LHNC and Minister for Home Affairs (Migration)

LHNC and Minister for Home Affairs (Migration) [2020] AATA 3752 (30 June 2020)
Division:GENERAL DIVISION
File Number: 2018/4458
Re:LHNC
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

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

The decision under review is affirmed.
.........................[sgd]...........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – decision on remittal - non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
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. 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 June 2020

LHNC (“the Applicant”) is a 22 year old citizen of New Zealand. Movement records indicate that the Applicant first arrived in Australia on 27 January 2007 and has resided in Australia on a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) since.
On 12 December 2017, 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 Migration Act 1958 (Cth) (“the Act”) decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.
The Applicant made representations to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa. The delegate of the Minister decided on 9 August 2018, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.
The Applicant lodged an application with this Tribunal on 9 August 2018 seeking a review of the abovementioned decision on 9 August 2018 not to revoke the cancellation of his via. The Tribunal has jurisdiction to review this decision pursuant to s 5001(1)(ba) of the Act.
The Tribunal (differently constituted) conducted a Hearing on 18 and 19 October 2018, and a decision was subsequently made on 31 October 2018 (“the Tribunal’s First Decision”). This Decision was appealed to the Federal Court on 19 June 2020 which remitted the matter back to this Tribunal. A further hearing was held on 30 October 2019 before me.
The issue before the Tribunal in these proceedings is whether the decision to cancel the Applicant’s visa should be revoked under section 501CA(4) of the Act.
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 is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]
“…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…”[2]
[1] [2018] FCAFC 151.
[2] 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.[3] I will address each of these grounds in turn.
[3] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 4 September 2017, the Applicant was sentenced at the Downing Centre District Court, New South Wales (“NSW”), to a head term of imprisonment for three years, commencing 16 September 2016 concluding 15 September 2019.[4] The sentencing court imposed a non-parole period of 18 months commencing on 16 September 2016 concluding 15 March 2018.
[4] G-Documents, G5, page 27.
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”) has application.[5] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(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.[6]
[5] 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.
[6] 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; and
(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:[7]
“…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.”
[7] [2018] FCA 594 [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 in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s criminal history in Australia commenced as a juvenile at the age of 14. The predominant offending of the Applicant, including that as a juvenile, involved depriving members of the Australian community of their belongings and cash. His offending spans the period from 2012 to 2017 and is outlined below.
The Applicant was first sentenced in May 2012 where he appeared before the Parramatta Children’s Court and was convicted of ‘Robbery armed with offensive weapon’. The offence involved two others, the Applicant’s friend and sister, who were in a taxi when the Applicant’s friend pulled a knife and held it against the taxi driver’s throat demanding money.[8] The Applicant proceeded to search the victim’s pockets for money, as well as the mobile phone in the console of the car, before fleeing the scene. After making a full admission to authorities, he received a probation period of 10 months.
[8] Exhibit R4, pages 240 to 243.
The Applicant’s second juvenile conviction was ‘robbery in company’. The Applicant was again accompanied by a friend on a train when they approached a passenger and a demand for money was made.[9] It is unclear on the Applicant’s evidence under cross examination whether the Applicant had made this demand or his friend, however the Applicant conceded that he was ‘fully involved’. The Applicant proceeded to punch the passenger while his friend took the passenger’s bag and fled the train at the following stop. At the sentencing event before Parramatta Children’s Court in June 2012, the Applicant was sentenced to a period of 8 months in juvenile detention, with a non-parole period of eight weeks.
[9] Transcript, page 16; Exhibit R4, page 159.
The next juvenile sentencing event related to two incidents in March 2013 which involved separate instances of robbing taxi drivers in company of two friends.[10] The first involved one of the two friends accompanying the Applicant, the same person in the first offence, using his arms to suffocate the driver which provided the opportunity for money to be taken from the Driver’s pocket. The very next day involving similar circumstances and the same group of people, the same friend of the Applicant has now used a knife and pressed it against the driver’s neck. The Applicant concedes that he had made demands of the driver during this period.
[10] Transcript, page 17; Exhibit R4, pages 280 to 284.
The Applicant appeared before the Parramatta Children’s Court in September 2013 for these offences where he pled guilty to ‘robbery armed with offensive weapon’ and ‘robbery in company’. He received two sentences to juvenile detention for a period of 15 months, with a non-parole period of six months, which ran concurrently.
The Applicant’s final juvenile offence involved the driving a car in his friend’s possession that he knew to be stolen and while having never possessed a license. He was convicted in the Parramatta Children’s Court in May 2014 and was convicted for ‘never licensed person drive vehicle on road – first offence’ and ‘drive conveyance taken without consent of owner’.[11] He received three months in juvenile detention and a four-month good behaviour bond for this sentencing event.
[11] Transcript, page 18; Exhibit R5, page 17.
The next sentencing event was some 18 months later in November 2015 before the Downing Centre Local Court where the Applicant was convicted of ‘Goods in personal custody’ and ‘Larceny’. He was convicted to a good behaviour bond of two years which included attending to counselling, educational development, drug or alcohol rehabilitation.[12] These offences occurred in September 2015 and involved the Applicant entering an office with the purpose of ‘looking for money’ where he subsequently took a wallet before being apprehended by security and handed over to the police.[13] At the Tribunal hearing, the Applicant gave evidence that he accepts that he committed these crimes however does not remember these offences, which is consistent with the evidence he gave at the first Tribunal hearing.[14]
[12] Exhibit R2, page 30, Exhibit R3, page 11.
[13] Exhibit R3, page 17.
[14] Transcript, page 18.
In May 2016 in the Burwood Local Court, the Applicant was convicted of ‘enter inclosed [sic] land not presc [sic] premises w/o lawful excuse’ which had a $500 fine attributed to it. As this was a breach of the good behaviour bond issued for the November 2015 offences, the charges of ‘larceny’ and ‘goods in personal custody suspected being stolen’ were called up and $500 fine was sentenced for both.
The next sentencing event was in February 2017 where the Applicant was convicted of five counts of ‘larceny’, one charge of ‘larceny where the value of the goods was less than $2000’, one charge of ‘larceny where the value of the goods was between $2,500 and $5,000’ and two counts of ‘dishonestly obtain property by deception’. These offences occurred over the short period between December 2015 and February 2016. For the various larceny offences, the Applicant was convicted of an aggregate 12 month imprisonment sentence, with a non-parole period of three months and for the dishonestly obtain property by deception was sentenced to a good behaviour bond of six months to attend to counselling, educational development, drug or alcohol rehabilitation.
These offences all arose out of similar circumstances and are summarised below:
·one charge of larceny is attributed to December 2015 where the Applicant had took two bags belonging to an employee of a restaurant at the end of their shift which contained the proceeds of the day ($4,600 in cash); [15]
·one charge of larceny is attributed to January 2016 where the Applicant entered a massage shop’s staff meal room and removed two handbags belonging to employees before making off with some $1,540 in cash.[16]
·One charge of larceny and two counts of dishonestly obtain property by deception is attributed to February 2016 where the Applicant had entered an osteopathic and injury clinic and had stolen a wallet belonging to an employee. The Applicant subsequently used the victims credit card at Woolworths and a tobacconist;[17]
·One charge of ‘larceny between the value of $2,500 and $5,000’ is attributed to February 2016 where the Applicant had entered a real estate’s office and proceeded to remove a woman’s handbag from her pram. The Applicant then had proceeded to rummage through the handbag in the building’s stairwell and removed a purse before taking off after being startled by a witness;[18]
·One count of ‘larceny value less than $2,000’ is attributed to February 2016 where the Applicant had entered a convenience store, purchased a small item the cashier and, once the employee was out of sight, the Applicant entered the staff room which was left slightly ajar and removed the employee’s handbag;[19] and
·Two counts of larceny are attributable to February 2016 and involved the Applicant entering the employee storage room of laser clinic and removing two wallets from employees bags before leaving the store.[20]
[15] Exhibit R3, 70-71.
[16] Ibid, 75-76.
[17] Ibid, page 85-86.
[18] Ibid, page 81-82.
[19] Ibid, 78-79.
[20] Ibid, 71-73.

In sentencing, Magistrate Greenwood remarked:[21]
“It is suggested that you have got insight into your offending; I agree with that, I just note that this has been going on, offending has been going on, some serious offending has been going on for a long time now, and I suppose I am just a little sceptical, I am certainly very sceptical at how easy it will be you to forge this new path that you want to forge; it is going to be much more difficult than you think it will be. But I do accept that with your age, the issue of rehabilitation does loom large.
Also looming large though is specific deterrence because what happened here, you were a one-person crime spree, and there are some real issues in my view as to your planning…
There is a high degree of dishonesty here in your offending and this planning really troubles me. I set an aggregate sentence of 12 months but I do accept you are a person who desperately needs to be rehabilitated, and not just… in relation to the drugs and alcohol, but to find a new way to live your life…”
[21] Exhibit R2, pages 42 and 43.
The most recent sentencing event was in the Downing Centre District Court in September 2017 where the Applicant pleaded guilty and was convicted of: (1) “aggravated break and enter and commit serious indictable offence - people there”, which had attracted a sentence of three years imprisonment with a non-parole period of 18 months; and (2) “assault occasioning actual bodily harm”, which had attracted a sentence of 12 months imprisonment. These sentences were to be served concurrently.
In sentencing, Judge Toner SC remarked:
“The offences were committed whilst he was on bail in relation to other offences of a not dissimilar nature to the first of the offences for which he now stands to be sentenced. That is an aggravating feature of this crime that I shall take into account…
…
As can be seen from the facts there was no weapon employed. There was a degree of impulsivity about the crime because given the extracts or photographs taken from the CCTV footage he made little or no attempt to disguise himself. That does not derogate from the proposition that the young woman who was employed by Quest, which was the victim of this man’s crime, must have been terrified during the course of the robbery itself. To be confronted by person, a young fit man who would have been clearly agitated and she would have sensibly regarded as dangerous, must have been an acutely scary moment for her. It seems to me, as I say, there was a degree of impulsivity about this particular crime, albeit that when he entered the building he intended to commit an offence and the offence as charged was that which he had in mind.
However it does seem to me in the broad scheme of things that this offence is below the middle of the range of objective seriousness for offences of this type but not by that much…
…
The assault itself whilst adding no doubt to the terror that his victim must have endured was relatively minor. It resulted in her having a cut lip which demonstrates the actual bodily harm, but as I say it was not a particularly serious rendition of this crime standing by itself but it also must be viewed within the context of each of the crimes to assess its consequences and the effect it must have had on his victim, which I have just described. It takes little imagination to come to those conclusions.
He is not very good at crime this young man and for that reason alone he ought to stop…
An additional and significant factor to be taken into account is that since he has been in custody he has served time for a separate offence, which is entirely unrelated to the matters for which he now stands to be sentenced. It was also for larceny offences and he was dealt with in the Local Court. In fact there were five separate larceny offences, each of which post-dated this crime.”[22]
[22] Exhibit R2, pages
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. Relevant (for present purposes), amongst those factors are:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children, are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)subject to subparagraph (b), the sentence imposed by the courts for a crime or crimes;
(e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen re-offended since being formally warned, or since being made otherwise aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status;
(i)where the non-citizen is in the Australia, a crime was committed in immigration detention, during an escape from immigration detention or after the non-citizen escaped from immigration detention.
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 two periods of violent offending: (1) the period between 2012 and 2014 where the Applicant was a juvenile and had been convicted for various ‘robbery in company’ and ‘robbery armed with offensive weapon’ offences; and (2) his most recent conviction in 2017 of ‘assault occasioning bodily harm’.
The Applicant’s period of offending as a juvenile involved four different events where the Applicant had either made demands or had actively participated in the making of demands for money from members of the Australian community. These offences involved both violence and threats of violence. On two occasions, a knife was used by an accomplice to rob a taxi driver. Although the Applicant had not wielded the knife himself, he had actively participated in the robbery. On another occasion, he had used physical violence in the form of punching a passenger on a train following a demand for money.
The Applicant’s offence as an adult involves equal, if not a greater level of violence. As noted by the learned sentencing Judge (Judge Toner SC), while no weapon was involved, there can be little or no doubt because there is footage available from CCTV. He struck the victim which resulted in that the victim suffering a cut lip. Judge Toner SC described the Applicant’s offending as ‘unsophisticated’ and concluded that the Applicant is “…not very good at crime”. A concerning aspect of the Applicant’s violent offending is that he committed it on an impulsive basis with little forethought. In those circumstances, to my mind, the risk of more serious harm being suffered by a victim rises exponentially.
There is no independent psychological or other expert evidence before the Tribunal informative of factors predisposing the Applicant to so impulsively offend. Accordingly, I will have regard to the offending largely as I find them in the material before me comprising, in the main, summonsed police documents and relevant sentencing remarks. I take note of (1) what the material before me has to say about the violent offending, especially as an adult; (2) the Applicant’s evidence at the hearing; and (3) the absence of any expert or clinical report to guide me and conclude that for the purposes of this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction the impulsive and violent circumstances of the totality of the Applicant’s offending must be viewed very 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. I have made early references to Judge Toner SC when sentencing the Applicant in September 2017. The offending dealt with by Judge Toner SC was, to put it frankly, simply appalling. The fact that the Applicant committed this offence while on bail is something I will talk about later in these Reasons. It is not at all a stretch of the facts to say (as Judge Toner SC) that the Applicant’s unlawful conduct terrified his female victim. There can be no question that she apprehended a serious risk and danger to herself.
Although the physical injury suffered by the female victim was, according to Judge Toner SC, ‘relatively minor”, that observation does not serve to reduce the very high level of seriousness for present purposes. He impulsively struck out at the female victim causing her to suffer a cut lip. While the level of physical injury was (thankfully) not life-threatening, there is every reason to suspect that there could have been a much worse physical outcome – in terms of injury to the victim. She could have, for example, put up some measure of resistance. She could have had a physical vulnerability rendering her at very serious risk of a singular encounter with him. In either scenario, the outcome could have been catastrophic.
I have had regard to the circumstances of the Applicant’s violent attack against his female victim in relation to his offending sentenced on September 2017. To my mind, the only finding consequent upon the Applicant’s offending conduct is to say that (1) his offence against the female victim was, indeed, of a violent nature; and (2) an application of this sub-paragraph (b) of paragraph 13.1.1(1) of the Direction clearly militates in favour of a finding that the nature of the Applicant’s offending conduct is indeed very serious.
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 in the material suggestive of the Applicant offending against vulnerable members of the community or against, for example, police officers going about their duties. In addition, there is no evidence that the Applicant has been convicted of any unlawful conduct during his time in criminal custody, or now in immigration detention. Thus, 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 also viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
This Applicant’s history of offending in Australia commences in May 2012, as a juvenile. In terms of its recorded history, the Applicant’s offending culminated in the imposition of a head custodial term of three years. His offending as a juvenile involved a predominate theme of failing to respect the property and personal rights of other people. His offending is redolent of a predisposition to obtaining what he wants, even when he knows those things that he wants belong to other people. This has been the predominant theme of his offending but, concerningly, has been augmented by an element of very serious violence as he has grown into adulthood.
The nature of the sentences he has received for those offences parallels the increasing level of the seriousness of his offending. His offending as a juvenile was punished by a range of non-custodial sentences aimed at exposing him to a custodial-based paradigm punishment. His offending as a juvenile saw him spend time in actual custody. In just his second sentencing offending as a juvenile at the age of 14 years old, he received a custodial term in juvenile detention of eight months, with a non-parole period of two months.
Ultimately, his offending as an adult saw him receive the above mentioned head custodial term of three years with a non-parole period of 18 months. It is clear that the sentencings imposed by the courts for the offending of this Applicant militate in favour of a finding that his crimes are of a very 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. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. He is presently 22 years of age. His sentencing episodes for his offending span the period May 2012 to September 2017. While not necessarily lengthy in terms of its timespan, the Applicant’s offending has been constant and persistent since May 2012. He has found himself before lawful authority for sentencing on eight separate sentencing events and has been convicted for some 21 offences.
With reference to any discernible trend of increasing seriousness in the Applicant’s offending history, it can be fairly said that his offending commenced with the commission of predominantly robbery-related offences as a juvenile in 2012 and 2013 involving taxi drivers and, on one occasion, an unknown passenger on a train. Two of those occasions the Applicant’s friend had wielded a knife and in another the Applicant had used physical violence. As a juvenile, the Applicant also had two further traffic offences in 2014.
It is undeniable that his offending significantly increases in seriousness when one has regard to the offending culminating in the imposition of a three-year head custodial term by Judge Toner SC. Put simplistically and as kindly as possible for the Applicant, it might be said (not with much conviction) that his offending as a younger person involved a disrespect for the property of other people. However, much of his offending as a juvenile involved threatened or actual violence where as his offending as an adult resulted in impulsive violent offending against a vulnerable female victim. As can be seen, there is little to be said about the entire nature of the Applicant’s offending.
Thus, an application of this subparagraph (e) leads to an inevitable finding that both the constant and persistent nature of the Applicant’s offending is such as to be clearly be demonstrative of a trend of its increasing seriousness. If anything, the Applicant’s offending has been serious from its outset.
There is, thus, a clearly discernible trend in the seriousness of the Applicant’s offending and one which has remained constant since his first offences in 2012. An application of this sub-paragraph (e) leads to a finding that both the frequency of his offending, as well as its increasing level of severity, must attract a finding that 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.
Three observations can be made from the Applicant’s offending history. First, the Applicant has received the benefit of non-custodial sentences, especially throughout his offending as a juvenile. He failed to experience any deterrent effect from those non-custodial sentences and, instead, continued to offend and on an increasing offending bases, often against mostly defenceless victims such as taxi drivers, public transport user and, perhaps most seriously, a woman going about her regular work business.
Second, the Applicant has failed to develop any semblance of respect for the lawful authority governing the community into which he seeks re-admission. He does not respect the lawful authority governing ownership of other people’s property. He likewise does not respect or observe any borders in relation to implementing a unilateral physical outcome against another person when he wants to get his own way. One episode of his offending was committed while he was on bail. The grant of bail is a privilege given to an accused offender to be at large in the community pending determination of the charge(s) the accused may be facing. The same observation can be made in relation to the Applicant’s offending while subject to a good behaviour bond.
Third, whatever a further cumulative effect of the Applicant’s offending is that whatever issues have predisposed him to offend in the past remain undetected, untreated, unmanaged and, ultimately, unresolved. His oral evidence involved him having turned a corner and ‘I’ve come a long way from the person I was.’[23] Without the benefit of any current or contemporary intervention, there is no certainty that any of the factors motivating the factors are under any measure of remedial management and control. The very real cumulative effect of the Applicant’s offending is that were he to reoffend in a similar way, he could cause very serious and, indeed, catastrophic.
[23] Transcript, page 24.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of a very serious nature.
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. The material does not disclose any instance of the Applicant providing false information to the Respondent.
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), (b), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, as well as the conduct covered by the chapeau of paragraph 13.1.1(1). I concur with the Respondent’s contention,[24] and accordingly am of the view that the Applicant’s conduct is readily capable of characterisation very serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
[24] Exhibit R1, paragraph 37.
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)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
(b)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

The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is, to my mind, properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Respondent contends that:[25]
“The Minister contends that the nature of the harm to victims if the applicant were to reoffend in the future is serious, and could involve:
(a)financial harm to victims of theft or property damage; and
(b)physical and psychological harm to victims of robbery and assault.”
[25] Exhibit R1, paragraph 39.
For the reasons that follow, I entirely concur with that contention. Even a cursory review of his offending history is demonstrative of the Applicant being a serious repeat offender. While his criminal history may only span five years, the totality of his offending cannot, in anyway, be said to be trivial or minor. It has been serious to very serious from its outset.
To my mind, the best predictor of the nature of the harm that would be occasioned to individual victims of the Applicant’s offending were he to re-offend in this matter, is best understood by what sentencing judicial officers have had to say from his previous offending. The nature of the evolution of his offending is of serious concern. It is clear that his modality of offending has evolved or graduated from a predisposition towards non-violent theft towards little or no inhibition to implement an ingredient of violence into his offending.
There seems to be three phases to his offending. His early offending history as a juvenile certainly contains an element of violence. This particular offending saw him physically assault a fellow public transport user for money and being in company of an accomplice who menaced a taxi driver with a knife also for money.
The second phase of his offending saw him focus on larceny or property offences without any recourse to violence. There was a notable level of intensity during this phase which prompted the Magistrate Greenwood (who sentenced the Applicant) in February 2017 to remark that “…you were a one-person crime spree, and there were some real issues in my view as to your planning”.
The third phase involving the very serious element of violence perpetrated on the female victim prompted the following sentencing remarks from Judge Toner SC:
“As can be seen from the facts there was no weapon employed. There was a degree of impulsivity about the crime because given the extracts or photographs taken from the CCTV footage he made little or no attempt to disguise himself. That does not derogate from the proposition that the young woman who was employed by Quest, which was the victim of this man’s crime, must have been terrified during the course of the robbery itself. To be confronted by person, a young fit man who would have been clearly agitated and she would have sensibly regarded as dangerous, must have been an acutely scary moment for her. It seems to me, as I say, there was a degree of impulsivity about this particular crime, albeit that when he entered the building he intended to commit an offence and the offence as charged was that which he had in mind.
…
An additional and significant factor to be taken into account is that since he has been in custody he has served time for a separate offence, which is entirely unrelated to the matters for which he now stands to be sentenced. It was also for larceny offences and he was dealt with in the Local Court. In fact there were 5 separate larceny offences, each of which post-dated this crime…”[26]
[26] Exhibit R2, pages 33 and 34.
I have misgivings about any contention that his offending days are now behind him. Were he to reoffend in the modality of any of the above three phases of offending, the harm would ensue to members of the Australia community would indeed be very serious and potentially catastrophic. This harm could, very realistically, range from very serious physical, psychological and financial harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s history is demonstrative of him being a serious repeat offender. His criminal history spans approximately five years and his offending, and his offending has been consistent, both in terms of number of offences and its serious to very serious nature. Apart from the Applicant’s own evidence, there is nothing before the Tribunal from a suitable qualified clinician identifying the factors predisposing him to offend and confirming that those factors are the subject of some kind of remedial management and control.
I have regard to the evidence of the Applicant’s mother given in the instant proceeding as well as the Applicant’s lay witnesses given held at hearing before this Tribunal previously in October 2018. Well-intended that evidence might have been, it is not helpful in terms of ascertaining the level of the Applicant’s likelihood of re-offending. Most, if not all, are familiar with his offending. Some speak to a possible cause or causes behind the offending. However, it would b unsafe for me to base a finding about the Applicant’s level of recidivism on such non-expert evidence.
The Applicant in his personal circumstances form, the Applicant speaks of some level of participation in the rehabilitative process. He says ‘I am still waiting to do Aggression program and the rush program that I was recommended for but have completed a lot of addiction programs.’[27] There is reference in the material to an earlier report by a Ms Davidson, psychologist, who produced a report dated 31 January 2017. There is a suggestion in that report that there may have been certain psychological consequences affecting the Applicant consequent upon him witnessing certain unlawful conduct by his father. The unfortunate difficulty with a contention along these lines is that there is no current clinical opinion pointing to the adverse consequences to that may have been visited upon the Applicant because of these incidents. As noted by Judge Toner SC, the Applicant should be seeking counselling for any trauma he may have suffered as a result.
[27] G Documents, page 57.
The Applicant does not seem to have engaged with for this purpose nor was Ms Davidson called as a witness before this Tribunal in the instant proceeding. Given the dirth of objective evidence to the effect that the Applicant has meaningfully engaged with any rehabilitative process, it would be unsafe to conclude he represents a low risk of re-offending.
The Applicant’s contentions about having been rehabilitated have been made in the closed and controlled confines of either criminal custody or immigration detention where he has been since September 2016. His claims of rehabilitation remain untested and unproven in the broader Australian community.
While the Applicant has not committed actual offences during his time in immigration detention, there is evidence in the material during this period of incarceration. While incarcerated for his criminal offending there is evidence that in May 2018, the Applicant was apprehended with a ‘home made smoking implement’.[28] While not necessarily conclusive evidence of the Applicant still involved in the abuse of illicit drugs, it challenges the Applicant’s contention of having experienced a level of rehabilitation. In cross-examination he conceded the following:
[28] Respondent’s SFIC, Annexure B.
Mr Hillyard:                 … it’s fair to say that you have had a problem with drugs and alcohol isn’t it?
LHNC:  Not so much alcohol but yes, I’d say drugs.
Mr Hillyard:                Okay. Those drugs are marijuana?
LHNC:  Yes.
Mr Hillyard:                Methamphetamine, is that right?
LHNC:  Yes, that’s right.
…
Mr Hillyard:                 So your evidence is that you haven’t taken any illegal drugs since you – sorry, like, you haven’t taken any narcotics since you were sent to 10 prison?
LHNC:  Yes, I have.
Mr Hillyard:                You have?
LHNC:  Okay.
Mr Hillyard:                What were those narcotics?
LHNC:  Just only one. It’s probably just 15 methamphetamines.[29]
[29] Transcript, pages 28 and 29.
The Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3) and (4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
I am also mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[30]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[30] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
The Applicant’s sentencing history shows that he has been afforded multiple opportunities to modify his conduct. He has had the benefit of a graduated sentencing regime including the imposition of non-custodial regimes, such as fines and good behaviour bonds. Despite this, the Applicant has continued to persistently and very seriously offend. The state of the evidence in relation to any rehabilitation or treatment goes nowhere near convincing this Tribunal that he has meaningfully engaged with any effective treatment or other intervention based therapies to demonstrate that his risk of re-offending is any different now compared to what it was prior to his incarceration.
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3) and (4). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
It is first necessary to identify the children actually or possibly relevant to this proceeding. The Applicant gave evidence that he does not have any biological children of his own. As I understood the evidence, the only relevant children captured by the Direction for the purposes of this Primary Consideration B comprises:
·his younger brother, presently aged 14-15 years;
·his girlfriend’s daughter, aged four-five; and
·various nieces and nephews.
Subparagraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child/ren and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/ren.
The Applicant gave evidence that he has a brother who was born in 2005 who is also a New Zealand citizen currently residing in Australia on a 444 visa. Given that they are brothers, I am prepared to accept that there is, to an extent, some measure and duration of a brotherly relationship between the Applicant and his brother. There is little evidence in the material about the level of contact between the Applicant and his brother but I am prepared to accept that they do have a level of contact. The Applicant cannot realistically maintain a contention that he plays any parental role in his brother’s life and, for this sub-paragraph (a), the inevitable finding is that non-parental.
The Applicant gave evidence at the hearing that he also had seven or eight nieces who are all minors. He gave evidence that these minors visited him during his time in immigration detention centre and he also has contact with them via the phone. A similar position applies to the Applicant’s nieces and nephews. While I accept that he may enjoy a certain level of relationship with those children, that relationship cannot be said to be parental and due to his absences resulting because of both criminal custody and immigration detention, he has been absent for long periods of their lives.
In a statement provided by the Applicant’s girlfriend, reference is made to her daughter. He gave evidence at the hearing that she is approximately 4 years old. The child has visited him in detention and speaks with him on the phone ‘all the time’[31] however it should be noted that their relationship spans a quarter to a third of the subject child’s life. For the entirety of the duration of the relationship (and, therefore, the parallel period of the child’s life) the Applicant has been in either immigration detention. While I accept the subject child may have visited the Applicant in detention, it cannot be said that he has a parental relationship with her and, given the long period of absence from her life, that there has been any meaningful contact between them.
[31] Transcript, page 15.
I do not consider the evidence any of the children points to any significant ‘nature’ or ‘duration’ of any him and them. The only possible exception due to their relationship as siblings is the relationship between the Applicant and his brother. In all the circumstances, I am prepared to allocate a slight measure of weight such that the nature and duration of the Applicant’s relationship with the children militates in favour of his visa status being restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child/ren turn 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
As noted earlier, the Applicant has been physically absent from the lives of all of the relevant children for a significant period of years - relative to each of their respective ages and stages of life. I earlier found that it is unlikely to play a parental role in his brother and nieces and nephews. I do accept that there are prospects of him playing some measure of a positive parental role in the life of his girlfriend’s daughter who has something in the order 12-13 years left until she obtains the age of 18 years.
I accordingly allocate a slight measure of weight to this sub-paragraph (b) in favour of a finding that it would be the best interests of the girlfriend’s daughter for the Applicant’s visa status being restored.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child/ren. There is nothing in the material suggestive of any such impact on any of the relevant children. Therefore, I allocate no weight to this sub-paragraph (c).
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the children from the Applicant would have on the children, taking into account the Applicant’s ability to maintain contact in other ways.
Two considerations must be borne in mind in relation to the allocation of weight to this sub-paragraph (d). First, there is nothing before the Tribunal from any of the relevant children indicating or confirming any genuine adverse impact upon them were the Applicant to be returned to new Zealand. I accept that the statement from the Applicant’s girlfriend that a certain level of negativity and apprehension that would be experienced by her child were the Applicant compelled to leave Australia. As against that, she (the Applicant’s girlfriend) confirms she would not relocate to New Zealand were he compelled to go there. While I accept the possibility that the Applicant’s brother may experience an adverse impact consequence of the Applicant’s removal from Australia I am not able to glean any evidence of any adverse impacts on any of the nieces and nephews.
Second, our current age of electronic communication will facilitate some measure of contact between the Applicant and the relevant children. This can occur from New Zealand or elsewhere by SMS and/or social media platforms. It can extend to visual and real-time contact with any/all infant children via Skype and other platforms.
Having regard to the totality of the evidence relevant to this sub-paragraph (d), I am of the view that it merits the allocation of slight weight in favour of a finding that it is in the best interests of the relevant minor children for the Applicant’s visa status to remain in Australia be restored to him.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. There can be no question that (1) the Applicant’s brother is primarily cared for by their mother; (2) the daughter of the Applicant’s girlfriend is primarily cared for by the Applicant’s girlfriend; and (3) the Applicant’s nieces and nephews are primarily cared for by their parents/designated carers.

Only a slight measure of weight in favour of the Applicant is attributable to this sub-paragraph (e) in favour of a finding that of his visa status being restored is in the best interests of the relevant minor children in Australia..
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. Apart from the above-mentioned lay evidence of the Applicant’s girlfriend, there is no independent or expert evidence before the Tribunal that any of the children are exhibiting behaviours indicative of adverse views they may have as consequence of the Applicant’s physical removal from their lives.
It is therefore unsafe to allocate any weight to this sub-paragraph (f) in circumstances where none of the views of the relevant infant children are either known or are capable of being ascertained.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. There is no material before the Tribunal in relation to this sub-paragraph and, accordingly, it is of no weight and is not determinative of any finding about this Primary Consideration B.
Having regard to:
(a)the evidence of the Applicant which speaks of a potential, albeit limited, parental relationship with the daughter of his girlfriend;
(b)the historical sibling relationship between the Applicant and his brother and his further familial relationship with his nieces and nephews;
(c)the absence of any demonstrable nature or duration of a relationship between the Applicant and any of the relevant children, especially circumstances where each of the relationships have been non-parental. I accept minimal exceptions to this finding may apply to the nature and duration of the relationship with his brother and the possible parental relationship with the Applicant’s girlfriend’s daughter;
(d)Having regard to the Applicant’s long periods of absence from the lives of the children and resulting limited meaningful contact between him and them;
(e)The relatively limited extent to which the Applicant is likely to play a parental role in the future lives of the children (with the possible exception of the daughter of the Applicant’s girlfriend);
(f)The evidence from the Applicant’s girlfriend that were he be removed to New Zealand, she and her daughter would not follow him;
(g)The fact that other people already fulfil a primary parental role for each of the children;
(h)the slight weight I have cumulatively attributed to sub-paragraphs (a), (b), (d) and (e) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the relevant children in Australia do weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a slight level only and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A.
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[32] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[33] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[32] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[33] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·The Applicant first arrived in Australia in January 2007 and has resided here since that time;
·He has no biological children, however, I have identified the following children as relevant for the determination of the application: his 14-15 year old brother; the 4-5 year old daughter of his girlfriend; and some nieces and nephews;
·He was first sentenced as juvenile in Australia in May 2012, being approximately five years after arrival;
·He has found himself before lawful authority for sentencing on at least eight separate occasions and has been convicted for some 21 offences;
·He has received the benefit of non-custodial sentences prior in the form of good behaviour bonds, fines and control orders;
·He experienced little or no deterrent effect from these non-custodial sentences and proceeded to commit more serious offences, resulting in, ultimately, the imposition of a head custodial sentence of three years;
·The Applicant does have a demonstrated history of participation in the Australian workforce and has held three labourer jobs across 2014 to 2016;[34]
[34] Exhibit R2, page 58.
·The Applicant has also made contributions to Australian community and cultural activities and has stated ‘I have volunteered for salvation army feeding homeless people’;[35]
[35] Exhibit R2, page 58.
·I have found his offending to be very serious in nature and that were he to reoffend, the consequences on a member or members of the Australia community would be very serious to very serious indeed and with potentially catastrophic financial and psychological consequences;
·the level of the Applicant’s insight into the nature and effect of his offending has not been determined by an expert clinician;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention, since late 2016;
·He is 22 years of age and has an offending history in this country that runs from May 2012 to February 2017 – just under five years. It can be fairly said that difficulties with law enforcement have been a very significant feature of the entirety of the Applicant’s adult life in this country thus far;
·He had been in Australia for less than 10 years at the time he went into custody in late 2016. During that period of less than 10 years, he committed 21 offences, as both a juvenile and an adult, and was dealt with by judicial sentencing officers on eight separate occasions. This equates to the commission of over two per year and an almost annual judicial sentencing episode;
·the state of the evidence precludes the Tribunal from forming any definitive view about the Applicant’s risk of reoffending and it remains as it was prior to his most recent removal from the Australian community in late 2016; and
·There is no independent clinical evidence before the Tribunal detailing:
oany definitive diagnoses about the Applicant’s unresolved issues with Illicit substances (and any other substances);
othe extent to which those have unresolved issues have predisposed him to offend;
oany regime of remedial therapy and management of his symptomology the Applicant may have.
The Evolution of the Australian Community’s “Expectations”
In 2003, Deputy President Block of this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[36]
[36] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[37]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[37] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”),[38] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[38] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[39] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[40] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [41]
[My underlining]
[39]    [2019] FCA 500.
[40]    Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[41]    FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[42]
[42] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a) the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[43]
(b) it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[44]
(c)   the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[45] and
(d) in assessing the weight attributable to this Primary Consideration C, decision-makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[46]
[43]    Afu at paragraph [85].
[44]    FYBR at paragraph [42].
[45]    FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[46] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
I have had regard to the Applicant’s unlawful conduct as it is particularized in his offending history. Taken as a cumulative whole, his offending has been very serious. He has consequently and surely breached the expectations of the Australian community. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the level of the Applicant’s positive contributions to the Australian community;[47]
(ii)the Applicant arrived and remained in Australia since the very young age of nine and that his offending commenced in 2012, some five years after his arrival;[48]
(iii)the removal of the Applicant may have an adverse impact on the Applicant’s immediate family which includes his girlfriend, parents and siblings, and any relevant children who are all Australian citizens residing in Australia;[49]
(iv)the very serious nature of the Applicant’s offending to date to members of the general public;
(v)the nature of the totality of his conduct in this country, involving, as it does: (1) a demonstrated lack of respect for lawful authority governing the personal and property rights of others; (2) the imposition of numerous non-custodial punishments from which he failed to experience any apparent deterrent effect; and (3) the custodial terms that have been imposed upon him;
(vi)the lack of current, independent and expert evidence measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vii)my finding of a strong and convincing likelihood that he will engage in further serious conduct if returned to the Australian community; and
(viii)my assessment of very serious physical, psychological and financial harm that would be occasioned to the Australian community were he to re-offend.
[47]    The Direction, paragraph 6.3(7).
[48]    The Direction, paragraph 6.3(5).
[49]    The Direction, 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 heavy weight in favour of affirming the non-revocation decision under review.
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 given evidence that he fears a return to New Zealand on the basis that he would face retaliation by his father. This fear does not give rise to any non-refoulement obligations and accordingly is dealt with in my discussion regarding the extent of impediments if the Applicant is removed from Australia - Other Consideration (e).
I will evaluate the Applicant’s expressed fear but do not consider it engages any international non-refoulment obligations Australia may owe to New Zealand.
Accordingly, the Applicant’s expressed fear of harm does not engage this Other Consideration (a) and it is not relevant to the determination of this application.
Strength, nature and duration of ties to Australia
Subparagraph 14.2 of the Direction provides that decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant is 22 years of age. He came to Australia in January 2007 at the age of nine and has thus spent the majority of his life in Australia. His offending history commenced less than five years after his arrival at the age of 14 and continued up until the Applicant was removed from the Australian community in late 2016. In my view, the provisions of paragraph 14.2(1)(a)(i) of the Direction should be applied against the Applicant because he began offending relatively soon after arriving in Australia and accordingly less weight should be given to this Other Consideration (b).
Conversely to this, the Applicant has given evidence that he has been a labourer for period of three years (2014 to 2016) as well as having ‘volunteered for salvation army feeding homeless people’. To my mind, this attracts some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction due to his time spent contributing positively to the Australian community.
A greater (but not determinative) measure of weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). In Australia, there is evidence to suggest the Applicant has strong ties to his family. The Applicant has given evidence that his immediate family lives in Australia, which consists of his Mum and ‘Dad’,[50] two brothers and four sisters. He had also referenced in his personal circumstances form that he has 14 uncles/aunts, seven nieces/nephews, 27 cousins and one grandparent in Australia.[51] The Applicant’s mother gave oral evidence before this Tribunal. The evidence also contains a number of supportive letters. I accept that the Applicant’s immediate and extended family and his social contacts, including his current girlfriend and her daughter, will be negatively impacted if the Applicant is removed from Australia.
[50] The Tribunal presumes that this is not the same person as the Applicant’s biological father.
[51] Exhibit R2, page 56.
The Applicant has stated:
“The impact it would have would devastate my family because my dads in Jail and im the only Man in the house to provide for my family and keep them safe they will lose a lot if I get deported.”[52]
[52] Exhibit R2, page 56.
Having regard to the totality of the Applicant’s family/social links with members of his immediate and extended family in Australia, a significant 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 evidence, I am of the view that this Other Consideration (b) weighs heavily in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-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.
(d) Impact on victims
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community, including victims of the Applicant’s criminal behaviour. In the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible of 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 members of the Australian community, including his victims and their respective family. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the cancellation of the Applicant’s visa and 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.
I will now make a finding about whether I am satisfied that the Applicant would, if removed to New Zealand, face any retaliation by his father by way of a determination of the weight attributable to this Other Consideration (e). There is a contention by the Respondent that there is insufficient evidence before the Tribunal for it to be satisfied, on the balance of probabilities, that the Applicant’s father would harm him if the Applicant were returned to New Zealand. I respectfully concur with that contention. According to the Applicant’s personal circumstances form, he states “I am afraid of seeing my dad when he gets out in 2019 he has been in Jail for sexual assault against my sister.”[53]
[53] G Documents, page 59.
The evidence about this particular fear expressed by the Applicant is both speculative and unconvincing. At the time of this hearing, the Applicant’s mother gave evidence that she believed that the Applicant’s father was still in prison in Australia, despite thinking he was to be released in 2019.[54] There is no evidence before the Tribunal upon his release from prison in Australia that the father would return to New Zealand nor is there any evidence of any specific threats made directly by the father to the Applicant. Under cross-examination, the Applicant conceded the highest this contention goes is that, in terms of being threatened by the father, those threats were, apparently, “just like passed it on sort of thing” through his aunt. This is what transpired in cross-examination:
[54] Tramnscript, page 39.
Mr Hillyard:                 Fair enough. You’ve said that some threats have been made against you by your father, is that correct?
LHNC:Yes.
Mr Hillyard:                 Your evidence earlier was that you haven’t spoken to your dad since you were 11 and other than maybe one contact with your cousin, you haven’t spoken to his family in New Zealand, that’s correct?---
LHNC:  Yes.
Mr Hillyard:                So how were these threats made?
LHNC:His sisters – his sister (indistinct) and that’s like – that’s my auntie obviously. She lives in Australia. We’re tight so it was – I guess it was through that family because she still goes and sees him but - - -
Mr Hillyard:                 So your auntie – your dad’s sister threatened you on behalf of your dad?---
LHNC:  Just like, passed it on sort of thing. Even – yes. Through that.
…
Senior Member:          When your auntie relayed to you the threats from your father, what did she say?---
LHNC:  Just like (indistinct) I’m going to get hurt if, like, you know.
Senior Member:         You’re going to get hurt?---
LHNC:If I was to go back to New Zealand and – because pretty much      all my dad’s family are just like on the other side of the law, you know. They’re not – and – I don’t remember it like too – like, what I remember – I’m in Australia, I’m safe and - - -
Senior Member:          Why would your father want to hurt you?---
LHNC:  No idea
Were the Applicant returned to New Zealand, he would be able to seek protection from the policing authorities in that country were he able to show any risk to his safety emanating from his father. The contention about fearing harm from his father is without merit or bases.
In terms of the specific componentry of Other Consideration (e), I make the following observations. The Applicant is a young man of 22 years of age. In response to the question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?” the Applicant did not give an indication either way. He makes no reference in his personal circumstances form to taking prescription or other medication and does not say he is under the care of any health professional. The relevant records indicate “No evidence of mental illness” and that he “does not need any intervention from mental health team currently”. Further, the records note that he has “no medical co-morbidities”.[55]
[55] Respondent’s SFIC, Annexure A.
As against that the Applicant has given evidence that in the past he believes he has had depression and used drugs as a coping mechanism.[56] The Tribunal also has before it Mental health records where the Applicant had seen a Mental health Nurse in the detention centre in March 2018 which stated ‘Plan: Avanza written up and booked to see psychiatrist’ as the Applicant had advised that this ‘helped during the stressful times.
[56] Transcript, page 48.
It is reasonable to find that the level of medical care and governmental social support in New Zealand[57] is at or about the same level as that available to the Applicant in Australia. The Applicant will have access to those medications and any necessary treatment for those conditions 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 to this Other Consideration (e).
[57] Section 14.5(1)(c) of the Direction.
I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[58] 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.[59]
[58] Section 14.5(1)(b) of the Direction.
[59] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As mentioned in these reasons, the Applicant has had three employers during 2014 to 2016 where he worked as a labourer. There is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in that field upon his return to New Zealand.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of moderate weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations to the determination of the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant;
·Strength nature and duration of ties: significant 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, there is not 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 weighs very heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or with Primary Consideration B, outweigh the significant and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction, therefore, favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Date of hearing: 30 October 2019

Applicant: In person

Solicitors for the Respondent: Mr T Hillyard
Sparke Helmore Lawyers

[2020] AATA 3752

30 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	30 October 2019
Applicant:	In person
Solicitors for the Respondent:	Mr T Hillyard Sparke Helmore Lawyers