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

LKTG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1343 (17 May 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1250
Re:LKTG
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:17 May 2021
Place:Sydney

The reviewable decision made on 22 February 2021 is set aside and in substitution, the decision is made that there is another reason why the mandatory cancellation of the Applicant’s Subclass 444 (Special Category) visa should be revoked.
...........................[sgd].............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – whether there is another reason to revoke the visa cancellation – Direction No. 90 – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties – extent of impediment if removed – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Angell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 862
Jal v Minister for Immigration and Border Protection [2016] AATA 789
FYBR v Minister for Home Affairs [2019]FCAFC185
SECONDARY MATERIALS
Direction no. 90 – 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
17 May 2021
Introduction

LKTG (the Applicant) is a citizen of New Zealand where he was born in 1973. He arrived in Australia with his partner and four children in April 2013 when he was 39 years old. They have had another son who was born in Australia.
The Applicant is seeking to have the mandatory cancellation of his visa revoked. The reviewable decision was made on 22 February 2021 by a delegate of the Minister (the Respondent) who refused to exercise the power to revoke the mandatory cancellation under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). Currently the Applicant is an unlawful non-citizen in immigration detention.
The Applicant’s visa was subject to mandatory cancellation pursuant to s 501(3A) of the Act because he was serving a sentence of imprisonment on a full-time basis in a custodial institution and failed the character test set out in s 501(6) of the Act because he had been sentenced to a term of imprisonment of more than 12 months (ss 501(6)(a) and (7)(c)), having been convicted of sexual intercourse without consent on 22 July 2019 and sentenced to a term of imprisonment of two years and three months, with a non-parole period of 15 months.
The Respondent’s Department notified the Applicant of the mandatory cancellation of his Subclass 444 (Special Category) visa in a letter dated 11 December 2019. He requested that the cancellation be revoked in accordance with the invitation to do so and made representations that the cancellation should be revoked.
The issues
Section 501CA(4) of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under s 501(3A) of the Act. They are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:
(i)the Applicant made representations in accordance with the invitation issued under s 501CA(3);[1] and
(ii)the Applicant passes the character test (as defined in s 501(6));[2] or, if the Applicant does not pass the character test, that there is another reason why the cancellation decision should be revoked.[3]
[1] The Act s 501CA(4)(a).
[2] The Act s 501CA(4)(b)(i).
[3] The Act s 501CA(4)(b)(ii).
The Applicant made representations as required by s501CA(4)(a) of the Act.
It is not in dispute that the Applicant does not pass the character test. The issue to be decided is whether there is another reason why the original decision should be revoked.
Direction 90
The Minister has given written directions pursuant to s 499(1) of the Act in Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90) which came into effect on 15 April 2021. That is the Direction which must be applied in this case. The reviewable decision was made when the previous Direction 79 was in force.
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, with respect to important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia
(3) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel the visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by Visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conned conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Section 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary consideration should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Each relevant consideration will be addressed in turn.
Primary considerations
Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Direction 90 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.[4]
[4] Section 8.1(1).
Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Following is consideration of the nature and seriousness of the Applicant’s conduct to date. Serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.[5]
[5] Direction 90, paragraph 4(2).
On 1 September 2018, while intoxicated, the Applicant committed the offence of sexual intercourse without consent on a couch in the garage of the home he shared with his partner and children. The victim was a friend of the Applicant and his partner with whom they had socialised for about five years. The three of them had been drinking. Expert evidence summarised in the agreed facts before the sentencing judge found that the victim’s blood alcohol concentration would have been .263 at about the time of the offence, meaning she would have been significantly affected to the extent that her cognition was compromised.
The agreed facts show that the victim realised that she had been sexually assaulted after she woke up and found she had no clothes on from the waist down. While she was getting dressed, the Applicant walked in and the victim asked him “What have you done?” The Applicant responded: “You know I’ve always liked you”. She left the premises by taxi.
The Applicant’s partner and five of his children and the partner of his daughter were in the house at the time of the offence.
After the offence, the Applicant continued to run his business until 22 July 2019 when he was sentenced to imprisonment for two years and three months which commenced on that day and ends on 21 October 2021. He was released on parole from gaol and taken into immigration detention on 21 October 2020.
Sexual crimes are viewed very seriously by the Australian Government and the Australian community.[6] The Respondent did not contend that it was a crime of a violent nature against a woman which is viewed very seriously by the Australian government and the Australian community regardless of the sentence imposed.[7] (Emphasis added.) The sentence for sexual crimes is relevant and is therefore to be taken into account in this case.[8]
[6] Direction 90, section 8.1.1(1)(a)(i).
[7] Direction 90, section 8.1.1(1)(a)(ii).
[8] Direction 90, section 8.1.1(c).
The sentencing judge noted that the Applicant had pleaded guilty at an early opportunity and that it was his first time in custody. He accepted that the offence was below the mid-range of objective seriousness, noted that the victim’s vulnerability due to her intoxication was an aggravating factor, and that the mitigating factors included the plea of guilty, the expression of remorse, the good prospects of rehabilitation, the fact that the Applicant was unlikely to reoffend, and prior good character. The sentence of two years and three months imprisonment with a non-parole period of 15 months was imposed.
The maximum sentence for the offence is 14 years’ imprisonment with a standard non-parole period of seven years. A custodial sentence is a penalty of last resort in sentencing, as observed in Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]. However, the sentence imposed is less than a sixth of the maximum sentence.
The Applicant’s position expressed in the Statement of Facts, Issues and Contentions was that he “cannot and does not deny the seriousness of his conduct in engaging in sexual intercourse with a woman who was vulnerable due to her intoxicated state and who had not consented to take part in sexual intercourse”.[9] He is very remorseful.
[9] Paragraph 29.
The Applicant committed the offence about five years and five months after he arrived in Australia.
On 3 September 2014, the Applicant was convicted in a Local Court of Drive, licence suspended under s 66 Fines Act – 1^st off for which he was fined $600 and disqualified from driving for three months. When stopped by police the Applicant had produced his New Zealand licence. According to the Facts Sheet, he had admitted knowing that his NSW driver’s licence was suspended. He told the Tribunal that he made the admission after the police told him it was suspended and was not arrested. That he produced his New Zealand licence suggests that he was aware that his NSW licence was suspended.
The Applicant demonstrated a lack of respect for the law when he committed the offence. It was committed about 18 years after his last offence which occurred in New Zealand and less than 18 months after arriving in Australia.
The Applicant’s New Zealand Police Criminal History Report dated 12 November 2020 records three criminal convictions between April 1994 and January 1996 when the Applicant was 21 to 22 years old. In chronological order they were Wilful Damage, for which the Applicant was fined $150 and reparation of $200; Obstruct/Hinder Police for which he was fined $150, and a traffic conviction for Breath Alcohol Level over 400 Mcgs/Litre of Breath Blood/Breath = 422 for which he was fined $500 and disqualified from driving for six months.
Although the Respondent set out those offences in its Statement of Facts, Issues and Contentions, it did not rely on them in the section considering the protection of the Australian community. At the hearing, the Applicant was cross-examined about them in some detail. I accept that the Applicant showed a willingness to give false information to law enforcement in respect of the obstruct/hinder police charge.
The Applicant’s offending has not been frequent since 1996 and there is not a trend of increasing seriousness.[10] One very serious offence in Australia after the driving offence in 2014 does not constitute a “trend” of increasing seriousness. That finding is supported by the sentencing judge’s comment that a mitigating factor was the Applicant’s “prior good character”.
[10] Direction 90, section 8.1.1(1)(d).
I do not consider that the three offences in New Zealand 25 years ago, the driving offence in 2014 and then the very serious sexual intercourse without consent offence in 2018 fall into the category of “repeated offending” or give rise to a “cumulative effect of repeated offending” to which I must have regard.[11] However, if that is incorrect, I give this consideration very little weight.
[11] Direction 90, section 8.1.1(1)(e).
Section 8.1.1(1)(f) of Direction 90 requires a decision-maker to take into account whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The Applicant did not disclose his previous criminal convictions in landing cards on 13 April 2013 and 28 April 2015 when he ticked “No” in response to the question on his Incoming Passenger card “Do you have any criminal convictions?”. The 28 April 2015 landing card was filled out after the 2014 driving conviction in Australia.
During the hearing, the Applicant said that he thought he had no criminal convictions. I give little weight to his failure to disclose his New Zealand convictions given the length of time since the convictions and the monetary penalties imposed, other than the driving disqualification period. In relation to the 2014 driving conviction, the Applicant emphasised that he was not arrested. I infer that he did not consider that it was a serious matter unless he was. The Applicant is neither well-educated nor sophisticated. His education ended at the age of 13. That should not be held against him. I give little weight to his failure to disclose the convictions on his Incoming Passenger cards.
On 3 February 2021, the Applicant was in a verbal and physical altercation with another detainee in immigration detention. The incident report stated that the Applicant appeared to push the other detainee with an open hand and the other detainee was attempting to strike the Applicant in the neck area and both appeared to be in a fighting stance with closed fists. They were separated by officers. The Applicant had claimed that he was provoked by the other detainee who was staring at the Applicant for no known reason. In his supplementary statement dated 30 April 2021, he stated that the other detainee was aggressively trying to jump the queue at the hairdressers when the Applicant was next in line. The other detainee banged on the window and shouted at the hairdresser. He kept staring at the Applicant and just asked to be left alone but the other detainee kept staring at him, was clearly under the influence of some substance, looked as though he was going to swing at the Applicant who clenched his fists in response. The officers arrived and the Applicant sat down. At the hearing, the Applicant accepted that he did push the other detainee in the chest area using the open palm and claimed that he was provoked as described in his supplementary statement. The Applicant claimed that he was asked if he wanted to press charges but declined. There is no evidence that any charges were laid. I do not consider that the Applicant’s conduct was serious or very serious. It was a minor incident. It does not fall within the conduct specified in section 8.1.1(1)(b)(iv) of Direction 90. I give this conduct no weight.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Direction 90 requires me to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[12]
[12] Section 8.1.2(1).
Section 8.1.2(2) of Direction 90 requires me to take into account:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)Information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Respondent contended that the nature of the harm caused if the Applicant were to re-offend is “extremely serious and is likely to involve significant physical and psychological harm to members of the Australian community such that any risk of re-offending is unacceptable”, relying on Angell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 862 at [24].
The circumstances in that case were very different. The preceding and first sentence of paragraph 24 in Angell was:
The applicant has been found guilty of several violent offences and there would be serious consequences should such offending be repeated, particularly since the applicant’s criminal conduct has included violence against a vulnerable victim and convictions of a violent and sexual nature against women. (Emphasis added.)

Mr Angell had been sentenced to a total of more than 19 years of imprisonment for his convictions and had served 7 years and 9 months.[13]
[13] At [15].
The Applicant has committed one offence for which he was sentenced to imprisonment for two years and three months. He served 15 months. The Respondent did not contend that it was violent. The case of Angell is not of assistance. The Respondent did not provide or rely on evidence about the impact on other potential victims of a similar offence to that the Applicant committed. The sentencing judge did refer to the impact on the victim:
She was taken to hospital and spoke to Police. She was asked whether it felt like there was penetration to which she replied “Yes”. She was upset and clearly crying. On examination there was an area of tenderness near the entrance to the vagina and there was a discharge. DNA swabs confirmed that the offender had been involved.
I infer that the victim was likely to have suffered psychological harm as well as minor physical harm. I cannot speculate as to the seriousness of the psychological harm. The nature of the harm to individuals should the non-citizen engage in further criminal conduct would be psychological harm, the extent of which would depend on the individual’s response, and minor physical harm.
The sentencing judge in the District Court of NSW found that the Applicant is unlikely to re-offend and his prospects of rehabilitation are good.
The Applicant claims to be rehabilitated, including that he has provided certificates which demonstrate that he has completed courses in relation to drug and alcohol dependence and anger management. The Respondent pointed out that the certificates include no information about the nature of the content of the courses to demonstrate that the courses are appropriate to rehabilitate the applicant, the total contact time of the three short courses was 22 hours, and asserted that that is not a significant investment of time given the length of time the applicant has spent incarcerated and in detention. Ms Julie Dombrowski, clinical forensic psychologist, said that the courses are generic. I infer that the courses would not be offered if they were of no assistance and that the Applicant has done what he could in the circumstances of imprisonment and detention. He conceded that he had not had any alcohol counselling after the offence before being sentenced.
The Applicant has stated that there is no risk of reoffending in his statement because he no longer consumes alcohol and does not plan to consume alcohol when released from detention, and he has renewed his Christian faith. He claimed that he did not drink alcohol after the sexual offence. I accept that there is no independent evidence before the Tribunal to support his claims. I accept that since he was sentenced, he has been in controlled environments in prison and immigration detention where alcohol is not readily available and he has not been tested in the community. He has completed an alcohol course. There is no evidence about what that course entailed or what outcomes attendees should have achieved. Again, I infer that the course would not be offered if it were of no assistance and that the Applicant has done what was available to him.
Ms Dombrowski concluded that the Applicant poses a relatively low risk of recidivism – sexual and non-sexual. Paragraph 29 of her report states:
[The Applicant’s] risk of recidivism (sexual and non-sexual) is relatively low. Only 4.6% of the normative sample with the same risk profile on the Static-2002R re-offended sexually over five years. Of the offenders with the same risk profile on the SAQ, 29.47% committed nonviolent offences and 5.26% committed a violent offence within a five-year period.
During cross-examination she said that there were no validated studies for a period of more than five years.
She noted that a number of the factors which resulted in the Applicant’s ratings were ‘static’, meaning not capable of being changed. They included his criminal offences in New Zealand. She noted that he is “not an inherently anti-social individual” and “does not have a problem with anger”. Her report found that “there was no evidence of difficulties with sexual self-regulation or a specific interest in coercive sexual contact”.
Ms Dombrowski reported that the Applicant demonstrated confusion regarding issues of consent, which was a common treatment target to reduce sexual recidivism in sex offender-specific treatment. During his oral evidence the Applicant said that he thought the victim said yes.
In his statement dated 1 April 2021, the Applicant stated:
50. On the night of the party in 2018, I was very drunk at the time. [My partner’s] friend was very intoxicated. In my mind I thought she had consented to sex. But I know now his was completely wrong on my part and resulted in trauma to her, and had devastating effects on her and on my relationships.
51. Looking back on it, I am ashamed…I don’t know why sleeping with a woman who was in no position to consent was a good idea.
Ms Dombrowski stated in her report:
His risk of recidivism can be further reduced through participation in sex offender-specific treatment. Treatment should be aimed at exploring the factors that allowed him to overstep moral and legal boundaries in his sexual offending and developing useful relapse prevention strategies. He has already completed some substance use programs to better control his use of alcohol and cannabis (i.e., ‘Understanding Addiction’ and ‘Drug and Alcohol 101’). However, he is yet to reside in the community (where alcohol and cannabis are freely available) since completing these programs. Alcohol and Other Drug (AOD) counselling should be initiated if he is unable to maintain his abstinence or regulate his use upon his return to the community. Treatment will need to be culturally sensitive. Psychosocial factors (e.g., prosocial peer/familial support, housing, return to employment) will also need to be managed to support his rehabilitation.
During her oral evidence, Ms Dombrowski said that the ideal treatment would involve a six-month program for sex offenders, which he could access weekly. She knew of several practitioners who operate out of the city where he would live after his parole ended, his partner having moved there with the children after the offence to get support from her brother and a cousin. Ms Dombrowski was aware that NSW Corrective Services provided some group-based programs for offenders but was not aware whether they were offered in the area in which he would live with his oldest son while on parole if released into the community from detention.
The Applicant’s oldest son was born during a previous relationship and they have had little contact since he was five years old. However, they have reconnected during the last 12 months and I accept that he is genuine in his offer to have the Applicant live with him, his partner and children for the five and a half months of his parole.
Ms Dombrowski also recommended a three-month course about alcohol and substance abuse, that the Applicant monitor his substance abuse, which includes cannabis, and seek drug and alcohol counselling in the event of a relapse. His partner said that she would not have alcohol in the home.
In his statement dated 30 April 2021, the Applicant acknowledged Ms Dombrowski’s comments about his confusion regarding issues of consent and her recommendations that he complete a sex offender specific and substance abuse treatment to reduce the risk of sexual recidivism. He understood that once he moves interstate to be with his family, he would be responsible for making contact with supports and services. He also set out his understanding of what will happen when he is released on parole and goes to live with his son. He stated that he will do “whatever it takes” to be with his family.
The expense of the private treatment Ms Dombrowski referred to would be considerable and raises a question mark about his and his family’s capacity to fund it. He and his partner have four sons to support. She has been forced to work five days a week up to 12 hours a day since the Applicant’s incarceration. He intends trying to re-establish his business. If he does, or finds other employment, there is a question of how he would schedule such treatment into his working life. However, the history of both the Applicant and his partner is of hard work and determination to do the best they can for their family. They believe those measures are necessary. I accept they will work hard to get the recommended treatment for the Applicant because it is for the welfare of their family.
It was clear from the evidence of his partner and his oldest son that neither had made inquiries about the availability in their respective cities of the courses Ms Dombrowski had recommended. I do not draw any adverse inference from that fact. Both are very busy working to provide for their families. The Applicant’s move to be with his family is more than five months away. There is no suggestion that his son or partner are experienced in providing evidence in a court or tribunal setting. I accept that they would make those enquiries if the Applicant were released into the community.
The Applicant’s partner, daughter and oldest son will provide support to assist his rehabilitation to the best of their ability, including providing accommodation, and in the case of his oldest son, helping him find employment while he is on parole. The Applicant has always worked hard to support his family. His partner is working hard. His daughter has returned to work after giving birth to her first child in May 2020. I have no doubt that the Applicant will strive to find employment. While the Applicant referred to some friends in various locations, the evidence is clear that the family is family focussed. The Applicant’s family is the centre of his world. His 2018 offence and the consequences have been devastating for them all which has made them all, including the Applicant, who is very remorseful and ashamed, and determined to do everything they can to ensure there is no reoffending.
I conclude that the protection of the Australian community weighs moderately in favour of non-revocation of the mandatory visa cancellation.
Family violence committed by the non-citizen
The second primary consideration is whether the conduct engaged in constituted family violence.
There is evidence of one incident of family violence by the Applicant. On 7 December 2016 a Provisional Apprehended Domestic Violence Order (ADVO) was made and served on the Applicant (the POI) with respect to his daughter (the PINOP). A final order was made on 12 December 2016 for a period of 12 months, by consent, with no admission. The Applicant’s daughter is now 20 years old. She was 15 at the time of the incident.
The police report recorded the following. The Applicant’s daughter took the Applicant’s Ipad from his bedroom drawer on 1 December 2016 and used it until 2 December 2016 when it fell onto the bathroom floor, smashing the screen. About 6 am Monday 5 December, the Applicant went to his daughter’s bedroom, woke her, verbally abused her, demanded the return of the Ipad, instructed her to leave the room while he searched for it, which she refused to do. He eventually left the room. She put the Ipad in her school bag to conceal it from the Applicant until it could be repaired. It was later located by the Applicant’s partner. About 8 pm on 6 December 2016, the Applicant’s daughter returned home from touch football. The Applicant was sitting in the lounge room. He stood up, approached his daughter who was standing just inside the doorway, and asked what she did to his Ipad. She replied “Sorry”. The Applicant got up close to his daughter’s face and began to verbally abuse her about the broken Ipad. The Respondent relied on the following from the police record:
During the verbal argument, the POI struck the PINOP using his hand to the left side of her head. It is unknown if the POI used an open or closed fist to assault the PINOP. The POI struck the PINOP on three occasions.
The Applicant instructed his daughter to go to her room and clean it. She returned to her room and packed items of clothing into a bag, climbed out of her bedroom window and sought refuge at a neighbour’s address. The Respondent relied on the next part of the report:
The PINOP felt extremely distressed and upset as a result of the incident. The PINOP was fearful that the POI may attempt to assault her further.
In her Supplementary Statement dated 22 April 2021, the Applicant’s daughter said that she remembered breaking the Applicant’s Ipad when she dropped it on the bathroom floor, feeling guilty, and not wanting to tell the Applicant, who did get angry when he found out. She remembered him trying to grab the Ipad from her but did not really remember speaking to the police about the incident. She said she did not remember “putting an AVO on him” and he did not hit her on that day. She was then 15 years old. She had forgotten about the incident until it was mentioned to her recently. At the hearing, she said that did not recall if she told the police that the Applicant hit her.
The Applicant told the Tribunal that the police officer told him that he had to agree to the ADVO. At the time he had just finished work and was tired. He said that he just touched her hair but also said that he told the police he had hit her on the shoulder twice.
I infer that the information in the application for the ADVO reflected what the Applicant had reported rather than the Applicant’s version, although he agreed to the final ADVO being issued. No charges were laid for this incident. There is no record of any physical injury being suffered by the Applicant’s daughter. The Applicant’s evidence was that he used the Ipad to run his removalist business “so it was pretty important”. I accept the Applicant’s description that his daughter was rebellious teenager at the time. It is consistent with the facts.
Relevantly, Direction 90 states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. Those concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[14] Acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed, are viewed very seriously by the Australian Government and the Australian community.[15]
[14] Direction 90, section 8.2(1).
[15] Direction 90, section 8.1.1(1)(a)(iii).
At highest, the incident was an isolated minor incident. I give this consideration little weight in favour of not revoking the visa cancellation decision.
Best interests of minor children
The Applicant and his partner have four minor children who were born in 2007, 2008, 2012 and 2013. There is no dispute that they will be affected if the Applicant returns to New Zealand. They have moved interstate with their mother since the 2018 offence and have settled in there. Their mother has struggled to take care of them and to work. They have been confused by their father’s absence. The Applicant’s oldest daughter said in her oral evidence that her younger brothers do not listen to their mother and are less active in sport than when their father was present. He was very active in sport. His presence in their lives is very important. While the children are well and healthy, I infer that the boys do not listen to their mother and are less active in sport because she is working long hours and is away from them much more than prior to the 2018 offence.
Although not physically present, the Applicant maintains a relationship with the children. While the 2018 offence has been confusing and disruptive for the children, the Applicant is likely to play a very positive parental role in their lives in the future as he did before the 2018 offence, when he is released from detention.
Ms Dombrowski interviewed the children and wrote in her report:
The children all described him in positive terms and demonstrated a fondness and attachment to their father. Each of them indicated a desire to be able to have ongoing physical contact with him. One child even expressed concern for his mother’s wellbeing if their father is deported. I also note the statements by his two eldest adult children who both indicated a desire for [the Applicant] to maintain contact with them and their young children (i.e., his grandchildren).
She set out summaries of what each of the children said about their father which demonstrated the positive relationship they had with their father and his very significant role in their lives in the past and in the present.
While their mother is fulfilling the direct parenting role at the moment, she is struggling and there have been adverse consequences for the children in terms of their behaviour, as discussed above. While I accept that the Applicant may provide economic assistance to his partner and family if he was returned to New Zealand, his physical presence and support is needed by each of his children and his partner to maximise the children’s wellbeing.
During her oral evidence, the Applicant’s partner said there would be a huge impact if the Applicant returned to New Zealand. She said that they will have to uplift the family and go back as well. Then she said, probably not, they are settled here. She then said that it would be more important to be with their father. I infer that she has not really thought about it before. I infer that Applicant’s partner or both of them, have not made a decision about what they will do if the Applicant returns to New Zealand. His partner has managed, although struggling, to make a new life interstateand the children are settled. She moved interstate because she had the support of a brother and cousin there. The Applicant’s partner and children may or may not return to New Zealand. There is also a question about whether their daughter, her partner and grandchild would move as well. The family of the daughter’s partner live in Australia. If they were to stay, that may be a factor the Applicant and his partner would take into account in making a decision.
A further question is whether the family could afford to move back to New Zealand. The Applicant told Ms Dombrowski that he could not afford to relocate them.
If the Applicant’s partner remained in Australia with the children, they would not have physical contact with their father. It is true that they could continue the contact they have with him now by telephone or other technological means, but that would certainly not be in their best interests. Given their financial circumstances, visits may not be a real possibility, but would not be a substitute for his daily presence in their lives in any event.
The family moved countries just over seven years ago and about a year ago the Applicant’s partner and children moved within Australia. The disruption of the family following the Applicant’s sentencing and consequently, the move interstate and Applicant’s partner working full-time has adversely impacted on the boys’ behaviour. I do not consider that a further move would be in the best interests of the children at this stage of their lives, having settled in following the recent move.
Ms Dombrowski wrote:
In my opinion, the [redacted] family presents as a close and loving family unit. I understand that the concept of family, maintaining family relationships and close kin connection (whanaungatanga) carries great cultural significance for [the Applicant] and his family. Obviously, the children will not be able to maintain regular physical contact with their father and these connections (whanaungatanga) will be disrupted should he be deported.
Both the Applicant and his partner expressed concern that if the children returned to New Zealand, they may get involved in gangs. The Applicant’s estranged older abusive brother has been involved in a gang. There is no significant risk that he will be in contact with the children. The Applicant said getting away from gangs and protecting their boys from contact with gangs, was one reason for leaving New Zealand, as well as wanting to work. Neither the Applicant nor his partner was a member of a gang. They do not want the boys to get involved in a gang.

A comprehensive analysis was set out in Youth gangs in New Zealand, published in December 2019 by the Parliamentary Service of New Zealand. The analysis supports a finding that the family are from an economic and cultural background where there would be a reasonable risk of gang membership for the boys particularly from the ages of 10 to 23 years. It would be in their best interests not to be exposed to that possibility.
I do not accept that there is a real risk that the Applicant will commit family violence on any child. For the reasons given above, the incident with his daughter was minor and the only such incident.
The best interests of the Applicant’s four sons weigh very strongly in favour of revocation of the visa cancellation decision.
The Applicant also has three grandchildren, two are the children of his oldest son, and the other is his daughter’s child. He has not met his son’s children. He will if the visa cancellation decision is cancelled and he lives with them for about five and a half months. He will not if he returns to New Zealand but may have contact with them by telephone or other technological means. If he returns to be with his family interstate, his contact would be similar but there may be visits. His son expressed a desire to visit the Applicant if he returned to New Zealand, but work constraints were a consideration. The Applicant does not play a parental role to those children. I give some weight to their best interests being served by the Applicant remaining in Australia.
The Applicant’s daughter has a son who was born in 2020 whom he has not met. His daughter, her partner and their son live with the Applicant’s partner and sons. He does not play a parental role in that child’s life. However, if he remains in Australia, I am satisfied that he will play an important role in the child’s life as a grandfather. If the Applicant returns to New Zealand, the child will be deprived of that opportunity. Non-physical contact will be possible by telephone or other technology. His daughter expressed a desire to visit her father but she had concerns about work and financial means to do so. The best interests of the child would be served by the Applicant remaining in Australia.
Cumulatively, the best interests of the above children weigh very strongly in favour of revocation of the visa cancellation decision
Expectations of the Australian Community
Section 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. The direction further states that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
The Full Court of the Federal Court of Australia considered clause 11.3(3) of Direction 65, which is analogous to clause 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension clause 8.4) 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. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
The question for the decision-maker is the weight to be attached to this consideration.
The Applicant has failed to meet the expectations of the Australian community to abide by Australian law, having regard to the principles outlined in the Direction and the seriousness of the Applicant’s offending. He has engaged in a sexual crime against a female which is considered to be serious. The Australian community expects that individuals that engage in this type of conduct should have their visa cancelled.[16]
[16] Direction 90, clause 8.4(2)(a) and (c)).
Taking into account all of the Applicant’s conduct, and the fact that he committed one serious crime and has a low risk of reoffending, the expectations of the Australian community weigh moderately against revocation.
Other considerations
Extent of Impediments if removed
The evidence does not demonstrate that the Applicant would face any significant impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens) if removed from Australia to New Zealand, taking into account the matters set out in Direction 90.[17] He left the country seven years ago. The evidence does not suggest that his health is an impediment. There are no substantial language or cultural barriers. The social, medical and economic support available to him would be similar to that available to him here.
[17] Section 9.2.
This consideration is neutral.
Strength, nature and duration of ties in Australia
The Applicant arrived in Australia aged 39 in 2013 with his partner and four children. Their fifth child was born after they arrived. He has very strong ties with his partner of 24 years and each of those children. He has worked hard to ensure they have the benefit of an education that he did not have. His daughter has a partner and a child. They live with the Applicant’s partner and the four boys. His oldest son, his partner and two children live in Australia. The Applicant has reconnected with his oldest son in the last year. The Applicant’s first offence in Australia was committed in 2014. His second offence was in 2018. He contributed positively from the time he arrived until sentenced in 2019 by working hard and coaching and refereeing touch football in his local area.
He would live with his partner and children after ending his parole period in October this year. If he returns to New Zealand his partner and four boys may or may not return too.
The Applicant’s sister and her family live in with four children in the city where his partner and children live. As young children, he and she were subjected to physical abuse by their older brother. The Applicant lived with his sister for four years while under 18. They remain close, particularly now their parents have passed away.
The Applicant’s evidence about friends was vague.
This consideration weighs slightly in favour of revocation of the visa cancellation decision.
Conclusion
The best interests of the Applicant’s minor children and grandchildren and the strength, nature and duration of ties to Australia outweigh the considerations that weigh against revocation of the mandatory cancellation of his visa.
DECISION
The reviewable decision made on 22 February 2021 is set aside and in substitution, the decision is made that there is another reason why the mandatory cancellation of the Applicant’s Subclass 444 (Special Category) visa should be revoked.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................
Associate
Dated: 17 May 2021

Date(s) of hearing: 6 & 7 May 2021

Date final submissions received: 7 May 2021

Solicitors for the Applicant: K Wrigley, Legal Aid

Solicitors for the Respondent: K Cooke, HWL Ebsworth Lawyers

[2021] AATA 1343

17 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	6 & 7 May 2021
Date final submissions received:	7 May 2021
Solicitors for the Applicant:	K Wrigley, Legal Aid
Solicitors for the Respondent:	K Cooke, HWL Ebsworth Lawyers