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

[2020] AATA 2631

LYFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2631 (30 July 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2865

Re:LYFS  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:30 July 2020

Place:Adelaide

The decision under review is affirmed

...........................[Sgnd].......................................

Senior Member B J Illingworth

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Brown and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 668

FYBR v Minister for Home Affairs [2019] FCAFC 185

Mendoza and Minister for Immigration and Border Protection [2018] AATA 686

RZMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1000

Sach and Minister for Home Affairs [2019] AATA 5173

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Senior Member B J Illingworth

30 July 2020

INTRODUCTION

1. This matter relates to an application for review filed by LYFS (“the Applicant”) on 14 May 2020 for a review of a decision of a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services, (“the Respondent”) dated 8 May 2020 not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“visa”).

2. At the hearing, the Applicant appeared from immigration detention via video link. The Applicant was represented by Mr Greg Barns SC, who appeared by telephone and was instructed by Bold Lawyers. The Respondent was represented by Mr Samuel Cummings of Sparke Helmore who appeared by telephone.

   BACKGROUND

3. The Applicant is a 37-year-old citizen of New Zealand.

4. The Applicant arrived in Australia shortly after he was born in March 1984. On 2 June 2009, he was granted a visa.

5. The Applicant has an extensive criminal history which commenced when he was aged approximately 17 years and continued as an adult until his most recent offences of armed robbery and assault occasioning bodily harm.[1] The Applicant also has a history of driving offences.[2]

   [1] Exhibit A, G-documents (“G”), G10/74-79 (“antecedent history”).

   [2] Exhibit N, Tender Bundle (“TB”), 2-11.

6. On 21 June 2018, the Applicant was sentenced to a term of imprisonment after pleading guilty to the following offences:

   (a)armed robbery – five years imprisonment;

   (b)assault occasioning bodily harm – 12 months imprisonment (to be served concurrently with (a)).

   He was eligible for parole on 1 March 2019. On 15 May 2019, the Queensland Parole Board refused his first parole application.[3]

   [3] G23/155.

7. On 1 February 2019, the Applicant was given notice that his visa had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (“the Act”).[4]

   [4] G3/30.

8. On 11 February 2019, the Applicant requested that the cancellation of his visa be revoked and provided submissions and evidence in support of his request.[5]

   [5] G4/31.

9. On 8 May 2020, a delegate of the Respondent decided under s 501CA(4) of the Act not to revoke the visa cancellation.[6] The Applicant was notified of the decision on the same date.[7]

   [6] G9/58-72.

   [7] G31/200.

10. On 14 May 2020, the Applicant sought review of this decision.[8]

    [8] G2/3-8.

    LEGISLATIVE FRAMEWORK

11. Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and           

    (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

12. Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if the person has a “substantial criminal record” as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    …

13. Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.

    ISSUES

14. The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:

    (a)pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the “character test”; or

    (b)pursuant to s 501CA(4)(b)(ii) of the Act, whether there is “another reason” why the cancellation should be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

15. The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the cancellation of his visa to be revoked.

    IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

16. In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:

    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

17. In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No. 65.

    MINISTERIAL DIRECTION NO. 79

18. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

19. Paragraph 8 of the Direction provides:

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

20. The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.

21. Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia; and

    c)Expectations of the Australian community.

22. The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims; and

    e)Extent of impediments if removed.

23. The Tribunal will now address these considerations.

    Primary Consideration A: Protection of the Australian community

24. Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:

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

    (2)Decision-makers should also give consideration to:

    a)The nature and the 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.

25. Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    a)The principle that… violent and/or sexual crimes are viewed very seriously;

    b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    f)The cumulative effect of repeated offending;

    g)…

    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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …

26. Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:

    (1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

27. The Tribunal will outline the Applicant’s relevant personal and offender history and then address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.

    Personal and Offender History

28. The Applicant’s evidence-in-chief relied principally on the Person Details Form, which included a detailed handwritten statement of the Applicant.[9]

    [9] G15/93-124.

29. The Applicant left school aged 17 years and thereafter worked in the building trade as a plasterer, labourer and scaffolder. He had his own scaffolding business for five years. He had six employees. The Applicant said that he was diagnosed with reactive rheumatoid arthritis. In 2010, he was hospitalised for six months because of his arthritis and complications from tonsillitis and was discharged in June 2010. His business ceased and he and his wife then purchased a fish and chip shop. His wife, C, worked in, and managed the fish and chip shop; the Applicant stayed home for the next 12 months. He did the housework, got the three older children ready for school, helped those children with their homework and during the day cared for those children that were not yet of school age.

30. He said he became depressed because he was unable to work and felt inadequate. He then worked in the fish and chip shop but could not do the hard labour because of his knee. He obtained a forklift driver’s ticket and started driving a forklift, but because of ongoing problems with his knee he lost his job. This, he said, led to tension in the household and he and his wife separated in October 2012.

31. Following the breakdown in his marriage, the Applicant disengaged with his wife and children. He did not see them for 17 months. He said in his written statement that he began drinking and smoking methylamphetamine. He was living in his car and working the night shift at a chicken factory, which employment did not last long. He smoked methylamphetamine to stay awake. He attempted suicide on two occasions.

32. The Applicant’s wife, C, in her handwritten and undated statement,[10] stated that she and the Applicant briefly attempted reconciliation between February and June 2014.

    [10] G18/140-142.

33. The Applicant then commenced a relationship with T, who soon fell pregnant. The Applicant said that this renewed his will to live, and he self-admitted to Prince Charles Hospital where he was diagnosed with severe depression and drug induced psychosis. He spent a month in the mental health ward and upon release, contacted police and handed himself in because he knew there was a warrant out for his arrest. This, he said, was on 19 August 2015. In his hand-written statement he said he ‘had racked up 28 charges’.[11] He was taken into custody, subsequently granted bail and was given a sentencing date of 29 January 2016. T gave birth to their son, Child “L”, on 1 January 2016. The Applicant said he was then sentenced to 11 months imprisonment with a court ordered parole date of 26 April 2016.

    [11] G15/110.

34. The Applicant said that when he was released from custody on parole, he found out his wife had obtained a domestic violence order (“DVO”) so that he could not see his children. This, he said, was because she learned that he had a child with T. Further, T had renewed her relationship with a former boyfriend and would not allow the Applicant to see their child, L. Consequently, the Applicant began drinking, stopped taking medication for his depression, was smoking methylamphetamine and using “Zanex”.

35. It was in this context that the Applicant said he committed the offence of armed robbery on 4 June 2016, approximately five weeks after he was released on parole. He said that the offense was impulsive, he was drunk, high on Ice and “Zanex”. He said he just wanted money. He regrets the offending and apologises to the victim who he now realises, although not physically hurt, was hurt mentally and emotionally. The Applicant was taken into custody and was subsequently granted bail on 30 December 2016. He learnt his grandmother passed away in New Zealand the day before his release. He said he was “shattered”.

36. On 1 January 2017, it was L’s first birthday. T and L visited him and stayed for a week. T wanted to reconcile. He said that T and her boyfriend had been fighting and she was scared of him. T’s boyfriend would not leave her home. T arranged accommodation for the Applicant close to her house. He said she felt safer with him just around the corner.

1. The Applicant then explained the events of 27 February 2017 giving rise to the offence of assault occasioning bodily harm as follows:[12]

   [T] rang me and said [her boyfriend] was at the house yelling and trying to get into the house. I went to [T’s] place at [address], on arrival [her boyfriend] confronted me in the front yard. I said to him “I don’t want to fight”. He tried to get me engaged in a fight with him. He then turned picked up a stick and attacked me with a stick. He swung it at me. I blocked it disarmed him and struck him with the stick. I don’t blame anyone for my actions but myself. Although I didn’t go there to fight with him. I just went there to make sure my son and the mother of my son were safe. I put myself into that predicament. And I assaulted him. I am not proud of my actions.

   [12] G15/112.

2. The Applicant pleaded guilty to assault occasioning bodily harm arising out of that incident.

3. In his oral evidence-in-chief, the Applicant was referred to his written statement under the heading “Relapse Management and Prevention Plan”.[13] He said that this document was prepared whilst in prison in support of his request for revocation of the mandatory cancellation of his visa. The Tribunal infers that the plan was prepared following the Applicant undertaking treatment programs, in particular drug treatment programs, which he undertook while in custody.

   [13] G15/123-124.

4. The Applicant’s Counsel then referred him to his Queensland Corrective Services Violation History.[14] In particular, he was referred to incidents on 1 February 2019 and 4 April 2019 of possessing a prohibited article. The Applicant said that he had deliberately diverted Panadol from his medication which he used to self-medicate for a toothache. In cross-examination, he said that his cell was searched, and they found the Panadol in his asthma puffer. He said that he had diverted the Panadol when he had gone to get medication. Instead of swallowing the Panadol, he took it with him and subsequently used it for his toothache. He said it took six months to get dental treatment in prison and that he was in constant pain.

   [14] G21/150-153.

5. The Applicant was then referred to two incidents of assault on 26 September 2017 and 4 October 2017, which he said was a fight he had with another prisoner. He said there was only one incident not two.

6. In cross-examination, the Applicant said the fight occurred when he was the victim of an unprovoked attack by a prisoner who had a shank or a knife. They had previously had “words” at work. The other prisoner wanted to fight the Applicant, but the Applicant declined. The prisoner attacked him in a common area of the prison.

7. In cross-examination, the Applicant was referred to the handwritten and undated statement of his wife, C, in which she wrote that she and the Applicant separated in October 2012 and that the Applicant did not see his children for 17 months. They reconciled in 2014. He said the reconciliation was for a few months and thereafter the children stayed with their mother. He did not know of the birth of his youngest child with C, in or about November 2014, until she was a month old. He said that after the second separation he went into severe depression and was using drugs.  

8. C in her handwritten statement said that following their first separation in 2012, she learnt from friends that the Applicant was abusing drugs and alcohol. In February 2014, she reached out to the Applicant to try and rebuild their family. C outlined the difficulties she had living with the Applicant and the change in his personality. He lied constantly, would ‘take off all hours of the night and sometimes we wouldn’t see him for days’[15] and when he returned home, he would sleep. He was not working at the time, nor was he looking for work. She said that he was not the man she married. This led to their second separation in June 2014.

   [15] G18/140.

9. It is also noteworthy that the Applicant’s antecedent history indicates that on 10 March 2014, he appeared in the Magistrates Court for possessing utensils or pipes for use, which offence was committed on 20 February 2014. On 24 March 2014, he again appeared in the Magistrates Court for possessing dangerous drugs and possessing used utensils or pipes, which was committed on 3 March 2014. This tends to corroborate the statement of his wife that he was using drugs following the first separation and prior to their attempted reconciliation.

10. The Applicant said he went into a severe depression following his second separation and it was not until he self-admitted to the mental health ward of the hospital in August 2015 that he improved. In oral evidence, he said he was in hospital for two weeks and then went to hand himself into police because he knew he had a warrant out for his arrest. He then found out that T was pregnant, and he tried to sort things out for her before he went to jail. He said that he was sentenced to imprisonment on 16 January 2016 and “served” 11 months imprisonment. He said that his lawyer told him that if he had been sentenced to 12 months imprisonment he would have been deported.

11. In cross-examination, the Applicant conceded that he had been the subject of DVOs. He conceded that there was a DVO taken out by his wife directed to protecting her and preventing him from going to his wife’s home and that the DVO did not relate to his children. However, his evidence about the circumstances surrounding the granting of the DVOs became unclear. He acknowledged that he breached that DVO, which he said was now no longer in place. He said it was an order that was taken out in about 2015 and was a two-year order.

12. The Applicant said that he was imprisoned at the time the DVO was granted. He thought his wife obtained the order because he had a child with T. However, when questioned by the Tribunal, he acknowledged that the at the time the DVO was issued he had been under the influence of drugs and that his wife had made the application to protect her children. It was issued prior to the birth of L.

13. He agreed he had been threatening and violent towards his wife and that they argued in front of the children. He referred to the occasion when he hit her with the back of his hand during an argument when he was trying to get her off of him. He then said that the reason his wife C, took out the DVO was a combination of him assaulting her and the birth of L by another woman, T. He said every time he would go to C’s home they would fight. He said it got “ridiculous”.

14. In cross-examination, the Applicant was taken to the Queensland Police Services Court Brief[16] in relation to an incident on 28 July 2014.  It indicated that a Domestic Violence Protection Order was made on 18 June 2014 naming the Applicant as the respondent. He was served with a copy of that order on 2 July 2014. The Applicant was taken to and then read the following passage in relation to an incident on 28 July 2014, which I infer occurred at C’s home:[17]

    At about 7pm on the 28^th of July 2014 the defendant has attended the aggrieve[d’]s home address of [redacted]. The Defendant has knocked on the door and said words to the effect of “I need to fucken talk to you” the aggrieved has asked the defendant to leave and stated that she would call police if he didn’t.

    [16] TB, 19-202.

    [17] TB, 28.

15. The Court Brief then indicated that police arrived following a call from a neighbour and located the defendant hiding in the rear yard of the premises following which he was arrested. It was put to the Applicant that when he wanted to see the children and was unable to do so he became upset. The Applicant said he acted poorly on that occasion.

16. The Applicant was again referred to the Court Brief and in particular a charge which related to the contravention of a DVO which occurred on 19 December 2014.[18] The Applicant agreed that at the time of this offence, the DVO was in place having been taken out earlier in 2014, again prior to the birth of L. He explained that the police put a DVO in place after he and his wife first broke up. He explained it was the second time she took out a DVO because she was angry about the birth of L.

    [18] TB, 40.

17. Counsel for the Respondent took the Applicant through the contents of the Court Brief, which described that incident on 19 December 2014 at 7.30 am.[19] It was on that occasion that he struck C with the back of his hand.

    [19] TB, 40.

18. The Applicant agreed that the incident occurred at that time. He said he went to his wife’s residence knowing that his family would be awake. According to the Court Brief, C was asleep in her bedroom. It refers to the Applicant being at the rear of the premises attempting to gain entry and described him as aggressive and screaming abuse at the male child including saying, ‘Open the fucking door’.[20] The Applicant denied that he was abusive. He said he would not speak that way in front of his children. The Applicant agreed that on that occasion, he struck C in the face with the back of his hand when she was holding their youngest child. He did not remember his seven-year-old son intervening. He denied trying to take her phone. He accepted that all of his children were there and saw the incident; they were upset and crying, and he said he was trying to console them. He said the reason he went there was to ‘grab clothes’. He then said that his wife was violent, and that ‘it was reciprocal’, but agreed that C was not charged.

    [20] TB, 40.

19. The Court Brief indicated that at about 10.30am that morning, a broadcast was sent by police for units to look out for the Applicant’s vehicle. It was intercepted and the Applicant was placed under arrest. The Applicant told police that he attended the address to collect clothing, that he and C became involved in a verbal argument, but he denied assaulting her or the child during the incident. The Court Brief recorded that the Applicant knew he was breaching his DVO ‘however he just wanted to see his children’.[21]

    [21] TB, 41.

20. In cross-examination, the Applicant agreed that the incident was a breach of the DVO and that his children would have seen the aftermath. He conceded that if his son was in a relationship, he would not want to see him act the same way.

21. The Tribunal asked the Applicant why he committed the offence at 7.30am. He said he had been talking to his wife the day before. There had been an incident in which his car had been burnt out having been in a ditch. He would not let her come to see him that night because he was high on methylamphetamine and drinking. He said his children usually wake up early. He was in the habit of waking up at 5.30am and he knew that by about 7.00am the children would be awake. He said he knew his children would be awake and he was sober and “straight” and that is why he then went to the home at that time.

22. Counsel for the Respondent then took the Applicant to the Court Brief which detailed the offence of assault occasioning bodily harm for which he was sentenced by the Queensland District Court.[22] That incident occurred on 28 February 2017 at the home of T at about 3.30am. The Applicant denied some of the facts as alleged within that document and said that the allegations were not the basis upon which he pleaded guilty. In particular, he said that the allegations that he had a knife and that he had been sending text messages to T were denied. He said she was lying. He did not threaten her as alleged within that document.

    [22] TB, 174.

23. The Applicant agreed that 3.30am was not an appropriate time to arrive at the premises. He then said he had been invited there and arrived at about 10.00pm or 11.00pm. When T’s boyfriend turned up at 3.30am the incident occurred. The Applicant then said that he saw the boyfriend earlier in the evening at about 10.00pm or 11.00pm when he arrived. The boyfriend left. The Applicant gave his son, L, a bottle and was then talking with T. When the boyfriend came back to the house at about 3.30am, the incident occurred which the Applicant said was an act of self-defence. He said he pleaded to assault occasioning bodily harm with a weapon.

24. The Applicant acknowledged that he had reviewed his antecedent criminal history and that its contents were correct. He agreed that his offending was serious. He accepted that the victims of his offending included both women and police officers.

25. The Applicant was also asked about his road traffic offending in which he had multiple offences including driving whilst disqualified, speeding and driving with an excess blood alcohol level.[23] In relation to the latter offence, he said that the incident occurred when he drove the following day after drinking and his blood alcohol level still exceeded the prescribed limit.

    [23] TB, 5-11.

26. Counsel for the Respondent then took the Applicant to entries in the Court Brief which related to the offence of armed robbery, committed on 4 June 2016.[24] The Applicant read those pages and agreed with their content, in particular as it related to the factual allegations. He agreed he was armed with a replica pistol and he did not tell the Subway employee that it was fake. He agreed he wanted him to believe it was real. Further, the Applicant accepted that he did not immediately confess to his crime and said he had an alibi. He agreed that the offence was violent.

    [24] TB, 122-123.

27. The Applicant also admitted to other criminal conduct, including stealing a CCTV unit so that its contents would not be discovered. Further, he admitted to an occasion when police pulled his car over and found him with a knife strapped to his leg. He explained that it was an ornamental sword that he had picked up from his cousin. When his car was pulled over by police, he strapped it to his leg thinking that it may look suspicious. He said that it was not a sharp sword. Police also located a “billy club”, or baton, in the car he was driving. He said it was not his weapon and the car belonged to someone else.

28. The Applicant was referred to incoming passenger cards dated 1 October 2004, 10 April 2006, and 2 June 2009,[25] in which the Applicant declared that he had no criminal convictions. He said at the relevant time he believed he had not been convicted of a criminal offence and that he had no convictions recorded. He rejected Counsel’s proposition that he knew at the time he completed the documents that he had criminal convictions.

    [25] G27/164-166.

29. The Applicant agreed that his first criminal offence occurred in the year 2000 and his last in 2016 with most offences occurring in the period between 2014 and 2018. During that latter period, he committed his most serious offending influenced by drugs.

30. He said he started taking drugs in 2012, namely methylamphetamine, marijuana, “Zanex” and alcohol.

31. The Applicant detailed the courses he had undertaken since being imprisoned, such as the Do It Programme and others for which he had received certificates and provided them to the Tribunal.[26] He explained at length what he had learnt, including understanding his personal triggers and dealing with relapses. He said he used drugs to mask the pain of depression.

    [26] G16/129-133.

32. The Applicant also recognised the influence of those with whom he associated. His associates used drugs as did his former partner, T. He will no longer be living in the same area and he has cut himself off from those people in his life, albeit he said he would try to help T in her own drug recovery if she asked him. He said he can help and counsel her.

    Conclusion: Primary Consideration A

33. The Applicant has a lengthy history of criminal offending and a poor driving record. His criminal offending can be divided into two periods when he was before the courts, namely:

    (a)2000 to 2008; and

    (b)2014 to 2018.

34. His driving offences can be divided into two periods, namely:

    (a)2002 to 2008; and

    (b)2012 to 2015.

    Criminal offending: 2000 to 2008

35. The Applicant’s antecedent history indicates he was dealt with by the Magistrates Court in January and February 2000 for offences of obstruct police and assault police. No conviction was recorded, and he was fined. In March 2000, he received his first conviction and was fined for destruction of property. Then, between July 2000 and August 2001 he was before the court for breach of bail (contempt), which offences were committed in May and June 2000. All these offences occurred before he was an adult.

36. In September 2003, he was convicted of four offences of breach of bail and behaving in a disorderly manner.

37. On 22 March 2004, the Applicant was sentenced in the District Court for two counts of assault occasioning bodily harm in company and serious assault; the offences were committed in 1999 and 2000 respectively when he was a youth. No conviction was recorded, and he was placed on probation for two years and ordered to serve a community service order. He was again before the District Court in July 2007 for breaching both his probation and the community service orders. Again, he received the benefit of no conviction and a further probation of 12 months.

38. In May 2004, the Applicant was also dealt with without conviction for disorderly behaviour. In 2007 and 2008, he was convicted for breach of bail and commit public nuisance.

39. It was in the period between October 2004 to July 2009 that the Applicant signed three incoming passenger cards declaring that he had no criminal convictions. Given the convictions that were recorded against him by October 2004, and thereafter, his explanation that on each occasion he believed he had no criminal convictions is unconvincing. I do not accept his explanation. He had in the preceding years demonstrated a contempt for the law particularly by repeatedly breaching his bail conditions. He had demonstrated a lack of regard for police, acted in a disorderly manner and was a public nuisance and, although not the most serious offences within the criminal character, they demonstrated a disrespect for the laws of Australia.

    Criminal offending: 2014 to 2018

40. In this period, the Applicant’s offending escalated in seriousness. In March 2014, he was twice before the Magistrates Court for possessing drug utensils or pipes and possessing dangerous drugs, which offences occurred in February and March 2014. In late 2014, the Applicant was again before the Magistrates Court on charges of non-compliance with directions and failure to appear in accordance with an undertaking. On 13 February 2015, he was dealt with for break and enter a premises, breach of bail and contravention of a DVO for which latter offence no conviction was recorded.

41. In August 2015, the Applicant was before the Magistrates Court to be dealt with for four offences of failure to appear in accordance with an undertaking, committed between February and March 2015, for which he received a conviction and concurrent sentence on each count of one-month imprisonment suspended.

42. The Applicant was next before the Magistrates Court on 15 April 2016, appearing on a large number of offences. In his evidence, the Applicant referred to an occasion when he handed himself into police knowing there was a warrant out for his arrest. He said he had breached his bail by repeatedly failing to appear as directed. I infer that this is the occasion in which he handed himself into police. He received a sentence of 11 months imprisonment. However, the offences were not just numerous offences of breach of bail. He was sentenced for dishonesty offences including theft, break and enter, unlawful use of motor vehicle, receiving tainted property, fraud, failure to appear in accordance with an undertaking, possession of a knife in a public place, possession of drug utensils, possession of dangerous drugs; and two charges of contravention of DVO. The Court declared that time spent in pre-sentence custody, namely 29 January 2016 to 15 April 2016, was deemed as time already served, and he was granted a parole release date of 27 April 2016. Hence, the Tribunal infers that the Applicant was taken into custody shortly after the birth of L and later sentenced in April 2016.

1. The Tribunal had before it the sentencing remarks of the Magistrates Court dated 15 April 2016. The Magistrate accepted that at the time of offending the Applicant had separated from his partner, was homeless and drug affected.

2. The Magistrate also referred to the Applicant’s disregard for the law and referenced his disqualified driving offences, in which he would be picked up by police one day and drive the next day. The conduct was described as blatant. The break and enter offences were to fund his drug use. The Applicant was dealt with for two offences of contravention DVO on 28 July and 19 December 2014. In respect of the latter, the Tribunal accepts that the factual basis upon which the plea was entered is reflected in the Learned Magistrate’s remarks and it is not appropriate for the Tribunal to go behind those remarks. The Learned Magistrate remarked:[27]

   The contravene domestic violence was more serious in the fact that you do it – you give your wife a backhand in front of your children, while she’s got a baby in her arms, then she has to lie on the floor to protect the baby because she thinks there’s going to be more – further – in front of your children – all very concerned.

   So it was the surroundings with the children. I think one boy tried to even get on your back to trying get you off the mother. Terrible thing for a seven year old boy, and I know this is so typical, and it was brought out in the report, families come from violence end up perpetuating violence on their family, and I’ll accept that you had a dysfunctional family upbringing which was littered with violence and substance abuse … I’ll except that you had numerous entries into the – attempted suicides – I think there were two or three. You ended up in a mental health facility.

   [27] G12/84.

3. On 4 June 2016, five weeks after his release on parole, the Applicant committed the offence of armed robbery. It is also noteworthy that subsequently on 15 June 2016, he committed the offence of assault or obstruct police officer, for which offence he was convicted and fined on 14 July 2016.

4. On 28 February 2017, the Applicant committed a further offence of assault occasioning bodily harm whilst armed which was that offence committed at 3.30am at the home of his former partner, T.

5. On 21 June 2018, he appeared in the District Court for sentence for the armed robbery and assault occasioning bodily harm. The Tribunal had before it the sentencing remarks of the Learned Sentencing Judge. His Honour said:[28]

   The facts of your offending in respect of count 1 are that on 4 June 2016 at approximately 5.50 am, a 20 year old complainant started his shift at the Subway store on [address]. He went through the normal procedures of opening the store and placing signs and paraphernalia outside. As he unlocked the back door and took a step back, he heard the back door open. You entered, wearing a black spray jacket with a hood pulled over your head, a black beanie, black tracksuit pants, black gloves, a black backpack and you had a red bandanna over your face and neck. In your right hand, you were pointing what is now accepted and understood to be a replica black handgun. But of course, understandably, at the time the complainant believed it was real, as was undoubtedly your purpose. You yelled, “Get the fuck back, get the fuck back, go get the money.” The complainant went to take the till from the register and put it on top of the counter. You stood on the other side of the counter, about a metre away, still pointing the weapon at him. You put the backpack on the counter and started stacking cash into the bag and told him to go grab the other cash from the back till, which he did. You then stashed further notes into your backpack. You asked the complainant whether there was any more money. He said that there was in the safe, but he did not have access to it. You said to him, “Do you promise?” He said, “Yes, I swear to God”, and at that point placed both of his hands up in a surrendering motion, which is some indication of what can be understood to be the nature of the terrifying experience that you inflicted on him.

   [28] G13/89-90.

6. In respect of the second count of assault occasioning bodily harm, the Learned Sentencing Judge said:[29]

   In respect of the second count, on 28 February 2017, that occurred when you went to the residence of an ex-partner and her children, one of whom is your seventh child. That was at about 3.30 am in the morning. When the house was disturbed by your presence, a confrontation developed between you and the complainant, who was then residing there in a relationship with your ex-partner, and that involved each of you throwing objects at each other until, as it is described, the male complainant was chasing you to the front driveway. You approached him with a guitar in your hand. He grabbed a shopping trolley that was at the front of the driveway. You dropped the guitar and picked up two metal clothes poles and swung them at him, hitting him in the left cheek and left forearm. His forearm, as a result of that, was sore and tingly, as it is described, and the two of you continued to yell at each other. You then left in a car of another male who was there. And he drove you away, to defuse the situation. It is noted that, as a result, the complainant suffering bruising, swelling, and a haematoma to the left forearm.

   [29] G13/90.

7. The sentencing remarks show a striking contrast to the evidence of the Applicant in respect of those two offences, namely:

   (a)the Applicant said that that in respect of the armed robbery, it was an offence committed on impulse. However, the Learned Sentencing Judge described the incident occurring in the early morning, the Applicant being at the rear of the premises, which I infer was in anticipation of the back door being open, dressed all in black with a bandanna covering his face wearing gloves and armed with a replica pistol. I do not accept that the offending is properly described as impulsive. The facts indicate a level of planning.

   (b)the description of events leading to the offence of assault occasioning bodily harm bear little resemblance to the Applicant’s evidence that he attended T’s home at her invitation earlier in the evening at about 10.00pm or 11.00pm, that he saw the victim who left, that he bottle fed his child, that he and T spoke and at 3.30am, when the victim returned, that he was attacked by the victim and that he disarmed the victim and struck him with a stick. The Applicant’s evidence in cross-examination was also different to the contents of his written statement;[30]

   (c)it is not for the Tribunal to go behind the sentencing remarks of the Learned Sentencing Judge. The sentencing remarks represented the basis upon which the Applicant pleaded guilty to the relevant offence. Those sentencing remarks are also similar to the Applicant’s contents of the handwritten statement;[31]

   (d)there were inconsistencies in the Applicant’s evidence which can be explained by the Applicant being a poor historian. However, the striking difference in his evidence before the Tribunal and the sentencing remarks and his written statement cannot be so explained;

   (e)the fact that at the time of the assault at 3.30am, there was another person present in a car outside the premises who then drove him from the scene after the assault, is not consistent with the Applicant arriving at the premises at 10.00pm or 11.00pm the preceding evening and that he stayed in the house talking with T until 3.30am when he was assaulted by T’s boyfriend. The Tribunal does not accept his evidence in relation to the circumstances of that offending and accepts the sentencing remarks of the Learned Sentencing Judge as accurately summarising the events that occurred at about 3.30am on 28 February 2017. The Applicant, in giving evidence before the Tribunal, was not truthful and sought to minimise his culpability and demonstrated a failure to accept responsibility for his offending and a failure to demonstrate appropriate and genuine contrition and remorse.

   [30] G15/112.

   [31] Ibid.

8. Further, the Applicant’s evidence about the circumstances in which his wife obtained a DVO was also inconsistent and contrary to the antecedent history. The initial suggestion that she obtained the DVO because T gave birth to their child, L, was plainly wrong given that the first DVO was obtained two years prior to L’s birth. His subsequent explanation for the birth being the reason for the second DVO, which then changed in evidence to a combination of his assault and the birth of L together with his evidence that ‘every time I go there it was a fight. It got ridiculous’, again was an endeavour to minimise his culpability and accept responsibility for his violent conduct. I do not accept his evidence.

9. Senior Member Puplick in Mendoza and Minister for Immigration and Border Protection[32] said at [48]:

   The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.

   [32] [2018] AATA 686.

10. In XFKR and Minister for Immigration and Border Protection, [33] Deputy President Kendall put it in the following way, at [45]:

    The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

    [33] [2017] AATA 2385.

11. The Tribunal agrees with and adopts those comments relating to domestic violence.

12. The Applicant’s offending included violence and particularly domestic violence against his wife, C, and are very serious offences. He committed offences against police who were acting in the performance of their duties and despite the sentence imposed are also to be regarded as serious offences.

13. The Applicant’s absence of criminal offending between 2008 and 2014 is to his credit. However, in his first period of offending, including his recidivist breaches of bail conditions, and his breach of probation order, he demonstrated not only a disregard for the law but also the privilege granted to him to remain in the community. Drug or alcohol abuse was not the reason for his offending. Based upon the evidence, it is clear that following his separation with his wife in 2012 the Applicant was taking drugs and it was this drug use that began the series of offences for which he appeared before various court from 2014. His offending increased in severity, including break and enter and contravention of a DVO. Then, in April 2016, he attended before the Magistrates Court facing an extraordinary number of charges that gave rise to a period of imprisonment of about 11 months.

14. The Applicant knew that he had avoided mandatory visa cancellation by only being sentenced to 11 months imprisonment but within 5 weeks of his release on parole his offending further escalated in seriousness when he committed the offence of armed robbery, in addition to an offence against police and assault occasioning harm.

15. In considering the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct, the Tribunal is to have regard to paragraphs 11.1.2(1)-(4) of the Direction. The harm that the Applicant may potentially cause in the future, should he commit similar acts of domestic violence, offences of violence against law-enforcement officers, offences of violence upon other members of the community or engagement with drug and alcohol abuse and the consequent serious offending to fund his habit, is a risk of harm in relation to which the Australian community would extend very low tolerance. That harm, arguably, would include physical and psychological injury to his family members and others in the community and is unacceptable.

16. The Tribunal accepts that the Applicant has undertaken various courses whilst in prison which include programs directed to address his addiction and understand his behaviour, including the triggers that may influence his decision to abstain from drug abuse. In submissions, the Respondent rightly pointed out that he has not been tested in the community, but equally the Applicant’s Counsel rightly submitted that it is not his fault insofar as he has been imprisoned and thereafter in immigration detention.

17. The Applicant’s correctional services violation history refers to two incidents of prisoner on prisoner assault in 2017. In the absence of any further evidence detailing the circumstances of his conduct, the Tribunal is not reasonably satisfied that it was only one incident of assault when the record clearly indicates two separate events on the 26 September 2017 and 4 October 2017. Insofar as the record indicates the Applicant gave positive drug samples, I accept the Applicant’s evidence that it was so recorded because, for personal reasons, he was unable to supply urine tests in the presence of another, and hence, the record reads, ‘Drugs – Positive Confirmatory Test Result/Fail to Provide’.[34] The Tribunal accepts that the Applicant failed to provide a urine sample as opposed to a positive urine sample. However, that evidence does not assist the Tribunal in concluding that the Applicant is not a future risk of offending, including abusing drugs and alcohol which he has clearly been doing since about 2012 until his most recent period of incarceration.

    [34] G21/150.

18. Counsel for the Applicant referred the Tribunal to the Queensland Corrective Services Individual Intervention Completion Report dated 13 January 2020.[35] The report was completed by a senior psychologist. It was reported that the Applicant had an entrenched and continuous pattern of disregarding societal norms, as evidenced by his criminal history. His offending met the requirement for participation in the Cognitive Self Change Program. It was reported that from, ‘the commencement of his program, [the Applicant] appeared to be a positive group member and performed with an advanced understanding of the program concepts early on.’[36] It was said that he undertook an honest approach in working with the program facilitators, provided realistic feedback, had consistent attendance, motivation and completed all assessment pieces adequately. By the end of the program he was undertaking a leadership role.

    [35] G16/134-138.

    [36] G16/135.

19. The report also confirmed that the Applicant had completed all relevant programs, displayed appropriate understanding of strategies and techniques, which if applied, would reduce the risk of violent recidivism. There were no outstanding program recommendations, but it was recommended that subsequent to the Applicant’s release into the community, he engage in counselling services to fortify those skills and apply himself within the community and be able to acquire an additional professional support network. In evidence, the Applicant said that he had been speaking to a counsellor by telephone for that purpose, but the Tribunal did not receive any evidence from the counsellor in relation to those telephone consultations.

20. In referring to that report, Counsel for the Respondent noted that the Applicant:

    … has been observed to make a relevant behaviour change and is in the Moderate to Low category of change scores.

    Please note: [the Applicant] has received an overall change score representative of positive observable behavioural change. However it is important to note that his risk of possible future violent recidivism continues to remain in the high risk group at 51.

    Counsel for the Applicant submitted that the only reliable evidence about risk is the detailed explanation referred to in the preceding paragraph which gave detailed explanation about his future prospect should he return to the community. I accept that submission.

21. Albeit that report provides some encouragement that the Applicant has undertaken appropriate programs, and if he applied that training he is armed with the tools to minimise the risk of reoffending, the Tribunal does not accept that the risk has been significantly reduced to a level that is acceptable to the Australian community. The Applicant has given evidence before the Tribunal, particularly with respect to his domestic violence offending, that attempted to minimise his culpability and so differed from the Court sentencing remarks that the Tribunal is not satisfied that he demonstrates an appropriate level of remorse and contrition for his conduct.

22. The Applicant’s wife provided an undated statement to the Tribunal[37] which outlined the difficulties in their marriage, and the Applicant’s drug abuse. I note that in relation to the armed robbery, she said that the Applicant told her he did not remember committing the offence but takes full responsibility for it. She says they are now talking and entertaining the thought of reconciliation.

    [37] G18/140-143.

23. The Applicant says that he now has the support of his family and has the incentive not to reoffend. However, the Applicant has a lengthy offender history, including when he was still with his family. That offending included violence and contempt for the laws of Australia over several years. His use of drugs from in or about 2012 until his current incarceration resulted in an escalation of very serious offending and should he return to the community he remains an unacceptable risk of reoffending.

24. Having regard to the whole of the evidence, Primary Consideration A weighs heavily in favour of the Respondent and the revocation of the Applicant’s visa.

    Primary Consideration B: The best interests of minor children in Australia

25. Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:

    (1)Decision-makers must make a determination about whether revocation is in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

    (3)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.

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    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.

1. The Applicant is the father of seven children, namely:

   (a)Child “A” (aged 14 years);

   (b)Child “B” (aged 13 years);

   (c)Child “C” (aged 12 years);

   (d)Child “D” (aged nine years);

   (e)Child “E” (aged nine years);

   (f)Child “F” (aged five years); and

   (g)Child “L” (aged four years).

2. The eldest six children, children A to F, have the same mother, C. The youngest child, L, has a different mother, T, who is the Applicant’s former partner.

3. There is no evidence before the Tribunal that suggests the interest of children A to F differ and require the individual consideration of each child. The interests of the Applicant’s youngest child, L, shall be given individual consideration.

4. The Applicant and his wife, C, separated in 2012. At the time of that separation, they had five children, the eldest was aged six years and the youngest was one year old. The Tribunal accepts that prior to separation the Applicant’s relationship with his children was a normal loving parental relationship, and that from 2010, whilst the Applicant was unable to work and recovering from his medical conditions, he remained at home and performed a parenting role with respect to his children.

5. In her statement, C said that the breakup of the marriage in 2012 had a very negative impact upon each of the children in their own way. They did not see the Applicant for 17 months from October 2012. The Applicant gave the same evidence that he did not see his children for an extended period.

6. The Applicant and his wife reconciled in 2014. C, in her statement, said that the reconciliation was from about February to June 2014 and that thereafter the Applicant isolated himself from his family and friends and distanced himself from his children. C became pregnant during their reconciliation; she did not tell the Applicant that she was pregnant. The Applicant did not know about the birth of his child, F, until approximately a month after she was born. Her date of birth was November 2014. C said that about one week prior to Christmas of that year, the Applicant asked to spend Christmas with C and the children. C refused, which resulted in the Applicant attending the home and neighbours contacting the police. The police arranged for the DVO to be put in place. C said, and the Tribunal accepts, that for the next 12 months he had regular contact with her and the children by telephone and then he handed himself into police. She said he went to jail on 29 January 2016 and that she attended court to support him. She then learnt of the birth of the Applicant’s youngest child to T.

7. The Applicant’s evidence about his relationship with his wife and their children accord with the evidence of C. He also said that he did not want his wife and children to visit him whilst in prison and in immigration detention. He said that in custody and immigration detention he has maintained telephone contact with his children and particularly the older children. The younger children were more interested in playing games than talking to their dad.

8. However, C did not give evidence before the Tribunal and the only evidence from her is her untested and undated written statement. Whether or not she is currently entertaining the thought of reconciliation with the Applicant is not before the Tribunal and given the only current evidence is from the Applicant, and that said evidence was, in part, self-serving and unreliable, the true status of their relationship is less than clear and unsatisfactory.

9. The Applicant was asked in cross-examination to identify his children’s treating general practitioner and current teachers. He could not answer those questions. He said he had been in jail. Since the second separation he could only recall one occasion when he saw his children.

10. As for the Applicant’s youngest child, L, there is no evidence from which the Tribunal can accept that he has had any meaningful relationship or performed a parenting role.

11. Counsel for the Applicant referred him to an email communication with Centacare Brisbane[38] which evidenced his enquiries in setting up a family dispute resolution meeting. The Applicant explained that this related to a meeting he tried to arrange to address future arrangements for L.

    [38] Exhibit H.

12. In cross-examination, the Applicant further explained that the other participant in the family dispute resolution was T. Their son, L, had been removed from her care due to her drug use and was now in foster care. L was first in foster care from early 2019 until September or October 2019. He was again placed in foster care from June 2020 to date. The Applicant’s mother was the guardian of L, which Counsel for the Applicant understood, and the Tribunal accepts, meant that the Applicant’s mother was the family member or relative to whom inquiry was to be directed with respect to legal issues involving L. Neither T, due to her drug addiction, nor the Applicant, due to his incarceration and detention, could perform that role. The Applicant said that if he is released into the community, he wanted to gain custody of L.

13. In his statement dated 11 June 2020,[39] the Applicant stated that T fully supported him being granted custody of L. However, the Tribunal did not hear from T or from the Applicant’s mother with respect to the current circumstance of L and any possible role the Applicant, T or his mother may play in L’s life as a parent including who will play that role in the short, medium and long term. Hence, the evidence with respect to L’s future is unclear.

    [39] Exhibit B.

14. The Applicant said repeatedly in evidence that if he were removed to New Zealand, he would try hard to provide financially for all of his children and do ‘whatever it takes’ to support them.

15. The Applicant’s mother provided a handwritten statement dated 3 January 2019, which I note was addressed to the Parole Board.[40] She explained that the breakdown of the Applicant’s marriage was a trigger for his drug use and that he has lost his children, his self-respect and his self-worth. She is prepared to support him, as does the whole of her family. She said that he is adored and looked up to by his nieces and nephews. She described him as an amazing dad and a good husband. Unfortunately, that letter is approximately 16 months old and seemingly in respect of the Applicant’s application for parole, it does not speak to the current circumstances of any of the children and in particular L. It is of limited weight.

    [40] G17/139.

16. The Applicant gave evidence that he had 33 nieces and nephews some of whom were children to whom this Primary Consideration applies. In his written statement provided together with his Personal Details Form, he identified that 25 of them are under 18 years of age but provided no further detail. The Tribunal received statements from three children of his brother.

17. The first was a brief unsigned reference letter from his 15-year-old niece, N, dated 10 June 2020.[41] N spoke glowingly of the Applicant and described him as a person of very good and upright character, hard-working, that he never leaves the job unfinished and is loving and caring. She described him as a man who always played his guitar and that she does not know what “we” would do without their favourite uncle. She said she will be bored out of her mind without him.

    [41] Exhibit J.

18. The second was a very brief unsigned and undated reference letter from the Applicant’s niece, Z.[42] Z does not state her age. She said that she would go to the Applicant’s home to play with her cousins, and she hopes to create similar memories in the future. She described him as loving and loyal and that he was her favourite uncle. She misses him. She spoke of him in glowing terms and expressed her love and appreciation of him.

    [42] Exhibit K.

19. The third was a very short unsigned and undated reference letter from his niece, CC.[43] CC gave no details as to her age. She described the Applicant as her favourite uncle, as very caring who always sang and played his guitar. She also used to go to her cousins and have fun. She loved the Applicant and described him as the best uncle in the world. She spoke of him in glowing terms and, could not wait to see him again.

    [43] Exhibit L.

20. In their statements, none of the Applicant’s three nieces detailed any contact they have had with the Applicant in recent years, in particular from 2012 to date, when he had been abusing drugs and alcohol and had been imprisoned and in immigration detention. Hence, limited weight can be given to their statements save that they love the Applicant and would be sad should he be relocated to New Zealand.

21. The Tribunal also received a reference letter of SR dated 9 June 2020,[44] who is a cousin of the Applicant of same or similar age. It was relevant to the extent that she described him as friendly, hard-working, caring, honest and a great family man. She said that his family was his priority. She said he looked forward to returning to a life of stable employment, being a great father to his children and contributing to the community.

    [44] Exhibit E; Exhibit M (duplicate).

22. The Applicant’s brother, CR, also provided an unsigned and undated reference letter to the Tribunal[45] which spoke of the Applicant in glowing terms and expressed the opinion that the Applicant’s nieces and nephews miss him dearly. CR has seven children but does not provide any further detail in respect of those children. He also refers to their sister, NC, and states that she also has seven children, but, again, does not provide any further detail about those children. He expressed his sorrow that the Applicant’s children had lost a great father.

    [45] Exhibit C.

23. The Tribunal also received a signed reference letter of GS dated 14 January 2019.[46] GS is the mother of two young children and has known the Applicant since they were teenagers. She described him as close family friend and that he is the godfather to one of her cousin’s children but provides no further information. She speaks of the Applicant’s strong relationship with his children and generally corroborates the evidence with respect to his history of drug abuse and the breakdown of his marriage. She opines that if offered the opportunity to see his children and spend time with them this will aid in his rehabilitation; however, in relation to this Primary Consideration her statement is of limited assistance.

    [46] G19/143.

24. The Applicant’s sister AR provided an email statement dated 11 June 2020.[47] She has five children but provided no detail about their ages and their relationship with the Applicant, particularly in recent years. Nonetheless, she detailed the Applicant’s contribution to the extended family and his role as a family man which I infer was prior to his drug use. She refers to their father’s recent and unexpected death and that she now speaks to the Applicant daily. He will call to check on her.

    [47] Exhibit D.

    Conclusion: Primary Consideration B

25. The Applicant’s relationship with his five eldest children of his marriage to C has, based upon the evidence before the Tribunal since in about 2012, been negligible. He did not see his children for 17 months following his first separation from C. Since then he had a brief period in which he returned to the marriage between February and June 2014, but this was a period when he was taking drugs, absenting himself from the home sometimes for days, often sleeping and not contributing to the finances home. In respect of his youngest child of his marriage to C, she was born after their second separation and the Applicant has, based on the evidence, played no appreciable parenting role in her life.

26. In considering this Primary Consideration, the Tribunal has treated the interests of the children of his marriage to C as the same, despite their varying ages and the length of time they have had the Applicant in their lives. They have the same familial relationship with the Applicant with no individual’s consideration different to the other.

27. The breakdown in the Applicant’s marriage, his disengagement from his family, his drug abuse and hospitalisation, criminal offending and consequent periods of incarceration have all contributed to the Applicant not playing a positive parenting role in respect of those children since in or about 2012. On the evidence before the Tribunal, that role has been played mainly by the Applicant’s wife, C.

28. In respect of the Applicant’s youngest child L, the Applicant was imprisoned within three weeks of his birth. Then, five weeks of his release from prison and whilst on parole he further offended including the offence of armed robbery.

29. I note the District Court sentencing remarks dated 21 June 2018,[48] indicate that the Applicant had been in pre-sentence custody from 1 March 2017. Hence, for the majority of L’s life the Applicant has been in jail or in immigration detention.

    [48] G13/91.

30. It is also relevant that L has been removed from the care of T and is now in foster care. Insofar as the Applicant’s mother, L’s grandmother, is referred to as L’s guardian, there is no satisfactory evidence about what, if any, role she plays with respect to L. Albeit the Applicant has contacted Centacare in Brisbane in relation to setting up a family dispute resolution meeting with the intention of pursuing a custody application with respect to L, having regard to the evidence, the status of that process is unclear and wholly unsatisfactory. Given the Applicant’s antecedent history, including drug addiction, it remains uncertain what, if any, role the Applicant may be permitted to play in L’s life in the future. His return to the community is no guarantee that he will play a positive parenting role in L’s life.

31. However, it is also relevant that the relocation of the Applicant to New Zealand may also have an impact upon his ability to engage with L in the future. Albeit, telephone and electronic media will provide a means of communication, the Applicant currently has no meaningful relationship with L, and he will arguably need to rely on family members to assist in facilitating that contact. How his relocation may impact upon any custody application is not the subject of evidence before the Tribunal, but I infer that the geographical distance will be a very relevant consideration in any custody application. Further, should L be returned to the care of his mother T, this too may be an impediment in the Applicant initiating contact with L subject to such remedy that may be available to him through the legal process.

32. Hence, in respect of L the Applicant’s relocation would have little or no immediate impact on him given the absence of any parental or other relationship since L’s birth. But the Applicant’s relocation will likely impede the future development of the father-son relationship, absent of assistance from the foster parents or members of the Applicant’s family such as L’s guardian. It is in L’s best interest that he has the best opportunity to develop a relationship with his father now and into the future and that the best opportunity to achieve that is if the Applicant were to remain in Australia.

33. The Applicant has provided very general but unsatisfactory evidence with respect to his nieces and nephews and other children who may fall for consideration within this Primary Consideration. At its highest, the Tribunal accepts that those children may be upset, saddened or disappointed should the Applicant be returned to New Zealand. The Applicant spoke about his engagement in whole family functions at his home which occurred either fortnightly or monthly from which the Tribunal infers that these events may have provided some regular contact with the Applicant and enjoyment for those children and others. However, the Applicant said that the last event occurred in 2013 and, hence, the Tribunal does not accept that the broader members of the family have engaged with him to any significant extent since the breakdown of his marriage in 2012 or following reconciliation for a brief period in 2014 and thereafter when he continued to abuse drugs.

34. The Tribunal accepts that it is in the best interests of a child to have the opportunity to grow up engaging with and knowing his or her parent. That remains the case with respect to the Applicant and his seven children. However, the Applicant’s limited engagement with his children for a number of years, his drug abuse, antecedent history and the uncertainty about how he will conduct himself in the future and abstain from drug abuse, is a relevant consideration to be weighed in the circumstances of this matter.

35. The Applicant has made some progress in respect of his future rehabilitation with the various programs he has undertaken, as discussed in the Queensland Corrective Services Report to which I have earlier referred. But should he return to such criminal conduct it would arguably have a negative impact upon his children and those other children to be considered under this Primary Consideration.

36. Nonetheless, the Applicant’s children will have the opportunity to maintain contact through telephone or other electronic media. He will have the opportunity, albeit from New Zealand to be engaged with and play a part in their lives. The same can be said for those other children to whom I have referred.

37. It is still appropriate to give weight to this Primary Consideration in favour of the Applicant. As I have said, it is in the best interest of a child to have the opportunity to engage with and know his or her parent, preferably in person. I accept that the Applicant loves and cares deeply for his children and that he has a strong affection for those other children to whom I have referred which is reciprocated. His youngest son L has had almost no engagement with the Applicant since birth and it would be in his best interest that he has the opportunity to do so in the future, in particular in person and in a drug free environment.

38. I accept, as the Applicant’s wife C said, that his children love him. But when balancing all of the matters to be considered in paragraph 13.2 of the Direction, I do not weigh this Other Consideration as heavily as I might otherwise have done. Accordingly, I give medium weight to Primary Consideration B in favour of the Applicant and the revocation of the visa cancellation.

    Primary Consideration C: Expectations of the Australian community

39. Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. 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. Decision-makers should have due regard to the Government’s views in this respect.

40. Further, paragraph 6.3(5) and (7) of the Direction provides:

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    …

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

1. The Applicant came to Australia as a very young infant and has spent the vast majority of his life in Australia. He has, on occasion, returned to New Zealand. His immediate family live in Australia, albeit he has extended family still in New Zealand such as his aunt whom he knows. He has been employed in various construction industry skills and has twice established a successful business, namely a scaffolding business which employed family members, and a fish and chip shop with his wife. He has employment as a trade’s assistant should he return to the community.[49]

   [49] Exhibit G, reference letter from R dated 1 June 2020.

2. In her handwritten letter addressed to the Parole Board, the Applicant’s mother said that his father left the family in 1984, when the Applicant was aged two years and stated that he has ‘never had the hand of a father’[50] and he has had nothing to do with him since, which, she opines, has been to the Applicant’s disadvantage.

   [50] G17/139.

3. The Tribunal has not received details of the Applicant’s offending as a youth save for those offences to which I referred in his antecedent history in Primary Consideration A. To the extent the Applicant has offended the laws of Australia, the Tribunal has had particular regard to the Applicant’s offender history as an adult which I will not repeat.

4. The meaning of the expectations of the Australian community and the approach to be adopted by the Tribunal in considering this Primary Consideration were considered in FYBR v Minister for Home Affairs.[51] This matter involved visa refusal, but its principles apply equally to s 501 mandatory visa cancellations where paragraph 13.3 of the Direction is worded in identical terms to paragraph 11.3 of the Direction. In FYBR, it was found that paragraph 11.3 of the Direction expresses a deemed community expectation, that all persons who have committed a serious criminal offence giving rise to character concerns, must expect refusal, or in this case, the revocation of that person’s visa.

   [51] [2019] FCAFC 185 (‘FYBR’).

5. Hence, it is the expectation of the Australian community that the Applicant obeys Australian laws. That expectation has not been met because, by his offending, and being sentenced to imprisonment, the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act. It is not for the Tribunal to make its own assessment of community expectations. The nature of the character test is such that the deemed expectation will arise in most cases as it does here.

6. In considering the Tribunal’s approach with respect to the deemed community expectation, Charlesworth J said in FYBR at [76]:

   The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

7. Accordingly, the weight to be given to this Primary Consideration, having regard to the principles referred to in paragraph 6.3 of the Direction, particularly paragraphs 6.3(5) and 6.3(7) of the Direction are to be determined by the Tribunal in the operation of its discretion. The Applicant did not pass the character test pursuant to s 501(6)(a) of the Act, which must weigh against the revocation of his visa application.

8. The Applicant argued that he has spent most of his life in Australia from a very young age. His adult offending did not commence until he was aged 19 years and he has made efforts to rehabilitate himself. It was noted that reference letters have been provided to the Tribunal from family, friends and counsellors who support him being granted a visa, knowing his criminal history. It was submitted, that he has also spent a number of years in employment both as an employer and employee making a valuable contribution to the Australian community, and this may afford him higher tolerance with the Australian community.

9. The Respondent referred the Tribunal to the recidivist nature of the Applicant’s offending and, despite those circumstances personal to the Applicant, the seriousness of his offending must, in the Respondent’s submission, weigh heavily against the Applicant when considering this Primary Consideration.

   Conclusion: Primary Consideration C

10. The right to hold an Australian visa is a privilege. In considering the cancellation of a visa, the Australian community may afford a higher tolerance to a member of the community who has spent most of his life in Australia from a very young age and who has made a positive contribution to that community. That is relevant to the Applicant, as are the consequences of his visa cancellation on minor children and family members.

11. The Applicant’s offending has repeatedly demonstrated a contempt for the laws of Australia during both periods of offending to which I have referred above. Indeed, he has committed offences of violence against those charged with the responsibility of administering those laws, namely, police officers. He continued his violent offending, breached bail, and when given the benefit of a suspended sentence, he breached his probation order and community service order. This was occurring even when employed and well before he suffered from his knee injury which seriously impacted upon his ability to work and gave rise to his depression.

12. To his credit, the Applicant was not before the courts between 2008 and 2014, but it was also apparent from the evidence that from in or about 2012 and the breakdown of his marriage he had started his drug abuse, albeit he was not before the courts until 2014. After an attempted brief period of reconciliation in 2014, his recidivist offending was very serious, including DVO offences involving his wife, dishonestly offences, offences involving police, offences of violence, namely assault occasioning bodily harm whilst armed and armed robbery. His offending was only interrupted by periods of hospitalisation and imprisonment.

13. The nature of the Applicant’s character concerns included his drug and alcohol abuse over an extended period of time, and more particularly with respect to that offending which enlivened the provisions of s 501CA of the Act. These factors together with other serious offending over a number of years, offences against his former wife and against police, when balanced against the background of his personal circumstances, give rise to an expectation of the Australian community that the Applicant should not be granted the privilege of holding a visa.

14. When undertaking the balancing of those matters relevant to the exercise of the Tribunal’s discretion, this Primary Consideration weighs heavily in favour of the Respondent and the revocation of the Applicant’s visa.

    The Other Considerations

15. In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

    Other Consideration (a): International non-refoulment obligations

16. No evidence or argument was advanced in relation to non-refoulement obligations such that it is of relevance in determining the application

    Other Consideration (c): Impact on Australian Business and  Other Consideration (d): Impact on Victims

17. The Applicant in his written submission did not raise Other Considerations (c) and (d). The Respondent, in his Statement of Facts, Issues and Contentions made brief written submissions in relation to Other Considerations (c) and (d).

18. In respect of the impact on Australian business interests, it was submitted that there was no evidence that the non-revocation of the Applicant’s visa would significantly compromise any major project or important service. Hence, this Other Consideration, it was submitted, does not weigh in favour of the revocation of the Applicant’s visa cancellation.

19. In respect of the impact on victims, the Respondent noted that the Applicant’s wife, C, appears to be the victim some of the Applicant’s offending and that she had provided a statement in support of the Applicant. It was submitted that C may not have fully appreciated the risk that the Applicant will reoffend and commit domestic violence against her. It was submitted that it cannot be said that this Other Consideration weighs in favour of the Applicant, consistent with recent Tribunal decisions.[52]

    [52] Sach and Minister for Home Affairs [2019] AATA 5173; Brown and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 668; RZMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1000.

20. Having regard to the whole of the evidence the Tribunal is reasonably satisfied that neither Other Considerations (c) or (d) weigh for or against the revocation of the Applicant’s visa cancellation.

21. At the hearing, both the Applicant and Respondent only addressed Other Considerations (b) and (e) in respect of the Applicant to which I will now refer.

    Other Consideration (b): Strength, nature and duration of ties

22. Paragraph 14.2(1) of the Direction provides that decision-makers must, in reflecting the principles at 6.3 of the Direction, have regard to the following:

    a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;

    i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and

    b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).

23. The Applicant arrived in Australia as an 18-month-old child and has spent most of his life in Australia. He is now 37 years of age. He has a large family having seven children, seven siblings and 33 nieces and nephews. His mother and her partner also live in Australia.

24. The Applicant’s mother, in her statement, said that his natural father left when the Applicant was aged two years. The Applicant said in evidence that his mother has had a partner for many years. The Applicant’s sister said that her parents separated when she was 16 years of age and that the Applicant gave their father employment in his scaffolding business. She also said the Applicant’s ‘Mother and Father (who will rest here at [city] Cemetery) live here in Australia’[53] yet referred to the father’s recent death. The Applicant, in oral evidence, also referred to his father’s recent death. I accept that the Applicant has a large family and strong family ties to Australia.

    [53] Exhibit D.

25. The Applicant has seven siblings. In oral evidence, he said that he speaks to each of them regularly and is trying to rebuild his relationship with his extended family. In respect of his brother, CR, he said that he speaks to him more regularly as he works for him running his farm. This evidence was ambiguous. No other mention of the Applicant owning or having an interest in a farm was made in written or oral evidence.

26. The Applicant lived briefly in New Zealand following the death of his grandfather in order to help support his grandmother. His travel records indicate that he has travelled to New Zealand in 2004, 2006 and 2009. He has relatives in New Zealand whom he knows and has met, such as his aunt, but all his close familial relationships and friendships are with those in Australia.

27. The Applicant has, as I have already discussed, a poor criminal history from the year 2000 to 2008 and from 2014 until his most recent imprisonment which offending was exacerbated by drug abuse resulting in the offence of armed robbery. His offending has, during both periods, involved offences against police, but more particularly, since 2014, offences in breach of DVO. Paragraph 6.3(3) of the Direction makes clear that DVO offences are abhorrent and cannot be ignored when determining the weight to be given to this Other Consideration.

28. The Applicant contributed positively to the Australian community by gainful employment in the construction industry until his work capacity was impacted upon by his arthritic condition, whereupon he and his wife bought a fish and chip shop, which, I accept, ran successfully. Also, during the period of his convalescence of approximately 12 months, that contribution was to ensure the efficient running of the household, by caring for the children and performing home duties whilst he was unable to work.

29. Since his first marital separation in 2012, the Applicant has not made a valued contribution to the Australian community or to his family, brought about to large degree due to his drug abuse. Indeed, he has been a burden on the Australian community. He has had many matters before various courts and been sentenced to periods of imprisonment that he has served.

30. The Applicant has provided a number of testimonials from family members and others who know and support him. He has their love and continued support. His wife, in her statement described him as a loving father and said that he has her continued support. But that must be balanced with his abusive behaviour when affected by drugs and his ability to remain drug free in the future, which I have discussed when dealing with the risk of reoffending.

    Conclusion: Other Consideration (b)

31. The Applicant’s home, throughout his life has been in Australia. His ties to New Zealand are negligible particularly as his grandparents are both deceased. The Applicant also has employment ties in Australia, having employment immediately available to him should he return to the community. He referred in his written statement to having a full-time job with his cousin working as an excavator driver and provided a letter to the Tribunal confirming his employment as a trade’s assistant. He has a place to live either with his mother or a cousin

32. The Tribunal did not have the benefit of hearing evidence from the Applicant’s family members including those who provided statements. His wife gave some insight into her difficulties dealing with the Applicant in the lengthy period of time during which he was abusing drugs and alcohol. Albeit the Applicant maintains he and his wife continue to discuss reconciliation, the evidence from his wife is contained in a handwritten undated statement and in respect of reconciliation it carries limited weight. Whether she currently has that intention, is to be viewed with some caution. This must be so because the Applicant’s evidence was, in regard to certain topics, such as the events on 28 February 2017, unacceptable. Similarly, that he suggested his wife took out a DVO founded on jealousy or in reaction to the birth of his youngest child to T, did not stand up to scrutiny. He was not honest and frank and endeavoured to portray himself in a more favourable light. This not only impacted upon the credibility and reliability of the Applicant but also undermined his expression of contrition and remorse.

33. Nonetheless, the Tribunal accepts that he retains strong ties to family and others in the community. His removal to New Zealand will have an impact, to varying degrees, upon each of them and will certainly impact upon the Applicant. When balancing the evidence relevant to this other consideration including reflecting the principles in paragraph 6.3 of the Direction, and the quality of evidence before the Tribunal to which I have referred, it is appropriate that this Other Consideration weigh significantly in favour of the Applicant and the revocation of his visa cancellation.

    Other Consideration (e): Extent of impediments if removed

34. Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:

    (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)The non-citizen’s age and health;

    b)Whether there are substantial language or cultural barriers; and

    c)Any social, medical and/or economic support available to them in that country.

35. In his written statement, provided together with his Personal Details Form, the Applicant writes:[54]

    Apart from having been diagnosed with severe depression, reactive rheumatoid Arthritis because of this I have to take Methotrexate which is used in cancer patients. It is a cyotoxin which helps keep my immune system I need to have regular blood test and kidney testing. Been made to leave Australia it will obviously impact on my depression and although, I will have access to the medication I need to treat it, without my family and my children I don’t know how motivated I will be to keep on it. I fear that I will fall back into my old habits and go off the rails. I’m also worried as I have no family in New Zealand so the type of support I will receive will be zero.

    [54] G15/122.

36. The Tribunal has not received evidence from a medical practitioner in respect of the medical conditions identified by the Applicant. Albeit the Queensland Corrective Services Individual Intervention Completion Report does note that he presented with entrenched and continuous pattern of disregarding social norms evidenced by his criminal history, the severity of the Applicant’s stated depression is not clear upon the evidence. The Tribunal accepts that he was depressed following difficulties in recovering from his knee operation and the breakdown of his marriage and separation from his family. The Applicant in his written submissions referred to his severe depression, reactive rheumatoid arthritis and prescribed medication methotrexate. He said he has regular blood and kidney tests. However, in the absence of medical evidence the impact those conditions currently have on the Applicant and will likely have in the future should he be relocated to New Zealand is unclear.

37. It should be noted that in his oral evidence, the Applicant said that if relocated to New Zealand he would maintain a positive approach to pursuing employment and providing financially for his family as best he could even from a distance.

    Conclusion: Other Consideration (e)

38. The Applicant does not face any impediment if removed from Australia by virtue of his age. To the extent that the Applicant still suffers from stated medical conditions requiring medical treatment and medication, I infer that same or similar treatment and medication will be available to him in New Zealand. Further, there are no language or cultural barriers that will cause an impediment to him. He has previously lived in and travelled to New Zealand from time to time and still has family members in New Zealand who he knows, and with whom he can renew contact.

1. The Tribunal accepts that initially, relocation to New Zealand will have some effect, psychologically upon the Applicant; but his continued expressed determination to obtain employment and provide for his family, albeit from a distance, means the Applicant should be able to establish himself and maintain basic living standards comparable to other members of the New Zealand community.

2. He has extensive work experience and expertise across a range of disciplines which will be available to him in New Zealand. He has expressed the wish to return to scaffolding which was a successful occupation for him in Australia. Those skills and expectations are readily transferable to New Zealand.

3. Albeit, some weight might properly be attributed in favour of the Applicant with respect to this Other Consideration, in the absence of further acceptable evidence directed to his health issues it is appropriate that only moderate weight be given in favour of the Applicant to this Other Consideration and the revocation of his visa cancellation.

4. There are no more Other Considerations that the Tribunal should have regard to on the available evidence.

   CONCLUSION

5. Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

6. Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then 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, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:

   (a)Primary Consideration A weighs heavily in favour of the Respondent;

   (b)Primary Consideration B is given medium weight in favour of the Applicant;

   (c)Primary Consideration C weighs heavily in favour of the Respondent;

   (d)Other Considerations (c) and (d) neither weigh in favour of or against the Applicant; and

   (e)Other Considerations (b) and (e) respectively weigh significantly and moderately in favour of the Applicant.

7. Paragraphs 8(4) and (5) of the Direction provide as follows:

   (4)Primary Considerations should generally be given greater weight than other considerations.

   (5)One or more primary considerations may outweigh other primary considerations.

8. It must be remembered 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’.[55]

   [55] The Direction, paragraph 6.2(1).

9. The weight of Primary Consideration B and Other Considerations (b) and (e) is such that none of them, alone or combined, outweigh the heavy weight that the Tribunal has attributed to the Primary Considerations A and C.

10. The Tribunal therefore finds that, taking into account all of the considerations in the Direction, the Considerations weigh in favour of the non-revocation of the mandatory cancellation of the Applicant’s visa.

11. Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

12. For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

..........................[Sgnd]..............................

Associate

Dated: 30 July 2020

Date of hearing:	8 July 2020
Applicant	By video link
Advocate for the Applicant:	Greg Barns, SC
Solicitors for the Applicant	Bold Lawyers
Advocate for the Respondent:	Samuel Cummings
Solicitors for the Respondent:	Sparke Helmore