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

Matenga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 299 (24 February 2021)
Division:GENERAL DIVISION
File Number: 2020/8030
Re:Ritawa Matenga
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:24 February 2021
Place:Brisbane

The decision under review is affirmed
...........................[SGD].............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Temporary) (Class TY) (Subclass 444) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – violent offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
24 February 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 32-year-old citizen of New Zealand. In August 2000, when he was 12 years old, he moved to Australia. The most recent visa granted to him was a Special Category (Temporary) (Class TY) (Subclass 444) visa (“visa”).[1]
[1] Exhibit G1, Section 501 G-documents, G21, page 123.
On 15 October 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2]
[2] Ibid, G54, page 427.
On 8 November 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 2 December 2020, the Respondent decided not to revoke the cancellation.[4]
[3] Ibid, G16, page 63.
[4] Ibid, G4, page 16.
The Applicant subsequently lodged an application for review in this Tribunal on 5 December 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to
[5] Ibid, G2, page 3.
s 500(1)(ba) of the Act.
The hearing of this application proceeded on 10 February 2021. The Applicant gave evidence via videoconference. His former partner and current partner gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…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…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and 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:
·whether the Applicant passes the character test; and
·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.[8]
[8] 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”.
On 2 October 2009, the Applicant was sentenced to a term of imprisonment of three years with non-parole period of 12 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, 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.[9]
[9] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
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 or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[10] and “Other considerations”.[11] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(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.
[10] The Direction, paragraph 13.
[11] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(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.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…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.”[13]
[12] [2018] FCA 594.
[13] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in New Zealand and moved to Australia permanently with his mother and older brother when he was 12 years old.
The Applicant committed his first criminal offence while he was still a minor in May 2005 five years after he arrived in Australia. He continued to commit offences up until 2019, committing 13 criminal offences and 19 traffic offences in this 13-year period. His offences consist of violent offending including grievous bodily harm (“GBH”), assault, public nuisance and assault/obstruct police; property offences including wilful damage, theft and unlawful use of motor vehicles; and contraventions/breaches of domestic violence orders and other court orders.
In May 2005, when the Applicant was 16 years and nine months old, he stabbed a 17 year old boy in the eye. The Applicant had approached a parked vehicle, opened the driver’s door and asked the occupants of the vehicle for cigarettes. He did not know the occupants. They declined. The victim returned from a nearby McDonalds and told the Applicant to get out of the car. The Applicant stabbed the victim. Not long after, he damaged a nearby car.[14]
[14] Exhibit R2 Respondent’s Supplementary Documents, S2, page 8.
The Applicant provided a version of events to the Respondent in his revocation request. He said, “This was the first time I ever drunk this amount of alcohol at 15, and I ended up drinking a lot of cask wine and other alcohol which really affected me”. He said he thought the victim had called him a racist slur which “triggered him” given the racism he had experienced at school (he is a Cook Islander), he blacked out and lost control, and he stabbed the victim with a pocket knife that he had in his pocket.[15]
[15] Exhibit G1, Section 501 G-documents. G24, paragraphs 18 to 21.
The Applicant was not 15 at that time. He was nearly 17. In the hearing he admitted that he retrieved the knife from his pocket, unfolded the blade and stabbed the victim before momentarily blacking out.[16] He later said “Once I stabbed him, that’s when I lost control from there”[17].
[16] Transcript, page 17, lines 1 to 24.
[17] Transcript, page 18, line 2.
When asked if he had reported the racist slur to the police at the time, the Applicant said he had.[18] However, there is no record of such a report in the contemporaneous police notes or in the sentencing remarks. Nor is there any reference to it in the letters of support from the Applicant’s family members. Further, the impact statement of the victim’s mother,[19] indicates that the victim told her that he thought the Applicant had been angry with one of the occupants of the vehicle and that if he had not come back from McDonald’s when he did, the Applicant would have stabbed that person who, being stuck inside the vehicle “wouldn’t have had a chance”. Her statement concludes with the words (rhetorically addressed to the Applicant) “Why did you do this? Why?”. The victim’s impact statement states “I did nothing wrong but I’ve got to live with the consequences of his actions every day”.[20] These representations by the victim and his mother are inconsistent with the Applicant having stabbed the victim as a reaction to the victim having made a racist slur. Neither of those statements were challenged. I do not accept that the Applicant was “triggered” by what he thought was a racist slur.
[18] Transcript, page 16, lines 33 to 34.
[19] Exhibit R2, Respondent’s Supplementary Documents, S28.
[20] Ibid, S29, page 130.
According to the victim’s impact statement, which was before the sentencing Court in 2009, when the victim was stabbed, he wondered if he was going to die. A week later his neurologist told him that the knife could have punctured an artery because they had found bleeding in his brain. The procedure he underwent, a cerebral angiogram, was extremely risky and could have caused his death. In addition, he required a donor sclera as his own was destroyed by the knife, and he was aware that donor tissue carries a risk as well. He had to bear risks to his life almost every day that he was in the hospital. He said the worst decision he had to make was to sacrifice his eye because if he did not, there was a chance he could lose vision in his other eye. The victim listed the physical impacts of the attack. They included the removal of his left eye, knife penetration to his jawbone, his jaw being out of alignment which caused pain, a brain haemorrhage as well as numbness in part of his face and severe migraines which he was still experiencing. Other impacts listed included having a severed lateral eye muscle which meant that his prosthetic eye would never be able to move outwards, having a severed eyelid muscle which prevented his prosthetic eye from moving up and down properly, “horrendous nausea”, the possibility of epileptic fits due to the brain injury, difficulty balancing because he only had one eye, and the potential for changes in his behaviour because of the area of his brain that was stabbed.
The victim said his prosthetic eye aggravated him because it felt uncomfortable and it would never look like a real eye, leaving him feeling deformed. He described negative impacts on his social life and employment prospects due to his injury. He said he would have to go through more surgery on his eyelid because the knife completely sliced through the muscle controlling it, otherwise his eye would completely close up and his artificial eye would become useless. He said since the attack he had suffered severe depression, and embarrassment when his prosthetic lens fell out on several occasions.
The Applicant was charged with grievous bodily harm and wilful damage and released on bail. While on bail, he breached his bail conditions on four occasions and on 7 February 2006, he was sentenced to a six-month good behaviour bond for that.
Later in 2006, the Applicant went to Victoria despite a pending sentencing hearing in the Brisbane Children’s Court. On 21 March 2006, the Court issued a warrant for his arrest. The Applicant said he went to Victoria because his mother made him leave her home because of the offence,[21] and he went to join his brothers in Victoria.[22]
[21] Exhibit G1, Section 501 G-documents, G24, paragraph 24.
[22] Ibid, G24, paragraph 25.
In August 2006, while in Victoria, the Applicant was charged with theft and stating a false name to police. These charges arose from an incident at a putt putt golf course. The Applicant was with several friends, one of whom stole some coins. The Applicant stated he did not take any money.[23] The Applicant was sentenced to a twelve-month good behaviour bond.
[23] Ibid, G24 page 130.
The Applicant returned to Queensland in 2009. On 25 August 2009 he was arrested in relation to the outstanding warrant.[24] On 2 October 2009, he was sentenced (as an adult) to three years imprisonment with a non-parole period of 12 months (including s short period of time already served) for the offences of grievous bodily harm and wilful damage.
[24] Exhibit R2 Respondent’s Supplementary Documents, S5, page 77.
In passing sentence, the learned to the sentencing judge made the following remarks.[25]
“What a tragedy for that young man and now he is one-eyed and for his parents, for his mother, sitting beside him in hospital all those days; not knowing whether he is going to see with one-eye or two and perhaps die. And for the young man himself; he’s had occasions where his false eye has occasionally fallen out. Plans that he might have had, dreams that he might have had, have been damaged and he will carry that for the rest of his life.
…
It is not often, fortunately that I deal with somebody who pulls out a knife. And a weapon such as a knife and such as you used on that occasion, of course, could easily have killed but it finished the site in that eye. I don’t know why you carried a knife, that’s obviously quite a sharp weapon, but you pulled it out. Now you may have been drinking and that’s very foolish for young people of the age you were drinking; consuming alcohol. But most people who do drink and consume alcohol, don’t use violence the way you did so there is something there isn’t there? You stabbed him in the eye. Not just a slash. Not just a cut. But a deliberate stabbing in the eye. With its result.”
[25] Ibid, G10, pages 46 to 47.
The Applicant was released on parole in September 2010.[26]
[26] Exhibit R2 Respondent’s Supplementary Documents, S47, page 271.
In July 2011, the Applicant was fined for smoking on the platform at a train station.
On 29 September 2011, the Applicant’s partner, “Ms K” applied for a protection order.[27] Ms K told the Tribunal that she did that after she had been to see her midwife while pregnant with her son (being her second child), she had told the midwife about the discipline the Applicant was using on their daughter, which she did not like, and the midwife reported it to Child Safety.[28] The application stated that the Applicant could be aggressive and that he “calls me names”. It also stated that the Applicant called someone else, whose name was redacted, “cunt, mongrel, little bitch”.[29] In the hearing the Applicant admitted that he called those names to his daughter, “Child A”, who was four years old at the time (in fact, she was three years old). He said when he was “on the alcohol” he called her names. The application also recorded that the Applicant “pinches and flicks [name blacked out] until she cries”. The Applicant admitted that it was Child A to whom he did that as a form of discipline.[30] The Applicant claimed that he had not done again “since I was on that DVO”.[31]
[27] Exhibit R2 Respondent’s Supplementary Documents, S17, pages 69 to 81.
[28] Transcript, page 39, lines 17 to 30.
[29] Exhibit R2 Respondent’s Supplementary Documents, S17, page 76.
[30] Transcript, page 25, lines 1 to 35.
[31] Transcript, page 25, lines 36 to 46.
Between 2012 and 2014 the Applicant committed six traffic offences including speeding, failing to display L plates, and driving as a learner when not under direction of a person. He received fines for all these offences. His license was suspended for three months in 2013 following the loss of demerit points.
In March 2012, the Applicant committed a public nuisance offence. This involved a fight that had broken out between multiple people outside the Fortitude Valley train station. The police observed the Applicant grappling with another male and behaving in an aggressive manner. He was arrested and charged with public nuisance.[32] He was sentenced two weeks later to a fine. No conviction was recorded.
[32] Exhibit R2 Respondent’s Supplementary Documents, S6, page 20.

In March 2014, the Applicant was involved in another incident at Fortitude Valley. The Applicant and a group of males walking down Brunswick Street when one of the males yelled obscenities at police resulting in the police approaching him. While police were speaking to that person, the Applicant stood behind him and wrapped his arm over the male’s chest, pulling him away from the police. The Applicant was acting aggressively towards police and not responding to instructions to let the male go and step back. After a short struggle the Applicant was restrained and handcuffed. He was charged with obstruction.[33] He was sentenced on 1 April 2014 to fines.
[33] Exhibit R2 Respondent’s Supplementary Documents, S7, page 24.
In October 2014, the Applicant was charged with assault occasioning bodily harm. This incident occurred at a Brisbane nightclub where the Applicant struck a male victim with a single punch to the head, knocking him momentarily unconscious. He was with an associate, who he identified in these proceedings as his younger brother. A security guard had restrained his brother and when the guard was distracted, the Applicant came up to the side of the victim, and without the victim looking, punched him in the side of the head.[34] He was sentenced 27 February 2015 to eight month’s imprisonment with immediate parole. The learned Magistrate, in passing sentence, made the following remarks:
“You were with your brother, it seems, who was in an altercation with the victim. Then - you came up to the side of the victim and struck him with a single punch to the head, momentarily knocking him unconscious. It is common ground that the victim made no threats to you or provoked you personally. The victim suffered a cut lip and a bruised left eye.
… It seems you were affected by alcohol and those features that - the fact that - well, the fact that it occurred in a public place is, in my view, something that should be the subject of a deterrent sentence. The fact that you were affected by alcohol is no excuse or justification for what you did. Your solicitor…has submitted that you acted with some degree of provocation, given the victim had an earlier altercation with your brother. There is no challenge being made to that submission by the prosecutor.”[35]
[34] Ibid, S8, page 28.
[35] Exhibit G1, Section 501 G-documents, G9, pages 41 to 42.
In a written statement, the Applicant said that the victim had been trying to start a fight with his brother all night in the club, that he had told the victim to leave his brother alone, that the victim kept trying to provoke his brother to fight him, his brother was restrained by security guards, but the victim kept trying to provoke him and get him into trouble. He said he was only trying to protect his little brother from a man who was twice his size.[36] The hearing the Applicant gave a slightly different version which was that when his brother was restrained by a security guard the victim lined up to punch him and that is when the Applicant punched the victim.[37] I asked the Applicant if his brother was of similar size to him when this incident. The Applicant said “yes”, that he is 2 inches taller than his brother.[38] If the victim was significantly bigger than the Applicant’s brother, he also would have been significantly bigger than the Applicant. It seems unlikely that the security guard chose to only restrain the smallest person involved while the largest person was engaging in provocative behaviour. I prefer the findings made by the Magistrate that the attack was unprovoked.
[36] Ibid, G24, paragraphs 38 and 40.
[37] Transcript, page 14, line 45 to page 15, line 6.
[38] Transcript, page 15, lines 29 to 39.
The Applicant also said in his written statement that around the time this offence occurred his relationship was breaking down and he was starting to use illicit drugs which affected his judgement and his mental state.[39] However, the offence was committed in 2014 whereas the Applicant claimed he started using drugs in 2015, and while the sentencing remarks mentioned that the Applicant was intoxicated they do not mention that he was affected by drugs. I do not accept that the Applicant was affected by drugs when he committed this offence.
[39] Exhibit G1, Section 501 G-Documents, G24, paragraph 41.
The Applicant told the Tribunal that in 2015 he started smoking methamphetamine “on and off”, and by 2017 he was using it daily. He said in 2018 he started injecting it and could not control himself.[40] The Applicant’s mother, brothers and Ms K, did their best to help him, telling him that when he was on drugs he was not the person they knew, and asking him what he had done to himself.[41] However the Applicant continued using methamphetamine until he was incarcerated in 2019.[42]
[40] Transcript, page 7, lines 29 to 45.
[41] Transcript, page 8, lines 1 to 7.
[42] Transcript, page 8, lines 16 to 20.
Between February 2015 and June 2016, the Applicant committed seven traffic offences including speeding, failing to stop a stop sign, failing to display P plates and driving a high-powered vehicle without an exemption. He was put on a good behaviour driving option for 12 months until August 2017. He committed a further speeding offence and his licence was suspended until November 2017.
In 20 December 2017, the Applicant deliberately damaged two side windows and one side mirror on a motor vehicle and was charged with wilful damage.[43] He was sentenced on 18 June 2018 to four month’s imprisonment and was immediately released to parole.
[43] Exhibit R2 Respondent’s Supplementary Documents, S9, page 32.
On 6 August 2018 the Applicant was caught drug driving while driving a high-powered vehicle. His licence was disqualified for one month. He was caught speeding on two more occasions in 2018 and was put on a further good behaviour option for 12 months until February 2020. During this time, he committed a further offence where he was caught driving a motor vehicle with passengers riding in a part of the vehicle not designed for passengers and his license was suspended until January 2020.
On 12 August 2018 the Applicant was in Ms K’s home looking after their children while she was out with friends. In the early hours of the morning Ms K sent the Applicant a text message saying she thought she was over the limit and could not drive home so she would stay with a friend. The Applicant responded by accusing her of being a “slut”, ripping up a photo album and punching a hole in the ensuite wall. Ms K subsequently arrived home, and the Applicant called her a “slut” and “slut face”. He also encouraged their two-year-old daughter who was present during the argument to “call mummy a slut”. The Applicant then used a drill to drill holes into a speaker and then threatened to drill holes in the walls of the house. When Ms K tried to retrieve the drill from him, he threw it at the bedroom window, smashing the window. He then threw a bag at Ms K, told her to put clothes into the bag for their two-year-old daughter, Child C, and then he left the address with their daughter. He subsequently returned with the child. When police attended, Ms K told them that the Applicant had kicked two holes in the wall the previous day. The police observed the two holes.[44] While it does not appear that the Applicant was charged or convicted in relation to his conduct, when the gist of it was put to him - that he had called Ms K a slut, ripped up a photo album, punched an ensuite wall and smashed a window - he said that that was correct. I accept the police account of the Applicant’s behaviour during this incident.
[44] Ibid, S20, pages 93 to 94
On 18 January 2019 the Applicant committed a public nuisance offence. The Applicant had, without provocation grabbed a man around the neck and thrown him to the ground, causing cuts and scratches on his knees and forehead as well as pain to his shoulder. The police report states that the Applicant had seen the man in the street walking ahead of his girlfriend and had admitted to assaulting him out of jealousy. He had been drinking earlier that day.[45] In these proceedings, the Applicant claimed that the victim was following him and his then girlfriend, that he asked the victim why he was following them, and the victim just kept walking. He said he approached the victim and the victim swung at him so he grabbed the victim by the throat with his arm and “took him to the ground”.[46] However the Applicant then gave evidence that the victim had come out of his girlfriend’s house, and that upon seeing the Applicant and his girlfriend he had “crossed the road real quick”, moving away from the Applicant and his girlfriend. The Applicant then followed him and asked why he was following them, the victim said he was not following them, and the Applicant asked the victim why he had come out of his girlfriend’s house.[47] The Applicant’s own account indicates that far from the victim following the Applicant, he was trying to get away from the Applicant, and the Applicant followed him and confronted him. I find that the Applicant followed the victim and, as the police report indicates, assaulted the victim out of jealousy.
[45] Exhibit R2 Respondent’s Supplementary Documents, S11, page 40.
[46] Transcript, page 10, lines 22 to 30.
[47] Transcript, page 11, lines 3 to 20.
The Applicant was sentenced for this offence on 18 February 2019 to four months imprisonment which was suspended for nine months.
On 18 September 2018 a protection order was put in place against the Applicant, to protect Ms K and their three children. The order was to continue in force until 17 September 2020.[48] On 5 February 2019, the Applicant was charged with two contraventions of this DVO. According to the police report[49] which was unchallenged, earlier that day the Applicant had attended Ms K’s home to see their children and he became angry when she told him to leave. An argument ensued and the Applicant kicked a glass fish tank, shattering the side glass panel. When the Applicant went outside, her daughter closed and locked the front wooden door. The Applicant gained entry back inside by kicking the door which broke the locking mechanism. Ms K then called 000 and while she was talking to the operator the Applicant grabbed the phone. There was a short struggle and the Applicant took the phone and walked outside. He put the phone on the front porch and left. The Applicant was sentenced, on 21 March 2019, to 18 months’ probation for the contraventions.
[48] Exhibit G1, Section 501 G-documents, G14, page 57.
[49] Exhibit R2 Respondent’s Supplementary Documents, S12, pages 44 to 49.
In passing sentence, the learned Magistrate made the following remarks:[50]
“We have already had some words spoken about the calibre of the breach of the domestic violence order. You should have a copy of that now, I gave a copy to your lawyer. You read that carefully any number of times, or put it on your fridge, or put somewhere where you can have a ready access to it, because it is in place until 2020. But the most serious aspect of the matter today is managing you as a violent person in the community, and I say that because of criminal history. It is a dreadful history full of violence. You are a very violent person, and that is of great concern to the community, who have so recently, through Parliament, changed the laws to jail people who are violent in numbers not seen before, especially for domestic violence. You must have seen those sorts of comments made on the news, on the TV.
You are now in serious jeopardy of remaining in Australia. I do not know whether you were aware of that before now. Were you? You are in jeopardy of being allowed to stay and become an Australian citizen, so there is a very important reason for you to learn a bit more about yourself, investigate yourself, and find out what is driving this violence - inappropriate violence - and change your lifestyle, or you will be isolated from your family, is that quite clear?”
To that last question, the Applicant answered “Yes, your Honour”.
[50] Exhibit G1 Section 501 G-documents, G8, page 39.
On 18 March 2019, the Applicant was caught stealing items from a supermarket.[51] He was sentenced in May 2019 to fines. This offence was committed during the operational period of the suspended sentence imposed in February 2019 and the suspended sentence was extended for a further six months.
[51] Exhibit R2 Respondent’s Supplementary Documents, S13, page 52.
On 15 July 2019 the Applicant stole a vehicle while under the influence of drugs and alcohol. He performed two burn-outs at the roundabout and drove erratically through several suburbs. Police had to take evasive action to avoid a collision with the Applicant. He subsequently abandoned the vehicle which was undamaged. When he was apprehended, he said he had driven in that manner in an attempt to end his life. he appeared remorseful and apologetic for stealing the vehicle.[52]
[52] Ibid, S14, pages 56 to 60; Exhibit G1 Section 501 G-documents, G24, paragraph 59.
In passing sentence for unlawful use of a motor vehicle and dangerous operation of a motor vehicle, the learned Magistrate made the following remarks:
“The offences are (sic) of the nature which you engaged in and have pleaded guilty to are offences that are really prevalent in the community. It is made worse for you today, notwithstanding the steps that you have taken in relation to rehabilitation that at the material time of commission of the two offences, you were firstly in the operational period of suspended imprisonment that was imposed in the Magistrates Court here at Redcliffe on the 28^th of February 2019. As a result of breaching that suspended imprisonment you were given an opportunity by the court on the 8^th of May 2019 in relation to an offence that you committed on the 18^th of March 2019 to have the operational period extended in relation to the suspended imprisonment.
The alarm bells should have been ringing. The court gave you that chance. Red lights should have been flashing: “If I commit another offence I’m going to be dealt with for the suspended imprisonment.” That did not occur. You were also on probation for serious offences of breaches of domestic violence and wilful damage that were dealt with on the 21^st of March 2019…
…
You claim…that you were under the influence of drugs and alcohol…. It is a problem where you hop in someone else’s vehicle without consent, drive dangerously and admit to having alcohol and drugs in your system. It compounds the whole matter. The danger that you expose others to in the community is increased
….
You had opportunity to observe the conditions of probation. You did not do that, and I am not satisfied that you would give your full attention to observing conditions of an intensive corrections order.”[53]
[53] Exhibit G1 Section 501 G-documents, G7, pages 35 to 36.
The Applicant was sentenced to concurrent periods of imprisonment of nine months and two months with a non-parole period of three months. The suspended sentence of four months imprisonment was activated, and he was required to serve that period concurrently.[54] His driver’s license was also disqualified for 12 months.
[54] Ibid, G7, page 36.
In relation to this offending the Applicant said:
“I couldn’t believe I didn’t even crash the car, hey, because I took five shots and then I scaled down a one-litre whiskey and yes, I just couldn’t believe I didn’t - didn’t and my life then, hey. So, I didn’t know what I was doing. I was addicted to drugs and yes, it just happened so quick, you know, I just blacked out.”[55]
[55] Transcript, page 6, lines 17 to 23.
On 12 April 2020, when the Applicant was in immigration detention, he was required to isolate under COVID rules. During the isolation he wanted to exit his room to have a cigarette however he was not permitted to. He acted in an abusive and aggressive manner by swearing at staff and calling them “fucking dog cunts” and he kicked a wardrobe cupboard door and a waste bin. When he was told to calm down and stop being aggressive, he replied “fuck you and get out of my fucking space”.[56]
[56] Exhibit G1 Section 501 G-documents, G23, page 125.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
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, including:
(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) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(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 was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has committed numerous violent offences. His offending includes an extremely serious offence whereby he stabbed a 17 year old in the eye, causing him to lose sight in that eye and risk death several times in his recovery. This offence was unprovoked. The Applicant was intoxicated at the time but as the learned sentencing Judge observed, most people who consume alcohol do not commit violence like Applicant did. Some years later, after being imprisoned for that violence, the Applicant punched a man in the head outside a nightclub so that he was knocked unconscious. The Applicant was intoxicated, and the attack was unprovoked. It is well known that a “coward punch” can result in death from the punch or the fall.
It was contended on the Applicant’s behalf that he suffered bullying at school on the basis of his ethnicity and because of the absence of his father, and that he now “recognises” that anger management issues relating to racism and bullying caused him to offend.[57] This is a very vague contention. The Applicant was assessed by Mr Ian McKinnon, consultant psychologist in September 2020. Mr McKinnon accepted the Applicant’s claim that he was subject to racism and violent attacks when he was at school, and that he was forced to defend himself on multiple occasions which led to him becoming easily defensive when threatened and contributed to him getting involved in physical conflict that led to his conviction for GBH in 2009. There is no evidence, apart from the Applicant’s, that he was subject to racism and bullying at school. None of the letters of support from his family mention racism or bullying. Nor is there any evidence that the Applicant was physically or verbally threatened before he stabbed his victim in the eye in 2005. In fact, his actions in opening a car door and demanding cigarettes could reasonably be taken to be threatening to the occupants of the vehicle who merely wanted to be left alone. His offending certainly was not defensive.
[57] Exhibit G1 Section 501 G-documents, G19, page 85.

Mr McKinnon also accepted the Applicant’s claim that he was exposed to serious violence and abuse within the prison system when he was incarcerated for the GBH offence. However, Mr McKinnon stated that the Applicant was incarcerated for three years when in fact he was incarcerated for a year before being released on parole. Mr McKinnon accepted that the Applicant had been adversely affected by the “brutalising experience” he had suffered at school which was further amplified during “three” years in prison.
There is no evidence that any of the violent attacks that the Applicant has engaged in were provoked by threatening behaviour towards him. In that I include the instance where the victim who was walking down the street may have tried to punch him because in that instance the victim was also trying to get away from him. I do not accept that the Applicant’s violent crimes were partly attributable to racism and bullying such as to mitigate their seriousness. The Applicant’s violent offending, in its totality, is extremely serious.
I am not limited to considering proven offences. I am required to consider the nature and seriousness of the Applicant’s “conduct to date”. That includes the episode in August 2018 when the Applicant, in the presence of Ms K and their youngest child, kicked holes in the walls of the home and shattered a window by throwing a drill through it after using the drill to make holes in a speaker. I consider that these acts of aggression were committed against Ms K in the sense that they were intended to upset and intimidate Ms K. The Applicant’s conduct is therefore very serious. The fact that the Applicant did it in front of a child and his attempts to get that child to verbally abuse Ms K adds to the seriousness.
In February 2019, the Applicant committed acts of aggression against inanimate objects in the home of Ms K and their children. He did this in the presence of Ms K and their older daughter. The child was frightened enough to lock the door after the Applicant went outside to keep him out. This was ineffective as the Applicant then kicked the door in. By doing that, and breaking the lock, the Applicant made the home that Ms K and their three children lived in vulnerable to intruders, indicating a lack of regard for their safety. This violent behaviour breached a protection order protecting Ms K and their daughter and is very serious.
The sentences imposed for the Applicant’s violent offending speak to their objective seriousness. Despite having been a minor when he committed the grievous bodily harm offence, he was sentenced to three years imprisonment and required to serve 12 months. For punching a man in the head, he was sentenced to eight months imprisonment (with immediate parole), and for attacking a man in the street he was sentenced to four months imprisonment (suspended).
For stealing a car, he was sentenced to nine months imprisonment and for driving it dangerously he was sentenced to two months and required to serve three months. This was a particularly serious offence given the Applicant knew he was intoxicated and affected by drugs when he stole the car and he deliberately drove dangerously, putting members of the public at risk of serious injury or death. The Applicant’s traffic record contains other infringements of the kind that tend to increase the risk posed to other road users including drug-driving while driving a high-powered vehicle, speeding in a school zone and speeding by more than 20km/ph.
I consider that the obstruct police offence was committed against police officers in the performance of their duties (rather than simply in the context of police being involved) because part of the offence involved the Applicant acting aggressively towards them. Accordingly, this offending is serious.
The Applicant’s offending is relatively frequent with some 13 criminal offences over a period of 13 years. There is not a trend of increasing seriousness only because the Applicant’s first offence was extremely serious. The cumulative effect of his repeated offending is that several members of the public have been violently assaulted and injured, people’s property has been damaged, and other road users have been put at increased risk of serious harm or death.
The Applicant’s Personal Circumstances form that accompanied his revocation request included the question:
“Are you currently subject to a domestic violence order, apprehended violence order or other court order?”
In response, the Applicant ticked “No”.[58] These documents were received by the Respondent on 11 November 2019.[59] At the time the Applicant was subject to a domestic violence order until September 2020 and he had been reminded about that in March 2019 by the Magistrate who sentenced him for breaching the order. The Applicant admitted to having filled in that part of the form, but he could not remember ticking “No”.[60] I find that the Applicant knowingly provided false information to the Respondent.
[58] Exhibit G1 Section 501 G-documents, G17, page 76.
[59] Ibid, G3, page 14.
[60] Transcript, page 9, lines 24 to 39.
In 7 January 2010 the (then) Department of Immigration and Citizenship (“Department”) had notified the Applicant that his visa could be cancelled on character grounds under

s 501 of the Act. On 3 August 2010, the Department advised the Applicant in writing that his visa would not be cancelled. That written notification contained the following formal warning:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[61]
[61] Exhibit G1 Section 501 G-documents, G52, page 420.
The Applicant signed an acknowledgment confirming his receipt of the document that contained that warning.[62] However, he claimed that he did not recall reading it as he signed a lot of documents when he was released from prison.[63] In February 2019, a sentencing Magistrate warned the Applicant that his visa could be cancelled. In the hearing the Applicant claimed not to recall that warning,[64] however the Transcript of that sentencing episode indicates that he acknowledged it. I am satisfied that the Applicant has re-offended since being formally warned by the Department (whether he read the warning or not), and since he was warned by a Magistrate, that his visa could be cancelled if he committed further offences.
[62] Ibid, G52 page 423.
[63] Transcript, page 32, lines 17 to 31.
[64] Transcript, page 32, line 1.
I do not consider factor (i) of paragraph 13.1.1(1) of the Direction applies to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
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 must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further violent offences or traffic infringements of the kind he has thus far, the nature of harm includes serious physical injury or death, and serious psychological harm, to individuals in the Australian community.
Likelihood of engaging in further criminal or other serious conduct
The Applicant’s more serious offences tend to involve alcohol and/or methamphetamine. He said the breakdown of his relationship with Ms K caused him to turn to drugs and alcohol, which I take to mean he used those substances more than he already was.
The Applicant has done rehabilitation courses in the past which were ineffective. In December 2010 and February 2011, he attended counselling sessions with Alcohol, Tobacco and Other Drugs Service (“ATODS”). Also, in February 2011 he attended an anger management for men workshop. In September 2011 Child Safety contacted Redcliffe Probation and Parole office advising that they had concerns for Ms K and their three-year-old daughter because of reports that the Applicant disciplined his daughter by pinching, flicking and calling her names, and that he had physically abused Ms K while she was pregnant. He was placed on a five-week anger management program, which he successfully completed.[65] He went on to commit several violent offences and was the subject of a further protection order which he breached.
[65] Exhibit R2 Respondent’s Supplementary Documents, S62, page 315.
The Applicant saw his GP in 2019 in an effort to stop his drug use. He was prescribed antidepressant medication, but he did not take that. He did not make any further attempt at drug rehabilitation.[66] His family and Ms K were unable to influence him to stop using drugs.
[66] Transcript, page 24, lines 7 to 30.
Since his most recent offending, the Applicant has done an anger management course, a drug and alcohol rehabilitation course and a “Do It” course (which is aimed at overcoming addiction). He was part-way through a stress management course when he was transferred to Christmas Island. The anger management course went from February until August 2020 and it involved three classes per week.[67] He has also received guidance and support from the Way Back support service in relation to his mental health.[68]
[67] Transcript, page 19, lines 13 to 19.
[68] Exhibit G1 Section 501 G-documents, G19, page 95.
The Applicant has not consumed alcohol or taken drugs since he was incarcerated in September 2019. He said he now feels clearer and more focused, and able to plan clearly for his future. He has reflected at length on the reasons for his offending and has expressed strong remorse for his actions. He is particularly focused on being a good role model for his three children and the four children of his current partner “Ms G”.[69]
[69] Ibid, page 97.
The Applicant said:
“I only now truly believe I understand what it is to be remorseful. I honestly believe that I am fully aware of my own actions and now appreciate consequence. I have had plenty of time to reflect and realise I was premature in my reaction to my previous situations. I own the fact my actions provided the environment I lived in at the time and totally regret these decisions.
My new-found skills have enabled me to remain drug free and provide negative results to the numerous drug tests given to me. I believe strongly that withstanding the continued pressures in my harsh surroundings has shown me that I am strong enough to continue being drug and alcohol free in the future. I have attended drug and alcohol courses and anger management courses amongst others, for rehabilitation, and have an understanding on the difference between a support network of friends and family, and that of bad influences.”[70]
[70] Ibid, G23, page 126
The Applicant expressed deep remorse and regret for the grievous bodily harm offence, however, he also said that he had not committed any further offences remotely similar to it since.[71] I consider that punching a man in the side of the head without provocation, causing him to momentarily lose consciousness, is similar, and that the Applicant’s assertion shows lack of insight into the seriousness of that offending.
[71] Ibid, G24, paragraph 29.
The Applicant said he is no longer a violent person, he has changed and rehabilitated.[72] I accept that the Applicant has abstained from drugs and alcohol and not committed any acts of violence in the controlled, highly structured environments of prison and immigration detention. However, he has a long, consistent history of violent offending, and of drug abuse and alcohol consumption, in the wider community. His ability to continue to abstain and avoid re-offending in that environment has not been tested since his most recent incarceration.
[72] Transcript, page 9, lines 8 to 12.
If the Applicant gets his visa back, he intends to complete an intensive rehabilitation program like the Way Back program so he can get help he needs. He said Mr McKinnon had agreed to help him with counselling and to refer him to services that could continue to assist him. He said he is motivated and desperate to change and make something of his life. If the Applicant is released, he intends to live with his partner Ms G and her children. He has been offered employment. I accept that the Applicant will have stable accommodation with a supportive partner, that he will likely gain employment, and that he will have access to rehabilitation and support services.
As part of Mr McKinnon’s assessment of the Applicant, the Applicant reported that he started smoking cannabis when he was 14, was consuming alcohol by the time he was 15, and at age 27 when his relationship with Ms K broke down, he started smoking ice. Mr McKinnon opined that the Applicant was not suffering from any diagnosable psychological disorder and that he had largely overcome his pre-existing substance abuse disorder. He appeared to be reactively anxious and depressed which Mr McKinnon thought was a direct response to his current detention and visa cancellation and not clinically significant beyond that level.
As I have previously observed, Mr McKinnon accepted that the Applicant was subject to racism and violent attacks when he was at school and to serious violence and abuse within the prison system. He opined that the Applicant’s most serious offences had been driven by emotional/anger management problems rather than inherent criminal aspirations and that these problems were likely to be amenable to amelioration in the context of sustained individual therapy. He said the Applicant’s abuse of methamphetamine probably also contributed to his offending during that period and now that he had overcome his substance abuse disorder, he was less likely to reoffend.
Mr McKinnon opined that the Applicant had significant potential to rehabilitate himself further, improve his emotional/anger management and abstain from illicit substance abuse. He considered that the threat of being separated from his children and the rest of his family provided a high level of motivation and determination to continue the rehabilitative progress he has made since being detained. He said that in the wider community the Applicant was likely to benefit from engaging in ongoing psychological therapy if he was to continue to make rehabilitative progress.
Mr McKinnon did not give evidence, so it was not possible to test or challenge aspects of his assessment. I consider that it is somewhat undermined by his characterisation of the grievous bodily harm as having something to do with a becoming defensive when threatened, and his lack of awareness about the incident in immigration detention on 12 April 2020 when the Applicant engaged in violent behaviour and was verbally abusive to detention centre staff. That incident occurred when the Applicant had been abstaining from drugs and alcohol for seven months and was two months into an anger management course. It was unprovoked. The Applicant told the Tribunal that he had discussed that incident in his anger management course and from that experience he had learned to have patience.[73] There is no strong evidence one way or the other whether the Applicant has indeed overcome his potential to act aggressively when feeling frustrated.
[73] Transcript, page 29, lines 20 to 25.
Some people known to the Applicant provided letters of support, and Ms K and Ms G gave evidence in the hearing. Ms K said she thought that the Applicant would not use drugs or alcohol again because of the threat of not being able to see his children.[74] The Applicant’s mother described him as a wonderful person who has always been helpful and caring towards herself and others. She said he has always shown remorse for his actions. She believes the Applicant is fully committed to turning his life around based on conversation she has had with him.[75] The Applicant’s three brothers and a family friend spoke positively about him. So did Ms G who also pledged her support. She said she intends for the Applicant to live with her and her children if he is released.[76] It is expected that those close to a person will speak positively and optimistically of them. However, the good qualities these people spoke of, and the remorse the Applicant’s mother said the Applicant always felt, have not previously translated into the Applicant reforming himself. I accept that, as Ms K said, the Applicant is motivated to reform because of the threat of not seeing his children again, however it is not known whether that motivation is enough to keep him from re-offending.
[74] Transcript, page 40, lines 1 to 6.
[75] Exhibit G1 Section 501 G-documents, G29
[76] Ibid, G38 to G39.
My task is to assess the risk presently posed by the Applicant. He is at an early stage of his rehabilitation, and his apparent resolve to avoid re-offending has not been tested in the environment in which he has previously offended. Mr McKinnon does not consider that the Applicant has rehabilitated, only that he has significant potential to do that. I consider that there is currently a significant risk that the Applicant will commit further offences of the kind he has committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
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 Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     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;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.

The Applicant listed his three minor children, Child A aged 12, Child B aged nine and Child C aged three, as children whose best interests would be affected by the decision.[77] Ms K, who is the mother of these children, said she and the Applicant had a relationship that was on and off for 12 years.[78]
[77] Exhibit G1, Section 501 G-Documents, G17, page 70.
[78] Transcript, page 35, lines 13 to 14.
The Applicant claims to have “an amazing relationship” with his children. He said despite being separated from Ms K, when he was not working, he tried to see them as much as possible. He said he would drive them to school and take them to the park. If he were to leave Australia it would affect them tremendously, and since he has been in gaol his brother has told him how much they miss him.[79]
[79] Exhibit G1, Section 501 G-Documents, G17, page 71.
After the Applicant separated from Ms K, he saw his children every weekend although sometimes Ms K would not let him see them. When he did see them, they would go to the park and the beach and have barbecues. The Applicant has been in contact every day with his children since he has been in prison and immigration detention.[80]
[80] Ibid, G24, page 129.
The Applicant and Ms K have an agreement that if he is released into the community he will be able to spend every second weekend with their children.[81] The Applicant intends to spend that time with his children with other members of his family at places like beaches and theme parks. In that way, his children will be able to see their cousins.[82] I infer from this that the children will also have other responsible adults, being their uncles and aunts, around to look after them.
[81] Transcript, page 20, line 41 to 45
[82] Transcript, page 21, lines 1 to 7.
Given the Applicant’s evidence of daily drug use from 2017 onward, I challenged him about that and his evidence that he used to drive his children to and from school. He said that he was using methamphetamine every day,[83] and that he normally took it at around 7am, then around an hour later he would take more.[84] When I asked if he was taking his children to school and picking them up when he was using drugs, he said he only took them if he had not taken a shot. He said he did that around three times per week.[85] When I reminded the Applicant that he had previously said he was using drugs daily, he said if he could not afford to pay for a shot then he took his children to school.[86] Using daily is very different to using four times per week. I do not accept the Applicant’s evidence regarding his involvement in driving his children to school. I find that either he was driving his children while affected by drugs, thereby putting them at increased risk of harm, or he did not assist with school drop-off and pick-up nearly as much as he claims. Either, way I find that he was not making the positive contributions he claims to have been making in that regard.
[83] Transcript, page 26, lines 19 to 20.
[84] Transcript, page 26, lines 22 to 25.
[85] Transcript, page 26, lines 29 to 37.
[86] Transcript, page 26, lines 38 to 44.
Ms K has always fulfilled the parental role with respect to the children and there is no suggestion that this will change. Ms K has flat feet and spurs and she currently has problems with her hands, so she finds it difficult to do things around the house. She also suffers from severe depression which she manages with medication.[87] Ms K’s parents help her look after the children by taking them to school every day, and her father or sister-in-law picks the children up. She thinks her sister, who lives 12 minutes away, could probably help too if required.[88] There is no suggestion that the children are not well cared for.
[87] Transcript, page 36, lines 25 to 40.
[88] Transcript, page 36, line 43 to page 37, line 25.
Ms K is in favour of the Applicant spending time with the children, and she believes that they want to see him.[89] Child A provided two letters of support in which she said she loves the Applicant, misses him and wants to see him every day. There are some print outs of text messages between Child A and the Applicant in which she expresses affection for him and that she misses him. It was Child A who the Applicant verbally and physically abused when she was three, resulting in a protection order being made. It was also Child A who tried to lock the Applicant out of her home when he was being aggressive in 2019. Child B provided a letter of support expressing essentially the same sentiments as Child A. Ms K said Child C cries for the Applicant every night, saying she wants to see her father.[90] Child C was born in August 2017 and was been barely two years old when the Applicant was incarcerated. The Applicant told Child C to call Ms K a “slut” during a violent episode in 2018.
[89] Transcript, page 40, lines 45 to 47.
[90] Transcript, page 35, lines 41 to 44.
I accept that all three children love and miss the Applicant, and I accept that Child A and Child B both consider that their lives would be better if the Applicant were physically present. I note that the Applicant’s relationship with Child C has been very short and interrupted, and that his relationship with Child A and Child C has involved behaviour that was against their best interests.
Ms K said she would not relocate to New Zealand if the Applicant were deported.[91] She thinks it would be possible for the Applicant to maintain contact with the children using the internet and telephone.[92] The children have a good relationship with both Ms K’s parents. They also spend time with the Applicant’s relatives regularly, going out on public holidays to the beach etc.[93]
[91] Transcript, page 41, lines 4 to 6.
[92] Transcript, page 41, lines 11 to 14.
[93] Transcript, page 41, lines 17 to 36.
The Applicant said that his children were having a hard time without him, they had been playing up at school and getting into trouble, and getting bullied because other children do not think they have a father.[94] The Applicant said he wants to be involved in their lives, help stop the bullying, and help guide them and share with them everything he has learned so they do not end up going down the same path as him.[95] There is no evidence that any of the Applicant’s children are headed down the same path as him or that they would need his guidance, as opposed to Ms K’s or another relative’s, to avoid going down that path. There is no mention of the children being bullied in the evidence of Ms K, the Applicant’s family members or Child A or Child B. One of the Applicant’s brothers mentioned that Child A and Child B have been in trouble at school[96]. Child C is not yet at school. It seems unlikely that the children are bullied because of a perception that they do not have a father in this day and age when it is not uncommon for a child have only one biological parent present in their lives. I accept that the two older children have got into some trouble at school, although it seems not enough for their mother to mention it. I do not accept that they are bullied because of the Applicant’s absence.
[94] Ibid, G24, paragraph 95.
[95] Ibid, G24, paragraphs 95 and 96.
[96] Exhibit G1, Section 501 G-Documents, G33, page 310.
It was contended on the Applicant’s behalf that the children “have individual difficulties which the Applicant is supporting them through” although no evidence was proffered as to what these individual difficulties were, unless it was a reference to being in trouble at school or being bullied, or how the Applicant claims to be helping. I am unable to accept the contention.
The Applicant’s revocation request included the following peer reviewed academic studies:
·Impact of a Father Figure’s Presence in the Household on Children’s Psychiatric Diagnoses and Functioning in Families at High Risk for Depression;
·Mental Health Service Utilization in a Community Sample of Rural Adolescents: The Role of Father–Offspring Relations; and
·The impact of fathers’ military deployment on child adjustment. The support needs of primary school children and their families separated during active military service: A pilot Study (which included a comparison of parents deployed for combat versus non-combat assignments). [97]
[97] Exhibit G1, Section 501 G-Documents, G51.
The relevance of these studies to the Applicant’s children was not made apparent. His children do not live in a rural community, they are not children of military personnel and there is no evidence that they are at high risk of depression. Nor would the Applicant be “present in the household” if he were to remain in Australia. I do not consider that these studies provide helpful guidance with respect to the possible impact of a non-revocation decision on the Applicant’s children.
I accept that Ms K and the children would benefit from the Applicant’s financial support and that he would provide child support if he were released into the community. I consider that it would be in the best interests of all three children for the Applicant to help financially and to be physically present in their lives to the extent that Ms K allows, which appears to be what will occur if he is given his visa back. If the Applicant does reform, there are many years in which he can make a positive contribution to the lives of each of these children. However, I have concerns about the Applicant engaging in damaging behaviour as he has done previously in relation to Child A and Child C if he does not reform. The children already have Ms K and the support of her family, and they have contact with the Applicant’s family. Taking all matters into account, I consider that revocation is in the best interests of each child to a low to moderate degree.
The Applicant also makes claims in relation to Ms G’s children. The Applicant commenced his relationship with Ms G after he was incarcerated. He has never lived with her and never met her children in person. If the Applicant is deported, Ms G considers that their relationship will probably end because she cannot move to New Zealand. In a letter of support, Ms G said the Applicant had a “strong bond”[98] with her 13 year old son who texts with the Applicant. However, in oral evidence, when asked if her children knew the Applicant, she said they talk to him on the phone from time to time but he has not met them and that “they know of him”.[99] In her oral evidence she did not claim that her children had a particularly close relationship with the Applicant or that his deportation would have any significant impact on them. I accept that there has been some communication between the Applicant and Ms G’s children, especially her 13 year old son, but I am not satisfied that it has been significant or in the capacity of a parental figure, or that the Applicant has a strong bond with Ms G’s 13 year old son. There is no evidence from any of her children as to what their wishes are. The Applicant has never been physically present in their lives. While there is potential for him to fulfil a parental role if he is released, whether he would do that is contingent on him and Ms G remaining together and him getting along with her children. As they have never lived together, this is a big contingency. If revocation is in the best interests of these children, it could only be to a very slight extent. I allocate very slight weight in relation to Ms G’s children.
[98] G39, page 324.
[99] Transcript, page 43, lines 43 to 45.
The Applicant listed six minor nieces and nephews in his Personal Circumstances form.[100] He said he used to spend most weekends with his family having barbecues and that his nieces and nephews were always excited to see him. He would show them how to play sports such as tennis and they would come to him if they were having trouble with anything. He believes they would be devastated if he were to be deported.[101] In the letters of support from the fathers of these children (the Applicant’s brothers) there is no mention of his relationship with their children or any impact the Applicant’s removal would have on them. There is a letter of support before me from a ten year old niece that says she loves and misses him and wants him to return.[102] There is another letter from a seven year old niece who says she misses the Applicant.[103] There is a third from a 14 year old niece who says she loves the Applicant and asks for a second chance for him.[104] I accept that at least these three children have an emotional attachment to the Applicant and want him to stay in Australia. Based on the evidence from those three children, I am prepared to accept that the other three children feel similarly although there is no evidence from them of their parents to that effect. There is no evidence that any of the children have, or want, ongoing communication with the Applicant while he is in detention or that he would play a significant role in their lives if he were in the community. The Applicant does not fulfil a parental role in relation to any of them and there is no evidence that he would ever be called upon to do that. Nor are they dependent on him financially or in any other way. On the basis that there is potential for the Applicant to socialise with these children in a positive way if his visa is returned, I find that revocation is in their best interests to a slight extent.
[100] Exhibit G1, Section 501 G-Documents, G17, page 72
[101] Exhibit G1, Section 501 G-Documents, G 17, page 73.
[102] Ibid, G37, page 319.
[103] Ibid, G37, page 320.
[104] Ibid, G37, page 321.
Taking all of the children into account, Primary Consideration B weighs moderately in favour of revocation.
Conclusion: Primary Consideration B
The best interests of the children mentioned above weigh moderately in favour of the revocation of the cancellation of the Applicant’s visa.
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) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. 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. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
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 the community. 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. The Government’s views in relation to community expectations are to be found in the Direction.[105]
[105] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(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 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; and
(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-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was 12 years old, and is now 32 years old;
·he commenced offending when he was still a minor (nearly 17 years old);
·his offences include serious violent offences;
·there is a significant risk that he will re-offend;
·his history of offending and traffic infringements, and his breaches of court orders, demonstrate a disregard for the laws regulating the community that he seeks to re-enter;
·he has a reasonably solid employment history;
·he does not claim voluntary work or significant community participation (outside his own family); and
·if he is removed to New Zealand, his children will be negatively impacted, his nieces and nephews will continue to miss him, and his family and Ms G will suffer some emotional hardship (addressed below).
Conclusion: Primary Consideration C
The Applicant breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS

It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of 12 and has lived in Australia for 20 years which includes his entire adult life. According to what he told Mr McKinnon, which was not challenged, he began engaging in illegal drug use (cannabis) two years later and underage drinking three years later. Nearly five years after moving here, while still a minor, he committed an extremely serious offence (and continued to offend until his most recent incarceration). I afford the Applicant a modest measure of weight under paragraph 14.2(1)(a) of the Direction. It was contended on the Applicant’s behalf that he has contributed to the community through employment, his children and supporting his extended family. I am prepared to accept that the Applicant has held relatively stable employment. There is some evidence from the Applicant’s brothers that he has helped them over the years. I accept that his support of his extended family is a contribution to the community. I am less inclined to credit him with contributing to the community through parenting his children given the secondary role he has played and his poor behaviour to and around them at times. I afford the Applicant a modest measure of weight under paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant’s mother and three of his four brothers live in Australia. Another brother lives in India. The Applicant also has an aunt, two uncles and a cousin in Australia.[106] The Applicant claimed to be very close to his mother, his siblings and their children. The evidence from his family members supports this and I accept it. He said his mother and brothers would be impacted by a non-revocation decision, that his mother is in constant distress and his brothers are worried for his well-being because he has not been in New Zealand since he was 12. I accept this and I accept that his nieces and nephews will miss his company.
[106] Exhibit G1, Section 501 G-documents, G17, page 74.
The Applicant said that it would be devastating for his mother if he had to return to New Zealand. He said his mother has bad arthritis and high blood pressure, and that the stress of him being in detention has been very hard for her and her health.[107] Before the pandemic his mother was visiting him every fortnight.
[107] Ibid, G24, page 128.
The Applicant’s mother said that if he were to be deported to New Zealand, she would be very concerned as he has no family or supports there. She and her family would be heartbroken. She said she has been under stress worrying about the Applicant and if he were to be deported her health would deteriorate even further. She said she cannot afford to travel back and forth to New Zealand to visit the Applicant and that his brothers all work and have family here and cannot afford to take time off.[108]
[108] Ibid, G29
There is a medical certificate from a general practitioner before me that says the Applicant’s mother “has a medical condition and she says her health would benefit from having her son [the Applicant] in Australia”.[109] This is not a medical opinion but a repetition of what the Applicant’s mother has told the doctor. There is another medical certificate before me that states that the Applicant’s mother currently takes medication for cholesterol and Type 2 diabetes and that she also suffers from osteoarthritis and hayfever. There is no medical evidence to support the contention that the Applicant’s current predicament has aggravated his mother’s medical conditions or that his deportation is likely to do that, and I do not accept either of these contentions. Rather, I accept that the Applicant’s mother will suffer worry and emotional hardship if he is deported. I accept that his brothers will also worry about the Applicant and miss him.
[109] Ibid, G46
The Applicant said he had been his mother’s sole supporter over the years and he hopes to be with her again in order to continue to support her and assist her with her daily needs.[110] However, he has been incarcerated since late 2019 and therefore his mother has coped without his assistance for over a year. I note that the Applicant has brothers who live in the Brisbane area who could presumably assist their mother as required.
[110] Ibid, G23, page 127.
The Applicant has been in a relationship with Ms G since December 2019.[111] She cannot move to New Zealand as her children’s father would not agree to her taking her children. She suffers from depression and anxiety which, she says, is being exacerbated by the Applicant’s situation.[112] Ms G gave evidence that they support each other emotionally. I accept that if the Applicant is deported it will cause Ms G some emotional hardship. However, they have only ever had a long-distance relationship, she has never been financially dependent on him, and she has never relied on him for practical support such as help around the house. If he is deported, they will be able to remain in contact to provide emotional support to each other if they choose to do that.
[111] Exhibit G1, Section 501 G-documents, G 24, paragraph 6.
[112] Ibid, G19, page 107.
There is insufficient evidence to find that the Applicant’s aunt, uncles or cousin would be significantly impacted by the Applicant’s deportation, although his cousin expressed concern about the impact on the Applicant’s mother and children.[113]
[113] Ibid, G34.
The Applicant’s deportation will impact his children as set out in Primary Consideration B.
There is very little evidence of social ties to the community, however given the length of time the Applicant has lived in Australia, I accept that he has some social ties in Australia.
The Applicant’s ties to the community, and the impact on his family of his removal from Australia, weigh heavily in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 32-year-old man who is able bodied. He had some dental problems that have now been successfully treated.[114] He said he sustained an injury to his arm in detention which requires some outstanding treatment. He did not claim that his injury was debilitating.
[114] Transcript, page 30, lines 5 to 10.
The Applicant said he suffers from anxiety and depression and takes medication for that.[115] Mr McKinnon was of the view that the Applicant does not suffer from any psychological condition and that his anxiety was reactive to his current circumstances. I accept Mr McKinnon’s opinion.
[115] Transcript, page 22, line 45 to page 23, line 7.
The Applicant’s mother said that if he was deported to New Zealand without being given a chance to see his children or family again, she has grave fears for his life.[116] I accept that being permanently separated from his children will cause the Applicant emotional hardship and could result in him suffering depression and anxiety. There is one instance of the Applicant feeling suicidal, however he was in the grip of a serious drug addiction at the time and he has not reported feeling suicidal since then. He currently takes medication for his depression and anxiety and there is no suggestion that he would not take medication in New Zealand if he needed to. It is reasonable to find that the level of medical care, including care for psychological conditions, and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia. The Applicant will also be able to maintain communication with his family in Australia, in the same way that he does now, for emotional support.
[116] Exhibit G1, Section 501 G-documents, G28
The Applicant has some relatives in New Zealand however he claimed not to know them or be in contact with them.[117] He said that he had not been back to New Zealand since he was 13, and that he has no family he can stay with there.[118] I accept this.
[117] Transcript, page 22, lines 36 to 37.
[118] Exhibit G1, Section 501 G-documents G17, page 78
The Applicant contended that as he has no qualifications or employment history in New Zealand, and a criminal record, he will not have any employment prospects there. This and having no family or contacts to assist him will cause hardship and he will not survive. However, the Applicant does not have a New Zealand criminal record, he is able bodied, and he has a history of being employed. Even if he were to find it difficult to obtain employment, he would have the same access to social welfare as other New Zealand citizens.
The Applicant lived in New Zealand until he was 12 years old. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.
It is likely that the Applicant would face some difficulty in re-establishing himself in New Zealand as he would have to secure accommodation, obtain a job or arrange income support, secure rehabilitation and support services, and establish a pro-social support network. He would have to do these things while suffering the emotional hardship of being permanently separated from his children and other family members. However, these challenges are likely to be short-term and would not prevent him from successfully re-settling in New Zealand.
This Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs heavily in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

...........................[SGD].............................................
Associate
Dated: 24 February 2020

Date of hearing: 10 February 2021

Solicitor for the Applicant:

Mr Mukesh Chand

Shiva’s Migration Services

Solicitor for the Respondent:
Mr Liam Dennis

MinterEllison

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G55 pages 1 to 464)

R

-

21 DEC 2020

A1

Applicant’s Statement of Facts, Issues and Contentions including:

· Attachment 1: Statement of the Applicant dated 3 November 2020

· Attachment 2: Psychological Report of Mr Ian McKinnon dated 26 September 2020

A

11 JAN 2021

11 JAN 2021

A2

Applicant’s Reply Submissions

A

5 FEB 2021

5 FEB 2021

R1

Respondent’s Statement of Facts, Issues and Contentions

R

27 JAN 2021

27 JAN 2021

R2

Respondent’s Supplementary Documents (S1 to S75 pages 1 to 367)

R

-

27 JAN 2021

[2021] AATA 299

24 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G55 pages 1 to 464)	R	-	21 DEC 2020
A1	Applicant’s Statement of Facts, Issues and Contentions including: · Attachment 1: Statement of the Applicant dated 3 November 2020 · Attachment 2: Psychological Report of Mr Ian McKinnon dated 26 September 2020	A	11 JAN 2021	11 JAN 2021
A2	Applicant’s Reply Submissions	A	5 FEB 2021	5 FEB 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	27 JAN 2021	27 JAN 2021
R2	Respondent’s Supplementary Documents (S1 to S75 pages 1 to 367)	R	-	27 JAN 2021