Lum and Minister for Home Affairs (Migration)

Lum and Minister for Home Affairs (Migration) [2019] AATA 935 (17 May 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1355
Re:Shea Lum
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis

Date:17 May 2019
Place:Brisbane

The decision under review is affirmed.
............................[SGD]............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of visa on character grounds – Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – sentenced to 12 months’ full time imprisonment – whether there is another reason why the mandatory cancellation decision should be revoked – application of Primary and Other Considerations in Direction No 79 – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Police Powers and Responsibilities Act 2000 (Qld)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
17 May 2019
INTRODUCTION AND BACKGROUND

Mr Shea Lum (“the Applicant”) is a 33 year old New Zealand citizen. Movement records indicate that the Applicant was granted a Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”) on his last arrival into Australia in January 2004.[1]
[1] Exhibit 2, s 501G-Documents, G15, pages 85 and 86. It must be noted that the Applicant first arrived in Australia in September 1988 and had periods of absence from Australia up until he was granted the subject visa in January 2004. The Applicant has not departed from Australia since the grant of the subject visa.
The Applicant has a lengthy criminal history in Australia which first began in 2000. The offending was multi-faceted in nature, continuous and cumulated for a period of 16 years when he was sentenced to a term of five years’ imprisonment on November 2017.[2]
[2] Ibid, G10, pages 56-61.
While serving the term of imprisonment, a delegate of the Minister, pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 19 December 2017 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.
On 21 December 2017, the Applicant wrote to the Minister’s department requesting a revocation of the decision to mandatorily cancel his visa. The delegate of the Minister decided on 22 February 2019 not to revoke the cancellation of the subject visa.
The Applicant lodged an application with this Tribunal on 3 March 2019 seeking a review of the abovementioned decision dated 22 February 2019 not to revoke the cancellation of his visa. The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]
[3] [2018] FCAFC 151.
[4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a) Whether the Applicant passes the character test; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[5] I will address each of these grounds in turn.
[5] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, either conceded or otherwise readily accepted that his offending was both extensive and serious. There was no significant objection raised to the Respondent’s contention that he did not pass the character test. There is no getting around his criminal history and, in particular, there is no getting around the sentence imposed by the Townsville District Court on 16 November 2017 involving, for only two out of the seven convictions, the imposition of respective custodial terms of five years (for Robbery with actual violence) and two years (for Dangerous operation of a motor vehicle while affected by an intoxicating substance)
It should be noted that although the head custodial term was five years and the Applicant was ordered to be eligible for parole approximately seven months after the date of the sentencing, the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[6]
[6] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416. Note: on the date of his sentencing (16 November 2017), the Applicant had already served 376 days in pre-sentence custody. The sentencing judge (His Honour Judge Smith) stated that the relevant pre-sentence period comprising the 376 days ran from 5 November 2016 until 15 November 2017. His Honour declared that 376 day period as time already served under the sentence imposed on 16 November 2017.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application[7]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[8]
[7] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[8] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
“Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[10]
[9] [2018] FCA 594.
[10] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the abovementioned principle that (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending history can be gleaned from his National Police Certificate, which appears in the material.[11] The Applicant also has a quite extensive traffic history involving a suspension of his driving privileges on no less than nine occasions in a driving history spanning November 2009 to approximately the end of 2018.[12]
[11] Exhibit 2, s 501G-Documents, G10, pages 56-61
[12] Exhibit 3, summonsed material, pages 127-134.
The Nature and Seriousness of the Applicant’s Conduct to Date
In his minimal oral evidence before the Tribunal, the Applicant was clearly cognisant of the very serious nature of his offending. He seemed to appreciate the nature and severity of what he had done and he readily accepted that his offending involved participating in activity that had the potential to cause catastrophic harm to other members of the Australian community.
The Respondent’s contention is that the Applicant’s conduct has been of a very serious nature and that, viewed in totality, cannot be construed in any other way.[13]
[13] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 7, paragraph [27].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status...;
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There are specific episodes in the offending history of the Applicant that are clearly demonstrative of the violent nature of the offences he has committed. In September 2005, the Applicant travelled to the Perisher Blue Ski Resort with other members of a group. The facts of the offending reveal a disturbing story:
“…
LUM did not go snowboarding but decided to drink alcohol.
About 5:30pm, 6pm LUM and the group have returned to their accommodation at Fred Reed Lodge, Barry Way, Jindabyne. The lodge is owned by the NSW Scouts Association. LUM was well affected by intoxication liquor.
At the accommodation LUM has become upset for an unknown reason. He began smashing furniture and other household items in the unit. LUM has threaten [sic] other members of the group with a knife.
LUM has used a knife to put a hole in and dent a [sic] the door of a Fisher and Paykel refrigerator, he also damaged some plastics inside the refrigerator, he has smashed the screen of a NEC TV, he has smashed a glass door in the entertainment unit, he has smashed the glass top of a wooden coffee table, he has damaged a green plastic table and chairs set, he ripped the front screen sliding door of it’s runners, he damaged the front glass sliding door runner and damaged a vertical blind covering the sliding door.
Lum has thrown foodstuff, cutlery, crockery and glasses onto the floor and around the unit. The lodge was stained by foodstuff. Lum also cut his thumb during the outburst, blood was found on the lounge, furniture, floor and walls.
During this outburst the supervisors and other members of the group fearing for their safety have left the unit and stood outside.
About 6:30pm LUM has then left the unit and came [sic] onto the verandah. He then throw [sic] bottles and other items at this group outside his unit.
The unit next door was occupied by [name redacted] his wife and their 4 young children. [name redacted] was on his verandah, LUM has turned and looked at him. LUM said “I’m going to fuckin kill you.” [name redacted] fearing for his safety ran back inside his unit and LUM has throw [sic] knives and forks at him.
The knives and forks have hit the glass door of [name redacted] unit just as he got inside.
LUM has then overturned a BBQ on the verandah outside his unit. BBQ has been damaged. LUM has then thrown the hotplates from the BBQ and a rock at a Holden people mover and Toyota bus belonging to the Salvation Army.
…
The property damaged and cost is as follows: Replace damaged TV and Fridge $2118.00 Replace damaged BBQ, check and repair gas line $779.43 Replace damaged, blood stain and dirty cutlery, crockery and glasses $127.13 Replace damaged vertical blind $754.00, Replace damaged lounge $2149.00 Replace damaged lounge in coffee table and entertainment unit $370.70 Electrical inspection for safety and to see if the electrical goods should be replaced or repaired $220.00 Cleaning inspections and cleaning $3024.00 Management fees to effect repairs, arrange replacement of damaged property and cleaning $3781.00
The total cost is $13,314.26…”[14]
[14] Exhibit 3, summonsed material, pages 121-123.

In October 2009, the Applicant committed a further violent offence at a local McDonalds restaurant. The relevant facts from the Queensland Police Service Court Brief read as follows:
“…
At about 2330 hrs on Saturday the 17^th day of October 2009 the defendant has entered the foyer area of McDonalds and approached the service counter where the victim was serving the defendants companion. The defendant has said to the victim words to the effect of ‘I’ll give you a hand’ and has then climbed onto the service counter and then put his legs over the counter on the kitchen side of the counter. The victim has then approached the defendant and placed the hand on him to stop him coming over and told him to get back on the other side of the counter. The defendants [sic] companion has also attempted to stop the defendant going over the counter before the defendant has pushed the victim with his left hand forcing the victim backwards. The victim has again told the defendant to get over to the other side of the counter
The defendant has then stood up in a threatening manner and has become aggressive towards the victim. The victim has stood back and told the defendant to get out. The defendant has then jumped from the counter onto the victim throwing his right hand out which has struck the victim to the right side of the head and shoulder area. The defendant has then started to argue with McDonalds staff and has then moved in an aggressive and threatening manner towards the victim who had moved back to the far end of the service counter. As the defendant has approached the victim, again the defendant’s companion has reached across the counter and pulled the defendant back over the counter. The defendant has then exited the foyer area of the restaurant.
A short time later the defendant has re-entered the restaurant foyer area dragging a large plastic rubbish bin and has made an attempt to throw the bin at the victim. The victim has seen what was occurring and has moved away. The defendants [sic] companion has then intervened and stopped the defendant from throwing the bin. The defendant has then made an aggressive move towards where the victim was before he was retrained by his companion. The defendant has then left the area.
…”[15]
[15] Ibid, page 2.
On 12 April 2013, the Applicant directly challenged the authority of police officers in a street disturbance that occurred in Townsville. The relevant facts from the Queensland Police Service Court Brief read as follows:
“…
On the 12^th day of April 2013 at 11:30pm police have received information from the Townsville Police communication centre (PCC) to attend in the vicinity of [location redacted] in relation to a street disturbance.
At about 11:40pm on the 12^th day of April 2013 police have attended to the address and have spoke [sic] to an informant who stated that their [sic] was a street disturbance involving their neighbours from number [location redacted].
While at the address the defendant has exited the dwelling and started shouting at attending police, swearing and yelling out ‘Come out here you fucking cunt.’ ‘Come out here and fucking fight me cunt’ describes the incident that occurred earlier in the evening prior to Police arrival.
Police have told the defendant to stop yelling and swearing and to go inside, the defendant has then walked passed [sic] police still swearing extremely loudly. The defendant has stood on the footpath outside of number [location redacted] and called on the occupant of number 3 who was standing inside the front door of his dwelling to come out the front and fight him the whole time the defendant was yelling and calling out in an aggressive manner ‘Come out here you fucking cunt and fight me.’
Police have told the defendant to remove himself from the front yard of number [location redacted] and go back inside his house. The defacto of the deft has then grabbed hold of the deft and started to drag him home and telling him to shut up. After a short period of time the defendant has complied with police instructions and removed him self to the yard of the neighbours dwelling.
Attending Police have utilised the police radio system and called for another Police van unit to attend the address.
…”[16]
[16] Ibid, page 15.
On 29 March 2014, while driving a motor vehicle registered to the name of his then de-facto partner, the Applicant became involved in conduct comprising driving at an excessive speed in an attempt to evade police. The relevant facts from the Queensland Police Service Court Brief read as follows:
“…
Once the defendant entered the right turning lane Police have overtaken the vehicle on the passenger side and pulled up in front of the vehicle in the turning lane where both vehicles have come to a complete stop. Police have exited the control car and again observed the male islander driver being the sole occupant of the vehicle. The defendant in response has slammed the vehicle in reverse at speed to make room to get around the stationery [sic] Police vehicle. There were other vehicles on the road at the take which took evasive action to avoid collision with the defendants’ [sic] vehicle as he performed a manoeuvre reversing back into oncoming traffic. Police jumped back into their patrol vehicle and observed the defendant accelerate at high speed past their patrol car and as he did the defendant yelled out the window “Fuck you”. Police observed a red arrow displayed on the right turning lane. The defendant has ignored the red turning arrow and driven the vehicle at high speed turning right into Allambie lane and again on coming vehicles had to slow down to avoid collision at the intersection.
Police followed the vehicle into Allambie Lane with both lights and siren still sounding, and observed the vehicle accelerate at high speed down that road. It is at this point police have terminated the attempt to intercept stopping their vehicle. Approximately 150metres down Allambie Lane. Police observed the defendants’ [sic] vehicle travel at high speed for another 800metres when it has turned right into a side street and police have lost sight of the vehicle.
…”[17]
[17] Ibid, pages 30-31.
One of the charges on the indictment before the Townsville District Court on 16 November 2017 involved robbery with personal violence. The learned sentencing judge (His Honour Judge Smith) described the circumstances of the offending this:
“…On 5 November 2016 at 5:30pm, the complainant left the Willow Shopping Centre, driving her Mazda sedan along Harvey Range Road Townsville. You were walking in the middle of the road. You were about 20 metres in front of her car. She stopped. You walked towards her. You opened the driver’s door and said, “Get out of the car”. She said no. She tried to pull the handbrake on, but you did not let her. You leant across, released her seat belt, put your hands on her shoulders, forcefully pulling her out of the car. She landed on the road in the gutter. You entered the car and drove away with the door still open. You drove towards Condon. She was yelling out for assistance. Three female school students witnessed this and assisted her. She was taken to hospital and has sustained grazes and bruising on her knee, with sore ribs, shoulders and aching body. The dangerous operation [charge] involves shortly after 5:30pm [name redacted] was driving her blue Mazda 2 hatchback. As the light turned green she moved forward. Your car came towards her at high speed from the right side. She had no time to react and your car collided with the driver’s door of her car. The airbags were deployed. She was trapped in the car because of the damage. Emergency services cut the car in order to remove her. She was [sic] pain and had blood coming from her arm.
…There are several witnesses saying that you would have been travelling in excess of 120 kilometres per hour and you were swerving in the lanes. And another witness described your car as flying up behind her. The insurance claim for her car is over $12,000. You refused to provide a breath specimen. You were highly intoxicated. You were dishevelled, you were hysterical, your words were slurred.”[18]
[18] Exhibit 2, s 501G-Documents, PG11, page 65.
There can be no question that the abovementioned profile of the Applicant’s offending is of a violent nature. As such, it can only be viewed very seriously. In his evidence, the Applicant spoke of committing most, if not all, of his offences while significantly intoxicated. Of perhaps greater concern was that he has been involved in abusing the illicit drug known as ‘ice’ during at least part of the period of his offending. Whether his offending is attributable to the abuse of alcohol or ‘ice’ or both is immaterial to my finding in relation to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction. I am of the view that the clearly reckless circumstances of the totality of the Applicant’s offending for which he was sentenced in November 2017 must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. I have outlined the Applicant’s offending comprising the violent means by which he committed the car-jacking offence against the unsuspecting female victim. Forcibly removing someone from their vehicle and effectively throwing her into the gutter is a violent act. Similarly, the circumstances of the motor vehicle collision with the female driver of the Mazda 2 hatchback resulting in her being trapped in the vehicle and needing to be cut out of it be emergency services people, is also violent. This was not a regular motor vehicle collision caused by inattentiveness on the part of the liable party. Rather, as per his own evidence, the Applicant was in a virtually crazed state and was operating a motor vehicle in a manner that could quite conceivably have killed someone. This offending is also violent and appallingly so.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction has application to the offending perpetrated against these two female victims. Regardless of the sentence imposed, the Applicant’s violent offending against these two women renders his offending as very serious indeed.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community, government representatives or officials are to be regarded as serious. I have earlier recounted the circumstances of the Applicant’s offending resulting from a street disturbance in Townsville in 2013. That conduct resulted in the Applicant being charged with one count of assaulting or obstructing a police officer pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld). This conduct involves the Applicant committing a crime against “government representatives or officials…in the performance of their duties…”. This sub-paragraph (c) provides that such offending must be regarded as serious. I so find.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s National Police Certificate demonstrates that his offending history has run from approximately May 2000 until November 2016.[19] This is a period of approximately 16-17 years. His offending across this 16-17 year period has been such as to attract the imposition of custodial sentences on the following occasions:
·April 2006: respective custodial terms of 10 months (stealing), six months (common assault) and six months (destroy or damage property) – were imposed;
·October 2014: custodial term of six months was imposed to be suspended for 12 months (dangerous operation of a motor vehicle);
·November 2017: respective custodial terms of five years (robbery with actual violence), two years (dangerous operation of a motor vehicle), 50 days (failure to stop vehicle), one month (contravention of domestic violence order) and 14 days (possession of a knife in a public place).[20]
[19] Exhibit 2, s 501G-Documents, G10, Pages 56-61.
[20] Ibid.
The abovementioned regime of custodial terms is sufficient to attract application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts for the crimes of this Applicant are supporting of a finding that his offending to date is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it.
Dealing first with the frequency of his offending, the National Police Certificate discloses the Applicant has found himself before lawful authority as a result of his offending on at least 21 occasions between May 2000 and November 2017. Some 42 individual offences were dealt with by the sentencing courts on these 21 sentencing occasions. There is no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
Turning to the question of whether there is a trend of increasing seriousness in the Applicant’s offending, one need look no further than the National Police Certificate. Put at its best, the very early phases of the Applicant’s offending can be said to have involved perhaps less serious offences than those offences he committed thereafter. It is very difficult to characterise his offending as in some way graduating in seriousness. As early as 2006, the Applicant was sentenced to a custodial term of 12 months for an offence of stealing from a person. He was committing housebreaking and burglary offences as early as 2006 and 2007. He was dealt with in 2008 for assaulting or obstructing a police officer in the course of that officer’s duty. He was dealt with for this offence again in 2013. I have earlier recounted the very serious nature of his offending at the Perisher Blue Ski Resort in 2005 and have done likewise with his dreadful offending involving the two female victims in August 2016. There is thus little or no detectable trend in the seriousness of this Applicant’s conduct. It can be fairly said to have been serious virtually from its commencement and certainly from no later than 2005.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the relative frequency of the Applicant’s offending and its severity from shortly after its commencement is such as to render his offending in this country as very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. On any reasonable view, the cumulative effect of this Applicant’s offending has been such as to not just place members of the community in harm’s way; it involved the occasioning of actual harm on those members of the community. That harm could well have been truly catastrophic involving loss of life. It is clear from his offending history that his propensity to virtually do as he wishes at the wheel of a motor vehicle lends itself to an extremely high risk of harm being occasioned to other road users.
Another cumulative effect of the Applicant’s offending involves a finding that he has failed to respect the lawful authority governing the community to which he now seeks to be returned. His National Police Certificate contains at least eight instances of a refusal or failure to respect the lawful authority governing his conduct, be it in the form of (1) a failure to answer or a breach of bail; (2) assaulting or obstructing a police officer in the course of their duty; (3) the contravention of a domestic violence order, and (4) the breach of a suspended term of imprisonment.
A further cumulative effect of the Applicant’s offending involves an additional finding that he has clearly failed to respect the personal and property rights of others. His National Police Certificate contains at least eight instances of a refusal to respect the personal and property rights of others, be it in the form of (1) stealing; (2) damage/destruction of property; (3) being in possession of goods suspected of being stolen; (4) burglary; (5) common assault; (6) robbery with actual violence.
The application of this sub-paragraph (f) to the present factual matrix involving as it does in (1) placing members of the community in harm’s way; (2) actually harming those members of the community; (3) a failure to respect lawful authority and (4) a failure to respect the personal and property rights of others, clearly gives rise to a finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor is clearly not favourable to the Applicant. He was indeed warned about the adverse consequences to his migration status arising from his offending.
By letter dated 22 December 2006, the Minister notified the Applicant that the visa authorising his continued stay in Australia could be liable for cancellation on character grounds. He was given the benefit of the doubt on that occasion, while at the same time, the Minister made their position abundantly clear to him:
NOTIFICATION OF DECISION UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958
Dear Mr Lum
On 22 August 2006 the Department of Immigration and Multicultural Affairs notified you that your visa may be liable for cancellation under section 501 of the Migration Act 1958 (the ‘Act’) on character grounds.
On 20 December 2006 a delegate of the Minister for Immigration and Multicultural Affairs (the ‘Delegate’) decided not to exercise her discretion under section 501(2) of the Act to cancel your visa. Your visa will therefore continue to provide you with permission to enter or remain in Australia.
However, the Delegate also decided to issue a warning to you that conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa.
As a consequence of this warning please note that cancellation of your visa will be reconsidered if further or fresh information comes to notice regarding convictions for any further offences or if you come to notice under any of the provisions of sub section 501(6) of the Act. Disregard of this warning will weigh heavily against you if the Minister or his or her Delegate considers the question of your character again…
Please acknowledge receipt of this letter by signing the attached Receipt Confirmation and return a copy to me on fax number…
Yours sincerely
…
22 December 2006”[21]
[21] Ibid, G16, page 87.
This letter was forwarded by facsimile to the Applicant who was then incarcerated at the John Maroney Correctional Centre. The Applicant signed the Receipt Confirmation documents and that signed confirmation appears in the material.[22] There can be no question the Applicant did not receive this letter. There is no contention that he did not understand its contents.
[22] Ibid, PG16, page 89.

Despite receiving this letter, the Applicant continued to offend. The pattern of offending is such as to confirm a total obliviousness to the warning contained in that letter. From the date he received this first letter of warning, the Applicant subsequently found himself before lawful authority on the following occasions that dealt with his commission of approximately 25 offences:
·July 2007;
·October 2007;
·February 2008 (three times);
·September 2008;
·May 2009;
·November 2009;
·April 2013;
·July 2014;
·September 2014;
·October 2014;
·April 2016;
·May 2016;
·November 2017.
The content and terms of the letter of warning issued by the Minister to the Applicant in December 2006 could not have been clearer. His blatant disregard of this warning is palpable and beyond excuse. The reality that the Applicant has ignored a duly issued warning by the Minister about the adverse impact his continued offending conduct would have on his migration status in this country is confirmatory of the very serious nature of his subsequent conduct.
He was given an opportunity to modify and ameliorate his conduct. He has failed to do so after that warning and, indeed, has persistently offended after that warning. This refusal to heed the Minister’s warning is a factor that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, attaches a label of “very serious” to the nature of the Applicant’s offending.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date. I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant clearly becomes disoriented and incapable of distinguishing right from wrong when he is under the influence of alcohol or illicit substances. His offending is not just situational or isolated in terms of him, for example, being involved in an organised criminal enterprise and having repeated disagreements or other “falling outs” with fellow offenders. His offending is spontaneous, completely irrational, with no purpose and no explanation. There is no other way to explain his above-described conduct at the McDonalds restaurant, for example. Because his offending has these unpredictable characteristics, I think the potential consequences flowing from his completely unjustified and unregulated conduct (would be) very serious. Were he to reoffend, I am of the view that its effect on the Australian community would be very serious indeed.
In assessing any “nature of harm” resulting from any reoffending by this Applicant, one need look no further than the factual circumstances of the Applicant’s offending that came before His Honour, Judge Smith in November 2017 and work backwards from there. There is no need to recount the circumstances of the offending that came before His Honour in November 2017. What is perhaps of greater relevance is the extraordinary subjective intention expressed by the Applicant in the course of that offending. His Honour observed these things:
“[Name redacted – victim 1, a female], the driver of the other vehicle, performed a U-turn and stopped behind you. At the last second, you performed another U-turn and sped off and drove directly towards their car on the wrong side of the road towards them. You swerved to avoid hitting the front of their car and pulled up beside them on the wrong side of the road. At that time, [Name redacted – victim 2, a female] exited her car and walked back to your car. You drove away quickly again towards Comet Blackwater, and they lost sight of you. Throughout the entire day, you used your mobile phone to send text messages to her, and at one stage said:
I’m not stopping. I’d rather die than lose my family. Make sure they know first car head on as soon as I see lights. Fuck you all.
That is a concerning message, bearing in mind the children were in the car with you at all times…”[23]
[my underlining]
[23] Ibid, PG11, page 64, lines 9-22.
His Honour seems to have developed the same concerns as I have regarding the nature of the harm that this Applicant’s offending is capable of causing others. He was not concerned for his own safety, nor for the safety of other road users and, perhaps most significantly, nor was he concerned for the safety of the children that were with him in the car “at all times”. This lack of appreciation of the consequences of his offending and the inherent lack of respect for lawful authority and the personal and property rights of others is evident from his criminal history preceding the offending that came before the Townsville District Court in November 2017. It is also evident in his lengthy and very unimpressive traffic history, littered, as it is, with numerous suspensions of his driving privileges.
There is no indication that the Applicant has developed a capacity to regulate his conduct such that the nature of any future harm he may cause could be said to be of a lesser magnitude. I am thus of the view that any same or similar type of reoffending by the applicant and its resulting harm, would be very serious and could conceivably involve the occasioning of very serious and even catastrophic physical or psychological harm. Any risk that it may be repeated on another person in the Australian community is simply unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no independent report or evidence informing the Tribunal about the Applicant’s risk of reoffending. It should also be noted that decisions of this type should not be delayed in order for rehabilitative courses to be undertaken by an Applicant. The Applicant has spoken about commencing an illicit drug and alcohol course in January 2018.[24] I cannot glean any evidence of any such course being completed by the Applicant, be it in the form of a ‘Certificate of Completion’ (or equivalent). Accordingly, the Applicant’s submission about him being of “zero chance of re-offending because I have missed out on so much of my children’s milestones and life I can’t get back and I will never let myself to make them mistakes again by doing substance abuse courses,” cannot carry any significant or substantial weight.[25]
[24] Ibid, G13, page 80.
[25] Ibid.
The reason I reach this conclusion is that while the Applicant acknowledges the things he has done wrong, he also seems to apprehend that there may be something fundamentally wrong with his psychological constitution that, in turn, predisposes him to offend. The insurmountable difficulty confronting the Applicant for present purposes is that (1) those issues have not been identified and have not been treated and (2) any such treatment is slated to occur in future. As the Applicant says:
“I was suffering severe depression and didn’t know the effects of drinking alcohol whilst on medication would effect [sic] my decision making.
…
I am begining [sic] an illicit drug and Alcohol Abuse course in Febuary [sic] and upon release I’m looking to further my knowledge in how not to fall back into Alcohol dependency.”[26]
[26] Ibid.
As observed by the Respondent, the Applicant has been in a supervised environment, be it in criminal custody and/or immigration detention, since November 2016. Sufficient time has not elapsed where the Applicant has been in an unsupervised environment within the community. To my mind, the likelihood of his re-offending remains a real possibility.[27] His psychological/psychiatric issues remain unidentified, untreated and unresolved. There is nothing before the Tribunal to provide any measure of confidence that, were he to find himself in a similar position of difficulty and challenge, he would not again resort to abusing alcohol and illicit drugs with the same, if not worse, outcomes than is contained in his criminal history thus far.
[27] Exhibit 1, Respondent’s SFIC, page 8, paragraph [32].
The Applicant made it clear in his oral evidence that his offending days were behind him and that he wanted to return to the community to devote himself to his family. The difficulty with that contention is that he does not seem to have played any significant role in the lives of his children either as a father figure or as a financial contributor to the family’s ongoing requirements.
I am mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[28]
[28] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of alcohol and other illicit substances.
Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The material discloses two minor children potentially affected by the cancellation decision. Those children comprise a daughter aged 10 years and a son aged 8 years, respectively. The children reside in Australia and are primarily cared for by their mother, who is the Applicant’s former de facto partner. Each of the two children were born in Australia.
There is no concession from the Respondent about this Primary Consideration B carrying any weight in favour of revocation of the mandatory cancellation decision. The Respondent is of the view that this Primary Consideration B is of neutral weight or value to this Consideration.[29]
[29] Exhibit 1, Respondent’s SFIC, page 9, paragraph [37].
In his Personal Circumstances Form, the Applicant responded as follows to the question relating to his relationship with each of the children:
“Please describe your relationship with each child including when it began, how often you contact/see the child/ren and the role you play in their lives.
[Applicant’s response] My relationship with my daughter is very strong and begun from her birth I haven’t seen her much since in jail because she doesn’t cope very well leaving me behind an [sic] I don’t like putting her through the mental trauma.
My relationship with my son is very strong and once again began at his birth and as above but once out of prison I will take all steps to put [sic] this much strain on my family again.
Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed.
[Applicant’s response] My children allready [sic] have separation anxiety and to lose their father will impact their life greatly and possibly cause them mental health issues.”[30]
[30] Exhibit 2, s501 G Documents, PG13, page 78.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children. The Applicant’s role in the lives of his two minor children in Australia has been significantly limited as a result of his lengthy term in criminal custody, which was followed by his placement into immigration detention.
He found himself in criminal custody in November 2016 and remained there until his sentencing in November 2017. He continued to remain in criminal custody until the date fixed for his eligibility for parole – 4 July 2018. At that time, the Applicant was placed into immigration detention. He has remained there since.
It is reasonable to find that the Applicant has been either totally or substantially absent from the lives of the children during the period of his physical absence in either criminal custody or immigration detention. While he speaks of having a strong relationship with the children, there is minimal evidence of any consistent parenting role he previously may have played in their lives for any significant duration. The Applicant was in a relationship with the mother of the children for something in the order of eight years. The relationship was precarious and on 7 November 2014, the Townsville Magistrates Court made a domestic violence order with his former de facto partner as the aggrieved spouse.
There is also a lack of clarity in the material about the precise nature of the Applicant’s paternity status in relation to at least one child. His Honour Judge Smith, in sentencing the Applicant in November 2017, noted the submission from the Applicant’s counsel that “You were told for the first time by [name redacted, ex de facto partner of the Applicant] that one of the children was not yours, which was devastating for you.”[31] As against that, His Honour observed that at the time of making of the abovementioned domestic violence order in November 2014, “…There was a custody arrangement with the two children [names redacted]. You believed both of them were your children. You were looking after them while she was working.”[32]
[31] Ibid, PG11, page 64, lines 44-45.
[32] Ibid, PG 11, page 63, lines 32-34.
There was a further observation by His Honour Judge Smith in his sentencing remarks to this effect: “Prior to your offending you were a stay at home father with the care of two children. Another child, 13, lives with an ex-partner.”[33] As I recall both the written and oral evidence, there were no submissions from either the Applicant or the Respondent to the effect that I am to have regard to this 13 year old child for the purposes of determining weight to be allocated to this Primary Consideration B. Further, in his Personal Circumstances Form, in response to the request to “Include all minor children in your life (including biological children, step-children, grandchildren, close nieces or nephews etc)…”, the Applicant only listed the abovementioned 10 year old daughter and 8 year old son.[34]
[33] Ibid, page 66, line 31.
[34] Ibid, PG13, page 67.
Having regard to the totality of the evidence, I am of the view that it is in the best interests of the children that a slight level of weight be attributable to this sub-paragraph (a) in support of a finding that the Applicant’s migration status to remain in this country should be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
During the period November 2016 until now, the Applicant has been prevented from playing any such parental role due to his placement into criminal custody and then immigration detention. While I accept His Honour Judge Smith’s sentencing remarks about the Applicant looking after the children while their mother worked, there is minimal and scant evidence of any other real, parental involvement between the Applicant and either of his infant children.
Be that as it may, there is nevertheless a significant cumulative period of time until both of the children attain the age of 18 years. On that basis, and on the basis of whatever parental role the Applicant may have played in their lives thus far, a slight measure of weight can be attributed to this sub-paragraph (b) in favour of a finding it would be in the best interests of the Applicant’s two infant children in Australia that his visa to remain here be restored to him.

Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his two infant children in Australia. I have earlier quoted the Applicant’s comments that the children have given indications of “mental trauma” and “separation anxiety” and “mental health issues” as a result of his absence from their lives. These observations are, of course, those of the Applicant and his alone. There is nothing else in the material – be it from a lay or expert witness - indicating any negative impact of the Applicant’ physical absence from the lives of his two infant children in Australia. However, any permanent separation between the Applicant and either of his infant children would not be beneficial to them.
Given the Applicant’s very dangerous conduct at the wheel of a motor vehicle that at all times contained his two infant children as passengers, while no definitive finding can be made, it would be extraordinary if his conduct did not have some kind of lasting traumatic effect upon the children. In the absence of any medical or other expert commentary in this regard, I am prepared to give the Applicant the benefit of the doubt about any adverse effect his conduct may have had on the children in that particular circumstance.
Any actual or potential mental health consequences upon the children arising from the Applicant’s absence has not been verified or identified by expert medical opinion. It is thus unclear whether the Applicant’s prior conduct and subsequent enforced removal from the lives of his two Australian children has had any negative impact on them. The only reasonable finding is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his two children.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the two infant Australian children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. There are two aspects as to how this factor can be discussed. First, as a result of the complete absence of any evidence from the mother of the children, it is unclear whether a permanent physical separation between the Applicant and the children were he compelled to return to New Zealand would very significantly, or at all, impact upon them.
Second, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his two Australian infant children by SMS and/or social media platforms from New Zealand or elsewhere. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two infant children via Skype and other digital platforms.
In these circumstances, this sub-paragraph (d) is of neutral weight in assessing whether restoration of the Applicant’s migration status is in the best interests of his two minor children in Australia.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. The Applicant’s former de facto spouse appears to be the sole and primary caregiver of her two infant children. There is no contrary suggestion by the Applicant either in his abovementioned Personal Circumstances Form or in any other document (or during his evidence at the hearing) to the fact that the mother is the primary carer of both children. As against that, in response to the question about any impact the cancellation of his visa would have had, or has had, on his family, the Applicant responded as follows:
“Financially I support my mum and her 2 children as well as my own and Emotionally and mentally I believe they will be [sic] lose that support.
…
I volunteered at my kids school, PCYC and school NAIDOC days.”[35]
[35] Ibid, PG13, pages 79 and 81.
Having regard to the factual circumstances of this case, this sub-paragraph (e) is of slight weight in favour of the Applicant in assessing whether restoration of his migration status is in the best interests of his two minor children in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As already alluded to, there is no independent or expert evidence before the Tribunal that either of the two infant children are exhibiting behaviours indicative of adverse views they may have regarding how the physical removal of their father from their lives will negatively impact on them.
It is thus difficult to allocate any appreciable measure of weight to this sub-paragraph (f) in circumstances where the views of none of the two infant children are known and where there is nothing to suggest that the prolonged, physical absence of their father from their lives thus far or in future will have any adverse impact on them.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. The evidence clearly demonstrated that some of the Applicant’s most serious offending occurred in the presence of the children. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by the children as a result of the Applicant’s offending conduct (as opposed to his prolonged physical absence from their lives) – is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant with its significant absence of any convincing detail other than to make reference to vague psychological symptoms being exhibited by the children and his unconvincing evidence about wanting to return to the community so that he can devote himself to his fatherly and other home-maker responsibilities;
(b)the complete absence of any evidence from the wife and mother of the two infant children supportive of any such intention or plan;
(c)the reality (as per the sentencing remarks of His Honour Judge Smith) that “There was a custody arrangement with the two children…”, certainly prior to November 2016;
(d)the absence of any convincing or substantive evidence about the parental role the Applicant has played and may continue to play in the lives of the two infant children were he to be returned to their lives (in a physical sense);
(e)the slight level of weight I have attributed to factors (a), (b), (c), and (e) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the Applicant’s two minor children in Australia does weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a moderate level and does not, in any way, outweigh the heavy weight I have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[36] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[37] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[36] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[37] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
For the purposes of considering the instant application, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[38] notwithstanding the contributions of the Applicant (if any) to the Australian community, the amount of time he has lived in Australia,[39] and the impact of his removal upon his immediate family in Australia.[40] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should (or should not) retain the privilege of remaining in Australia must be broken down into a series of components so that it can be properly understood and assessed.
[38] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[39] Ibid, paragraph 6.3(5).
[40] Ibid, paragraph 6.3(7).
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in September 1988 aged two years old, and has not departed Australia since that time;
·His National Police Certificate discloses an offending history running from May 2000 until November 2016 – a period of approximately 16-17 years;
·His offending across this 16-17 year period has resulted in the imposition of the following custodial terms:
oApril 2006 – respective custodial terms of 10 months for stealing, 6 months for common assault and 6 months for the destruction or damage of property;
oOctober 2014 – a custodial term of 6 months for the dangerous operation of a motor vehicle, such term being suspended for an operative period of 12 months;
oNovember 2017 – respective custodial terms of 5 years for robbery with actual violence, 2 years for dangerous operation of a motor vehicle, 50 days for a failure to stop a vehicle upon lawful request to do so, 1 month for contravention of a domestic violence order, and 14 days for possession of a knife in a public place;
·He has found himself before lawful authority as a result of his offending on at least 21 occasions between May 2000 and November 2017;
·Sentencing regimes imposed by the courts have sought to address the commission of some 42 individual offences on 21 sentencing occasions;
·The totality of his adult life in this country has undeniably involved a consistent and increasingly serious level of offending, culminating in the imposition of quite significant custodial terms;
·The totality of custodial terms imposed in April 2006, October 2014 and November 2017 exceeds 9.5 years;
·I have found that his offending in this country can only be described as very serious and I have also found that there is a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community; and
·There is no definitive, independent or expert evidence before the Tribunal of (1) any diagnosis of psychological or other factors predisposing the Applicant to offend, (2) that those factors have been identified and are now the subject of remedial therapy and management, (3) that the Applicant has demonstrated any convincing level of insight into his offending so that (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[41]
[41] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[42] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[42] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[43]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[my underlining]
[43] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[44] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[my underlining]
[44] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant, with his personal circumstances and history in this country, has been adequately dealt with by the imposition of a very significant custodial term for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending involving, as it does, a lack of respect for lawful authority and the personal and property rights of others in the Australian community;
(iii)My finding that such lack of insight about the severity of what he has done points to a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community;
(iv)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, re-define his life and to participate as a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[45]
[45] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
In his oral evidence, the Applicant said that in terms of any rehabilitative course or program, he has only attended at weekly Alcoholics Anonymous sessions for a period of about eight weeks. As mentioned earlier, the written material discloses the Applicant “beginning an illicit drug and alcohol abuse course in February and upon release…looking to further [his] knowledge on how not to fall back into Alcohol dependency.”
The material does not contain any reference from a third party, most notably, his former spouse with whom he apparently proposes to co-parent the children, were his visa to be restored to him. Concerningly, there is no evidence that the two infant children have either visited the Applicant while in custody or that they have sent him cards or other written forms of communication. Be that as it may, I have allocated (as already mentioned) a certain level of weight to Primary Consideration B.
The Applicant has not been entirely dilatory during his time in this country. As observed by His Honour Judge Smith in his sentencing remarks:
“Now, your barrister has told me you were born in New Zealand. You came to Australia at 3. You stayed with your mother until 21. You relocated to Townsville in 2008. You are the eldest of seven siblings. You went to year 9 at school. You have some certificates. You have a reasonable work history, particularly in the building industry. Prior to your offending you were a stay at home father with the care of the two children.”[46]
[46] Exhibit 2, s 501G-Documents, PG11, page 66, lines 26-31.
The Applicant’s Personal Circumstances Form indicates he has worked in the following fields:
·From 2013 to 2015 – Grounds keeper / horticulture with “Environmental Assets Services”;
·From 2011 to 2013 – Leading Hand with “Jointco”;
·From 2008 to 2011 – Leading Hand with “Rainbow Renderers”;
·From 2006 to 2007 – Labourer with “CSS”.[47]
[47] Ibid, PG13, page 81.

Further, it can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because (1) he has been removed from that community on a continuous basis since November 2016 and (2) none of the psychological symptomatology predisposing him to offend has been addressed or dealt with by independent expertise.
Conclusion: Primary Consideration C
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This Other Consideration (a) is not relevant in this case.
(b) Strength, nature and duration of ties
There is a readily made concession by the Minister (which I note and accept) that whilst this Other Consideration (b) may weigh in favour of revocation, it should be given limited weight. The Respondent contends that it ought be given limited weight because “…the Applicant commenced offending shortly after his arrival and that it is not sufficiently compelling to outweigh the Primary Considerations weighing heavily against revocation.”[48] I am of the view that any weight attributable to this Other Consideration (b) should be limited due to the operative effect of paragraph 14.2(1)(a) of the Direction as discussed below.
[48] Exhibit 1, Respondent’s SFIC, page 12, paragraph [48].
The Applicant has a number of immediate family members in Australia. In terms of immediate family, the Applicant’s mother, three sisters and three brothers all reside in Australia. His Personal Circumstances Form is not clear, because under the heading “List other close family members including cousins, grandparents, uncles/aunts” the Applicant lists two aunts, one uncle, three cousins and a grandfather who all reside in Australia, yet in response to the question in the Personal Circumstances Form comprising ”Please state how many other relatives you have in Australia or overseas” the Applicant responds as follows:[49]
[49] Exhibit 2, s 501-Documents, PG13, page 79.

Australia

Other country - specify

Number of uncles/aunts

8

6

Number of nieces/nephews

5

0

Number of cousins

8

12

Number of grandparents

1

1

It is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), favours the Applicant.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. Although the Applicant first arrived here as an almost three year old, and did not begin offending until his mid-late teens his offending conduct spans virtually the entirety of his adult life. It culminates, as late as November 2016, in him committing very serious offences while on bail for other offences, which resulted in the imposition of a custodial term which, in turn, led to his placement in immigration detention. Thus while I do not necessarily agree with the Respondent’s contention that he commenced offending soon after arriving here, he has nevertheless consistently offended (and very seriously so) for virtually the entirety of his adult life in this country. Accordingly, any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to paragraph 14.2(1)(a)(ii) of the Direction) that any time he may be said to have spent contributing positively to the Australian community is significantly outweighed by his very serious criminal conduct during the corresponding period.
While this Other Consideration (b) may weigh in favour of revocation, it is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
There is a ready acknowledgement from the Respondent that the Applicant may face some difficulty in re-establishing himself in New Zealand due to his long residence in Australia. There is a further contention from the Respondent that this factor would only present as a short term hardship and would not preclude his resettlement in New Zealand.[50]
[50] Exhibit 1, respondent’s SFIC, page 12, paragraph [50].
On the other hand, some time has passed since the Applicant resided in New Zealand. He arrived in Australia as a nearly three year old and has resided here on a constant basis since then. He will inevitably experience some short-term hardship in re-establishing himself in New Zealand.
However, I do not consider that any of the factors appearing in Paragraph 14.5(1) of the Direction assist the Applicant. He would suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand… (He has previously lived there…) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[51]
[51] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As well, the Applicant is a relatively young man of 33 years who is in apparently good health and there is nothing in the material to indicate any adverse health or wellbeing outcomes were he to be relocated to New Zealand. He has demonstrated an ability to derive income such as to be able to maintain a basic standard of living in New Zealand.[52]
[52] Exhibit 2, s 501G-Documents, PG13, page 81 – Employment History in Australia.
I therefore agree with the contention of the Minister regarding this Other Consideration to the effect that it does not weigh in the Applicant’s favour with regard to revocation of the decision to cancel his visa and is neutral.
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant
·Strength nature and duration of ties: weighs in favour the Applicant
·Impact on Australian business interests: not relevant
·Impact on victims: not relevant
·Extent of impediments if removed: does not favour the Applicant and is neutral.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or Primary Consideration B, outweigh the very significant combined weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 132 (one hundred and thirty –two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............................[SGD]...........................................
Associate
Dated: 17 May 2019

Date(s) of hearing: 2 May 2019

Applicant Self-represented (via video-link)

Advocate for the Respondent: Mr Jake Kyranis (Solicitor)

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 935

17 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Australia	Other country - specify
Number of uncles/aunts	8	6
Number of nieces/nephews	5	0
Number of cousins	8	12
Number of grandparents	1	1

Date(s) of hearing:	2 May 2019
Applicant	Self-represented (via video-link)
Advocate for the Respondent:	Mr Jake Kyranis (Solicitor)
Solicitors for the Respondent:	Sparke Helmore