger management courses, and to see a psychologist and counsellor for his depression and anxiety following his release.[64] He stated that he would not re-offend because he was ‘participating in various different therapy courses.’[65]

    [63] G19, 301.

    [64] G11, 272.

    [65] G8, 259.

26. The visa cancellation was revoked by letter dated 21 December 2017,[66] in which the Applicant was advised:

    this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.[67] 

    [66] G2, 76-83.

    [67] G2, 76.

27. The Applicant told the Tribunal that when he was detained at Christmas Island, he attended Narcotics Anonymous meetings.[68]  When he was released from detention, he went to live with his father in Wodonga in Victoria, but it did not work out, so he moved to Liverpool, New South Wales in 2018. 

    [68] Transcript, 10.

28. In his letter to the Department dated 3 August 2020, the Applicant explained what happened when he returned to Liverpool:

    In 2018 I moved to Liverpool N.S.W to be closed to my children so I could have more visits and so I did not have to travel as far. I then started a relationship with [MS] a long lost friend of mine. From there we moved to Bowral in the Southern Highlands N.S.W which is my home town where I grew up and lived the majority of my life. Been back in my home town I found it easy to find work and I started working for my good friend [LB] at [removals company].

    Unfortunality (sic) being back in my home town my partner and myself found ourselves hanging around the wrong crowd and eventuated back into the drug seen [sic]. This led to our relationship being dependent on drugs and very hostile. In 2019 my partner and I had a massive disagreement over drugs which led me to be arrested and charged with assault and breach of AVO.[69]

    [69] G2, 163.

29. During cross-examination, the Applicant stated he did not undertake any parenting courses, anger management or other courses, despite claiming he would do so in his request for the revocation of the first visa cancellation.[70] He was asked what will be different this time if he is released. He said this cancellation is ‘a big wake-up call’ and he has missed his kids. This has been ‘a big scare’ for him because he does not want to go back to a country that he does not know, and he has never lived in.[71]

    [70] Transcript, 11.

    [71] Transcript, 11-12.

    Incidents in immigration detention

30. On 8 May 2020 the Applicant attended the dining area and requested the meal for his roommate from a catering assistant. A detainee services officer advised the Applicant that the roommate had attended the dining area and collected his meal. The Applicant immediately became abusive and aggressive to officer stating, ‘You are a cock sucker, you are a freaking liar and my room mate has not collected his dinner as he is still sleeping.’[72] The Applicant took full responsibility for his actions and apologised to the officer.[73]

    [72] G2, 94.

    [73] G2, 125.

31. On 11 July 2020, a parcel addressed to the Applicant containing socks and a tobacco pouch containing ‘unidentified green vegetable matter’ was intercepted. The Applicant stated he was not expecting to receive any of the items, he was unaware of the sender, and he denied ownership of the package.[74]

    [74] G2, 97, 126.

    Remorse and responsibility for offending

32. The Applicant states he takes full responsibility for his offending. He acknowledges that he has shown poor judgment, but he has learnt from his mistakes and is no risk to the community as he is not a ‘hardened criminal’. He has made changes in his life and is willing to do whatever is necessary to further rehabilitate upon his release.[75]

    [75] G2, 124.

33. The Applicant states his history of drug and alcohol abuse has contributed to his offending. The removal of his children from his care in 2015 caused him to feel ‘lost, lonely and depressed’.[76] His recreational drug use and drinking increased, and he became involved in drug dependent and highly volatile relationships.[77]

    [76] G2, 123.

    [77] G2, 123.

    Rehabilitation

34. The Applicant received treatment for his drug addiction in mid-2015. On 15 June 2015, Kathleen Mclean, a Drug Health Counsellor of Wingecarribee Community Health Centre, provided a report stating that the Applicant had sought treatment for a drug health issue with Bowral Drug Health Services on 5 May 2015, and that urinalysis tests supported his statement that he had been drug free for approximately three months. Ms Mclean stated :

    [the Applicant] has actively taken part in counselling involving grief work, cognitive behavioural therapy and relapse prevention and he has made a commitment to continue with our services over the coming months. [78]

    [78] SM2, 108.

35. The Applicant was also directed by the Moss Vale Local Court on 20 October 2015 to attend ‘counselling, educational development, drug or alcohol rehabilitation’.[79]

    [79] G2, 30.

36. On 5 May 2017, the Applicant’s solicitor advised the Court that the Applicant had previously had a methylamphetamine problem, but that his presentation at the time of sentencing was much better than it had previously been, and that the Applicant had always held the view that  if he could ‘get his act together’ he might be in a position to seek the restoration of his children to his care, but ‘I'm not sure that he's had the resolve to do that, other than the recent stint in custody’.[80] The Applicant later told the Department, in a letter dated 8 December 2017 in relation to these comments by his solicitor, that:

    This is due not only because [sic] I was incarcerated but because of my own doing. I got off drugs on my own accord as I had realised that it is not a life that I want for myself but mainly for my children as they deserve a bright and positive future and I need to be the best role model possible for them and I cannot be that person on drugs.

    I have been clean now for 11 months and will never take drugs again. I am currently engaged in drug rehab and relapse programs and also a domestic violence program.[81]

    [80] G2, 62.

    [81] G22, 311.

37. The Applicant completed substance use rehabilitation and domestic violence courses while in prison and claims he has been drug free for more than 16 months.[82]  If he returns to the community, he intends to remain drug free and his partner is drug free.[83] He is willing to do more courses to rehabilitate himself, but there are none available in Villawood.[84]

    [82] Transcript, 10; G19, 301.

    [83] G2, 117.

    [84] Transcript, 7-8.

    Risk of re-offending

38. The Applicant contends that he is not at risk of engaging in further criminal conduct because he takes ‘full responsibility in not letting the Australian community down by not reoffending again’ and ‘by doing nothing but proactive things’.[85] In addition, he has full-time work organised, is drug-free, and he and his fiancée will do further rehabilitation courses and see a marriage counsellor.[86]

    [85] Exhibit A1.

    [86] G2, 117.

    Children

39. The Applicant has two minor children, a daughter aged ten years, LL, and a son aged eight years, WL, both of whom are Australian citizens.[87] The Applicant states he has a good relationship with his children. The Applicant took six months off work in 2014 to spend time with his children and in 2015, after his separation from his then partner CL, he was the full-time carer for the children for nine months.[88] At the time it was difficult for the Applicant as a working single father.[89]

    [87] G2, 112.

    [88] Transcript, 18.

    [89] G19, 300.

40. The Applicant lost custody of his children in 2015 after he breached the Department of Family and Community Services (now the Department of Communities and Justice) safety plan by allowing his former partner and their mother, CL, to visit them without their supervision.[90] The children are the subject of a parental responsibility order under the Children and Young Persons (Care and Protection) Act 1988 (NSW) (‘the Care and Protection Act’) dated 9 December 2015 issued by the Moss Vale Children’s Court and are under the care of the Minister for Families, Communities and Disability Services until they are aged 18 years. They are currently in the custody of the Applicant’s mother and step-father, and reside with them in Shoalhaven, NSW.

    [90] Transcript, 18-19.

41. The Applicant’s children attend primary school and play soccer and are very active.[91] He maintains a relationship with his children by calling them once a week, but he has not seen them for more than 17 months. Prior to his imprisonment he had visited them on a monthly basis when living interstate. Neither his mother nor his children know that the Applicant is in detention, and he has told them he is working interstate.[92] His fiancée has not met his children, but they have spoken on the phone.[93]

    [91] Transcript, 14.

    [92] Transcript, 11, 12, 13.

    [93] Transcript, 14.

42. The Applicant told the Tribunal that he wishes to take steps to have the parental responsibility order changed so he can regain custody of his children.[94] He feels he can become a ‘positive father figure’ for his children.[95]  His removal will take the children’s father away from them and it will be too costly and difficult for his mother due her age to travel with the children to New Zealand for visits.[96] 

    [94] Transcript, 39.

    [95] G11, 272.

    [96] Transcript, 39.

43. In his Personal Circumstances Form, the Applicant stated he has five nieces and nephews, and his fiancée has 10 children and six grandchildren, who reside in Australia, however he did not provide any information in relation to their ages or his involvement in their lives.[97]

    [97] G2, 111, 116.

    Relationship with partner

1. The Applicant has been in a relationship with MS since 2016 and they became engaged in 2019.[98] The Applicant agreed that he assaulted MS in 2019 and he ‘take[s] full responsibility for [his] actions.’[99] According to the Applicant, MS did not wish to have him charged and she wrote to the Court stating no assault had occurred. She has now taken steps to have the AVO against him amended so that he can live with her upon his release.[100]

   [98] Transcript, 15.

   [99] Transcript, 7.

   [100] Transcript, 22; G2, 130-133; Exhibit A1.

2. On two occasions in August 2020, the Applicant reported to case workers at Villawood threatening messages he had received from his fiancée, stating that the reason for the threats was to make him ‘fail his character reference check’ and get him deported from Australia. He said he was concerned she may forge documents to ‘hurt him’ and ‘make him fail his visa application’. He stated that he ‘feels powerless to defend himself while in detention.’[101]  

   [101] G2, 99-101.

3. In September 2020 the Applicant stated that these issues were now resolved and he advised the Department that ‘they where [sic] only threats and she did not follow thru [sic] with any of them’,[102] that he believes he ‘over exagerated [sic] things as I [sic] was not quite thinking straight’,[103] and that his relationship with MS is now stronger than ever.[104]  He told the Tribunal that his fiancée made the threats following a ‘bad break up’ in mid-2020, however they have since reconciled.[105] Their relationship ‘is the best it ever has been’ although he has not seen her for eight months as no visits are currently permitted due to the COVID-19 pandemic.[106]

   [102] G2, 126.

   [103] G2, 126.

   [104] Exhibit A1, 2.

   [105] Transcript, 16.

   [106] Exhibit A1, 2.

   Family and friends in Australia

4. The Applicant is in regular contact with his mother and his other family members residing in Australia include his step-father, one step-brother, an uncle, an aunt, two cousins and five nieces or nephews.[107] He does not have much contact with his relatives although he stays in touch with them by Facebook and Messenger.[108] He told the Tribunal that he does not have much to do with his father’s side of the family.[109] He claims that if his visa cancellation is not revoked the impact on his family would be ‘very traumatic’ as he is ‘very close’ to his family.[110]

   [107] G2, 116.

   [108] Transcript, 22.

   [109] Transcript, 22.

   [110] G2, 116.

5. The Applicant provided a letter of support dated 13 August 2020 from his most recent employer, LB.[111] He has known the Applicant for over 15 years in a ‘professional capacity’ and he is a ‘trusted family friend’. The Applicant ‘has consistently demonstrated his professionalism, ethics, skills and talent’ and is ‘a well-known, kind, caring, considerate, hardworking, reliable, trustworthy and respected by the community.’[112]

   [111] G2, 135.

   [112] G2, 135.

6. The Applicant provided letters of support from two friends, TH and NB. In his email dated 5 September 2019, TH wrote that he met the Applicant ‘through mutual friends quite some time ago’ and he ‘is a good upstanding moral person’ and ‘very family orientated.’[113] In her letter dated 2 September 2019, NB wrote she has known the Applicant for 25 years and they have ‘close friendship’. She stated that he has ‘been a pillar of the community’ and ‘has always been employed and kept a stable position.’[114]

   [113] G46, 366.

   [114] G45, 365.

   Evidence of Applicant’s fiancée

7. On 5 May 2020, the Applicant’s fiancée, MS, provided a letter of support for the Applicant. She states that if the Applicant were released, they could go ahead with their wedding and the Applicant could help her with rent, utilities, yard maintenance and her medical commitments.[115] The Applicant has provided her with practical and emotional support to end a period of homelessness and while she was dealing with grief due to the death of her 19 year old daughter. The Applicant is her main support network, they have built a life together and she is anticipating his return to assist her financially, with household maintenance and to be her companion in her remaining years. If the Applicant’s visa cancellation is not revoked, she will be unable to visit him due to her health and financial circumstances and if this occurs it will break her.[116]

   [115] G2, 127-129.

   [116] G2, 128.

8. MS provided a further unsigned email in support of the Applicant on 20 November 2020.[117] She wrote that on the day of their ‘disagreement’ she was ‘very depressed and irritable’ and she and the Applicant had an ‘argument’ and he ‘simply negged [her] with his foot’. She was not ‘in the best frame of mind and started to get [herself] into a bother’ and she stormed out the house ‘in hysterics’ and started walking down the road. The Applicant followed her and tried to calm her down. She threw herself to the ground ‘simply from pure exhaustion’ and she was ‘in a very hysterical state’. He did ‘grab [her] jumper around [her] throat area simply to get [her] to his eye level so he could calm [her] down and talk [her] through her panic attack.’ The cause of the ‘argument’ was the Applicant trying to get her to attend a hospital appointment.

   [117] Exhibit A2.

9. MS told the Tribunal that she and the Applicant have been engaged for 20 months. MS suffers from chronic emphysema and she provided evidence of a hospital visit. She told the Tribunal that she does not know how long she will live; it may be 12 months or 20 years.[118]  The Applicant is her carer and he was doing everything for her before he was incarcerated.  She relies on the Applicant’s support to attend medical appointments and to assist in her care. If it were not for the Applicant, she would not have attended her appointments and would not have the medications she needs.[119] She had been homeless after she lost her house in 2013 following the death of her daughter, and the Applicant put her ‘in a routine’ and gave her ‘direction’ and ‘discipline’. He reminded her of the importance of weekly grocery shopping and paying bills.[120] The Applicant gets along well with her eldest daughter and her husband and their children and they have babysat her granddaughters.[121] He also has a very good relationship with her grandson.[122] Since he has been incarcerated, her daughter drives her to her appointments.[123]

   [118] Transcript, 26.

   [119] Transcript, 28.

   [120] Transcript, 25.

   [121] Transcript, 27.

   [122] Exhibit A2, 1.

   [123] Transcript, 28.

10. MS confirmed that the Applicant was convicted of assaulting her.[124] In her application to vary the AVO she stated that the altercation was an ‘argument’ and she told the Department she did not apply for the AVO.[125] The court case in relation to the amendment of the AVO is scheduled for February 2021. She told the Tribunal she is aware the Applicant has been convicted of assaulting other women.[126] She said that the Applicant’s assault against BS was ‘self-defence’ and it was ‘unfair’ to say he assaulted her because he simply tried to defend himself when she attacked him with a vacuum cleaner pole.[127]

    [124] Transcript, 27.

    [125] G2, 130-133.

    [126] Transcript, 27.

    [127] Transcript, 28.

11. MS confirmed that she and the Applicant broke up for a period of time earlier in 2020 and they had ‘some difficulties’ as they have not seen each other for 17 months but she has not changed her opinion of what she wants. She confirmed that she did make some threats to the Applicant by phone in August 2020 but said that she was not angry with him and it was not ‘personal’ against him, ‘it was the whole predicament’ and she ‘didn’t know how to deal with it’, and she ‘took it out on him.’[128] She confirmed that she had organised some relationship counselling for them and she acknowledged that both their behaviours had been ‘very childish and immature’. She is ready for him to come home so she can live the rest of her life.[129]

    [128] Transcript, 26.

    [129] Transcript, 26.

    Plans for the future

12. The Applicant has the support of his fiancée, MS, for his return to the community.  She has offered him accommodation with her in Bowral if the terms of the AVO can be varied so they can live together.[130] The AVO does not prevent the Applicant from seeing MS.[131]

    [130] Transcript, 22.

    [131] Transcript, 22.

13. LB  has committed to employing the Applicant as a removalist on his release, and providing him with further assistance, including accommodation in the Southern Highlands.[132] The Applicant will live with LB ‘for as long as necessary’.[133] He will then move closer to his kids so he can see them.[134] His mother would be happy for him to see the children every day and for him to be involved in their lives.[135]

    [132] Transcript, 21.

    [133] Exhibit A1, 2.

    [134] Transcript, 21.

    [135] Transcript, 21.

    Impediments on return

14. The Applicant's father and step-brother, from both of whom the Applicant is estranged, and his uncle, currently live in New Zealand. His father returned there in 2018 when he became unwell.[136] His maternal grandfather, who is in his 70s, also lives in New Zealand and he is in contact with him but has not seen him for four years.[137]

    EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

    [136] Transcript, 23.

    [137] Transcript, 22-23.

    Does the Applicant pass the character test?

15. In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 10 January 2020 regarding his criminal convictions and sentences.

16. The evidence before the Tribunal is that on 28 August 2019, the Applicant was convicted in the Goulburn Local Court of Common assault (DV)-T2, for which he was sentenced to 12 months' imprisonment, with a non-parole period of six months’ and Contravene prohibition/restriction in AVO (Domestic), for which he was sentenced to three months’ imprisonment. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.

17. For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.

    Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

18. In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.

    PRIMARY CONSIDERATIONS

    Primary Consideration A – Protection of the Australian community

19. Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:

    When considering protection of the Australian community, decision­makers should 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. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

20. Paragraph 13.1(2) directs that decision-makers should also give consideration to:

    a)    The nature and seriousness of the non-citizen's conduct to date; and

    b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a)      Nature and seriousness of the Applicant’s conduct to date

21. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:

    (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 subparagraph (b) above, the sentence imposed by the courts 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)   Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

    (i)    …

22. The Applicant has an extensive criminal history of offending that extends over more than ten years, having commenced in February 2007. During that period, the Applicant has been sentenced for a number of offences involving violence, including offences against multiple female partners. In addition to the Applicant’s violent offending, his offences include multiple driving and traffic offences and convictions for the supply of a prohibited drug.

23. In accordance with paragraph 13.1.1(1)(a) and (b) of the Direction, the Tribunal is required to view the Applicant’s violent offending, which includes physical assaults and intimidation of his domestic partners, very seriously. The Tribunal has given weight to the sentencing remarks of Magistrate Spence who described the assault against BS as ‘absolutely outrageous and unacceptable’ and the remarks of Magistrate Beattie who described the Applicant’s offending against his fiancée, MS, as ‘disgraceful.’

24. The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant committed violent offences against multiple female partners over a four-year period, despite being subject to numerous AVOs and being sentenced by the courts to terms of imprisonment for his violent offending.

25. Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The Tribunal finds that while the sentences imposed on the Applicant are not at the higher end of the sentencing range, they do not detract from the serious nature of his violent offending.

26. The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending was frequent and repetitive during the period 2015 to 2019. The Applicant engaged in violent and intimidating conduct against his victims, which included physical assaults and verbal abuse against his female partners in a domestic context and in breach of AVOs. The Tribunal finds that the frequency and cumulative effect of the Applicant’s repeated offending increases its severity.

27. The Tribunal has had regard to paragraph 13.1.1(1)(h) of the Direction and notes that the Applicant previously had his visa cancelled in May 2017 and, following representations he made representations to the Department, the visa cancellation was revoked in December 2017. Through this revocation process the Applicant received a clear warning that he may lose the privilege of remaining in Australia should he engage in further criminal offending. Despite this, the Applicant re-entered the community, recommenced drug use and re-offended by committing a violent assault against his fiancée. The fact that the Applicant committed this offence despite receiving a clear warning from the Department of the consequences of him re-offending demonstrates his disregard for Australian law and the seriousness of his criminal behaviour.

28. The very serious nature of the Applicant’s criminal offending weighs heavily against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

29. In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:

    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

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

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

30. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend in accordance with paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community and damage to property. The Applicant’s criminal offending has included actual and threatened physical violence committed against his victims, which include multiple female partners and his fiancée. The potential harm to individuals and the Australian community should he continue to engage in such conduct is very serious. His violent behaviour has caused, and has the potential to cause in the future, substantial harm to victims, being both the psychological and physical impacts of his offending, and significant financial cost to the community associated with emergency services and law enforcement activities.

31. The Tribunal has previously recognised the physical and psychological harm that is inflicted as a result of violence directed towards women in a domestic context.  In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385, the Tribunal observed (at [45]):

    … in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex-  based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

32. Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 13.1.2(1)(b) of the Direction, the Tribunal notes that the Applicant claims that he is not at risk of re-offending for reason that he has been drug free for a period of 16 months, has been offered full-time employment as a removalist, and is committed to engaging in further rehabilitation and courses upon his release. The Tribunal has taken into account that the Applicant made nearly identical claims in support of his request for revocation at the time his visa was cancelled in May 2017. Despite his visa being reinstated in December 2017, the Applicant continued to commit acts of violence against women which resulted in his imprisonment in August 2019 and the cancellation of his visa for a second time. The Applicant’s claims that the current cancellation is a ‘big wake-up call’, and he will not resume drug-taking and criminal offending if his visa is reinstated can only be given limited weight in assessing the risk of him re-offending in light of his behaviour following the revocation of the visa cancellation in 2017. On the basis of the evidence before it, the Tribunal finds there remains a real risk of the Applicant relapsing into drug-taking and criminal offending, as the clear warning from the Department in 2017 did not cause him to change his behaviour.

1. The Tribunal notes that the Applicant has previously engaged in rehabilitation programs and courses, and there have been periods in his life when he has not abused drugs and alcohol, and he has been gainfully employed working as a heavy vehicle mechanic. However, he has not been able to remain drug-free for an extended period of time, nor have his attempts at rehabilitation and having regular employment prevented him from continuing to offend. The Tribunal further notes that the employment offered to the Applicant by LB is the same job he held when he was regularly abusing drugs and committing criminal offences. The Tribunal cannot be satisfied that this employment will be a protective factor against the Applicant resuming drug-taking and criminal offending upon re-entering the community.

2. In relation to the Applicant’s stated intention to engage in further rehabilitation programs and seek relationship counselling if he remains in Australia, the Tribunal notes that the Applicant has not identified which courses or programs he intends to enrol in or their requirements. It cannot therefore be satisfied that the Applicant will undertake the rehabilitation he requires if he is to not resume drug-taking and continue to commit domestic violence offences against his female partners.

3. The Applicant’s evidence is that he will live with LB until he gets back on his feet.  However, it is his intention to resume living with his fiancée MS if the AVO can be amended to allow him to do so. The Tribunal notes that the Applicant’s most violent offending has occurred in a domestic context and that his most recent victim was his fiancée. It does not accept the evidence of the Applicant and MS that the violent assault he committed against her for which he was convicted and sentenced to 12 months’ imprisonment was not intended to cause her harm. The Tribunal has given weight to the sentencing remarks of Magistrate Beattie who noted that the Applicant was seen by witnesses to have ‘thrown [MS] down onto the verandah and slapped her in the face’, following which he ‘threw her to the ground and kicked her in the back.’ In light of this evidence, the Tribunal cannot be satisfied that the Applicant will not violently offend against MS in future should he return to live with her, and it finds that the risk of him so doing is ongoing and significant.

4. The Applicant’s evidence is that he plans to take steps to regain custody of his children and in the interim to move closer to where they reside in Shoalhaven. The Applicant’s children have resided at the same location for the past five years and, whereas he visited them regularly, he did not take steps during this period to move to the area or to regain custody of the children. It was during this five-year period that the Applicant committed his most serious violent offences. On the basis of the evidence before it, the Tribunal cannot be satisfied that the potential for increased access to his children will deter the Applicant from further criminal offending.

5. On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is significant, and that this level of risk is unacceptable given the nature of the harm he may cause if he does re-offend.

6. For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs heavily against the revocation of the Mandatory Visa Cancellation Decision.

   Primary Consideration B – The best interests of minor children in Australia affected by the decision

7. Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.

8. In considering the best interests of the child, paragraph 13.2(4) provides:

   (4) In considering the best interests of the child, the following factors must be considered where relevant:

   (a) nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   (b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   (c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   (d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;

   (e) Whether there are other persons who already fulfil a parental role in relation to the child;

   (f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   (g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   (h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

9. The Applicant’s daughter, LL, was born in 2010 and is aged 10 years, and his son, WL, was born in 2012 and is aged eight years. The children are the subject of Orders made by the Children’s Court of New South Wales under section 79(1)(b) of the Care and Protection Act on 9 December 2015. The Order provides that ‘all aspects of parental responsibility for [the children] are allocated to the Minister until they attain the age of eighteen (18) years.’ The evidence before the Tribunal is that the children are currently in the custody of his mother and step-father and are residing in Shoalhaven, New South Wales.

10. Having regard to paragraph 13.2(4)(a) of the Direction, the evidence shows that the Applicant has had a very limited parental role in his children’s lives for the past five years. At the time the Orders were made in December 2015, the Applicant’s daughter was aged five years and his son was aged three years. Prior to the Orders, the children resided with the Applicant and their mother, and the Applicant’s former partner, CL. Following the Applicant’s separation from CL, the Applicant took six months off work in 2014 to care for his children. The children were removed from the Applicant after he breached the Family and Community Services (FACS) safety plan by allowing CL to visit the children. The Applicant served a period of imprisonment from December 2016 to July 2017 following which he was detained at Christmas Island until December 2017. He commenced his most recent term of imprisonment in August 2019 and, following his release in February 2020, he has been held at Villawood. The Applicant’s evidence is that when he was living in interstate in Wodonga and following his return to Liverpool in 2018, he would visit his children on a monthly basis. Since he has been incarcerated in gaol or immigration detention, he speaks to them on the phone on a regular basis.

11. The evidence demonstrates that, whereas the Applicant was present in his children’s lives when they were very young, and he was their primary carer for a period of six months, they have been effectively separated from him for the past five years. Whereas the Applicant clearly has a strong emotional bond with his children, there is very limited evidence that he is a significant figure in their lives. This extended period of physical absence of the Applicant from his children’s lives and the limited contact he has otherwise had with them is such that his involvement in their daily care and upbringing is not significant.

12. Having regard to paragraph 13.2(4)(b) of the Direction, the evidence demonstrates that the Applicant is unlikely to play a significant parental role for the children in the foreseeable future. The Orders allocate all parental responsibility for the Applicant’s children to the Minister for Families, Communities and Disability Services until they reach adulthood, which is a period of eight years for his daughter and ten years for his son. Although parental responsibility has been allocated to the Minister, the Applicant’s children currently live with the Applicant's mother and his step-father and have done so since the Orders were made. Accordingly, there are other people who fulfil a parental role in relation to the Applicant's children.

13. Whereas the Applicant may apply for recission or variation of the Orders under section 90 of the Care and Protection Act, such an application may only be made with the leave of the Children's Court,[138] and the Court may only vary or rescind the Orders if it is satisfied that it is appropriate to do so, after considering the matters listed in subsection 90(6) of the Care and Protection Act.[139] There is insufficient evidence before the Tribunal for it to find that the Applicant is likely to, in the foreseeable future, be in a position to make an application that would result in the recission or variation of the Orders. In particular, there is no evidence of what application may be made or the basis for that application, nor is there any evidence relating to any of the matters the Court would be required to consider in deciding such an application.

    [138] subsection 90(1).

    [139] subsection 90(7).

14. The Applicant’s evidence is that if his visa is reinstated, he intends to move to Shoalhaven to be near his children. He expressed the same intention when he requested the revocation of the cancellation of his visa in 2017.[140] However, following the revocation he lived in Wodonga, and then moved to Liverpool before he began living with his fiancée in Bowral. At no stage did he move to or near Shoalhaven.[141] Further, the Applicant told the Tribunal that he plans initially to live with LB and then to resume living with his fiancée if the AVO is amended to allow him to do so. On the basis of this evidence, the Tribunal cannot be satisfied that the Applicant would, given the opportunity, relocate closer to his children and thereby assume a significant parental role in their lives.

    [140] G11, 271.

    [141] G2, 123.

15. The Tribunal has had regard to the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the children, as required by paragraph 13.2(4)(c) of the Direction. The evidence before the Tribunal is that the NSW Police obtained an AVO against the Applicant on 7 January 2015 to protect CL and the children following an incident involving the Applicant on 27 December 2014 which caused CL to fear for her safety and that of the children. This prior conduct, and the Applicant’s subsequent violent offending against three other female partners, is such that the Tribunal cannot be satisfied that the Applicant’s behaviour has not had, and will not in future have, a negative impact on his children.

16. For the purposes of paragraph 13.2(4)(d) of the Direction, the Tribunal has had regard to the Applicant’s evidence that his removal from Australia will take the children’s father away from them, as they are too young and it would be too costly for them to travel to New Zealand for visits. The Tribunal accepts that the Applicant’s separation from his children as a result of his removal to New Zealand will likely have a negative impact on them as he will necessarily be physically absent from their lives, and they will not have the opportunity to see their father, at least until they are able to travel to New Zealand to visit him. They will however be able to continue to maintain contact with him via phone and other electronic means as they have done while he has been incarcerated or in immigration detention.

17. Considering the factors in paragraph 13.2(4)(e), the evidence before the Tribunal is that the children are receiving their primary care from the Applicant’s mother and his step-father, and therefore the Tribunal finds that there are other persons who currently fulfil a parental role in relation to the children.

18. There is limited evidence before the Tribunal of the views of the children in relation to the Applicant or how they would be impacted if he were not to hold a visa, other than the evidence provided by the Applicant himself. Accordingly, the Tribunal has not placed weight on the factors in paragraph 13.2(4)(f). 

19. Having regard to paragraphs 13.2(4)(g) and (h) of the Direction, there is no evidence before the Tribunal to indicate that the Applicant has abused or neglected the children, or the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

20. The Tribunal has considered the interests of the Applicant’s five nieces and nephews, and his fiancée’s children and grandchildren who reside in Australia. There is very limited evidence before the Tribunal of the ages of these children, the nature of the Applicant’s relationship with them, and how they may be adversely affected by his removal. Accordingly, the Tribunal has given the impact on these children only limited weight.

21. Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that, on balance, this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s children and his nieces and nephews (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.

    Primary Consideration C – The expectations of the Australian community

22. Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

23. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:

    ·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[142] 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.[143]

    ·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[144] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[145]

    [142] Charlesworth J at [66]; Stewart J at [91].

    [143] Charlesworth J at [67]; Stewart J at [104].

    [144] Charlesworth J at [76].

    [145] Stewart J at [97].

24. The effect of paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.

25. Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of violent offences in Australia. The Applicant’s offences include serious offences involving domestic violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of the non-citizen’s visa. The Australian community would have a very low tolerance for the Applicant's criminal offending, which has involved a series of violent offences, including against women with whom he was in a relationship.

26. The Applicant arrived in Australia at the age of two years and is now aged 35 years. Having regard to the factors in Principle 5 of paragraph 6.3 of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Tribunal finds that the length of time the Applicant has been living in Australia, namely a period of more than 30 years, is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time. 

27. Having regard to the factors in Principle 7 in paragraph 6.3 of the Direction, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory visa cancellation on the Applicant’s fiancée, children, mother, step-father, step-brother, uncle, aunt, cousins, nieces and nephews and other family members who are Australian citizens or permanent residents and reside in Australia. The evidence before the Tribunal is that the Applicant’s fiancée is emotionally and financially dependent upon him, and she relies on him to assist her to attend medical appointments and obtain her medications. However, she told the Tribunal that she has the support of her eldest daughter who has provided her with assistance since the Applicant has been incarcerated. 

28. There is limited evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s other family members, none of whom provided a statement in support of the Applicant’s application for review of the Mandatory Visa Cancellation Decision. The Tribunal however accepts that the Applicant’s removal from Australia will prevent his family and friends from re-establishing their bond with him and will require them to maintain their relationship by phone and visits to New Zealand. The impact on the Applicant’s family and friends in Australia are factors which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.

29. The Tribunal also has had regard to the contribution the Applicant has made to the Australian community during his 30 year residency in Australia. The evidence is that the Applicant has held ongoing paid employment since he left school and has therefore contributed to the economy and paid taxes. The Applicant’s contribution to the Australian is a factor which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.

30. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending and the other factors relevant to his circumstances, the Tribunal finds that Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision.

    OTHER CONSIDERATIONS

1. While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.

2. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:

   ... 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.

   International non-refoulement obligations

3. There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this consideration is of neutral impact.

   Strength, nature and duration of ties

4. Paragraph 14.2(1) of the Direction states:

   Reflecting the principles at 6.3, decision-makers must have regard to:

   (a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:

   (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

5. The Applicant first arrived in Australia at the age of two years and has resided here for more than three decades. He completed his schooling in Australia and has been steadily employed as a heavy vehicle mechanic and more recently as a removalist, and he has thereby contributed to the community through his trade skills.

6. The Applicant has strong family ties in Australia, including his mother, step-father, step-brother, uncle, aunt, cousins and nieces and nephews. However, there is no evidence before the Tribunal to indicate that his family members or friends have any particular reliance on the Applicant or would suffer any financial or practical hardship if he were removed. Insofar as this consideration weighs in the Applicant’s favour, the Tribunal has given it limited weight. 

7. The Applicant has been engaged to his fiancée for a period of 20 months and they plan to marry and reside together if the AVO can be amended or revoked. The evidence before the Tribunal is that his fiancée relies on the Applicant for emotional, financial and practical support and that he has previously been her carer. The Tribunal finds that the impact on the Applicant’s fiancée’s health and well-being weighs in favour of revocation of cancellation of the Applicant’s visa.

8. Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.

   Impact on Australian business interests

9. Paragraph 14.3(1) of the Direction states:

   (1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

10. The Applicant was employed as a heavy vehicle mechanic and a removalist prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.

    Impact on victims

11. Paragraph 14.4(1) of the Direction states:

    (1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

12. There is limited evidence before the Tribunal on the impact on the Applicant’s victims of the non-revocation of the cancellation decision. The evidence of MS, the Applicant’s fiancée and most recent victim, is that they plan to marry and reside together if the AVO can be amended or revoked and she relies on the Applicant for emotional, financial and practical support as her carer. However, as the Tribunal has found, the Applicant is at significant risk of re-offending and MS therefore remains vulnerable to any future domestic violence offences by the Applicant. Accordingly, the Tribunal has given this consideration neutral weight in determining whether the visa cancellation decision should be revoked.

    Extent of impediments if removed from Australia

13. The Direction states in paragraph 14.5(1) that:

    (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)  The non-citizen’s age and health;

    (b)  Whether there are substantial language or cultural barriers; and

    (c)   Any social, medical and/or economic support available to them in that country.

14. Having regard to paragraph 14.5(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant is 35 years old and has not reported any physical or mental health issues. There is unlikely to be any substantial change to the social, medical and economic support available to the Applicant in New Zealand compared to Australia, and the Applicant would have access to those services and supports otherwise available to citizens of New Zealand. The Applicant has a history of drug abuse and he has stated his intention to continue his rehabilitation in the community. Treatment for substance abuse is available in New Zealand and the Applicant will have the same access to this as other New Zealand citizens should he seek such assistance on his return.

15. Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on return. New Zealand is culturally and linguistically similar to Australia and has comparable standards of social welfare support and the Applicant will have access to these services as a New Zealand citizen. Noting paragraph 14.5(1)(c) of the Direction, the Tribunal is satisfied that the Applicant will have access to healthcare and medical supports available to all New Zealand citizens, which is likely to be of a similar quality to that available in Australia.

16. The Applicant’s evidence is that although the members of his immediate family reside in New Zealand, it would be extremely difficult for him to obtain their support. He claims that he has no contact with his father and step-brother, and he has not been in touch with his grandfather for four years. The Tribunal finds that the Applicant has immediate family members in New Zealand who could provide him with a degree of support if he were to reach out to them upon his return.

17. On the basis of the evidence before it, the Tribunal finds that, on his return to New Zealand, the Applicant will face hardship, particularly financial and emotional stress, while he finds suitable accommodation, accesses available rehabilitation support, and looks for a job. This hardship will be exacerbated if he is unable to re-establish contact and re-build his relationship with his immediate family members in New Zealand.

18. Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.

    CONCLUSION

19. In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature, frequency and seriousness of the Applicant’s violent offending, and the significant risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

20. Primary Consideration B weighs in favour of the revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s children and his nieces and nephews (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.

21. Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious and violent offending should cause him to forfeit the privilege of remaining in Australia.

22. In regard to the relevant other considerations, only the strength, nature and duration of ties, and the extent of impediments on return to New Zealand weigh in favour of revocation of the Mandatory Visa Cancellation Decision.

23. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

    DECISION

24. The Reviewable Decision dated 22 September 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 168 (one hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 7 January 2021

Date(s) of hearing:	1 December 2020
Date final submissions received:	11 December 2020
Applicant:	In person
Advocate for the Respondent:	Ms K Ervin, Clayton Utz