Martin and Minister for Home Affairs (Migration)

Martin and Minister for Home Affairs (Migration) [2019] AATA 4619 (12 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5301

Re:Dean Regan Martin
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Senior Member Nicholas Manetta
Date:12 November 2019
Place:Adelaide

The decision under review is affirmed.
.........................[SGD]...............................................
Senior Member Theodore Tavoularis
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
Afu v Minister for Immigration and Border Protection [2018[ FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166
Marzano v Minister for Immigration & Border Protection [12017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Home Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
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 Theodore Tavoularis
Senior Member Nicholas Manetta
12 November 2019
INTRODUCTION

Dean Regan Martin (‘the Applicant’) is a 55-year-old citizen of the United Kingdom who first arrived in Australia in 1972, aged nine years. The Applicant’s Class BF Transitional (Permanent) visa was mandatorily cancelled on 22 October 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). On 14 November 2018, the Applicant sought revocation of the mandatory cancellation of his visa. He made the necessary representations in support of that request. On 14 August 2019, a delegate of the Minister (‘the Minister’ or ‘the Respondent’) decided not to revoke this mandatory cancellation decision.
On 26 August 2019, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the abovementioned non-revocation decision (made on 14 August 2019). This is the application that is now before the Tribunal.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this section provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, we must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]
First, there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[2]
[1] [2018] FCAFC 151.
[2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[3] We will address each of these grounds in turn.
[3] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
At the hearing, there was no significant resistance from the Applicant to a suggestion that he does not pass the character test due to him having a substantial criminal record. The Applicant’s position on this point was, to our minds, appropriately taken because even a cursory review of his offending history[4] demonstrates that a significant number of custodial sentences have been imposed upon him. In very round terms, for the period of his offending in this country running from August 1982 until February 2017, sentencing authorities have imposed cumulative custodial terms approximating 20 years.
[4] Exhibit 8, s501 ‘G’ Documents, G4, pages 33-34.
Although some of the sentencing regimes contained certain stipulations about early release and/or parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[5]
[5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, we are satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”) applies.[6] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[7]
[6] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[7] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation of mandatory visa cancellation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
We note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[9]
[our insertion]
[8] [2018] FCA 594.
[9] Ibid at paragraph [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
We will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
We set out in the table below the Applicant’s convictions history:

Court and Date

Offence

Result

Elizabeth Magistrates Court

13/8/1982

1.    Larceny (2)

2.    Larceny

3.    Larceny

4.    Larceny (2)

5.    Forge and Utter

1.    Fined $100 each

2.    Fined $200

3.    Fined $200

4.    Fined $100

5.    5 months gaol, 2 months non-parole period

Para DM

13/8/1982

1.    Forgery (4 charges)

2.    Uttering (4 charges)

1.    5 months gaol on each charge concurrent,

2.    2 months non-parole period

District Court of SA

4/6/1984

1.    Breach of Bond

2.    Assault occasioning actual bodily harm

1.    Estreatment $250, 5 months gaol

2.    18 months gaol cumulative

Total head sentence: 23 months, 12 months non-parole period

Tanunda Magistrates Court

31/1/1989

1.    Fail to exhale into breathalyser

2.    Resist Police

3.    Damaging Property

1.    Fined $400

2.    Convicted no penalty

3.    Fined $50

Holden Hill Magistrates Court

27/3/1991

Drive under disqualification

28 days gaol, Suspended sentence

Elizabeth Magistrates Court

27/8/1992

Possessing cannabis

Fined $75

Elizabeth Magistrates Court

30/11/1992
Possessing controlled substance Fined $10

District Court of SA

21/1/1993

Wounding with intent to do grievous bodily harm

two years 6 months gaol, 21 months non-parole period

District Court of SA

15/7/1993

Rape

8 years gaol 6 years non-parole period

Adelaide Magistrates Court

22/1/2002

1.    Possessing Cannabis

2.    Carry Offensive weapon

On both charges – convicted and sentenced to 24 hours community service within 3 months

Adelaide Magistrates Court

15/8/2002

1.    Disorderly behaviour (2)

2.    Offensive language

   Convicted on both charges

Adelaide Magistrates Court

16/1/2003

Assault occasioning actual bodily harm

10 months gaol

Adelaide Magistrates Court

29/9/2003

1.    Possess unregistered firearm

2.    Possess firearm without licence

3.    Threaten another person with firearm (3)

4.    Unlawful possession

24 months gaol cumulative

Head sentence: 34 months gaol, non-parole period of 8 months.

Elizabeth Magistrates Court

14/01/2016

Commit assault that causes harm- aggravated other - No weapon

Convicted: 6 months gaol to be released after serving 1 month

Whyalla Magistrates Court

16/2/2018

1.    Breach of bond

2.    Commit assault - basic

1.    Suspension revoked – sentenced to 4 months 28 days gaol

2.    9 months gaol cumulative

Total head sentence: 13 months 28 days gaol, non-parole period of 8 months

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)...
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction stipulates that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
For the purposes of our decision, it is sufficient only to examine the offending that has involved violence. The Applicant’s criminal record discloses a number of such crimes. We examine each violent crime below. Relevant aspects of the Applicant’s submissions in respect of the crimes are examined below at paragraph [51].
The first crime of violence is one committed in 1984, when the Applicant was about 20 years of age. It involved an assault with a knife upon a security attendant at a disco. The attendant received a deep wound requiring some 30 stitches. For that offence, the Applicant received a term of imprisonment of 18 months with hard labour. The offence involved a breach of bond, and that breach was punished by the imposition of a further 5 months’ imprisonment, making a total of 23 months’ imprisonment. The non-parole period set in respect of the two offences was 12 months.[10]
[10] Exhibit 8, s501 ‘G’ Documents at pages 55-57.
In 1993, the Applicant was found guilty of wounding with intent to cause grievous bodily harm. The offence, committed in 1991, involved the infliction of multiple stab wounds upon a victim. The wound that punctured the left lung was described by the sentencing judge as “potentially life threatening”.[11] For this offence, the Applicant was sentenced to three and a half years’ imprisonment with a non-parole period of 21 months.[12]
[11] ibid at page 54.
[12] Ibid.
In 1992, the Applicant, while on remand on the wounding charge, raped a girl. The victim was a 16-year-old, who was punched and hit by the Applicant while being held down. The Applicant, armed with a large knife, made threats to his victim’s life and injured her face and head.[13] The sentencing judge said the Applicant had subjected the “victim to a humiliating, frightening, violent series of physical and verbal assaults and insults while armed with a knife” before he raped her.[14] The offence was described “as a very serious breach of the law which is well up the scale of seriousness”.[15] It attracted a sentence of eight years gaol with a non-parole period of six years.
[13] Ibid at page 48.
[14] Ibid.
[15] Ibid.
In 2003, the Applicant was found guilty of assault causing actual bodily harm to his then girlfriend. The assault consisted of a series of physical attacks (first en route home from their local pub and then within the home itself). The victim sustained bruising, laceration, abrasions, and a fracture of her nasal bones caused by kicking and punching. He was sentenced to 10 months’ gaol.[16]
[16] ibid, pages 173-176.
In August 2002, the Applicant, having been ejected from a licensed club run by the Deaf Society, returned with a sawn-off shot gun. He pointed it at patrons in the driveway and fired a shot above their heads. He was arrested the following day in the Adelaide SkyCity Casino carrying the weapon (for which he had no licence). For a variety of offences involving the unlawful possession of the weapon and threatening others with a firearm, he was sentenced to 34 months in prison with a non-parole period of nine months in 2003.[17]
[17] Transcript at 41-42.
To the Applicant’s credit, there was a long period after he left gaol in approximately 2004 when he committed no offences. This period lasted some 12 years.
In 2015, however, the Applicant assaulted his next-door neighbour. He punched his neighbour in his right eye with a clenched fist causing him to fall to the ground. He kicked the victim in the head and face and also in the stomach. It appears (from the sentencing remarks given in relation to the next offence we discuss)[18] that the victim was elderly. The Applicant was sentenced to six months’ gaol of which five were suspended provided the defendant entered into a good behaviour bond for two years.[19]
[18] Exhibit 8, s501 ‘G’ Documents at page 37. The Applicant admitted before us that the neighbour was “a lot older” than he was: Transcript at page 44, line 43.
[19] Exhibit 8, s501 ‘G’ Documents at pages 40-45.

Within the period of the two years, however, the Applicant committed a further assault in 2017. The Applicant attacked a resident of a retirement village where he was himself residing. He grabbed the resident by the neck and head-butted him. The victim was elderly and had previous head surgery. The Applicant was sentenced to nine months’ gaol with a non-parole period of eight months for that offence.[20]
[20] Ibid at pages 35-39.
We are of the view that sub-paragraph (a) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s conduct to date must be viewed overall very seriously. In particular, although the Applicant was conviction-free for some years, the Applicant has committed in recent times two serious assaults against elderly, and therefore vulnerable, people. These assaults were not minor and represent, in our opinion, a serious return to unprovoked violence.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction refers to the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed.
The rape (of a female minor) in 1992 and the assault (against his then girlfriend) in 2001 fall within this category.
In our opinion, there can be no finding other than that judged in its totality, this Applicant’s offending has been of a very serious nature.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community are to be regarded as serious. To an extent, this sub-paragraph (c) dovetails into our findings about the immediately preceding sub-paragraph (b).
We would note further that the most recent assaults have been against elderly, and therefore vulnerable, members of the community. The sentencing magistrate in the second of the two most recent assaults referred specifically to this fact in his sentencing remarks.[21]
[21] ibid at page 37.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. To an extent, this sub-paragraph (d) is rendered nugatory as a result of the applicability of sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. This is because sub-paragraph (b) (for present purposes) compels a finding that the Applicant’s offending must be viewed “very seriously, regardless of the sentence imposed.”
We are thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the courts for the crimes of this Applicant clearly support a finding that his offending is to be assessed as very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. We have taken into account the serious offending that occurred up to 2002. We have also taken into account the long break during which the Applicant did not commit any crimes. We have taken into account, however, the two serious assaults against elderly people in recent times (the second of which occurred while the Applicant was on a bond to be of good behaviour).
The application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction results inevitably in a finding that renders the Applicant’s offending very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction is concerned with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
We have concluded that the history of the Applicant’s offending as described above is extensive and our further conclusion is that he has, unfortunately, chosen to recommence violent offending after a significant period in which he had not offended.
The application of this sub-paragraph (f) leads us to a finding that the cumulative effect of the Applicant’s offending and its overall seriousness is clearly indicative of its very serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), and (f) of paragraph 13.1.1(1) of the Direction are relevant, we are of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
For our purposes, we think that the Applicants’ offending, taken overall, is so serious that it weighs very heavily against a revocation of the visa cancellation decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(2)(a) requires us to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires us to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
Any consideration of a non-citizen’s risk to the Australian community were the non-citizen to commit further offences or engage in other serious conduct is informed by the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
The Applicant’s offending that we have examined above has involved repeated acts of violence. These acts have involved the use of weapons (firearms and knives) and have frequently been committed against more vulnerable members of the community.
The concern we entertain in respect of the Applicant’s offending is that, were it to recur, members of the Australian community could well sustain serious and, quite conceivably, catastrophic harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
We conclude that the Applicant, were he to remain in Australia, would be very likely to reoffend in a violent way at some point in the future. The magistrate who sentenced the Applicant in respect of the most recent offence in 2018 quotes from a pre-sentence report provided to him on that occasion. The report refers to the Applicant’s “ongoing entrenched antisocial attitudes”. The Applicant was found to have poor insight into his offending and low levels of remorse.
Applicant’s submissions in respect of his offending
In this connection, we would also refer to the submissions made by the Applicant in respect of his offending. In respect of most of the offences that we have examined above, the Applicant either denied any offence occurred or minimised its significance.
In respect of the assault on the security attendant at the disco, the Applicant maintained before us that the attendant had been assaulting him and that he acted in self-defence.[22] The sentencing judge referred, however, to the fact that the jury were satisfied beyond reasonable doubt that the Applicant was not acting in self-defence.[23]
[22] Transcript at page 30.
[23] Exhibit 8, s501 ‘G’ Documents at page 56.
The offence committed in 1991 involving multiple stab wounds to the victim was said by the Applicant to have occurred because the Applicant was intervening to protect a woman from the domestic violence of her partner.[24] That is a partially accurate explanation in that the sentencing judge assumed that the Applicant was acting with the intention of protecting the victim’s partner from ill-treatment;[25] but the verdict and sentence are inconsistent with the Applicant’s version that he was justified in protecting the victim’s partner in this way.
[24] Transcript at page 33.
[25] Exhibit 8, s501 ‘G’ Documents at page 54.
The Applicant’s rape of the minor was presented to us by the Applicant as a case where the victim was just short of the age of consent and where she was not coerced. He maintained that his victim lied in order to obtain money from the statutory victims-of-crime compensation scheme operating in South Australia, and he further alleged that the judge had behaved unfairly in the conduct of the trial, with a result that he was wrongly convicted. We firmly reject the Applicant’s suggestions.
The offence at the Deaf Society’s club premises was presented to us by the Applicant as one where the victims exaggerated their fear, again in order to obtain compensation. The Applicant specifically denied that the incident would have been frightening for the victims, but said it would have been merely ‘worrying”.[26]
[26] Transcript at page 42, line 26.
In respect of the first of the two recent assaults, the Applicant maintained before us that he was assaulted first. He claimed the victim had pushed him and then punched him in the face.[27] This was not accepted by the Court, which referred to the victim trying to keep the Applicant away.[28]
²⁷Transcript at page 44.
[28] Exhibit 8, s501 ‘G’ Documents at page 41.
In respect of the second assault, the Applicant maintained before us that the victim was good friends[29] with the manager of the retirement facility and the manager was victimising him because of his offending history. In his written submission to us, the Applicant maintained the victim was lying and had in fact threatened to shoot the Applicant.[30] He maintained the magistrate had not afforded him a fair trial.[31] We reject these suggestions.
[29] Transcript at page 57.
[30] Exhibit 8, s501 ‘G’ Documents at page 93.
[31] Ibid.
In our opinion, the submissions made in writing by the Applicant and his oral evidence before us clearly point to both a lack of insight into his offending and a lack of any remorse despite his age and the opportunities afforded to him over the years to moderate his conduct such as to lower his risk of reoffending. In our opinion, this makes reoffending by this Applicant more likely.
Indeed, the Applicant indicated in his evidence to us that he could not guarantee that he would not reoffend[32] if provoked, and he dismissed the anger management courses he had undertaken in the past, which were aimed at his rehabilitation.[33]
[32] Transcript at page 62, line 8
[33] Transcript at page 73.
Having regard to the totality of the material, we find that there is a genuine and appreciable risk of this Applicant reoffending. Were he to reoffend, that offending has the clear capacity to cause very serious physical and/or psychological harm, indeed potentially catastrophic and life-long irreparable harm, to a victim of the Australian community. Such a risk, in our view, is not acceptable to the broader Australian community.
We are mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[34]
[34] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
We have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
Were he to reoffend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and in an extreme case potentially catastrophic. In consideration of all of the evidence and each of the relevant factors contained in paragraph 13.1 of the Direction, we find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
We note in this regard that the Applicant gave evidence that he is the father of a single child. His further evidence was that he has never had contact with the child, who is now, in any event, an adult.
The Applicant indicated in his evidence that he has had occasional contact with his brother’s children in the past. He has had occasional contact with his brother but no contact for many years with his sister-in-law.
Conclusion: Primary Consideration B
In respect of Primary Consideration B, we conclude there is no weight to be attached to the interests of minors. If any weight is to be attached to the relationship the Applicant has had in the past with his brother’s children, it could not outweigh the very heavy weight we have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[35] of the Direction provides that we should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. We must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[36] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[35] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[36] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·The Applicant has resided in Australia since the age of nine;
·The Applicant has a very long and serious offending history commencing in 1984 at the age of twenty;
·The Applicant has received a number of custodial sentences in respect of his offending which total approximately 20 years;
·The Applicant has committed a number of violent crimes;
·The Applicant did have a relatively long period (circa 12 years) where he did not commit any offending, for which we give him credit, but he has committed two serious assaults recently, the second of which was committed while he was on a bond to be of good behaviour;
·The Applicant continues to either deny responsibility for his past violent offending or minimise its impact;
·The Applicant dismisses anger-management rehabilitation courses as of no value;
·The Applicant himself cannot guarantee he will not reoffend.
The Evolution of the Australian Community’s “Expectations”
We are mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[37]
[37] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[38] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[Our underlining]
[38] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[39]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[Our underlining]
[39] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[Our underlining]
In Afu v Minister for Home Affairs,[40] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[Our underlining]
[40] [2018] FCA 1311 at [85].

In FYBR v Minister for Home Affairs[41], Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[42] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [43]
[Our underlining]
[41] [2019] FCA 500 (“FYBR”).
[42] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[43] FYBR at paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)The ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community.[44]
(b)The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[45]
(c)The Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have due regard of those statements, if made;[46]
(d)In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[47]
[44] Afu at paragraph [85].
[45] FYBR at paragraph [42].
[46] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[47] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The can be no doubt that the Applicant has breached the expectations of the Australian community as he has failed to abide by the law. Thus, for the purposes of ascertaining the level of weight attributable to this Primary Consideration C, we take into account in particular the matters we have specified above at paragraph [69].
Conclusion: Primary Consideration C
We are of the view that these factors, read as a whole in the context of this case, militate strongly in favour of not revoking the cancellation of the Applicant’s visa. We accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
There are five “Other Considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
We will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
The non-refoulement obligations that would normally form part of the Tribunal’s consideration of a matter such as this do not apply here. There are no non-refoulement issues arising from the Applicant’s potential return to the United Kingdom. Accordingly, this Other Consideration (a) is not relevant to determination of this application.
(b) Strength, nature and duration of ties
The Respondent acknowledges that the Applicant has been in Australia since the age of nine and that he has resided here for 45 years. There is a further acknowledgement from the Respondent that his father[48] and brother continue to reside here and that he has three nieces and two nephews in Australia.[49]
[48] The Applicant’s mother is deceased.
[49] Exhibit 7, Respondent’s Statement of Facts, Issues and Contentions, page 10, paragraph [58].
There are further respective acknowledgements from the Respondent that:
·The Applicant has been in a relationship with Ms Katrina Millar (an Australian citizen) since August 2014;
·The Applicant and Ms Millar have a good relationship and are supportive of each other; and
·The Applicant believes that were he to be removed from Australia, Ms Millar’s mental health issues would worsen and that she would be devastated by his removal.[50]
[50] Ibid, paragraph [59].
The Applicant’s material discloses a number of additional relatives in Australia. They comprise one uncle/aunt and three cousins. In terms of relatives in another country, the Applicant said “I do have family in England but not sure of how many.”[51]
[51] Exhibit 8, s501 G Documents, G4, page 85.
It is clear that the strength, nature and duration of the Applicant’s ties to Australia are of a notable level. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), attract a certain level of weight in favour of the Applicant.
Such level of weight attributable to this Other Consideration (b) can, to a slight extent, be adversely tempered by a finding (pursuant to paragraph 14.2(1)(a)(i) of the Direction) that he began offending relatively soon after arriving in Australia. He came here as a 9-year-old in 1972. His offending history commences in August 1982, when he would have been aged 18/19 years. He has, for the most part, consistently offended from 1982 until 2003, there being a lull from 2003 until 2016, followed by further and very serious offending that came before the courts during the period 2016-2018.
Conversely, the weight attributable to this Other Consideration (b) can, to an extent, be augmented by the time this Applicant has spent contributing positively to the Australian community. He has not been dilatory during his time here. He records his work history as follows:
“From 1979-1986 – Carpenter – self-employed sub contractor
From 1987 to 1989 – Holdens – Elizabeth/South Australia
From 1990 to 1992 – Penfolds winery – Barossa Valley
Incarcerated in 1992 until 1998
Then placed on a disability support pension…”[52]
[52] Ibid, page 87.
In terms of positive contributions to the Australian community, the Applicant’s material discloses “I have worked voluntarily for the Salvation Army. Also I have shown an interest Aboriginal culture and the Indigenous people and also as a member of the Lutheran…”[53]
[53] Ibid.
Both these work-based and community-based contributions are, of course, adversely impacted by the cost of the Applicant’s offending to the Australian community in terms of its consumption of resources of the police, the judicial system and corrective services apparatus. Be that as it may, we are of the view that a slight measure of weight is attracted by whatever positive contributions the Applicant may have made to the Australian community.
Having regard to the respective weights attributable to the factors appearing at paragraphs 14.2(1)(a)(i) and (ii), and 14.2(1)(b) of this paragraph 14.2 of the Direction, we find that while this Other Consideration (b) weighs in favour of revocation, it is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
The Applicant’s departure from Australia would not adversely impact any Australian business interests in the sense contemplated by Paragraph 14.3 of the Direction. We cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Respondent did not call any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for us to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, we cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction stipulates that any assessment of the impediments a non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in that home country, requires a decision-maker to take the following factors into account:
a)The non-citizen’s age and health;
b)Whether there are any substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The United Kingdom is culturally and linguistically similar to Australia. There are no discernible linguistic or cultural barriers confronting the Applicant were he compelled to return there. The United Kingdom has comparable standards of healthcare, social welfare and housing support to those in Australia. The Applicant will have access to those services as a British citizen.[54]
[54] See Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly. While this decision relates to impediments faced by an Applicant upon return to New Zealand, the comments of the learned Senior Member Kelly are, in our respectful view, applicable to the similar circumstances of the United Kingdom.
There is an acknowledgement by the Respondent that the Applicant suffers from insulin-dependent type 2 diabetes and a kidney disease called glomerulonephritis.[55] Be that as it may, we accept the Respondent’s further contention that those conditions will be able to be addressed and managed upon the Applicant’s return to the United Kingdom because he will enjoy the same access to health service facilities and welfare support as other citizens of the United Kingdom.
[55] Exhibit 7, Respondent’s Statement of Facts, Issues and Contentions, page 11, paragraph [65].
The Applicant is on a Disability Support Pension (“DSP”) in Australia. One would think it likely that he will qualify for receipt of similar or identical social security benefits in the United Kingdom. In his evidence, the Applicant spoke of being able to manage his personal/household affairs such that he could live relatively comfortably on the DSP in Australia. One could infer that he will be able to do likewise in the United Kingdom. It should also be noted that the Applicant will turn 67 in approximately 11 years from now. Upon doing so, he would be entitled to an aged pension in the United Kingdom.
On the other hand, a great deal of time has passed since the Applicant resided in the United Kingdom. He arrived in Australia as a 9-year-old and has resided here on a continuous basis since then. We accept he will inevitably experience some short-term hardship in re-establishing himself in the United Kingdom.
Having regard to the relevant factors in Paragraph 14.5 of the Direction, we do not consider that any of the factors therein significantly assist the Applicant. Be that as it may, we agree with the contention of the Minister[56] regarding this Other Consideration (e) to the effect that some weight should be allocated to it in favour of revocation of the decision to cancel the Applicant’s visa.
[56] Ibid, paragraph [67].
With reference to these Other Considerations, we are of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant
·Strength nature and duration of ties: weighs, to an extent, in favour the Applicant
·Impact on Australian business interests: not relevant
·Impact on victims: not relevant
·Extent of impediments if removed: weighs, to an extent, in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. As we have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before us, there is not another reason to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration B is of no weight;
·Primary Consideration C weighs heavily in favour of non-revocation;
·We have outlined the weight attributable to the Other Considerations. We do not consider that any of them, whether combined with each other or combined with Primary Consideration B, outweigh the significant combined weight we have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, we cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis, Senior Member Nicholas Manetta

.....................[SGD]..................................................
Associate
Dated: 12 November 2019

Date(s) of hearing: 28 October 2019

Applicant: Via video-link

Solicitors for the Respondent: Mr C Retallick

Australian Government Solicitor

[2019] AATA 4619

12 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	28 October 2019
Applicant:	Via video-link
Solicitors for the Respondent:	Mr C Retallick
Australian Government Solicitor