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

[2020] AATA 3196

Lines and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3196 (27 August 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4685

Re:David Lines

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:27 August 2020

Place:Sydney

The reviewable decision made on 18 July 2019 by the delegate not to revoke the mandatory cancellation of Mr Lines’ Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – review not expedited – Applicant offshore – character test – substantial criminal record – primary considerations – other considerations – protection of the Australian community – risk of reoffending – best interests of minor children – expectations of the Australian community – strength nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 500(1)(ba), 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

27 August 2020

Introduction

1. On 18 July 2019, a delegate of the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) (the delegate) decided not to revoke the mandatory cancellation of Mr Lines’ Class TY Subclass 444 Special Category (Temporary) visa (the visa) (the reviewable decision). Mr Lines has applied to the Tribunal for review of that decision.

2. The reviewable decision was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The application for review to this Tribunal was made pursuant to s 500(1)(ba) of the Act.

3. The mandatory cancellation decision made pursuant to s 501(3A) of the Act was dated 5 April 2018. Mr Lines is a New Zealand national who was born in December 1978. He was deported to New Zealand on 20 April 2018 when he was released from prison.[1] Mr Lines appeared at the hearing by telephone.

   [1] T19/77.

   What are the issues to be decided?

4. The issues to be decided are:

   (a)Does Mr Lines pass the character test as defined in s 501(6) of the Act;

   (b)If he does pass the character test, the mandatory cancellation decision must be set aside and the matter remitted with the direction that he does pass the character test; or

   (c)If he does not pass the character test, whether there is another reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act, having regard to the considerations prescribed by Direction No 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 79). Part C of Direction 79 applies to revocation requests.

   Does Mr Lines pass the character test?

5. Section 501(6)(a) of the Act states that a person will not pass the character test if they have a “substantial criminal record”. That phrase is defined in s 501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.

6. On 20 February 2018, Mr Lines pleaded guilty and was sentenced to 12 months’ imprisonment for each of five charges of “contravention of domestic violence order (aggravated offence)”, to be served concurrently.[2]

   [2] Transcript of Proceedings in Magistrate’s Court, T6/27; National Police Check, T4/19 (also replicated at the Annexure, Part 1).

7. Mr Lines contended that he does not satisfy the definition in s 501(7) because he did not serve 12 months in prison. He claimed that he surrendered himself into custody on 21 December 2017 and on 20 February 2018 he was sentenced to imprisonment for three months, three weeks and six days, with a release date of 20 April 2018 and parole until 20 December 2018.[3]

   [3] T13/57.

8. Section 501(7) of the Act does not require that a person serve a term of imprisonment of 12 months or more. It requires that a person be sentenced to serve such a term of imprisonment. The facts Mr Lines set out, which are consistent with the transcript of the proceedings, demonstrate that he was sentenced to a term of imprisonment of 12 months, that is from 21 December 2017 until 20 December 2018 but was released on parole on 20 April 2018.

9. Mr Lines fails the character test.[4] It is therefore necessary to decide whether there is another reason to revoke the decision to cancel the visa pursuant to s 501CA(4)(b)(ii) of the Act, having regard to the considerations prescribed by Part C of Direction 79.

   [4] The Act sub-s 501(6)(a) and (7).

   Part C of Direction 79

10. Part C of Direction 79 prescribes three “Primary considerations” and five “Other considerations” that are to be taken into account when a person requests revocation of a mandatory decision to cancel a visa. Each consideration which is raised by the evidence will be addressed.

    Protection of the Australian community

11. Protection of the Australian community from criminal or other serious conduct is a primary consideration.[5]

    [5] Direction 79, 13(2)(a).

12. Paragraph 13.1(1) of Direction 79 provides:

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

13. There are two factors to be considered: (a) the nature and seriousness of the applicant’s conduct to date, and (b) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.[6]

    [6] Direction 79, 13.1(2).

14. Two tables summarising Mr Lines’ police records in Australia and New Zealand are Parts 1 and 2 respectively in the Annexure to this decision.

    The Nature and Seriousness of the Applicant’s conduct to date

15. Paragraph 13.1.1 of Direction 79 sets out factors that decision-makers must have regard to when considering the nature and seriousness of the conduct.

16. Mr Lines was born in New Zealand in December 1978. He committed his first driving offence in May 1997, exceeding breath alcohol limit, was convicted, fined and disqualified from driving for three months. Thereafter until April 2005, he was convicted, fined and disqualified from driving for offences a further four times, including driving while his license was suspended, and convicted and sentenced for another driving offence. In 1999 he was convicted and discharged of obstruct/hinder police, and in 2001 convicted and fined for contravenes protection order - no firearm.

17. He arrived in Australia on 12 December 2006. He committed offences in Australia for the first time in November 2011. They were his first drug related offences in either country. No conviction was recorded. A good behaviour period with four months drug diversion was imposed. He committed further drug related offences in November 2013 and February 2014 for which no convictions were recorded but small fines were imposed. His first conviction for breach of bail condition was recorded on 17 April 2014.

18. The sentencing remarks of the Magistrate on 20 February 2018 succinctly describe Mr Lines’ criminal history of domestic violence:

    … you have a history of just repeatedly attending her premises in breach of the order. In your submissions you appear to have shifted all the blame to her in the fact that she is an alcoholic and difficult. You have been seen in shopping centres to be pushing her so much that they – someone else phoned the police. She may have difficulties. I am not aware of that. But it is just continual going to her premises. Then he actually stole her bag last time and used her credit card.

    I mean, it is continual breaches of domestic violence. It starts back in 2014 we have three breaches and he is fined, and then we have another breach and he is given probation. Then we have another breach in 2015, 2016. He is given parole and he is released on the day for six months. Then 2017 he is given a suspended term. So each time he is escalating, and now he is before me on… five breaches.[7]

    [7] T6/27.

19. The five offences had been committed in July, August, October, and December 2017.

20. On the same occasion, Mr Lines was also convicted and sentenced to concurrent terms of one month, being time served, for stealing and three drug related offences. The offences had been committed in November and December of 2017.

21. Violent crimes against women are viewed very seriously, regardless of the sentence imposed.[8] In this case, the sentences of imprisonment imposed reflect the seriousness of the domestic violence crimes Mr Lines has most recently committed in 2017.[9] Imprisonment is the last resort in the sentencing hierarchy. His offending has been frequent and there was an increasing trend.[10] The magistrate’s sentencing remarks quoted above, highlight the cumulative effect of Mr Lines’ repeated offending which is serious.[11]

    The risk to the Australian community should the non-citizen commit further offfences or engage in other serious conduct

    [8] Direction 79, 13.1.1(b).

    [9] Direction 79, 13.1.1(d).

    [10] Direction 79, 13.1.1(e).

    [11] Direction 79, 13.1.1(f).

22. The nature of the harm to individuals or the Australian community if Mr Lines were to reoffend could involve physical, psychological and financial harm to members of the community, particularly women in a domestic violence context, which is serious. That leads to the conclusion that any risk of similar conduct by Mr Lines in the future is unacceptable.

23. As reflected in the sentencing remarks set out above, Mr Lines did not take responsibility for his offending.[12] He has sought to minimise his aggression, contending that there was never any physical violence.[13] During cross-examination he repeatedly disagreed with the facts recorded in the police records. Following are two examples. When an incident was put to him that a witness observed him spitting into his partner’s face, Mr Lines said he did not recall and it was probably her friends standing up for her. In an incident on 5 November 2016, Mr Lines’ was reported by a witness to have pushed and shoved a female and to have struck the witness on the side of neck. Mr Lines said that the female was assaulting him, he was protecting himself, he did not remember striking the witness, and if he had, he would have been charged. The charge on that occasion was contravention of a domestic violence order (aggravated offence). Mr Lines said that he pleaded guilty because he believed he would get a lighter sentence.

    [12] ST5/380, 413, 418-422, 480.

    [13] T16/69, T20/79-80.

24. Mr Lines said that he has nothing to do with his former partner and that his criminal record was fine until he met her, except for some minor charges. He said that he had not fully understood what was happening at that time and would plead guilty to get it over and done with sooner. He was working full time and had no time.

25. On 2 May 2019, Mr Lines wrote in an email that he no longer had any contact with his former partner who had moved to a city many hours’ drive from Brisbane.[14]

    [14] T20/82.

26. He claimed that he had attended months of counselling sessions with a psychologist.[15] There are records of psychological counselling in the “Response to Supervision” section of the Queensland Corrective Services Completion Summary Probation Order. It relates to probation from 19 August 2015 to 18 February 2017. Mr Lines attended on five occasions but “his participation… was superficial as he minimised the seriousness of his offending”.[16] He was to be referred to a domestic violence perpetrators program “however unemployment, accommodation transience and his ongoing resistance prevented this from occurring”.[17] The entry ends:

    Mr Lines has reoffended and minimally participated in recommended interventions. Mr Lines appears to have gained little benefit from community based supervision. No action was taken in relation to numerous breaches of Probation due to administrative oversight.[18]

    [15] T13/54.

    [16] ST5/480.

    [17] ST5, 480.

    [18] ST5, 481.

27. Mr Lines also provided a copy of a list of appointments between 23 September 2015 and 21 October 2016 with Ms Schmierer, Clinical Psychologist on her letterhead. He had attended eight and not attended three appointments.[19] Ms Schmierer appears to be the psychologist who was providing counselling during his probation, and he attended eight appointments rather than five.

    [19] Exhibit A3.

28. Mr Lines was subject to another probation order from 20 September 2017 to 19 April 2018. In the Response to Supervision, his further offences of Contravention of Domestic Violence Order (Aggravated offence) x 5; Stealing, Possessing Dangerous Drugs x 2, Possess Utensils or pipes etc that had been used, that he had been remanded in custody and was subject to imprisonment were noted. It concluded:

    Given his high risk of reoffending when in the community, Mr Lines is considered unsuitable for community based supervision in future.[20]

    [20] ST5/482.

29. In a letter received by the Respondent on 24 April 2018, Mr Lines claimed that he intended to attend a domestic violence course upon release from custody.[21] There is no corroborative evidence that he has attended such a course. At the hearing, he said that he had spoken to a counsellor named Andrew at an address in Nelson, New Zealand, at “Life something” on a weekly basis but was unable to obtain any confirmation but it did help. I give little weight to that evidence.

    [21] T16/70.

30. In the letter of 24 April 2018, Mr Lines described his crime of breach domestic violence for which he was sentenced to “only four months of imprisonment” on 20 February 2018 as “my rather minor crime”.[22] He did “fully regret” his past mistakes and the possibility that he would lose his partner and children.

    [22] T16/69.

31. During cross-examination about various contemporaneous reports that he blamed his ex-partner for what had happened, Mr Lines said that he was not maintaining he did nothing wrong, it was a definite possibility he was 70% to blame, he did do wrong and has paid the price for it. He was being lied to at the same time. On another occasion, he said that he had pleaded guilty but the physical violence was from her not him. He also said that he took full responsibility for what had happened.

32. His now former partner provided a letter of support to Mr Lines in early 2018 which stated that they had been in a “loving relationship for seven years and have two beautiful children together”.[23] “Loving relationship” is not an objective assessment given the extensive history of domestic violence.

    [23] T16/71.

33. During submissions, Mr Lines said that he feels he is of good character and it was a “misfortune” that the relationship did not work. He said that the penalty he has paid for that relationship’s not succeeding, far outweighs the risk that he will reoffend.

34. The evidence does not indicate that Mr Lines has reoffended since his return to New Zealand. He said he has no partner. He said that because of his employment and his business he cannot afford any mistakes. He provided a statement of support from a work colleague who described him as a great asset as a General Manager of the company and stated that a person of bad character “and conviction” cannot occupy such a position because of New Zealand police criminal history and reference checks.[24] She had known Mr Lines since May 2018, shortly after his return from Australia. She was to give oral evidence but did not do so. The Tribunal tried unsuccessfully to contact her on two occasions.

    [24] Exhibit A4.

35. I infer that Mr Lines’ application to have the mandatory visa cancellation decision revoked has been another motivating factor for not reoffending.

36. Mr Lines provided copies of the following documents:

    ·a letter approving his application for a Manager’s Certificate dated 18 March 2020;[25]

    ·an email from a New Zealand police officer to the Secretary, Nelson District Licensing Agency, dated 13 March 2019 stating that police had no objection to the application; that the applicant had disclosed an overseas conviction on the application; police had spoken to the applicant about this and to his current employer “who spoke highly of the applicant’s work ethic and knowledge of the Sale and Supply of Alcohol Act 2012”;[26]

    ·a Manager’s Certificate dated 20 March 2019 issued by the Nelson District Licensing Committee which authorised Mr Lines to manage any licensed premises;[27] and

    ·a document that described him as “Manager on Duty”.[28]

    [25] Exhibit A5.

    [26] Exhibit A5.

    [27] Exhibit A2.and A5.

    [28] Exhibit A5.

37. There is no evidence of any details of the conviction that Mr Lines disclosed to the licensing authority.

38. Mr Brendon Cook gave written and oral evidence by telephone.[29] He was in New Zealand. He had known Mr Lines for over 20 years and knew that he had a lot of trouble with his previous partner “that eventuated in his deportation”. He had found Mr Lines to be considerate, caring, and law abiding to his family and all people in his life.

    [29] Exhibit A1.

39. Mr Daniel McBean wrote an email dated 27 August 2018 and an undated character reference in support of his “good friend”, Mr Lines.[30] He also provided oral evidence by telephone. He had known Mr Lines for over 12 years. Mr Lines was his boss and store manager of their suburbs’ local liquor outlet in 2007 and 2009 in Australia. He described Mr Lines as a good manager, reliable and prompt and who adhered to Queensland liquor regulations. He was a family friend who had regular dealings with Mr McBean’s partner and children. He set out his reasons for Mr Lines being given a second chance which includes the possibility of him contributing to Australian society and reforging bonds with close friends in Australia.

    [30] T1/76 and 83.

40. During his oral evidence, Mr McBean said that he knew Mr Lines’ partner and that Mr Lines had two children he said he was close to. He has a close relationship with Mr Lines who confides in him about his problems. He was unaware that there had been violence in the relationship. Mr Lines had mentioned that his partner would lose her temper. He was aware that Mr Lines was living out of the home quite a bit. Mr McBean and Mr Lines were not in touch as much when they were not working. Mr McBean was overseas in 2008, 2010 and 2014. They got back in touch around 2014 or 2015. There was no meaningful contact for about five years. Mr McBean socialised with Mr Lines and his partner but had minimal contact with her. He and Mr Lines chatted reasonably regularly online or on the telephone when Mr McBean found out Mr Lines had been deported. He reached out to Mr Lines because he knew how much he loved Australia.

41. Two male friends and a female colleague have given evidence in his favour as summarised above. None of them demonstrated an understanding of his history of domestic violence offending.

42. Mr Lines agreed that alcohol and drugs were factors in his offending but says he was no longer consuming alcohol. He has not undertaken any rehabilitation for drugs. Jealousy was also a factor. The contemporaneous records show that he did not demonstrate any insight into his offending. There is no independent evidence that he has been successfully rehabilitated or has taken steps to address the causes. He has been assessed to be at high risk of reoffending when in the community. There is no evidence that he has been in a relationship since being released from prison. While Mr Lines told the Tribunal that he has accepted responsibility for his conduct, he continued to blame his former partner as well. His propensity to domestic violence has not been tested. His consumption of alcohol or drug taking has not been tested in a domestic relationship.

1. There is a domestic violence order in place until 2022 against Mr Lines in favour of his former partner.[31] He has said that he has no contact with her and does not wish to contact her. In the past he has not complied with such orders. On his evidence, she is the mother with care of his two children to whom he is close. If he wished to spend time with his children, some arrangement would have to be made involving their mother. There is potential for contact with her.

   [31] ST4/169.

2. There is an unacceptable risk that Mr Lines will commit further serious criminal offences, including domestic violence.

3. The protection of the Australian community weighs heavily against revocation.

   Best interests of minor children

4. Paragraph 13.2 of Direction 79 sets out how to determine whether revocation is in the best interests of the child.

5. Mr Lines claims that he has two minor Australian children, a daughter who was born in October 2011, lives in Australia and is an Australian citizen, and a son who was born in September 2014, is a New Zealand citizen, and lives in Australia.[32] Mr Lines has not provided any birth certificates for the children.

   [32] T13/53.

6. Mr Lines claimed in the one document that his children lived with him and that they did not live with him.[33] Since he was taken into custody on 21 December 2017 their mother has been caring for them.[34]

   [33] T13/52 and 54.

   [34] T16/72; Direction 79, 13.2(4)(a) and (e).

7. There is no evidence of any court order relating to access or care arrangements.[35]

   [35] Direction 79, 14.2(4)(b).

8. Mr Lines claims that the daughter was born in 2011. There is conflicting evidence about when Mr Lines and his former partner began their relationship. In documents provided in April 2018 both Mr Lines and his former partner claimed that they had been in a relationship for seven years, which would be from 2011.[36] In the personal circumstances form Mr Lines completed around the same time in 2018, he claimed that they met in 2011 and the relationship started on 14 August 2012 and also that they had been in a loving relationship for seven years, which would be from 2011.[37]

   [36] T16/69 and 71.

   [37] T13/50.

9. The police records do not identify the other person involved in domestic violence incidents. However, there is no suggestion that the police records of domestic violence involving Mr Lines relate to anyone other than his former partner. The first record of a domestic violence incident involving Mr Lines was dated 22 October 2013. Both parties reported that they had been in a relationship for five weeks.[38] An 8 November 2013 report of domestic violence states that the parties had been in a relationship for three months.[39] A police report of an incident on 15 February 2014 states that the “aggrieved’s eighteen year old daughter” was woken by the disturbance and entered the bedroom where she “saw the defendant throw the aggrieved onto the bed and almost hit her head on the table.[40] She also “saw the defendant with his hand around the aggrieved’s neck”. A police report about a domestic violence incident dated 19 June 2016 states that (the two people involved in the incident) “do not have any children together, however, the female’s daughter, who witnessed the incident, lives with them”.[41] There is a file note in the records of the Queensland Corrective Services dated 2 December 2015 about a discussion with Mr Lines about taking responsibility for his action and being accountable for what he has done in the past with regards to “his ex-partner and her daughter”.[42] In the Sentencing Schedule for the offence dated 8 July 2017, they are reported to have been in an intimate relationship “on and off for over five years”, that is from 2012.[43] The independent contemporaneous evidence strongly suggests that the daughter is not Mr Lines’ biological child and is not a minor.

   [38] ST4/178-179.

   [39] ST4/185.

   [40] ST4/74.

   [41] ST4/220.

   [42] ST5/422.

   [43] ST3/47.

10. A report of a domestic violence incident on 25 April 2016 referred to the extensive domestic violence history, and that they had separated after previous breaches and the instances had reduced but Mr Lines had recently located his partner and commenced an association.[44] The incident report dated 12 October 2017 described Mr Lines as “ex partner” and stated that the female was with her “current boyfriend”.[45]

    [44] ST4/186.

    [45] ST4/253.

11. In a letter of support provided in April 2018, Mr Lines’ former partner wrote that she and Mr Lines had been in a “loving relationship for seven years and have two beautiful children” and she believed that Mr Lines’ removal from Australia “would be very detrimental to (the daughter) and (the son)”, who “would be deprived of their father whom they love so much”.[46] Little weight is given to this evidence given her description of her relationship with Mr Lines as “loving”, which objectively is not accurate and that there is no updated evidence of her views since she and Mr Lines have had no contact.

    [46] T16/71.

12. It is not clear whether McBean’s evidence that Mr Lines has two children to whom he is close was a result of his direct observation or what Mr Lines had told him.

13. Mr Cook, who has known Mr Lines for over 20 years was unaware that Mr Lines had children. He talked to Mr Lines every day or every two or three days and sees him every week. He has tried to help Mr Lines who faced a lot in prison. He keeps an eye on him when he can.

14. When questioned about Mr Cook not being aware that Mr Lines had children, Mr Lines said that he did not really mention his children in New Zealand. He does not like to discuss them, but he has mentioned them. Mr Cook’s evidence was that he has a close relationship with Mr Lines. That Mr Lines had not disclosed to Mr Cook that he had two children, is inconsistent with his claim to have a close relationship to them. His explanation was unpersuasive.

15. In a Queensland Corrective Services At-Risk Assessment Report dated 28 March 2018, Mr Lines is recorded as saying that his mother, sister, and his children reside in New Zealand.[47]

    [47] ST5/289.

16. In the Personal Circumstances Form completed in early 2018 before his deportation, Mr Lines stated that if the visa was cancelled it “has created… constant worry of how I can support my children”.[48] Mr Lines is currently employed. He said at the hearing that he was not providing financial support for the children, he did not have much money, did not have his former partner’s bank details, and “they seemed to be getting on alright”. He said that his daughter has her own telephone and he contacts her at least once a fortnight, and also speaks to his son. As he has no contact with their mother, Mr Lines has determined their circumstances from his contact with the children who are aged about nine and five according to his evidence. His rather dismissive comment is inconsistent with a parent who is employed and who is close to and concerned about the welfare of his children and who previously said he was constantly worried about how he could support those children if his visa was cancelled.

    [48] T13/53.

17. There is no evidence of the views of either child.[49] The extent to which Mr Lines played a parental role in either of the children’s lives is not apparent.[50] Mr McBean’s evidence that Mr Lines “was living out of the home quite a bit” is consistent with the police and correctional service records. His own evidence on the question is inconsistent. The evidence is that Mr Lines would have been present in the life of the daughter from time to time from 2012 or the end of 2013 and in relation to the son from his birth in 2014, until Mr Lines was imprisoned on 21 December 2017 in an environment of domestic violence and aggression towards their mother.[51] The Family Court of Australia has published a fact sheet entitled Exposure to family violence and its effect on children which indicates that exposure to violence adversely affects children. The evidence is that his former partner has cared for the children in the past, currently cares for them and will continue to do so.[52] Mr Lines does not provide financial assistance to the children. He claims to be in contact with them on a fortnightly basis.

    [49] Direction 79, 13.2(4)(f).

    [50] Direction 79, 13.2(4)(a).

    [51] Direction 79, 13(4)(c).

    [52] Direction 79, 13.4(e).

18. There is no direct evidence that either child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[53]

    [53] Direction 79, 13.2(4)(h).

19. The evidence does not support a finding that Mr Lines is likely to play a positive parental role in the life of either child in the future taking into account the length of time until each child turns 18.[54]

    [54] Direction 79, 13.2(4)(b).

20. Mr Lines has been separated from the children since December 2017 and claims he has fortnightly telephone contact with them and that they “seemed to be getting on alright”. That suggests that it is likely that they will continue “to get on alright” and be able to maintain the same degree of contact if Mr Lines remains in New Zealand.[55]

    [55] Direction 79, 13.2(4)(d).

21. Insofar as the children are both minors and wish to maintain a relationship with Mr Lines, their best interests favour revocation.

22. The best interests of both children weigh slightly in favour of revocation.

    Expectations of the Australian Community

23. The third and final primary consideration in Direction 79 is the expectations of the Australian community.[56]

    [56] Direction 79, 13.3.

24. Paragraph 13.3(1) of Direction 79 sets out the expectations of the Australian community:

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

25. Paragraph 13.3(1) of Direction 79 is analogous to paragraph 11.3(1) of Direction 65 which was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.[57] The majority (Charlesworth and Stewart JJ) concluded that:

    Paragraph 11.3 (and 13.3) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[58] 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.[59]

    [57] [2019] FCAFC 185 (FYBR); the High Court dismissed FYBR’s application for special leave on 24 April 2020.

    [58] Ibid at [66] (Charlesworth J); [91] (Stewart J).

    [59] Ibid at [67] (Charlesworth J); [104] Stewart J).

26. Adopting the language of Stewart J, the content of the expectations of the Australian community expressed in paragraph 13.3 is:

    If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.[60]

    [60] FYBR at [101]; see to similar effect [75] (Charlesworth J).

27. The effect of paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion.[61]

    [61] See YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76] and [77], see also FYBR at [75] (Charlesworth J).

28. The weight to be attached to this consideration is a matter for the decision-maker to decide.[62]

    [62] Ibid at [76] – [77] (Charlesworth J), [102] (Stewart J).

29. Taking into account the principles in paragraphs 6.3(2) and (3) of Direction 79, and Mr Lines’ history of domestic violence and repeated breaches of domestic violence orders, and the potential consequences of further reoffending, the Australian community would expect that Mr Lines should forfeit the privilege of staying in Australia and his visa be cancelled.

30. This consideration weighs heavily against revocation.

    Other considerations

31. There are five “other considerations” specified in Direction 79.[63] Mr Lines’ concerns about returning to New Zealand do not engage Australia’s non-refoulement obligations, which is the first other consideration.[64]

    Strength, nature and duration of ties

    [63] Direction 79, 14.

    [64] T13/56-57.

32. Paragraph 14.2 of Direction 79 sets out how to consider the strength, nature and duration of a person’s ties to Australia.

33. Mr Lines arrived in Australia in December 2006 as an adult and remained for 11 years and four months until he was deported in April 2018.[65] He committed his first offence in this country in 2011.[66] He claimed to have had worked throughout the time he was in Australia and to have volunteered at homeless shelters and to have helped “[bring] the elderly [back] to life with CPR” when he was a security officer.[67]

    [65] T14/58-59.

    [66] Annexure, Part 1; Direction 79, 14.2(1)(a)(i).

    [67] T13/55; Direction 79, 14.2(1)(a)(ii).

34. Mr Lines was adopted when he was very young. He claimed that his birth mother, auntie and uncle and “all my remaining family members live in Australia and are Australian citizens”.[68] This somewhat contradicts the evidence referred to at [57] above that his sister and children are in New Zealand. His adoptive mother lives in New Zealand.[69] There is no evidence from any of those individuals. The only evidence from his former partner was provided in early 2018. There is no evidence of the impact on her and the children since his removal and the most recent breakdown of their relationship. His friend, Mr McBean did give evidence, as discussed above.[70] He keeps in contact with Mr Lines and is concerned for him as stated at [39] and [40] above.

    [68] T16/67-70.

    [69] T13/53.

    [70] Direction 79, 14.2(1)(b)

35. This consideration weighs slightly in favour revocation.

    Impact on Australian business interests

36. Paragraph 14.3(1) of Direction 79 states:

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

37. Mr Lines incorporated a company in New Zealand on 5 June 2019.[71] He said that it was an online business which produces jandals (footwear also known as thongs in Australia) made from hemp and rubber. They are manufactured in China. The distributors/wholesalers are in Brisbane. He said that it would be nice to see the product before purchase and it would allow him to see his children. He also said that if he could take the business to Australia it would thrive and he would produce the product there. There were no other documents in evidence about the business.

    [71] Exhibit 5.

38. The non-revocation of Mr Lines’ visa would not significantly compromise the delivery of a major project, or delivery of an important service in Australia. No weight is given to this consideration.

    Impact on victims

39. Paragraph 14.4 of Direction 79 addresses the impact of the non-citizen’s criminal behaviour on victims and their family members. Mr Lines’ former partner who was the victim of his domestic violence offences, provided written evidence in 2018. She described their relationship as “loving”. No weight is given to her evidence because it is not objectively correct. She has not provided any evidence since the most recent breakdown of their relationship. No weight is given to this consideration.

    Extent of impediments if removed from Australia

40. Paragraph 14.5 of Direction 79 addressed the extent of impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards generally available to other citizens.

41. Mr Lines is 41 years old. He is an insulin dependent diabetic. There is no suggestion in the evidence that he is unable to receive appropriate treatment and medication in New Zealand.[72] He did not claim to suffer any language or cultural barrier in New Zealand.[73] He did claim that he would have limited employment opportunities and suffer “relationship hardship”. In relation to the latter, the relationship with his former partner has ended. He said that he has no contact with her. He said that he has telephone contact with the two children. He has resumed contact with his friend Mr Cook. He said that he sees his adoptive mother from time to time. An At-Risk Assessment Report from Queensland Corrective Services dated 22 March 2018, before he knew that his visa had been cancelled, stated that Mr Lines said that as a New Zealander he would not get any governmental benefits in Australia, which is why he is planning to eventually move to New Zealand where his family members are residing.[74] In a further report dated 28 March 2018, Mr Lines stated that his mother, sister and his children reside in New Zealand.[75] He has been employed since May 2018, the month after he returned to New Zealand. At the time of the hearing, Mr Lines seemed to have resumed a settled life in New Zealand. As a New Zealand citizen, Mr Lines can access the health care and social welfare assistance available to any other citizen.[76]

    [72] Direction 79, 14.5(1)(a).

    [73] Direction 79, 14.5(1)(b).

    [74] ST5/287.

    [75] ST5/289.

    [76] Direction 79, 14.5(1)(c).

42. This consideration does not weigh in favour of revocation. It is neutral.

    Conclusion

43. For the above reasons, the considerations in favour of revocation are heavily outweighed by the considerations against revocation. There is no other reason why the mandatory cancellation of Mr Lines’ visa should be revoked.

    Decision

44. The reviewable decision made on 18 July 2019 by the delegate not to revoke the mandatory cancellation of Mr Lines’ Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Dated: 27 August 2020

Date(s) of hearing:	15 January 2020
Applicant:	By telephone
Solicitors for the Respondent:	Ms J Harris, Sparke Helmore Lawyers

ANNEXURE

Part 1

Australian Police Record
Court date	Offence date	Offence	Sentence
07 Dec 2011 (Brisbane Magistrates Court)	18 November 2011 18 November 2011	Possessing dangerous drugs Possess utensils or pipes etc. that had been used	On all charges no conviction recorded. Recognisance: $150. Good behaviour period: 4 months Drug diversion.
08 Jan 2014 (Brisbane Magistrates Court)	15 November 2013 8 November 2013 8 November 2013	Contravene direction or requirement Possess utensils or pipes etc. that had been used Possessing dangerous drugs	No conviction recorded. Fined: $110 No conviction recorded. Fined: $220 No conviction recorded. Fined: $330
17 Feb 2014 (Beenleigh Magistrates Court)	15 February 2014 15 February 2014	Possessing dangerous drugs Possess utensils or pipes etc. for use	On all charges no conviction recorded, not further punished.
17 Apr 2014 (Brisbane Magistrates Court)	17 April 2014	Breach of Bail Granted condition	Conviction recorded, fined: $500
28 May 2014 (Brisbane Magistrates Court)	25 March 2014 4 May 2014 4 May 2014	Assume designation or description of police officer Breach of Bail Granted condition Assault or obstruct police officer	On all charges as a result of re-opening of sentence refer to entry dated 08.05.15. Conviction recorded. Fined: $700
29 May 2014 (Brisbane Magistrates Court)	28 May 2014	Breach of Bail Granted condition	Conviction recorded. Fined: $700
27 Jun 2014 (Beenleigh Magistrates Court)	1 January 2014 15 February 2014 25 March 2014 25 March 2014 20 April 2014	Contravention of domestic violence order Contravention of domestic violence order Contravention of domestic violence order Breach of Bail. Granted condition Breach of Bail. Granted condition	On all charges no conviction recorded. Fined: $1,000
08 May 2015 (Brisbane Magistrates Court)	(refer to entry at court date 28 May 2014)	Re-opening of sentence imposed on 28 May 2014 (re: assume designation or description of police officer, breach of Bail Granted condition, assault or obstruct police officer)	On all charges result of sentence being reopened: original fine imposed, no conviction recorded. Fined: $700
19 Aug 2015 (Brisbane Magistrates Court)	29 May 2015 – 4 June 2015	Contravention of domestic violence order	No conviction recorded. Probation period: 18 months
4 Mar 2016 (Brisbane Magistrates Court)	29 January 2016	Stealing	Conviction recorded. Fined: $1,000
14 Oct 2016 (Brisbane Magistrates Court)	8 June 2016 25 March 2016 8 February 2016 – 27 March 2016	Contravention of domestic violence order (aggravated offence) Commit public nuisance Using a carriage service to menace, harass or cause offence	Conviction recorded, sentenced 6 months’ imprisonment concurrent Parole release date 14 Oct 2016. On all charges conviction recorded, sentenced to the rising of the court
15 Jun 2017 (Brisbane Magistrates Court)	5 Nov 2016 7 October 2016	Contravention of domestic violence order (aggravated offence) Possess utensils or pipes etc for use	Conviction recorded, sentenced 4 months’ imprisonment suspended for 18 months concurrent Conviction recorded. Fined: $300
20 Sep 2017 (Brisbane Magistrates Court)	1 Sep 2017	(re: breach of order imposed on 15.06.17) Possessing dangerous drugs	Suspended sentence extended for 6 months concurrent Conviction recorded, probation period: 7 months
20 Feb 2018 (Brisbane Magistrates Court)	13 Nov 2017 14 Nov 2017 21 Dec 2017 21 Dec 2017 8 July 2017 28 August 2017 11 October 2017 12 October 2017 10 December 2017 (refer to entry at court date 20 September 2017)	Stealing Possessing dangerous drugs Possessing dangerous drugs Possess utensils or pipes etc. that had been used Contravention of domestic violence order (aggravated offence) Contravention of domestic violence order (aggravated offence) Contravention of domestic violence order (aggravated offence) Contravention of domestic violence order (aggravated offence) Contravention of domestic violence order (aggravated offence) (Re: breach of order extended on 20.09.17)	On all charges conviction recorded, sentenced to 1 month imprisonment concurrent. Declared time spent in pre-sentence custody be deemed as time already served. Parole release date: 20 Apr 2018. On all charges conviction was recorded, sentenced to 12 months’ imprisonment concurrent. Declared time spent in pre-sentence custody be deemed as time already served. Suspended sentence fully invoked concurrent – parole release date 20.04.18

Part 2

New Zealand Police Record (excluding traffic convictions)
Court date	Offence date	Offence	Sentence
28 Apr 1999 (Nelson District Court, NZ)	23 Jan 1999	Obstruct/Hinder Police	Convicted and Discharged
23 Oct 2001 (Nelson District Court, NZ)	6 Oct 2001	Contravenes Protection Order – No Firearm	Convicted and Sentenced: Fined - $250