Mence and Minister for Home Affairs (Migration)

Mence and Minister for Home Affairs (Migration) [2019] AATA 1309 (17 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1782
Re:Carlo Mence
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member T Eteuati
Date:17 June 2019
Place:Sydney

The decision under review is affirmed.
..........................[SGD]..................................
Member T Eteuati
CATCHWORDS
MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) – Applicant failed to pass the character test – whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – decision under review affirmed
LEGISLATION
Migration Act 1958(Cth) ss 499, 501, 501CA, 501G
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member T Eteuati
17 June 2019
BACKGROUND

This is an application by Carlo Mence (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on

25 March 2019 to refuse to revoke, under subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“TY 444 visa”).
The Applicant first arrived in Australia on 22 December 2004 with his former partner and their young child, aged twenty years. The Applicant departed for New Zealand on 24 May 2005 and re-entered Australia on 2 June 2005 but has otherwise remained in Australia.
While a TY 444 visa is technically a temporary visa, a TY 444 visa allows its holder to remain indefinitely in Australia. When the holder of a TY 444 visa departs Australia, the visa ceases but, subject to a person continuing to meet the visa criteria, they are granted a new TY 444 visa when they re-enter Australia.
The Applicant was last granted a TY 444 visa on his last arrival in Australia on 2 June 2005. It was this visa that was cancelled under subsection 501(3A) by the Minister’s delegate on 2 November 2018.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in paragraph 501(6)(a) of the Act (when read with paragraph 501(7)(c)) as he had been sentenced to a term of imprisonment of 12 months and was serving a full-time term of imprisonment. On 11 November 2018, the Applicant requested that the cancellation decision be revoked. On 1 March 2019, the Minister provided the Applicant with a copy of Direction 79 for his comment. On 25 March 2019, the Minister refused to revoke the cancellation of the Applicant’s TY 444 visa. On 1 April 2019, the Applicant applied to this Tribunal for review of that decision.
The matter was heard on 3 June 2019. For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
ISSUES
Pursuant to subsection 501CA(4) of the Act, the Minister may revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, paragraph 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
a.whether the Applicant passes the character test as defined in section 501 of the Act; and
b.whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”.
I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke the cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A3 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R8. The evidence contained in these documents is discussed throughout this decision: see “Annexure A” to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of the evidence is provided below from paragraph 37 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 5 October 2018 shows the following offences committed by the Applicant:
(a)On 19 March 2018, the Applicant was convicted of the following offences:
(i)intentionally choke person with recklessness and sentenced to 12 months imprisonment to be served by way of an Intensive Corrections Order (“ICO”);
(ii)common assault and subjected to an 18 month good behaviour bond;
(iii)stalk/intimidate intend fear physical harm etc and subjected to an 18 month good behaviour bond;
(iv)contravene prohibition/restriction in Apprehended Violence Order (Domestic) (“AVO”) and subjected to a 12 month good behaviour bond;
(v)four counts of fail to appear in accordance with bail acknowledgement and given no further penalty.
(b)On 25 January 2011 the Applicant was fined $400 for driving while licence expired less than two years before – first offence.
The Applicant breached his ICO by failing to abide by the condition of the order to undertake a minimum of 32 hours of community service work a month. The Applicant only attended three days of community service. He then failed to undertake community service three times in May 2018 but provided medical certificates in relation to those days. On 16 May 2018, Community Corrections provided the Applicant with a warning advising that any future failures to attend would result in revocation of the ICO. The Applicant failed to attend community service work as directed on three further dates in June 2018 and he failed to make contact with Community Corrections or to provide documentation explaining his absence. On 22 June 2018, a recommendation was made by a Community Corrections officer that the Applicant’s ICO be revoked. The Community Corrections officer stated:
“Mr Mence appears to be ambivalent in regards to attending community service work as directed and has failed to contact Community Corrections to explain his continued failures to attend. Therefore, it is respectfully requested that his order is revoked.”
The Applicant’s ICO was revoked on 4 July 2018. It appears he was imprisoned in early October 2018. The Applicant’s ICO was reinstated on 21 November 2018 and he was released from prison shortly thereafter. As mentioned previously, while the Applicant was in prison, on 2 November 2018, his visa was cancelled under subsection 501(3A) of the Act by the Minister’s delegate. This resulted in the Applicant being taken into immigration detention when he was released from prison after his ICO was reinstated
I am satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of 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”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. 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.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 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.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Department and the Tribunal and evidence given by the Applicant at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant is an un-partnered, 35-year-old man of Cook Island heritage. He has three children. The Applicant was born in New Zealand on 22 May 1984. The Applicant indicated that he was abandoned by his family in his teenage years and that the relationship between the Applicant and his family members remains strained. The Applicant first arrived in Australia with his former partner and their young child at 20 years of age in December 2004. Other than a weeklong trip to New Zealand in mid-2005, the Applicant has remained in Australia. The Applicant said that he originally came to Australia as his former partner wished to come here to help look after her parents.

The Applicant said that he has been employed for most of the time he has been in Australia, although there have been periods where he has been unemployed and homeless. The Applicant indicated that he had been employed in the hospitality industry in various positions including managerial positions. The Applicant and the mother of his first child separated and, for the most part, have not been on speaking terms. However, the Applicant has indicated that he continued to pay child support in relation to his eldest child. It appears that the Applicant’s eldest child is now 17 or 18 years old. For the purpose of this decision, the Tribunal will proceed on the basis that the child is under the age of 18.
The Applicant re-partnered and had two more children who are currently about 12 and 10 years old. The Applicant said that his relationships did not end on good terms and he has rarely spoken with his former partners. The Applicant indicated that he has not spoken to any of his children for a number of years but indicated that he had paid child support in respect of the children in the past.
The Applicant said that he met the victim of his violent offences in around November 2015. He said that the victim had started staying with him and a romantic relationship began between them. He said shortly after she moved in with him he was evicted from his home and the couple became homeless. They lived in the car. The Applicant was able to secure accommodation in a small apartment prior to May 2016.
The nature of the offences which the Applicant committed in May 2016 were described in the sentencing judge’s remarks as follows:
“…On 11 May 2016, [the victim] was at the premises in Bexley awaiting the defendant’s return from work. While she was at home she consumed about four alcoholic beverages and about 8pm on the same day, the defendant returned to the premises. He noticed what he believed to be [the victim] as being intoxicated which made him angry and an argument began between the couple. The argument lasted a short time before the victim left the location.
The victim returned about 15 minutes later carrying a pack of alcohol. The defendant consumed two and a half cans when they began to argue. This argument was due to the victim’s drinking. The defendant approached the victim, placed his open hands around her throat. He pushed the victim onto the bed with her feet hanging off the end of the bed and applied force to the victim’s throat causing her supplication. Due to the suffocation, the victim’s face had begun to turn red at which time she fell unconscious. She began crying and an argument continued at which the defendant said, in no uncertain terms, that she was to shut up, not to make a noise or he would do it again. She replied, “Yes, whatever you want”, which is the charge of intimidation. The defendant let go of the victim and walked away. She saw the opportunity and ran from the apartment to seek refuge away from the defendant. Police were contacted, who arrived a short time later. The defendant made admissions to assaulting and choking the victim and he was arrested in relation to the offences where he made full admissions during a recorded interview. Those, essentially, are the facts in relation to the three charges.
The defendant was also convicted of an offence on the next day, 12 May 2016, of contravening an apprehended domestic violence order at about 4:20 AM on 12 May 2016. That is an offence which has a maximum term of imprisonment of two years.
THERE WERE ALSO, IN THAT MATTER, TO FAILURES TO ATTEND COURT AND THE COURT DEALS WITH THOSE MATTERS ALSO BY WAY OF RECORDING A CONVICTION, BUT NO OTHER PENALTIES IMPOSED UNDER S 10A.
The facts in that matter recited the earlier incident, the facts of which I have just read out, and the fact that the police applied for a provisional apprehended domestic violence order. It had a condition that the defendant must not approach or contact the protected person by any means whatsoever except through the defendant’s legal representative. A copy of the order was served on the defendant while he was in custody in relation to the other matters. At about 4:20 AM on 12 May 2016 the victim was at the Bexley address when the defendant turned up at the location. As soon as the victim saw the defendant she left the location and walked up the street and contacted the police. During an interview in relation to that matter with the police, the defendant made full admission as to contacting the victim and the fact that he knew that by contacting the victim he was in breach of the apprehended violence order.”
The Applicant indicated that he pleaded not guilty to the offences but was found guilty of the offences by the Court.
At the hearing, in response to questions in cross-examination and by the Tribunal, the Applicant said that he had essentially taken the victim into his home. He said that, prior to their relationship, he had allowed the victim to live in his home as she was having problems with drugs and alcohol. The Applicant mentioned that the victim had wished to rehabilitate herself so that she could regain access to her child.
The Applicant indicated that, prior to 11 May 2016, the couple would often get into arguments about the victim’s behaviour. He said that on the evening of 11 May 2016 he was upset because he returned home to find that the victim was drunk. This upset him because he had taken the victim in in order for her to cease consuming drugs and alcohol. In addition, he was upset because he had only very recently secured accommodation for the couple and the victim had returned to drinking heavily and was wasting their money on alcohol.
The Applicant indicated that an argument began and the victim left the premises only to return with more alcohol. He said that the argument resumed. The Applicant said that while he was never violent towards the victim during previous arguments, she would often attack him when she became intoxicated and he would have to restrain her in order to avoid harm. He said that she would then call the police, presumably alleging that he was attacking her. The Applicant indicated that he believed that on one occasion neighbours had called the police. The Applicant said that he had never called police after being attacked by the victim. He said that he had never done so as he had never been concerned for his own safety as he was a man of large stature and the victim was a small woman.
The Applicant said that on 11 May 2016, during their argument, the victim launched herself at him. He said that in order to avoid her attack he held out his hands and caught her mid-air. He said that he then restrained her on the bed, and that perhaps, to her, it felt like she was being choked. The Applicant said that at the time the victim was highly intoxicated, her face was red and she was yelling loudly. He admitted that he had said words to the effect of “shut the fuck up, don’t make a noise...” He indicated that he was unsure whether he followed these words with “… or I’ll do it again.” The Applicant denied that the victim ever lost consciousness.
Contrary to the events asserted in the Police Fact Sheet, where it was asserted that the victim ran from the apartment when the Applicant let her go, the Applicant indicated that the victim remained in the apartment. He said that he told her that he did not want to be in a relationship with her and never wanted to see her again. He said that the two of them had tried to gain possession of the key card which opened the door to the apartment. He said that he was successful in gaining possession of the key card and physically removed the victim from his apartment. The Applicant said that as the victim was departing she said “I’m just going to call the cops on you”.
The Applicant said that the police arrested him at the apartment around midnight. He said that while he had made admissions to the police about choking the victim, he had fully explained the circumstances and indicated that he was in fact restraining the victim from attacking him further. The Applicant said that he felt that he was the victim of multiple attacks by the victim and he said that the police appeared to indicate to him that they accepted this. He said that he felt that his admissions to the police were taken out of context and that the police had manipulated him into making admissions without providing the full context of the events.
The Applicant said that while he was detained by police, he was issued with an AVO. He said that the effect of this order was that he was prohibited from making contact with the victim. The Applicant said that he was released by the police at around four in the morning on 12 May 2016. He said that he went to his apartment to prepare for work. The Applicant said that on reaching his apartment he noticed the door was open and that his apartment had been trashed. The Applicant said that the victim was present at the apartment. The Applicant thought that the victim must have broken into the apartment as he had removed her from the apartment prior to his arrest and maintained possession of the only key card to the apartment. He said that he had had no intention of contacting the victim and was surprised to find the victim in his apartment. The Applicant said that, contrary to the statement that the victim made to the police in which she indicated that she left the apartment as soon as she saw the Applicant, the victim had remained in the apartment and told the Applicant that she was going to call the police. The Applicant indicated that he said “… ‘Don’t do this. Like, I’m not here to see you. I don’t know why you’re here’. Before I even could finish the sentence, she stood there, stared at me and called the cops...”
The Applicant’s effective sentence for these offences was 12 months imprisonment to be served by way of an ICO. One of the conditions of that order was that the Applicant was to undertake a minimum of 32 hours of community service work a month as directed. The Applicant attended community service work as directed on three occasions. On 11 May, 18 May and 25 May 2018, the Applicant failed to attend community service work. However, on those occasions he provided medical certificates. At the hearing the Applicant indicated that in May 2018 he had attended hospital as he had a large cyst in his leg. There he was diagnosed with type 2 diabetes and extremely high blood pressure. He said that the doctors had told him that if he had not sought medical attention he would have died from his condition within a period of days. He said that he went into surgery that evening to remove the cyst in his leg and was in hospital for just under a week. The Applicant said that this was the reason that he could not undertake community service work in mid-to-late May 2018.
The Respondent’s solicitor put to the Applicant that while he had provided medical certificates in relation to his failure to undertake community service work in May 2018, he had not provided medical certificates for his failure to undertake community service work in June 2018. In addition, the Respondent’s solicitor pointed out to the Applicant that he had been issued a warning after his absences in May 2018, that future failures to attend would result in revocation of the ICO. It was pointed out that, after receiving the warning, the Applicant had failed to attend on three further occasions in June 2018.
The Applicant explained that he had recently lost his job and his apartment. He said that he could not afford medication. He said that he was also greatly affected by being told the previous month that he would have died had he not sought urgent medical attention. The Applicant indicated that it was in these circumstances that he failed to undertake community service and did not contact Community Corrections to explain his situation.
The Applicant also admitted to failing to appear in Court on two occasions in 2017 in relation to the events of 11 May 2016. The Applicant indicated that he failed to appear owing to medical conditions for which he said he provided the Court with medical certificates.
The Applicant indicated that while he had been homeless and jobless in June 2018 when he failed to undertake community service, shortly thereafter he began to stay with a friend, Mr Cross, who had provided a statement to the Tribunal. The Applicant indicated that he stayed with Mr Cross for two or three months prior to being imprisoned in October 2018. Around the same time, the Applicant had secured employment with a Mr Poasa. He said that he had been employed with Mr Poasa for two or three months prior to being imprisoned in October 2018. Mr Poasa had also provided a statement in support of the Applicant.
The Applicant admitted that he committed a traffic offence of driving with low range alcohol in February 2010 and that in January 2011 he was convicted of driving with an expired license.
The Applicant said that he wished to remain in Australia. He said that the primary reason for this was that he wished to re-establish relationships with each of his three children, the eldest being in Brisbane and the two others in Sydney. He indicated that he regretted not being in communication with his children for a number of years but now wished to re-establish relationships with them. Second, the Applicant believed that he had built a life for himself in Australia. While he acknowledged that he had been through some difficult periods in Australia, including three failed relationships which ended badly, and periods of homelessness and unemployment, he indicated that he believed that he had contributed to the community through his employment and forged relationships in Australia which he wished to maintain.
The Applicant indicated that he had completed a certificate in hospitality, a first aid certificate, a responsible service of alcohol course and a white card, allowing him to work on construction sites.
The Applicant indicated that he suffered from type 2 diabetes, hypertension and high blood pressure. The Pre-Sentence Report also indicates that Applicant had previously been prescribed antidepressants but that he was too proud to use medication for depression. The Pre-Sentence Report also indicates that the Applicant had said that he had anxiety attacks related to his Court proceedings.
In his application for revocation of the cancellation decision, the Applicant indicated that he did not have any concerns or fears about what would happen to him if he returned to New Zealand. This was consistent with the evidence the Applicant gave at the hearing. The Applicant said that, given his positive employment history in Australia, he was confident that he would find employment in New Zealand if he were to return. The Applicant was also confident that he would receive appropriate medical treatment if he were returned to New Zealand. In addition, the Applicant indicated that he believed that he would be able to re-establish friendships with the friends that he had in New Zealand prior to relocating to Australia. However, the Applicant said that he would be unlikely to seek to re-establish a relationship with his family members in New Zealand as they had abandoned him when he was in his teenage years.
The Tribunal received three statements from acquaintances of the Applicant supporting his application before the Tribunal. The first was from Mr Poasa, the Director of Dalton Security where the Applicant had been employed as a Responsible Service of Alcohol Marshall (RSA Marshall) for two or three months prior to being imprisoned in October 2018. The Applicant indicated that he only met Mr Poasa in around mid-2018. Mr Poasa’s statement indicates that he met the Applicant when he employed him in 2017. The Tribunal accepts the Applicant’s evidence that he met Mr Poasa in mid-2018. The statement indicates that the Applicant is an excellent worker with an easy-going personality and that he has gained the respect of his managers, colleagues and peers and is very well liked. The statement indicates that the Applicant would have a job with Mr Poasa’s company if he remained in Australia. The statement does not mention the Applicant’s offences.
The Applicant indicated that while he has only known Mr Poasa for a brief period of time, he is very close with Mr Poasa. He said that Mr Poasa was the only person to put money into his prison account when he was in prison, and was one of only two people that visited him in prison.
The second statement was from a Mr Cross. The letter from Mr Cross indicated that he has known the Applicant for 15 years and that for the past year the Applicant had been living with him and his family. The Applicant indicated that this was not correct as the Applicant has been prison or immigration detention since October 2018. The Applicant indicated that he stayed with Mr Cross for two or three months prior to his imprisonment in October 2018. Mr Cross’ letter indicates that the Applicant is “well mannered, polite, non-violent, kind, loving and he has a very giving and sharing personality”. The letter indicates that the Applicant has been outstanding member of his community, achieving success in his employment with two RSL clubs and playing rugby for the local rugby team. While the letter indicates that the Applicant was having “troubles” with his visa, there is no mention in the letter of the Applicant’s offending.
The third letter was from a Miss Pedemont. She indicated that she had known the Applicant for approximately 10 years, having first met him when he was a manager at the Ramsgate RSL Club. She described his compassion towards patrons, especially the elderly. She described the Applicant as “dependable, reasonable, honest and courteous with a genuine compassion for people”. Miss Pedemont pleaded for the Applicant to be able to remain in Australia. However, her letter does not mention the Applicant’s offences.
The Applicant indicated that he had met Miss Pedemont while working at the Ramsgate RSL club and that she and with Mr Poasa were the only people to have visited him in detention.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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 subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)the cumulative effect of repeated offending;
g)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;

In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence, summarised the applicable principles as follows at [78]-[79]:
“(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The Applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.”
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP, stated at [92]:
“…The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.”
As in HZCP and LQZW, the convictions (and sentences imposed) in question in this case were a precondition to the decision under subsection 501(3A) of the Act and the exercise of the discretion by the Tribunal. In the present case, as in LQZW, the Tribunal has to proceed on the basis that the Applicant did commit the offences for which he was convicted and the essential facts upon which the offences were based and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
Thus, the Tribunal accepts the factual basis for the convictions as stated by the sentencing judge. To the extent that the Applicant’s version of events is inconsistent with those statements, the Tribunal rejects the Applicant’s version and accepts that of the sentencing judge. However, the Tribunal is willing to accept aspects of the Applicant’s evidence in relation to the circumstances surrounding the offences. The Tribunal does not do so in any way to impugn the convictions themselves, but rather to understand the circumstances and context in which the offending occurred.
Therefore, for the purposes of this decision, the Tribunal is willing to accept that the Applicant and the victim had a tumultuous relationship where there were often arguments between the couple. The Tribunal accepts that the Applicant initially agreed for the victim to stay with him at his home in order to assist her. With some hesitation, the Tribunal is willing to accept the Applicant’s evidence that the victim would attack the Applicant on occasion when she was drunk. The Tribunal is willing to accept that the Applicant did not call the police on these occasions as he was not in fear for his own personal safety as he is a man of large physical stature and the victim was a small woman.
The Tribunal does not accept that on 11 May 2016 the Applicant acted out of self-defence. There is no mention in the sentencing judge’s remarks or the police reports of the Applicant acting in self-defence or acting in a way such as to avoid an attack by the victim. The Tribunal accepts, as it must, that the Applicant approached the victim and placed his hands around her throat. The Tribunal accepts that the Applicant pushed the victim onto the bed and applied force to the victim’s neck causing suffocation. The Tribunal accepts that the victim’s face began to turn red and that she fell unconscious. The Tribunal accepts that the victim began crying and that the Applicant told the victim that she was to shut up, not to make a noise or that he would do it again and that she replied “Yes, whatever you want”.
The Tribunal accepts that in the early hours of the morning after the choking offence had been committed, the Applicant returned to his apartment after being released by police. The Tribunal accepts that the victim was in the apartment when the Applicant arrived and that she left as soon as she saw the Applicant. However, the Tribunal accepts the Applicant’s evidence that he did not expect the victim to be in his apartment when he returned there that morning. Nonetheless, the Applicant was convicted of breaching an AVO by his actions of coming into contact with the victim that morning.
The nature of the Applicant’s offending has been described above in the sentencing judge’s remarks. It involved an assault, intimidation and suffocation of the victim during a domestic argument. It also involved the Applicant breaching an AVO by coming into contact with the victim the morning after the violent offending. The Tribunal has also taken into account that the Applicant failed to attend court to be dealt with in relation to the violent offending on two occasions. However given the nature of the sentences for these offences, that is that he was not given further punishment, the Tribunal is willing to accept the Applicant’s evidence that he had provided medical evidence for failing to attend Court on those dates. The Tribunal has also taken into account two traffic offences of driving under the influence and driving without a license from 2010.
In relation to the seriousness of the offending, the sentencing judge made the following comments:
“…As I have said, the choking offence is a serious matter, has a maximum term of imprisonment of ten years which indicates the seriousness with which it is regarded, and it was a domestic violence offence as were these other offences. It is important the Court try and deter offences of domestic violence which, unfortunately, are all too prevalent.”
In Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686, Senior Member Puplick, in reviewing a decision to refuse the grant of citizenship on character grounds, said the following about the unacceptability of domestic violence at paragraph [48]:
“The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.”
Indeed, the main change between “Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” and Direction 79 was the emphasis in the current Direction that any crimes of violence against women or children are viewed very seriously regardless of the sentence imposed for such offences.
Domestic violence, most often perpetrated by men against women, is a scourge on our society. First, it results in great direct physical and psychological harm to its immediate victims. It often leads to the death of vulnerable people in our community; people who deserve love and support in domestic settings. Secondly, it erodes the well-being of our families and children, subjecting our vulnerable to lives of fear and insecurity and perpetuating a destructive cycle of violence which echoes into the future. In doing so, domestic violence damages the very fabric of our society. Wherever possible, domestic violence must be condemned, and, whenever possible, prevented.
That is not to say that there are not varying levels of seriousness of domestic violence offences. It is also not to say that a person who has committed offences of domestic violence can never succeed in an application such as this one. Whether an Applicant is allowed to remain in Australia will depend on the balancing of a number of factors, most obviously those specifically mentioned in the Direction. Protection of the Australian community and the expectations of the Australian community are two such factors which are to be given primacy.
In this case, the Tribunal has taken into account that, for the Applicant’s most serious offence, the choking offence, the Applicant was given a 12 month sentence of imprisonment to be served by way of an ICO. As the sentencing judge mentioned, such offences carry a maximum penalty of 10 years imprisonment. Thus, the Tribunal considers that the Applicant’s offending fell towards the lower end of the spectrum of seriousness for choking offences.
The Tribunal has also considered the fact that the Applicant’s offending does not represent a pattern of serious offending or any trend towards increasing seriousness. The Applicant has resided in Australia for almost 15 years and apart from two traffic offences in 2010, all of the Applicant’s offences arose from the events of 11 May 2016.
The Tribunal finds that the Applicant’s choking offence was very serious. The Tribunal also considers that the Applicant’s offences of common assault and stalk/intimidate intend fear physical harm, are serious offences. They were violent crimes committed by a man of very large stature against a small woman in a domestic setting.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent offences. This is such a case. If the Applicant were to reoffend in a similar manner, this would likely result in physical and psychological harm to victims and possibly severe harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s history of offending has been outlined above. The Applicant has resided in Australia for almost 15 years and apart from two traffic offences in 2010, all of the Applicant’s offences arose from the events of 11 May 2016.
The Pre-Sentence Report prepared for the Applicant and dated 16 January 2018 assessed the Applicant as presenting a low-medium risk of reoffending. The Tribunal notes that it is not particularly clear how this assessment was reached.
There is no evidence that the Applicant has completed any rehabilitation courses in relation to his offending.
The Respondent has argued that the fact that the Applicant breached the terms of the ICO by failing to undertake community service appointments on a number of occasions supports the view that the Tribunal could not be confident that the Applicant will not reoffend if he should return to the Australian community. While the Tribunal accepts that the Applicant’s failure on numerous occasions to undertake community service appointments may mean that he may fail to undertake similar appointments in the future, the Tribunal is wary of drawing the conclusion that a failure to attend community service appointments or court dates in the past is particularly relevant to an assessment of whether he is likely to commit violent crimes in the future.
The Tribunal does not consider that the letters provided by the Applicant’s friends in support of his application are of particular assistance in determining whether the Applicant is likely to reoffend, especially in a violent manner. None of the letters mention the Applicant’s offences in the past, although the Tribunal is willing to accept that the Applicant has disclosed his version of the offending to the authors of the letters.
The Tribunal has some concerns that the Applicant intends to continue to work as a RSA Marshall if he remains in Australia. That is because he will be in situations where he is required to interact with people who have been consuming alcohol, who may be intoxicated, and who may resort to violence. At the hearing the Applicant indicated that he would only become involved in violent conflict with patrons at his place of work in order to defend himself or others. The problem with this response is that the Applicant’s serious violent offending resulted from a situation where the Applicant indicated that he was defending himself from an attack by an intoxicated person.
The Tribunal is willing to accept that the Applicant does not intend to physically harm others in the future. However, the Applicant’s intentions are not conclusive as to the risk that the Applicant will reoffend, especially in a violent manner, in the future.
Given that the Applicant, prior to his offences of 11 May 2016, has no history of violent offending, despite having worked in the hospitality industry for much of his time in Australia, the Tribunal concludes that there is a low risk that the Applicant will reoffend in a violent manner. However, the Tribunal still considers that the low risk of violent reoffending is a real one. The Applicant is a large man capable of causing great physical harm to others. While the Tribunal accepts that the Applicant does not have any general propensity towards the use of violence, the Applicant has committed very serious offences of violence in the past, in a domestic setting. If the Applicant remains in Australia, he intends to continue to work in an environment where people will often be under the influence of alcohol, increasing the chances of violent conflict.
After considering the above, and all of the evidence provided in documentary form and orally at the hearing, the Tribunal finds that there is a real risk that the Applicant will commit violent offences in the future if he is allowed to remain in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent offending conduct was very serious. The Tribunal has found that if the Applicant were to reengage in similar criminal conduct it is likely the nature of the harm to victims would be that they would suffer physical and psychological harm and possibly severe harm.
The Tribunal has found that the Applicant continues to present a real risk of reoffending if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal attributes moderate weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
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, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. That is very difficult in this case as very little is known about the Applicant’s children.
Paragraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
a)“The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
The Applicant has three children in Australia. While it appeared that the Applicant was unsure of the exact ages of the children, and whether his eldest child had turned 18, for the purposes of this decision the Tribunal will assume that all three children are under the age of 18.
The Applicant’s eldest daughter is 17 years old and lives in Brisbane with his former partner. The Applicant has a son and a daughter aged about 12 and 10 respectively who live with another former partner in Sydney.
The Tribunal has very little evidence about the Applicant’s children. The Applicant provided the Tribunal with evidence that he provided care for them when they were very young while he was still in a relationship with their respective mothers. However, the Applicant’s evidence was that both of these relationships ended in acrimony between himself and the mothers of the children and that he did not have any contact with the children for a number of years. Indeed, the Applicant has indicated that he has not spoken with any of his children for a period of years.
As mentioned previously, the Applicant has indicated that he now wishes to re-establish relationships with each of his three children. There is no evidence before the Tribunal as to their wishes or the wishes of their mothers.
The Applicant does not play a parental role in the lives of any of his children and it appears that at present there is very little, if any, existing relationship between the Applicant and each of his children. At present it appears unlikely that the Applicant will play any parental role in the near future.
As the Applicant has not maintained a relationship with his children, it is likely that his offending conduct has had no impact on the lives of his children. Whether any future conduct by the Applicant will have a negative impact on each of his children would depend on whether the Applicant is able to re-establish relationships with his children and whether he would continue to reoffend if he remained in Australia.

There is no evidence that the Applicant has ever abused his children. To the extent that he has neglected his children, that was caused by his decision to be absent from their lives.
As the Applicant does not currently have any real contact with his children, his removal from Australia is not likely to have any significant impact on the children.
However, the Tribunal accepts that the Applicant’s removal from Australia will present an obstacle to the re-establishment of a relationship between the Applicant and his children. If the Applicant is removed, it appears that he will have to try to re-establish the relationships by telephone or electronic means. It would likely be more difficult for the Applicant and his children to spend time together in person as the children would have to travel to New Zealand for this to occur.
To the extent that the children and their mothers wished to re-establish a relationship between the Applicant and each of the children, the Tribunal is willing to accept that it is in the best interests of each of the Applicant’s children in Australia for the Tribunal to set aside the decision not to revoke the decision to cancel the Applicant’s visa so that the Applicant can remain in Australia and re-establish a relationship with each of his three children.
Conclusion: Primary Consideration B
The Tribunal has considered the best interests of the Applicant’s children in Australia both individually and cumulatively.
The Tribunal finds that the best interests of each of the Applicant’s children weigh slightly in favour of revocation of the cancellation decision.
The Tribunal attributes slight weight to the primary consideration of the best interests of minor children in Australia in favour of setting aside the decision not to revoke the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348 (“Uelese”); Afu v Minister for Home Affairs [2018] FCA 1311 (“Afu”); and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation.
In Doan, I also found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 13.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).
The fact that Direction 79 is relevant to this matter, rather than Direction 65, has no material bearing on this case other than that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes.
In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.
Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.
Since my decision in Doan, the Federal Court on 11 April 2019 handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are FYBR v Minister for Home Affairs [2019] FCA 500 (“FYBR”) and DKXY v Minister for Home Affairs [2019] FCA 495 (“DKXY”).
In FYBR her Honour Perry J concluded at [42]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese, Afu and YNQY.
In DKXY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.
However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached by the Applicant committing serious violent crimes and also failing to abide by his ICO conditions. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere.[1] In the present matter the Government has acted in accordance with that expectation as was required by subsection 501(3A) of the Act.
[1] See paragraph 6.3(2) of the Direction.
The Tribunal considers that the Australian community would find that much of the Applicant’s conduct was serious and some of it, including his violent conduct, was very serious. The Tribunal considers that the Australian community considers that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.[2]
[2] See paragraph 6.3(3) of the Direction.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place weight, in the Applicant’s favour, on the fact that the Applicant has lived in Australia for almost 15 years. The Tribunal is willing to accept that the Applicant, through his employment and involvement in the community, was making a valuable contribution to the community prior to his serious offending. Very slight weight would also be placed on the interests of the Applicant’s three minor children in re-establishing relationships with their father.
Conclusion: Primary Consideration C
Overall, given the serious nature of the Applicant’s violent offending, that there is a real chance that he will reoffend and, notwithstanding the lengthy time the Applicant has spent in Australia, the Tribunal finds that the Australian community would consider that the risk of future harm to the community is unacceptable and that the Tribunal should not revoke the cancellation of the Applicant’s visa.
The Tribunal finds that this consideration weighs against revocation of the cancellation of the Applicant’s visa. The Tribunal places moderate weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under paragraph 14(1):
a)international non-refoulement obligations;
b)strength, nature and duration of ties;
c)impact on Australian business interests;
d)impact on victims;
e)extent of impediments if removed.
(a) International non-refoulement obligations
Neither party has raised any issue about non-refoulement regarding the Applicant, and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2004 as a twenty-year-old. He has been employed for most of that time and there is evidence of the Applicant contributing positively to the community over a number of years. He was well regarded by employers, workmates and patrons and was involved in rugby union in his community. The Applicant’s violent offences were committed in 2016, well after he had arrived in Australia in 2004.
The Tribunal has taken into account statements of the Applicant’s friends and employer in support of the Applicant as being relevant to the Applicant’s ties to Australia.
The Tribunal has also taken into account under this consideration the hardship to the Applicant which will result if he must leave Australia. If it had not, the Tribunal would have considered this matter as a separate “other” consideration. The Tribunal accepts that the Applicant will be adversely affected if he has to relocate to New Zealand. It will present an impediment to re-establishing a relationship with his children in Australia. He will also be separated from friends and acquaintances in Australia, where he has lived for almost 15 years.
Overall, the Tribunal finds that the Applicant has ties to Australia forged over the last 15 years. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter and no issue arises on the material before the Tribunal. In these circumstances, the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is a relatively young man of 35 years of age. He suffers from type 2 diabetes, hypertension and high blood pressure. There is also some evidence that the Applicant may suffer from depression. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant re-establishing himself in New Zealand. As a citizen of New Zealand, the Applicant will be entitled to any social, medical and economic support available to New Zealand citizens in New Zealand.
The Applicant has been gainfully employed in Australia for most of his time here, and this augurs well for his employment prospects in New Zealand. He has worked in various positions in the hospitality industry including managerial positions. The Applicant has undertaken some vocational courses in Australia and was previously employed in New Zealand in the construction industry.
The Tribunal finds that the Applicant will face some difficulty in re-establishing himself in New Zealand. He has lived in Australia for the last 15 years. The Tribunal accepts that the Applicant would be very upset if he were permanently removed from Australia.
While the Tribunal accepts that it will be difficult for the Applicant to re-establish himself in New Zealand, the Tribunal considers that there are a number of factors which will assist the Applicant in re-establishing himself there including his strong employment history and his familiarity with New Zealand as a result of living the first 20 of years of his life there.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
Conclusion: is there another reason to revoke the cancellation of the Applicant’s visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs moderately against revocation of the visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against revocation of the visa cancellation. The Tribunal has found that the Applicant’s violent offences were very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke the cancellation of the Applicant’s visa, notwithstanding the great length of time that the Applicant has spent living in Australia.
On the other hand, the Tribunal has found that the primary consideration of the best interests of minor children weighs in favour of revocation of the cancellation decision. However, given that at present the Applicant does not have any significant ongoing relationship with any of his children, the Tribunal has only attributed slight weight to this consideration.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the Applicant will be adversely affected if the cancellation decision is not revoked. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour both individually and cumulatively. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 154 (one hundred and fifty four) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.............................[SGD]..........................................

Associate
Dated: 17 June 2019

Date of hearing:

3 June 2019

Applicant:

Self-represented

Solicitor for the Respondent:

Ms Hervee Dejean

Australian Government Solicitor

EXHIBIT REGISTER

File No       2019/1782................................................................................................................
Between     Carlo Mence........................................................................................... (Applicant)
And            Minister for Home Affairs................................................................... (Respondent)
Heard on
At               Sydney.....................................................................................................................
Before       Member Eteuati.......................................................................................................
Associate   Matthew Sheedy......................................................................................................

Exhibit Number Description of Evidence
Dated

A1

Statement of Talalelei Poasa

A2

Statement of Dianne Pedemont

A3

Statement of Todd Cross

R1

Corrective Services NSW Pre-sentence report

(Reference: Respondent’s Bundle of Documents, page 1)

R2

ICO Breach Report

(Reference: Respondent’s Bundle of Documents, pages 5 - 6)

R3

Order Revoking an ICO

(Reference: Respondent’s Bundle of Documents, pages 7 - 8)

R4

Order Reinstating an ICO

(Reference: Respondent’s Bundle of Documents, pages 8 – 10)

R5

Inmate Profile Document

(Reference: Respondent’s Bundle of Documents, page 11)

R6

Police Facts Sheets

(Reference: Respondent’s Bundle of Documents, pages 12 – 18)

R7

Bail Report

(Reference: Respondent’s Bundle of Documents, pages 19 – 27)

R8

ICO assessment report
(Reference: Respondent’s Bundle of Documents, pages 28 – 31)

[2019] AATA 1309

17 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Exhibit Number	Description of Evidence Dated
A1	Statement of Talalelei Poasa
A2	Statement of Dianne Pedemont
A3	Statement of Todd Cross
R1	Corrective Services NSW Pre-sentence report (Reference: Respondent’s Bundle of Documents, page 1)
R2	ICO Breach Report (Reference: Respondent’s Bundle of Documents, pages 5 - 6)
R3	Order Revoking an ICO (Reference: Respondent’s Bundle of Documents, pages 7 - 8)
R4	Order Reinstating an ICO (Reference: Respondent’s Bundle of Documents, pages 8 – 10)
R5	Inmate Profile Document (Reference: Respondent’s Bundle of Documents, page 11)
R6	Police Facts Sheets (Reference: Respondent’s Bundle of Documents, pages 12 – 18)
R7	Bail Report (Reference: Respondent’s Bundle of Documents, pages 19 – 27)
R8	ICO assessment report (Reference: Respondent’s Bundle of Documents, pages 28 – 31)