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

Leiataua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4327 (30 October 2020)
Division:GENERAL DIVISION
File Number: 2020/4935
Re:Terry Leiataua
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:30 October 2020
Place:Brisbane

The decision under review is set aside and substituted such that this Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
............................[sgd]...................................
Senior Member Theodore Tavoularis
Table of Contents
REASONS FOR DECISION
Introduction and Background
ISSUES
Does the Applicant pass the Character Test?
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A

Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B

Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C

Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
Annexure A - EXHIBIT LIST
Catchwords
MIGRATION – Revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (temporary) visa – where the Applicant does not pass the character test – where there is a substantial criminal record – consideration of Ministerial Direction Number 79 – grievous bodily harm – interest of affected minor children – decision under review set aside and substituted
Legislation
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
30 October 2020
INTRODUCTION AND BACKGROUND

Mr Terry Leiataua (“the Applicant”) is a 36 year old citizen of New Zealand.[1] Movement records indicate that the Applicant arrived in Australia (for final settlement purposes) on 19 February 2016 and not left since that date.[2] He resided in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”).[3] His complete record of movements in and out of Australia reads as follows:
·24 December 1995 – arrived in Australia;
·21 January 1996 – departed Australia;
·13 September 1996 – arrived in Australia;
·27 September 1996 – departed Australia;
·24 November 2012 – arrived in Australia;
·3 December 2012 – departed Australia; and
·19 February 2016 – arrived in Australia.
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [2].
[2] Exhibit G1, G2, pages 81-82.
[3] Exhibit R1, page 2, paragraph [3].
The Applicant has, in terms of the number of offences he has committed both in Australia and New Zealand, a relatively short offending history. The history in New Zealand is unremarkable and may be shortly summarised thus:
Criminal offending:
·Waitakere District Court – 27 November 2001: Convicted and fined the sum of $200 for Possess Pipe or Utensil for Cannabis;
·North Shore District Court – 26 August 2004: Convicted and (inter alia) fined the sum of $150 for Possess Pipe or Utensil for Cannabis;
·North Shore District Court – 26 August 2004: Convicted and (inter alia) fined the sum of $150 for Possession of Cannabis;
Traffic offending:
·Waitekere District Court – 8 June 2006: Convicted and (inter alia) fined the sum of $450 and disqualified from driving for six months for Breath Alcohol Level Over 400 Mcgs/Litre of Breath, Blood/Breath = 673;
·Auckland District Court – 13 March 2008: Convicted and disqualified from driving for six months for Operated a Vehicle Carelessly;
·Auckland District Court – 13 March 2008: Convicted and (inter alia) fined the sum of $675 and disqualified from driving for six months for Drove with Excess Blood Alcohol Content, Blood/Breath = 160; and
·Auckland District Court – 31 May 2010: Convicted and sentenced to three months’ community detention and disqualified from driving for one year and one day for Drove with Excess Breath Alcohol – 3^rd of subsequent, Blood/Breath = 706.
The history in Australia involves the commission of a single offence some two years after his arrival. On 9 June 2018, the Applicant, suddenly and without warning, at a social gathering at his own home, committed the offence of grievous bodily harm pursuant to s 320 of the Queensland Criminal Code.[4] I will particularise the “bizarre” (as characterised by the learned sentencing Judge) nature of both the circumstances of the offending and the actual physical transaction constituting the offence later in these Reasons. It suffices to now record that upon sentencing on 30 July 2019, pursuant to his own plea of guilty, the following sentence was imposed:
[4] Criminal Code Act 1899 (Qld).
“IMPRISONMENT – Conviction recorded
The offender is sentenced to imprisonment for a period of 3 Years. Order that the term of imprisonment be suspended after serving a period of 6 Months imprisonment; and the offender must not commit another offence punishable by imprisonment within a period of 3 Years if the offender is to avoid being dealt with for the suspended term of imprisonment.”[5]
[5] Exhibit G1, G2, page 28.
At the conclusion of the non-parole period on 29 January 2020 the Applicant was released from criminal custody and subsequently transferred to immigration detention pursuant to s 198 of the Migration Act 1958 (Cth) (“the Act”). At the time of the instant hearing, the Applicant was detained at the Brisbane Immigration Transit Accommodation facility.
While serving his term of imprisonment (i.e., criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Act, decided on 31 October 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6] Ibid, G2, pages 37-43
On 11 November 2019, the Minister’s Department received a letter from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[7] The delegate of the Minister decided on 6 August 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[8]
[7] Ibid, pages 44-47.
[8] Ibid, pages 13-24.
The Applicant lodged an application with this Tribunal on 14 August 2020 seeking a review of the abovementioned decision dated 6 August 2020 not to revoke the cancellation of his visa.[9] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[10]
[9] Ibid, G1, pages 1-8
[10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 14 and 15 October 2020 and received oral evidence from (1) the Applicant, (2) his partner (Ms Crystal Vilitau), (3) the Applicant’s support person (Ms Ranandy Stanely of Hope Centre Services), (4) the program facilitator of Man Up (Mr Kurt Tuteru), and (5) the head facilitator of the Youth You program (Mr Glenn Munso). The Tribunal also received written evidence. This written evidence was categorised into an exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue becomes whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…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…”[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[13] I will address each of these grounds in turn.
[13] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
As mentioned earlier in these Reasons, the Applicant was sentenced to a term of imprisonment for three years for his grievous bodily harm offence. In his SFIC, the Applicant did not deny his offending and made the following concession:
“3. The Applicant concedes that:
(a) the decision to cancel his visa under s 501(3A) was made according to law; and
(b) he does not satisfy the character test as prescribed by s 501 of the Migration Act 1958 for the purposes of s 501CA(4)(b)(i).
4. The Applicant concedes that, as at the date of the Original Decision, he:
(a) had a substantial criminal record as defined through s 501(7)(c);
(b) did not pass the character test as prescribed by s 501(6)(a);
(c) 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 Queensland.”[14]
[14] Exhibit A1, pages 1-2.
The custodial sentence imposed on the Applicant involved his early release after serving a custodial period of six months. I note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[15]
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[17]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[16] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[17] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]
“…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.”
[18] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) remaining in Australia is a privilege conferred on non-citizens in this country; and (b)non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the totality of the Applicant’s criminal history. The totality of the Applicant’s offending and other serious conduct can be readily gleaned from the material now before the Tribunal, including, perhaps most significantly, the sentencing remarks of His Honour Judge Chowdhury of the District Court of Queensland made on 30 July 2019 sentencing the Applicant for his grievous bodily harm offending .
The Nature and Seriousness of the Applicant’s Conduct to Date
As mentioned, the Applicant gave lengthy oral evidence at the instant hearing. He was taken to the specific circumstances of his singular offending episode (in Australia) that saw him convicted for one count of grievous bodily harm. I will later deal with the specific circumstances of the offending. However, I found the general tenor of the Applicant’s evidence to involve (1) a ready concession of his commission of the offence, yet simultaneously, (2) a professed vagueness or inability to adequately particularise or properly articulate certain critical aspects of the offending episode.
This amnesic quality was inherent in both his written and oral evidence. In his statement, he said the following:
“Relevant Offending
15. On 30 July 2019 I was convicted of Grievous Bodily Harm for offending behaviour committed on 9 June 2018.
16. I was sentenced to a period of 3 years imprisonment to be suspended for 3 years after serving 6 months.
17. The relevant offending occurred at a gathering after a fundraiser.
18. I was too intoxicated to remember exactly why I did what I did. It was totally out of character for me, as I am not a violent person. That being said, there is nothing that can justify my actions that night. No one deserves that, no matter what they do.
19. After I got of the shock of what happened, I tried to make amends which is why I offered numerous apologies to my victim, turned myself in to the police and plead guilty.
20. My offending was committed in the context of severe intoxication.”[19]
[19] Exhibit A2, pages 1-2.
The unhelpful state of the Applicant’s evidence around his commission of the offence similarly perplexed the learned sentencing Judge, who found the circumstances of the offending to be both “…serious but also bizarre.”[20] It is pertinent to quote the relevant portions of His Honour’s sentencing remarks:
[20] Exhibit G1, G2, page 30.
“HIS HONOUR: Right. Stand up, please, Mr Leiataua. You have pleaded guilty to one count of grievous bodily harm. You were 34 at the time of that offence. You are now 35. Relevantly, you have no criminal history. The circumstances of the offence are both serious but also bizarre. You had actually known the complainant, Mr [name redacted], through your children playing rugby league together. On the 9th of June 2018, you and the complainant volunteered at a fundraiser for the under nines rugby league team at the clubhouse in Logan. You and the complainant were helping out with the barbeque and were obviously getting on well.
At about 3 pm, the fundraiser ended and you invited the complainant and the coach of the team to have a few beers at your house, which they accepted. An hour later, the complainant, his nine year old son and the coach arrived at your house in [address redacted]. You were there with your partner, your sister, your brother-in-law and, obviously, the children. Throughout the afternoon and into the evening, you and the complainant and the coach sat – and the rest of the family members sat at the back of the house, talking and drinking beer while the kids played together. You and the complainant shared a 24 pack carton of beer and had around 10 bottles each.
At about 10 pm, the complainant and the coach went to buy more liquor. The complainant purchased another carton of beer, this time the Mexican beer, Corona. When they returned, the drinking continued. It seems everyone was in a good mood. It seems you and the complainant decided to have a rap battle. The complainant and yourself were singing and rapping at each other when for some reason, you jumped up from your seat and with your right hand, swung the full glass bottle you were holding, striking him to the underside of his jaw. The complainant immediately went limp in his seat and was unconscious. You then struck the complainant again, swinging the glass bottle down and striking him across his nose and chin.
You continued to act aggressively and you were pushed back by your partner. Your brother-in-law picked the complainant up and moved him to the garage. He was still unconscious and bleeding heavily from his face and chin. His son was outside the garage, crying, clearly upset about what had happened. After a few minutes, the complainant regained consciousness. He could not recall what happened. The coach offered to drive him to hospital, however the complainant refused as he wanted to get his son home. The coach drove both the complainant and his son home. The complainant went to sleep, which is surprising given the injuries he had.
On the next morning, 10 June 2018, the complainant woke up and felt pain to his face. His bed and sheets were covered in blood. He was unable to talk. The coach returned at about 11 am and drove him to Logan hospital. He was admitted as an inpatient. He has sustained a fracture to the front of his lower jawbone and two bilateral fractures to the upper end of the left side of his lower jaw bone. He also sustained mild infraorbital swelling – that is, swelling in one of the eye sockets – a Swollen lower lip and, importantly, lost a tooth from his lower left jaw, with other teeth being damaged. All three fractures required surgery, with internal fixation of plates and wave arch bars to hold everything together.
He was later transferred to the Princess Alexandra Hospital. And on 19 June 2018, after undergoing a further two surgeries, he was discharged. Without that treatment, the injuries would have caused injury to health – in essence, he would have had a permanent maladjustment of his jaw. On 22 June 2018, the complainant reported the matter to the police. He was unable to work, had to take his sick pay and recreational leave. As with anyone with a broken jaw, he was unable to eat solid food and lost weight. And after the incident, it was difficult for him to speak properly and hurt when he did speak. I have had regard to the victim impact statement of the complainant, which shows the profound effect this offence has had upon him.
On the 10th of June 2018, 11 June 2018 and 15 June 2018, you sent messages to the complainant over Facebook, apologising for what you had done. On the 25th of July 2018, you took part in an interview after you had voluntarily turned up at the Logan police station. You made full admissions. You could not provide a reason for what you did, other that when you were rapping and you were drunk, you thought the complainant might have said something negative about you. But whatever he did, it – you acknowledge that he did not deserve what happened to him. Now, this type of offence occurs far too frequently, particularly when people are drunk.
This is not the sort of gratuitous violence one might see outside nightclubs or bars in the Valley or other places, where you have people who are aggressive, either with alcohol or drugs, and are going out to look for a victim and to pick a fight. For some reason, you were all getting on really well. It was a really good night. Something happened that made you snap. You thought the complainant was disrespecting you or did something. No one really knows. But unfortunately, you had a full glass bottle in your hand and you struck him not only once, but twice – the second time after he had gone limp and become unconscious.
…
And people have really got to learn, unless they are acting in lawful self-defence, to keep their hands and feet to themselves…”[21]
[My underlining]
[21] Ibid, pages 30-32.
In terms of the nature and seriousness of the Applicant’s conduct, the Respondent contends that the totality of the Applicant’s offending “has been serious for the purposes of Primary Consideration 1…”[22] In particular, the contention reads as follows:
“30. The Respondent contends that given:
(a) the sentence of imprisonment imposed by the court for the offence;
(b) the Applicant's repeated offending; and
(c) the increasing seriousness of the Applicant's offending,
[22] Exhibit R1, page 7, paragraph [30].
[23] Ibid.
the Tribunal can be satisfied that the Applicant's conduct to date has been serious for the purposes of Primary Consideration 1, and the nature and seriousness of the Applicant's conduct should weigh against the Tribunal exercising the discretion to revoke the Original Decision.”[23]
Upon an application of the relevant factors appearing at paragraph 13.1.1(1) of the Direction I endorse that contention and would characterise the Applicant’s offending in Australia as “serious.”
Application of Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. They comprise:
(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), of government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since being otherwise made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant has committed what can only be described as a singular, yet very serious, crime of violence. That violent offending has been perpetrated against a victim enjoying a social evening with the Applicant at the Applicant’s home.
I have earlier recounted the circumstances of the offending via the lengthy quotation of the relevant portion of the sentencing remarks. Putting aside the amnesic quality of the Applicant’s evidence around the offending episode, the following circumstances of the offending should be noted because they speak directly to the inherent seriousness of the offence:
·suddenly and without warning, the Applicant swung a full glass bottle of beer directly at the victim, striking him to the underside of his jaw;
·the victim went limp in his seat and became unconscious;
·the Applicant then again struck the complainant, swinging the glass bottle down and striking the victim across his nose and chin;
·the Applicant continued his aggressive conduct and appears to only have ceased his aggressive conduct upon:
odirect physical intervention by his partner; and
odirect intervention by the Applicant’s brother-in-law, who physically intervened by picking up the victim and moving him to the garage;
·the Applicant’s six children and the son of the victim (in addition to the Applicant’s partner and brother-in-law) were on the premises at the time the Applicant committed the offence;
·in terms of injuries sustained by the victim:
othe next day, the victim, upon waking up, felt pain to his face;
othere had been excessive bleeding from his injuries;
othe victim was unable to speak;
oupon admission to the Logan Hospital, the victim was diagnosed with a fracture to the front of his lower jawbone and two bilateral fractures to the upper end of the left side of his lower jawbone;
othe victim also sustained mild swelling in one of his eye sockets, together with a swollen lower lip; and
othe victim lost a tooth from his lower left jaw and experienced damage to other teeth;
·in terms of remedial treatment:
oeach of the three fractures required surgery, with internal fixation of plates and wave arch bars “to hold everything together”; and
oupon transfer to the Princess Alexandra Hospital, the victim underwent two further surgical procedures prior to his discharge;
·without that medical treatment and surgical intervention, it was noted in the sentencing remarks that “…he would have had a permanent maladjustment of his jaw”; and
·in terms of both ongoing physical and financial harm suffered by the victim, the sentencing remarks relevantly record:
“He was unable to work, had to take his sick pay and recreational leave. As with anyone with a broken jaw, he was unable to eat solid food and lost weight. And after the incident, it was difficult for him to speak properly and hurt when he did speak. I have had regard to the victim impact statement of the complainant, which shows the profound effect this offence has had upon him.”
During his evidence in chief, the Applicant did not seem to cavil with the seriousness of his offending. He readily accepted the circumstances of the incident and the admonition of his partner for what he had done. This can be gleaned from his willingness to – the day immediately following the incident – try to contact the victim and apologise. The Applicant said “…alcohol played a big part in my offending, and my binge drinking.” He seemed to attribute his offending to “I think during the time I was under a lot of stress.” According to his evidence, this stress derived from his efforts in facilitating the transition of his sister and her family from New Zealand to Australia:
“MS SAMUTA:[24] Going on to your incarceration, in July 2019 you were convicted of grievous bodily harm for offending behaviour you committed on 9 June 2018. Do you remember what happened that night?
[24] Ms Jennifer Samuta, Director, Samuta and McComber Lawyers, legal representative of the Applicant.
WITNESS: I was under the influence of alcohol and I was intoxicated. And I can’t remember the whole night.
MS SAMUTA: Can you remember who your victim was?
WITNESS: Yes.
MS SAMUTA: Can you remember his name?
WITNESS: [Name redacted].
…
MS SAMUTA: Have you thought about [Name redacted], your victim, since that night of the offending?
WITNESS: Yes. Since the night, I have thought a lot about it, since my offending. Many [sic] towards his family, his two sons, his mum, and whoever - who was involved in my offending. Particularly his sons. And also [Name redacted], who had to go through the suffering and pain that they went through.
…
MS SAMUTA: How can you explain what happened that night?
WITNESS: I understand that alcohol played a big part in my offending, and my binge drinking. I was intoxicated. Before the night, I had completed a ten hour shift and I did not have much sleep. Then I had to get up to prepare for the - our boy’s rugby team fundraising barbeque, which was held at a local meat shop. I think during the time I was under a lot of stress. I had my sister and her partner and two boys staying with us. I helped her move over, her and her friend to move over for a better future. They were staying with us for a few months. I had to juggle with all that, and work, and also my own little family. In saying that, I have no excuses for the crime that I committed.
MS SAMUTA: Had you been in any fights before?
WITNESS: No. No, no fights.
MS SAMUTA: The night that you quite seriously injured your victim, you said earlier that you couldn’t remember that night. Can you remember inflicting any injuries or being violent towards [Name redacted]?
WITNESS: It was - it just happened. I can’t remember when I did it. Like, I just went blank. It wasn’t until after the incident, my partner - I could hear my partner and my brother-in-law yelling at me for what had happened.
MS SAMUTA: The next day when you woke up and you weren’t as intoxicated, how did you feel? What were you thinking?
WITNESS: I was in a lot of emotion, self-disbelief. I was very disappointed in myself of the crime that I committed. I felt really sad for what I had done to [name of victim redacted] and his family, and also my family. I could remember my sister, my brother-in-law, my partner, they were just so disappointed. I was really disappointed in myself. I was ashamed, I was embarrassed of what I had done, and I wish that I could have turned time back.
MS SAMUTA: Have you had the opportunity to apologise to [Name of victim redacted]?
WITNESS: Yes. When I woke up the next day I - my partner had told me she was not happy with me, of what I had done. I automatically messaged [Name of victim redacted] numerous times to apologise to him and to let him know that what I had done was really bad, and that I was really sorry for what I had done. And I tried to talk to him and unfortunately he didn’t get back, so I just left it at that.”[25]
[25] Transcript, 14 October 2020, page 8, lines 24-31 and 43-46, and page 9, lines 1-2 and 7-41.
I am troubled by the earlier-referred to amnesic quality to his evidence about how his conduct suddenly transformed from an individual enjoying an evening with friends and family in a typical suburban backyard setting into a dangerous attack upon a blameless and unsuspecting victim that could have proven fatal. It is difficult to accept the veracity of the Applicant’s evidence where he speaks of not being able to recall inflicting the injuries on the victim and that the violent transaction between him and the victim “just happened.” I likewise have difficulty in rationalising evidence purporting to contextualise such a dangerous incident on the basis of “I can’t remember when I did it. Like I just went blank.”
Purporting to now being unable to recall the commission of such an uncharacteristic (i.e. for the Applicant) and potentially fatal attack does not, in any way, serve to lessen its inherent level of seriousness. It is somewhat alarming that, on the one hand, the Applicant acknowledges the “big part...binge drinking” played in his offending, yet on the other hand, to have no rational explanation – either from himself or a clinician – about how it predisposed him to so violently offend. To my mind, the level of seriousness behind the Applicant’s very violent conduct in mid-2018 rises commensurately with the absence of clinical analysis explaining the nexus between how his consumption of alcohol predisposes him to so violently offend.

In cross-examination, the Applicant readily accepted the commission of the offence and its resulting consequences, yet could not any further explain the basis on which it occurred:
“MS LETCHER-BOLDT:[26] Now, Mr Leiataua, I understand that your evidence is that you do not recall the events that unfolded. However, are you aware of the impact that it had on the victim, and what happened to the victim subsequently?
WITNESS: Yes. I am very aware of the impact on the victim and his family.
MS LETCHER-BOLDT: Do you agree that the offending resulted in significant physical and psychological harm to the victim?
WITNESS: Yes.”[27]
[26] Ms Emma Letcher-Boltd, lawyer, Clayton Utz, legal representative for the Respondent.
[27] Ibid, page 18, lines 31-37.
As occurred with his evidence in chief, the Applicant attributed the offending to unresolved issues with alcohol, but could not take it much further:
“MS LETCHER-BOLDT: You have said that it occurred in circumstances where you had consumed an excess amount of alcohol. Do you agree?
WITNESS: Yes.
MS LETCHER-BOLDT: Noting your previous offending history in New Zealand, did you consider at the time that you committed the offence of grievous bodily harm that your previous alcohol abuse was under control at that time?
WITNESS: Can you say that again? Sorry.
MS LETCHER-BOLDT: Of course. When you committed the offence of grievous bodily harm, did you think that your previous alcohol abuse was under control at that time?
WITNESS: No.
MS LETCHER-BOLDT: No. So the day that you committed the offence and that you were drinking in the family home, you did not believe that your alcohol abuse was under control?
WITNESS: No, it was not under control.”[28]
[28] Ibid, page 19, lines 1-16.
I have had regard to the specific written material available to the Tribunal and the Applicant’s evidence at the hearing. I am of the view (for the purposes of this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction) that the violent circumstances of the Applicant’s offending in June 2018 must be viewed seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant’s history reveals no instances of violent conduct towards women or children. While the Applicant’s offending resulting in the grievous bodily harm conviction was committed with at least one woman (his partner) and at least some children on the premises (the Applicant’s children and the son of his victim), this does not constitute “crimes of a violent nature against women or children”. Accordingly, this sub-paragraph (b) is not relevant to determination of this application.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” There is no evidence of such offending either in Australia or in New Zealand. Consequently, this sub-paragraph (c) is not relevant to determination of this application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
As mentioned earlier, the Applicant’s history of offending in New Zealand (viewed in isolation) is unremarkable. The nature of the sentences parallel the unremarkable nature of the offending. The position is different in relation to the singular offence he has committed in Australia. After receiving the usual submissions about the nature of the Applicant’s grievous bodily harm offending, the learned sentencing Judge formed the view that “The circumstances of the offence are both serious but also bizarre.”
His Honour was in no doubt about the nature and formulation of the sentence he saw fit to impose:
“Having regard to all the comparable cases, I consider the appropriate sentence is one of three years imprisonment. The law is quite clear that you need to get a discount on that because of your cooperation with police, early plea of guilty, your genuine remorse and the other mitigating factors in your favour. Normally, that is after a third. So ordinarily, you would be sentenced to three years to serve 12 months. Because of the special features of your case, what I will do is give you a greater discount than that and only require you to serve six months. I know that is going to be hard on your family but I have to balance not only your interests, but the interests of the community who look to the Courts to impose heavy sentences to try and send a message to people – if you get aggressive while you are drunk, just do not drink.
And people really have got to learn, unless they are acting in lawful self-defence, to keep their hands and feet to themselves…”[29]
[29] Exhibit G1, G2, page 32.
It is well established that the imposition of a term of imprisonment for an offence will, in and of itself, reflect the seriousness of that offence and will weigh “heavily” against any decision to revoke the mandatory cancellation decision:
“Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of MrSaleh’s visa.”[30]
[30] Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].
The Applicant’s offending in Australia has been punished by the imposition of a head custodial term representing 100% of the approximately three years he had been in Australia at the time he was sentenced. It should also be noted that the imposition of a three year head custodial term for the Applicant’s first instance of offending in this country is inherently indicative of the very serious nature of what he did.
Conversely, it should also be noted that the maximum penalty for the commission of a grievous bodily harm offence pursuant to s 320 of the Queensland Criminal Code[31] is a term of imprisonment for 14 years. The head sentence imposed upon the Applicant was three years, or approximately 22% of the maximum. As will be seen from the sentencing remarks, it was accepted that there were “special features” in the circumstances of the offending, such that the sentencing Judge felt inclined to extend the usual “discount” of one third of the head term (which would have been 12 months) to one sixth of the head term, resulting in the Applicant serving six months in actual custody. Put another way, the Applicant was compelled to custodially serve 17% of the head term imposed upon him.
[31] Criminal Code Act 1899 (Qld).
Having regard to the totality of the evidence in relation to this sub-paragraph (d), both for and against the Applicant, my conclusion is that this sub-paragraph (d) militates in favour of a finding that his offending is of a serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Respondent contends that an element of frequency can be found in the Applicant’s offending by conjoining his pattern of offending in New Zealand with the single offence he committed in Australia. I am not certain about the veracity of that contention. Over an approximately 10 year period in New Zealand, the Applicant committed seven largely unremarkable offences comprising three drug offences and four traffic offences. The drug offences are clearly low-level “personal or own use” offending with absolutely no connotation of commerciality. The traffic offences involve the Applicant driving whilst under the influence of alcohol on three occasions plus an additional traffic conviction for carelessly operating a vehicle. That latter conviction most likely derived from one of his three drink driving convictions, because he was convicted of the specific drink driving offence, plus the careless operation offence, on the same day (i.e. 13 March 2008).
It should also be noted that the Applicant did not offend, either here or in New Zealand, for an approximate eight year period from 2010 to 2018. Thus, there is little merit to the contention about any frequency to the Applicant’s offending where he has committed eight offences across an 18 year period. Therefore, I am of the view that the Applicant’s offending either in New Zealand alone or even when conjoined with the single offence he committed in Australia, cannot be said to “frequent” for the purposes of this sub-paragraph (e).
There is a further contention from the Respondent that the Applicant’s offending has escalated significantly in seriousness when one benchmarks the nature and type of offences he committed in New Zealand compared to his single offence in Australia. While one can have misgivings about whether such a benchmarking exercise can be validly done for the purposes of this sub-paragraph when it involves comparison of offending histories in different countries, there is, to my mind, no requirement for lengthy contemplation of any such dilemma.
This is because the nature and circumstances of the Applicant’s commission of the grievous bodily harm offence in Australia are instantaneously serious. Put simply, he did not even give himself the chance of developing a gradually escalating level of severity in his offending in Australia. He offended, indeed, seriously so, from the beginning of his offending history in this country. There is no other conclusion to be drawn from his commission of the grievous bodily harm offence.
During cross-examination, the Applicant accepted that his offending in Australia was more serious than his previous offending in New Zealand:
“MS LETCHER-BOLDT: Mr Leiataua, would you say that the violent offence that you committed in Australia is much more serious than your previous offending in New Zealand?
WITNESS: Yes, most definitely. Yes.
MS LETCHER-BOLDT: So is it fair to say that your offending has increased significantly in seriousness?
WITNESS: Yes.
MS LETCHER-BOLDT: Mr Leiataua, your evidence has been that committing the offence of grievous bodily harm was out of character for you. Is that correct?
WITNESS: Yes.”[32]
[32] Transcript, 14 October 2020, page 18, lines 39-47.
Accordingly, this sub-paragraph (e) militates in favour of a finding that, while the Applicant’s offending in this country (even when conjoined with his offending in New Zealand) may not necessarily have been frequent, its escalation in Australia from non-existent to the circumstances of the grievous bodily harm offence he actually committed, means that the totality of his offending has been of a serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Given the relatively sparse nature of the Applicant’s offending history – both in Australia and New Zealand – across some 18 years, it is difficult to glean any readily identifiable “cumulative effect” resulting from his offending.
On one view, it could be said that his repeated offending in low-level drug matters in New Zealand was informative of unresolved issues with illicit drugs. It could similarly be said that he had unresolved issues with alcohol when one has regard to his three traffic convictions for drink driving in New Zealand. The difficulty with characterising either or both of those issues (i.e. illegal drugs or alcohol) as a “cumulative effect” of his offending is that it ceased in 2010 in New Zealand and the Applicant has never again offended in either of those two realms.
Indeed, he did not offend at all from 2010 until 2018. Later in these Reasons, when I assess the Applicant’s risk of recidivism, I will discuss my views about the possibility of the Applicant having unresolved issues with alcohol, but that discussion, to my mind, should be isolated to an analysis of that specific risk. For present purposes, I do not think it is safe to find that a “cumulative effect” of the Applicant’s offending history is that he is predisposed to the commission of drink driving offences or the commission of low-level/personal use-type drug offending.
I therefore think the Applicant’s following contention in relation to this sub-paragraph (f) is well made:
“36. With respect to paragraph 13.1.1(1)(f) of Direction 79, it is submitted that given the minimal prior criminal history of the Applicant, and the bizarre circumstances of the index offending, it cannot be said that there is a cumulative effect of offending, particularly in circumstances where:
(a) the index offending is the first and only offence the Applicant committed since living in Australia; and
(b) the Applicant has no history of violent offending.”[33]
[33] Exhibit A1, page 10.
It is thus difficult to glean a “cumulative effect” from the Applicant’s offending. It is also difficult to attribute a label of “repeat offender” to him given the relative sparseness of the totality of his offending history in both Australia and New Zealand over approximately 20 years. Accordingly, this sub-paragraph (f) does not attract any weight and is thus neutral.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is a ready acknowledgement from the Applicant that he provided incorrect information to the Australian Government when he declared he had no criminal convictions in the course of completing Incoming Passenger Cards upon his arrivals in Australia in 2012 and 2016.
In November 2012, the relevant Incoming Passenger Card asked the Applicant the question “Do you have any criminal conviction/s?” The Applicant placed a tick next to the word “No”. The Applicant did exactly the same thing in response to exactly the same question when completing the relevant Incoming Passenger Card upon his arrival in Australia in February 2016. This is the extent of his provision of false or misleading information to relevant authorities in Australia.
The submission made on behalf of the Respondent reads thus:
“29. In respect of sub-paragraph 13.1.1(1)(g), the Respondent acknowledges that the Applicant has provided an explanation in relation to his false declarations on his Australian incoming passenger cards with respect to his previous criminal convictions. Nevertheless, the Respondent notes that the Applicant provided false information to the Department in failing to disclose his prior criminal offending and that his offending in New Zealand was repeated.”[34]
[34] Exhibit R1, pages 6-7.
In his statement, the Applicant frankly explained his provision of false or misleading information on the relevant Incoming Passenger Cards as follows:
“Incoming Passenger Cards
23. I did not declare my criminal convictions on the income passenger cards because I misunderstood “criminal convictions.”
24. I thought the criminal convictions meant that you spent time in jail.
25. Therefore, I did not think I had any criminal convictions because I never got jail time, only fines and community detention et cetera.
[35] Exhibit A2, page 2.
26. I am really sorry for misunderstanding that, but I know now that it means any convictions.”[35]
The parallel submission made on behalf of the Applicant is that:
“He accepts responsibility and is remorseful for these mistakes, yet offers the explanation that at the time of completing these details, he did not know that his previous court outcomes amounted to convictions, as he was not sentenced to a term of imprisonment at any given time. As such, in circumstances where the false declarations are better described as a mistake rather than intentionally misleading, it is submitted that this should not weigh against the Applicant.”[36]
[36] Exhibit A1, page 10, paragraph [37].
While I do not accept that the false declarations can be characterised as a “mistake”, I do not consider that they weigh all that heavily against the Applicant, given that the extent of what he was concealing involved unremarkable traffic offending and low-level personal use-type drug offending. That is not to say that the nature of his New Zealand offending history did not compel him to disclose that history to the Australian authorities. Of course, he should have done so. In the final analysis, this sub-paragraph (g) militates, to an extent, in favour of a finding about the serious nature of the Applicant’s offending.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of this application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. There is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub-paragraph (i) is not relevant to determination of this application.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (d), (e), (f) and (g) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the totality of the Applicant’s offending conduct is readily capable of being characterised as “serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In his sentencing remarks, His Honour Judge Chowdhury DCJ detailed the nature and extent of injuries suffered by the victim and also observed that “I have had regard to the victim impact statement of the complainant, which shows the profound effect this offence has had upon him,”[37] [my underlining].
[37] Exhibit G1, G2, page 31.
It is also clear from the sentencing remarks that the harm occasioned by the Applicant’s offending did warrant some type of financial restitution or compensation for the victim. While not making an order for compensation contemporaneously with imposition of the sentencing regime, His Honour nevertheless said the following:
“I note that it is considered that if given, perhaps, about nine months, $4000
[38] Ibid.
could be raised for the complainant. I think that is unrealistic in the circumstances. Anyone who has got young children knows how expensive it is, running a household. And particularly with six children, I am not going to make a compensation order. The complainant has his rights under the Victim of Crime legislation and other rights as well.”[38]

Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending 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. On the basis of this paragraph 6.3(4), I think the Respondent’s following submission is correct:
“33. The Respondent contends that the offence for which the Applicant has been convicted is clearly of a serious and violent nature, and the Tribunal can be satisfied that were the Applicant to engage in further criminal or other serious conduct of a similar nature, the effect on individuals and the Australian community would be very serious.”[39]
[39] Exhibit R1, Respondent’s SFIC, page 7.
Having regard to the very violent circumstances of the Applicant’s grievous bodily harm offending in Australia, it is difficult to oppose the contention that, were he to re-offend in such a fashion upon any return to the Australian community, the consequences would be serious and could, quite conceivably, involve very significant and potentially catastrophic physical, financial and psychological harm to members of that community. Put simply, having regard to the nature of his conduct in the commission of the grievous bodily harm offence, it would be unsafe to find that were he to re-offend in that realm/paradigm, the nature of the harm to any victim would be somehow milder or less than that experienced by his victim in June 2018.
I have earlier recounted the specific circumstances of the Applicant’s irrational conduct that resulted in his conviction for the grievous bodily harm offence. That conduct can only be viewed in one way, both in terms of what the Applicant actually did and for its effects upon his victim. It is therefore reasonable to find that potential consequences resulting from further similar or identical conduct by this Applicant would likely be serious – or, at the very least, of the same magnitude as that experienced by his victim in June 2018. Were the Applicant to re-offend I am thus of the view that its effect on a member or members of the Australian community would be serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
This is not an Applicant who can be said to be at any discernible risk of re-offending on the basis of him having failed to experience any deterrent effect from previously imposed sentences in Australia. There is no evolution to his criminal history in Australia because it contains a single, albeit serious, offence. Rather, to my mind, an assessment of this Applicant’s level of risk should be predicated upon the extent to which his issues with abusing alcohol – and how they have predisposed him to offend - can now be said to be under some kind of effective management or control.
A significant gap in the evidence arises from the absence of any independent clinical opinion about how the Applicant’s issues with alcohol have previously spawned his offending conduct, and the extent to which those issues are likely to do so in future. Three things can be said in the Applicant’s favour about a possible ameliorated risk of recidivism.
First, as acknowledged by the Respondent,[40] the Applicant has not committed further offences either in criminal custody or immigration detention. He has demonstrated a level of engagement with drug and alcohol counselling resulting in his completion of the courses described as “Lives Lived Well” and “Circuit Breaker Course: New Tools to Mend Relationships, Resolve Conflict & Stop Blowing Your Fuse”.[41] As well, an independent observer and assessor of the Applicant’s conduct in the form of His Honour Judge Chowdhury DCJ made the following observations in his sentencing remarks:
“…I think this is one of those rare cases where I have an offender who is genuinely remorseful for what they did. Most offenders who appear in front of me are simply sorry that they got caught. But I think you are genuinely, I should say, sorry for what happened.
…
Given the unique circumstances…I do not think you will have any problem staying out of trouble.”[42]
[40] Ibid, page 8, paragraph [37].
[41] Exhibit G1, G2, pages 77 and 79.
[42] Ibid, pages 31-32.
Second, His Honour Judge Chowdhury suspended the two and a half year balance of the custodial term for an operational period of three years. This will constitute a very real, “Sword of Damocles” positioned above the Applicant’s head compelling him to not further offend during that operational period:
“On the single count on the indictment, you are sentenced to three years imprisonment. That is to be suspended after you have served 6 months for an operational period of three years. What this means is this – once you are released from jail, you have two and a half years of the operational period hanging over your head as an incentive to stay out of trouble.”[43]
[43] Ibid, page 32.
For practical purposes, the Applicant has already ‘consumed’ approximately one and a half years of this three year operational period.[44] A subset of this second factor is that, were he to re-offend in Australia, such future offending could very realistically result in a future mandatory cancellation of his visa status to remain in this country.
[44] That is, by serving six months in actual custody plus, approximately, the 12 months in immigration detention for calendar year 2020. This leaves one and a half years of the three year operational period left to run, assuming the Applicant is released back into the Australian community in the latter part of this year.
Third, it can also be favourably said for the Applicant that he has, in the past, recognised how alcohol has caused him to re-offend and, to his credit, he appears to have successfully addressed that past difficulty. In particular, while alcohol can be found to have played a role in his earlier offending in New Zealand (between 2001-2010), it seems clear that he must have experienced some measure of deterrent effect from the warnings and admonitions he will no doubt have received from judicial sentencing officers and his partner. Notably, there are no entries in his criminal history in New Zealand (or Australia) after 2010 involving the commission of any drug or drink-driving offences. To my mind, the notable element of this observation is that the Applicant achieved this without the intervention of formal rehabilitation. He must have done so only with the help of his family, friends and other support networks.
The difficulty with basing a finding about risk on only the above three favourable contentions for the Applicant is that, while his offending history in New Zealand put him on notice to curb his drinking and its causative effects behind his offending, it cannot be said that this experience (in New Zealand) placed him on notice to stop drinking alcohol altogether. In cross-examination, the Applicant confirmed that he had addressed his drink-driving issues without recourse to external help and only via the assistance of “family members who had been through it”:
“MS LETCHER-BOLDT: You also said that after you were convicted of your third offence of driving with excess breath-alcohol, that it was a turning point in your life, and you realised that you had a problem. And as a result, you said that you drastically changed your behaviour and sought help. Is that correct?
WITNESS: Yes.
MS LETCHER-BOLDT: What did that help involve, and how did you drastically change your life at that time?
WITNESS: I basically stopped driving under the influence of alcohol.
MS LETCHER-BOLDT: When you said you sought help, did you seek particular support from persons or organisations?
WITNESS: It was mainly from family members who had been through it.”[45]
[45] Transcript, 14 October 2020, page 17, lines 15-25.
The further difficulty with basing a finding about risk on only the above three favourable contentions for the Applicant derives from repeated references in the evidence to the effect that the Applicant’s broader issues with alcohol remain unresolved. During re-examination, he was asked about his apparent self-administered rehabilitation in 2010 and whether that outcome should have placed him on notice to stop drinking in order to avoid a risk of him becoming violent as occurred in mid-2018. The Applicant’s responses to this line of questioning were not convincing and, to my mind, pointed to the more expansive nature of the Applicant’s past and present issues with alcohol abuse:
“MS SAMUTA: Was there anything in 2010, with your driving under the influence or any of those offences in 2007 or '10 – I'm trying to avoid this legal language, but I'll just say it. Was there anything in 2010 that put you on notice that you should stop drinking because there was a risk of you being violent, say, like you were in 2018?
APPLICANT: Yes. I – I sorted myself out and I understood that my actions will be a big part of my life and resort to prison time, and also maybe to – well, doing that again, I could put anyone of the community in harm, including myself.
MS SAMUTA: Did you ever think that you could be violent like you were in 2018?
APPLICANT: No.
MS SAMUTA: And so with your drinking, what was your relationship like with alcohol after 2010? What was the drastic change that you talk about?
APPLICANT: It was basically – I was involving myself more into – with my family and within my faith, church. And also my partner and my – also with being with my nan again was just one thing I – that helped me a lot as well. Being able to spend time with her and go and sit down and talk to her and buy groceries and just talk with her, and then also to – with my kids as well, as they're getting old. Making sure that I would go to work and support them in any way financially.
MS SAMUTA: Would your drinking change between 2010 and 2018?
APPLICANT: It – I've always had a problem with alcohol. I – I have never really actually looked after myself, you know I never look after myself and find help from others. And – (indistinct) alcohol, I've been around it. I have – I have turned to alcohol from my early 20s, I fell into depression then and I used it as a place to go to when I felt depressed, and also from work as downtime and for myself.
MS SAMUTA: And how have your current circumstances, Mr Leiataua - how is it any different from back then?
APPLICANT: My circumstances - - -
MS SAMUTA: With alcohol now, how is it different?
APPLICANT: How was it different back then, like now - I feel more healthy now and I believe to myself that alcohol is no longer going to be a part of my life and having children and my partner who loves me. I do not want to put them and this - exposed to this no more. I don't want them to go through the same pain and suffering. I don't want them to lose any more time of me being there for them. I don't want to lose any more time of my children's life growing up. I want to be there to support them in any way.”[46]
[My emphasis and underlining]
[46] Ibid, page 24, lines 29-46, and page 25, lines 1-21.
This self-rehabilitative theme was also apparent from the Applicant’s evidence both in chief and in cross-examination. As I understood his evidence, he now claims to be at low risk of re-offending because he will be deterred from drinking and re-offending by a “massive support network”. In his evidence in chief, he said this:
“MS SAMUTA: …How can the tribunal be sure that you won’t - if you get your visa back and go home, how can the tribunal be sure that you won’t drink again and reoffend?
WITNESS: I have a massive support network now that I continue to be in contact with. I have - my brother, who has been constantly (indistinct) and helping me and giving me advice, he has also offered me help for when I get out. He has people in the Gold Coast that are there to offer support for me. And also Glenn Munso, who I have contact with, he teaches mental health and also addiction, which I have completed two rounds of, and I have his number as well. Also Alcohol Anonymous, I have their contact number to call when I get out there if given the opportunity. I have a loving family who was always there for me. My sisters, who - they are in Melbourne, they are always there for me. They check up on me. We are very close and we stay in contact. Also my partner, she has already told me that no more drinking for me when I get home. Also I have really told myself that alcohol is not going to be a part of my life no more. I - like I have said before, my children are my first priority, my little family. I want the best for them. I know that alcohol will not align with my goals and my values, and it’s no longer to be a part of my life no more.
MS SAMUTA: You mention that your partner said no more drinking. What do you think could happen if you do start drinking again, or has - - ?
WITNESS: She has already told me that she will leave me if that ever happens again, and that she doesn’t want none of that to happen anymore.”[47]
[47] Ibid, page 11, lines 36-47, and page 12, lines 1-11.
The difficulty with this self-rehabilitative theme in the Applicant’s evidence is that there was a corresponding theme in his evidence about the manifestation of stress in his life deriving from long work shifts, lack of sleep and the usual exigencies and strictures of daily life. I am of the view that the specific potential of such challenges to predispose the Applicant towards abusing alcohol are issues that remain unresolved or otherwise unsatisfactorily explained. The Respondent’s representative initially explored this in cross-examination. The following transpired:
“MS LETCHER-BOLDT: Mr Leiataua, Ms Samuta has touched on this, but I would like to revisit it briefly if I may. Noting that your evidence is that the only way to explain your violent offending on that particular day in 2018 is with reference to your alcohol consumption, your 10 hour shift the previous day, and being under stress, how can you be sure that you will not reoffend in a similar manner should you be under stress, have lack of sleep? How can you be sure that you won’t return to alcohol? How do you know that you will not reoffend in this same way?
WITNESS: I basically have a lot of support network outside now than I ever did before. I have contacts with Alcohol Anonymous, with Man Up, and also with Glenn Munso, the – who runs the mental health and drug and alcohol addiction. I no longer am going to have alcohol part of my life, which was – which I understand played a significant part in my offending. And also I have my partner there who will help me to move on from all of this.
MS LETCHER-BOLDT: But you would agree, wouldn’t you, that you did have a considerable network by way of your partner, a job, the motivating factor of your children and the loving family that you have spoken about today. Is that true?
WITNESS: I have my partner and family, but I did not have the – all the support people that I have now.
MS LETCHER-BOLDT: Mr Leiataua, between your offending in New Zealand and committing the offence of grievous bodily harm in Australia, did you abstain from alcohol?
WITNESS: From my – sorry, can you say it again, please?
MS LETCHER-BOLDT: Of course. From the time that you said in New Zealand you changed – drastically changed your behaviour in that you stopped drinking under the influence of alcohol, and the time that you committed the offence of grievous bodily harm, did you drink alcohol during that period?
WITNESS: Yes.
MS LETCHER-BOLDT: How do you know in the future that you will be able to refrain from drinking alcohol?
WITNESS: I have – I have changed the way that I think. I have more of an understanding of what alcohol can do to myself if I was to ever touch it again. And like I have mentioned, it played a big part in my offending, and I do not want to ever go through that again or have my kids exposed to it.
MS LETCHER-BOLDT: But would you agree, Mr Leiataua, that since you completed these courses in relation to drugs and alcohol, that you have not been in the community and in a situation where you might be tempted by consuming alcohol?
WITNESS: Yes, I agree with that. Also, I am ready and I have prepared myself this whole time that I’ve been in here to be (indistinct) back to the community.”[48]
[48] Ibid, page 19, lines 18-46, and page 20, lines 1-11.
At the conclusion of his re-examination, I then put certain questions to the Applicant. Broadly stated, the themes of those questions revolved around (1) the repeated element of depression in the Applicant’s psychological symptomatology and its predisposition to dispose him towards abusing alcohol, (2) the reliability of his evidence around self-rehabilitation in or around 2010, given that the same supportive network was around him in 2018 when he committed his very serious offence in Australia, and (3) the impulsive cause behind the physical transaction between him and his victim in mid-2018 which no one – not even the Applicant – is now able to explain.
First, with reference to the theme of depression, I referred the Applicant to page 74 of the G Documents (Exhibit G1), which comprises a previous submission to the Respondent by the Applicant in which he sought to explain the circumstances behind his traffic history in New Zealand. It is pertinent to quote the following portion from that correspondence:
“TRAFFIC CONVICTION HISTORY
• Waitakere 04/06/2006 - Breath Alcohol Level Over 400 Mcgs/Litre of Breath
Blood/Breath = 673
During this time, I had a significant relationship breakdown. I now recognise that I slumped into years of bad depression and self-medicated with alcohol. I literally lost a few years there, living on auto pilot and abusing alcohol. I now realise what a risk that was to society, and I am sincerely sorry for my actions at the time.
• Auckland DC 16/12/2007 - Operated A Vehicle Carelessly
• Auckland DC 16/11/2007 - Drove with Excess Blood Alcohol Content Blood/Breath=160
As stated previously, I had slumped into years of bad depression during this time and regularly self-medicated with alcohol. I am very sorry for my actions.
• Auckland DC 28/02/2010 - Drove with Excess Breath Alcohol - 3rd Or Subsequent
Blood/Breath = 706
As previously stated, I had a problem with alcohol abuse at this time in my life, however after this time it was a turning point in my life and realised that I had a problem. I drastically changed my behaviour and sort (sic) help. I know now, without a shadow of a doubt that drink driving is extremely dangerous and illegal, and I would not do that ever again. I hate to think of what may have occurred had I not been caught and put into a position where I was able to understand the potential impact of driving under the influence. I am extremely sorry for my actions at that time.”[49]
[My underlining]
[49] Exhibit G1, G2, page 74.
I specifically took him to the above underlined portions of the quoted passage from the relevant correspondence. The Applicant agreed that regular daily pressures and challenges in his life had caused him to abuse alcohol and to offend:
“SENIOR MEMBER: All right. So when you look at the factors that you've recorded there that caused you to become involved in abusing alcohol, those issues arose from pressures in your life - usual pressures like relationship trouble, maybe money trouble, disagreements with people, just general life pressures, and you say there - as I understand you, you say that those things made you abuse alcohol, right?
WITNESS: Yes, that's correct.”[50]
[50] Transcript, 14 October 2020, page 26, lines 32-37.
Second, I questioned him about the reliability of his evidence about him now being at a low risk of re-offending because of a claimed support network around him. It is clear that a similar support network has been around him both in Australia and New Zealand. Yet that support network failed to prevent commission of the very serious offence in 2018. Indeed, he committed that very serious offence in the presence of a significant component of that supportive network – his partner and their children. This is what transpired in the evidence:
“SENIOR MEMBER: Right. And just a moment ago in your evidence you said during this time in your life in New Zealand with the alcohol trouble you were asked whether you got any help or external help, and you said yes, the church and the pastor of the church and your workmates gave you help and support; that's right, isn't it?
WITNESS: Yes.
SENIOR MEMBER: All right. But you didn't engage with a psychologist or a doctor or any other clinical expert about controlling your pre-disposition or your, if you like - if I can use the word magnetism towards getting involved with alcohol when you have trouble in your life. You didn't discuss that with a professional person, did you?
WITNESS: No.
SENIOR MEMBER: Okay. So take all that into account now, what I've just said and what you've just told me about the New Zealand experience. Now, you're a relatively young man with one wife and six children under 12. It's very reasonable to assume that that family unit is going to experience stress, trouble, money trouble, children's trouble, family trouble, relationship trouble with the children as they grow up and bring other kids home and boyfriends and girlfriends; you might have some trouble with Crystal. That's entirely normal in a large family, in any family. If those things come up again, Mr Leiataua - if we look at what happened in New Zealand, how can we be sure now in Australia that if those pressures come up again in your life, you're not going to go back to alcohol?
WITNESS: I will make sure that I will be - when I - if I will be let out in the community, that I will be in contact and stay in contact with all my support network out there, and also with my partner to work hand in hand with her to help myself, help each other with our children and our families, and to make sure that I will never turn to alcohol again.
SENIOR MEMBER: All right. But those structures, those supports, basically exactly the same thing was there in New Zealand from 2006 to 2010, but the alcohol trouble recurred; that's right, isn't it?
WITNESS: Yes. I did not have the support network that I have now, and also I have - I learnt a lot of tools to better myself and to help myself and to stay off the alcohol.”[51]
[My underlining]
[51] Transcript, 14 October 2020, page 26, lines 39-47 and page 27, lines 1-24.

The strong prospect of the Applicant’s immediate return to work was repeated by Ms Vilitau in her evidence in chief:
“So hopefully Terry will be able to come home soon and…with him being home…I'll be able to work hard and…We'll be able to talk to my step-dad, who will be able to get him work, and then we'll be able to hopefully get on top of everything too.”[126]
[126] Transcript, 14 October 2020, pages 37, lines 17-21.
He has made further contributions to the Australian community, which he describes thus:
“14. I have volunteered at fundraising events for my son’s [Child J]’s rugby team, which I have done for two years”;[127] and
“I have volunteered in my son’s rugby teams [sic) fundraising many times. We have supported the team for 2 years. We wish to continue our support and contribution.”[128]
[127] Exhibit A2, page 11, paragraph [14]
[128] Exhibit G1, G2, page 62.
Having regard to the Applicant’s single offence in this country committed in mid-2018, it can be fairly said that he has breached the expectations of the Australian community. It cannot be said that he has consistently done so, as would be the case for a repeat or multiple offender. That said, even by commission of the singular offence in mid-2018, the Applicant has failed to abide by the laws (or, at least, a law) of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the strong level of the Applicant’s positive contributions to the Australian community;[129]
(ii)the Applicant has lived in Australia for approximately three years (up to his removal from the Australian community in mid-2019);[130]
(iii)the removal of the Applicant will definitely have a very serious adverse impact on the Applicant’s relevant six minor biological children and his partner in Australia;[131]
(iv)the serious nature of the singular offence in this country and its impact on its single victim;
(v)the relative brevity of his unlawful conduct in this country, which cannot be said to involve a lack of respect for lawful authority, although it did constitute a failure to respect the personal rights of another person;
(vi)the lack of current, independent and expert evidence measuring the level of the Applicant’s insight into the causative factors behind his offending;
(vii)my finding of an unresolved likelihood in relation to his propensity to re-offend if returned to the Australian community; and
(viii)my assessment of the risk of serious and even catastrophic harm to a member/s of the Australian community were he to re-offend as he did in mid-2018.
[129] The Direction, paragraph 6.3(7).
[130] The Direction, paragraph 6.3(5).
[131] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of a certain, but not determinative, weight in favour of affirming the non-revocation decision under review. I clarify this finding by saying that to this point of my analysis, the weight attributable to this Primary Consideration C (in favour of non-revocation), combined with the identical weight I have earlier allocated to Primary Consideration A (also in favour of non-revocation), does not outweigh the very strong weight I have attributed to Primary Consideration B (in favour of revocation of the mandatory cancellation decision).
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. In his SFIC, the following submission is made: “71. We submit that this matter is not relevant to the Applicant’s circumstances.”[132] This submission is repeated by the Respondent.[133] Accordingly, this consideration is not relevant to the determination of this application.
[132] Exhibit A1, page 17.
[133] Exhibit R1, page 11, paragraph [60].
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“65. The Respondent accepts that this consideration weighs very slightly in favour of the Applicant...”[134]
[134] Ibid, page 12, paragraph [65].
The Applicant came to Australia (on a final basis) in February 2016. He previously spent the majority of his life in New Zealand. His singular offence in this country was committed approximately two and a half years after his arrival. Having regard to paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances. As against that, there is strong evidence that he has made some positive contributions to Australia via his employment history, which runs from 2016 to 2019. As noted by the Respondent, “The Respondent accepts that the Applicant has made some limited contributions to the community through his past employment and undertaking volunteer work at his son’s rugby team.”[135] This would attract some weight in his favour of the Applicant pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
[135] Ibid, page 11, paragraph [64].
A stronger measure of weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). Reflecting the commentary at Principle 6.3(7) of the Direction, this paragraph 14.2(1)(b) requires decision-makers to, inter alia, have regard to a non-citizen’s strength, nature and duration of any family or social link with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In addition his six minor biological children and his five minor nieces and nephews, the Applicant has listed his family and other ties to Australia thus:
“Support and Ties to Australia
56. My sisters live in Australia. They include:
a. Rachel S; and
b. Easter L.
57. I also have my brothers-in-law here in Australia:
a. Jacob S; and
b. Larry NFL.
58. I also have 4 uncles and aunts here, and 10 cousins.
59. Other than them, my main ties to Australia arise through my partner Crystal who has all of her family here:
a. Mum (Dolly E);
b. step-father Laszo M;
c. sister (Kalaoni V);
d. brother (Harris V - Sydney);
e. sister Finau V (Loganlea); and
f. sister Priscilla K (Loganlea).
60. Crystal and I have been together since 2005, so I know her family very well.”[136]
[136] Exhibit A2, page 6.
It is, to my mind (with respect), correctly contended on the Applicant’s behalf that this Other Consideration (b) (pursuant to paragraph 14.2(1)(b) thereof) “should weigh in favour of exercising the discretion under s 501CA(4) of the Act” in circumstances where:
“(a) the Applicant’s two sisters and two brothers in laws [sic) live in Australia;
(b) the entirety of the Applicant’s partner’s family reside in Australia;
(c) the reasons for leaving New Zealand and migrating to Australia was due to:
(i) the experienced financial hardship of the Applicant and his de-facto partner in New Zealand; and
(ii) declining mental health of the Applicant’s de-facto partner which has been aided by reunification with her family in Australia.”[137]
[137] Exhibit A1, page 17, paragraph [73].
Given the comprehensive level of the strength, duration and nature of the Applicant’s family/social links with members of his immediate and extended family in Australia, a strong measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, having regard to the totality of the evidence relevant to this Other Consideration (b), I am of the view that it weighs strongly in favour of revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application. This finding is endorsed by both parties in their respective SFICS.[138]
[138] See Exhibit A1, page 18, paragraph [74]; see also Exhibit R1, page 12, paragraph [66].
(d) Impact on victims
In the sentencing remarks, His Honour Judge Chowdhury makes it clear that “I have had regard to the victim impact statement of the complainant, which shows the profound effect this offence has had upon him.” The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on the victim of his grievous bodily harm offending in June 2018. No doubt, that victim may have had something to say about the impact of the Applicant’s continued presence in Australia upon him were that victim to have given oral or written evidence. I cannot locate any victim impact statement in the evidence.
The Respondent’s contention about this Other Consideration (d) is put thus:
“67. There is no evidence available to indicate that this consideration is relevant to the Applicant's circumstances (paragraph 14.4 of the Direction). However, the Respondent submits that there is an inference open that the Applicant's offending has caused harm to members of the Australian community. As a result, the Respondent contends that this consideration does not favour the Applicant.”[139]
[139] Exhibit R1, page 12.
I do not think the operative effect of this Other Consideration (d) can be safely engaged by mere reliance on an inference that the Applicant’s offending has caused harm to members of the community. The language of Other Consideration (d) requires actual evidence from a victim (or related party) about any impact of the Tribunal’s decision upon the Applicant’s visa status. Although a victim impact statement is referred to in the sentencing remarks, neither that statement nor any other spoken or written evidence from the victim is now before the Tribunal.
In the absence of such further evidence, be it in the form of the relevant victim impact statement or other oral or written evidence from the victim (or related parties), it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on his victim.
Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
It is contended on the Applicant’s behalf that this Other Consideration “should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”[140] For reasons that follow, I respectfully and broadly agree with the contention, but not the contended extent to which it is said to weigh in the Applicant’s favour. In his statement, the Applicant mentions the following impediments to his return to New Zealand:
[140] Exhibit A1, page 18, paragraph [81].
“Impediments to Returning to New Zealand
65. Being deported would cause me to experience significant stress as I would become separated from my children and Crystal, leaving them to remain in the financially and emotionally dire situation that they’re currently experiencing.
66. I am concerned for my mental health, not just for my own circumstances but also because of the knowledge that because of me those who I love the most are suffering (my kids and Crystal). I am also distraught that I will not be able to return to Australia due to permanent exclusion.
67. I am also concerned that the current Covid-19 pandemic prolongs any possible reunification for an unknown period of time due to travel restrictions. There is also the cost of travel and whether we will be able to afford to fly our large family to New Zealand to visit.”[141]
[141] Exhibit A2, page 7.
The Applicant is a healthy man of 36 years of age. In response to question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[142] It can be safely found that the level of medical care and governmental social support in New Zealand[143] is at or about the same level as that available to the Applicant in Australia. The Applicant will have access to those things in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight in his favour pursuant to this Other Consideration (e).
[142] Exhibit G1, G2, page 62; see also Section 14.5(1)(a) of the Direction.
[143] Section 14.5(1)(c) of the Direction.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[144] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. To the extent he may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not preclude his successful re-settlement there.[145]
[144] Section 14.5(1)(b) of the Direction.
[145] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
In his Personal Circumstances Form, the Applicant speaks of adverse outcomes were he to be returned to New Zealand as follows:
“Do you have any concerns or fears about what would happen to your on return to your country of citizenship?
[The Applicant ticked the ‘Yes’ box]
…
Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these.
Leaving my family. My children are settled and the emotionally, mental stress it will put on them. Not to mention the heartbreak and struggle my partner would also be going through. As her family all live in Brisbane. It would break her she’s already finding it hard with 6 kids.” [146]
[Errors in original]
[146] Exhibit G1. G2, page 63.
According to his Personal Circumstances Form, the only close/immediate family member the Applicant has in New Zealand is his father.[147] However, were the Applicant to be removed to New Zealand, it would be unsafe to find that he will find solace and comfort by going to live with his father. According to the Applicant’s evidence, his father is in the process of relocating to Australia. In his Personal Circumstances Form, the Applicant said: “My mum has passed away and my dad has sold up and is in the process of moving here.”[148]
[147] Ibid, page 59.
[148] Ibid, page 47.
As mentioned, the Applicant also has an employment history in Australia. There is little evidence in the material to cavil with the contention that the Applicant would be able to find similar work upon his return to New Zealand. I accept the Applicant has an employment history in New Zealand and would most likely have connections to previous employers and other contacts who would likely assist him to re-establish himself there.
Having regard to the totality of the evidence referable to this Other Consideration (e), and in particular, the reality that his father’s eventual settlement in Australia will result in the virtual entirety of the Applicant’s immediate family residing here, I am thus of the view that this Other Consideration (e) is of moderate weight in favour of revocation.

Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength, nature and duration of ties: strong weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: moderate weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, I am satisfied there is “another reason” for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A carries a certain, but not determinative, weight in favour of non-revocation;
·Primary Consideration C carries a certain, but not determinative, weight in favour of non-revocation;
·Primary Consideration B weighs very strongly in favour of revocation;
·I have outlined the weight attributable to the relevant Other Considerations, specifically:
o Other Consideration (b) weighs strongly in favour of revocation, and
o Other Consideration (e) weighs moderately in favour of revocation;
·I consider (and find) that the cumulative weight attributable to Primary Consideration B and Other Considerations (b) and (e) determinatively outweighs the certain, but not determinative, weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, I find that there is another reason to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside and substituted such that this Tribunal exercises the discretion conferred by section 501CA (4) of the Migration Act 1958 (Cth).

I certify that the preceding 219 (two hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...................................[sgd].....................................
Associate
Dated: 30 October 2020

Date of hearing: 14 October 2020 and 15 October 2020

Date final submissions received: 8 October 2020

Solicitors for the Applicant: Ms J Samuta, Samuta McComber Lawyers

Solicitors for the Respondent: Ms E Letcher-Boldt, Clayton Utz Solicitors
“ANNEXURE A - EXHIBIT LIST”

Written Evidence

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents
(G1 to G10 pages 1-165)

R

-

28 AUG 20

R1

Respondent’s Statement of Facts, Issues and Contentions (13 pages)

R

2 OCT 20

2 OCT 20

A1

Applicant’s Statement of Facts, Issues and Contentions (19 pages)

A

11 SEP 20

11 SEP 20

A2

Applicant’s supporting evidence
(73 pages)

A

-

10 OCT 20

A3

Waterford West State School Behavioural Records

A

-

10 OCT 20

[2020] AATA 4327

30 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Date of hearing:	14 October 2020 and 15 October 2020
Date final submissions received:	8 October 2020
Solicitors for the Applicant:	Ms J Samuta, Samuta McComber Lawyers
Solicitors for the Respondent:	Ms E Letcher-Boldt, Clayton Utz Solicitors

Written Evidence
EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G10 pages 1-165)	R	-	28 AUG 20
R1	Respondent’s Statement of Facts, Issues and Contentions (13 pages)	R	2 OCT 20	2 OCT 20
A1	Applicant’s Statement of Facts, Issues and Contentions (19 pages)	A	11 SEP 20	11 SEP 20
A2	Applicant’s supporting evidence (73 pages)	A	-	10 OCT 20
A3	Waterford West State School Behavioural Records	A	-	10 OCT 20