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

[2021] AATA 4503

Mihai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4503 (4 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/5615

Re:Emil Mihai

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:4 November 2021 

Date of written reasons:        3 December 2021

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 11 August 2021 that the mandatory cancellation of the Applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth) not be revoked under section 501CA(4) of the Migration Act 1958 (Cth).

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

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – mandatory cancellation – failure to pass the character test – Direction 90 – primary considerations – protection of Australian community – family violence – best interests of minor children – expectations of Australian community – other considerations – impediments if removed from Australia – impact on victims – links to Australian community – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Migration Act 1958 (Cth) ss 501, 501CA

CASES

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69

DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1993

FYBR and Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Jal v Minister for Immigration and Border Protection [2016] AATA 789

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Saleh and Minister for Immigration and Border Protection [2017] AATA 367

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

WRITTEN REASONS FOR DECISION

Senior Member Linda Kirk

3 December 2021

1. Emil Mihai (‘the Applicant’) is a 42-year-old citizen of Romania who first arrived in Australia on 17 August 1999 as the holder of a Class TE subclass 421 Sports visa.[1] On 5 September 2011 he was granted a Class BB subclass 155 Resident Return visa (‘the visa’).[2]

   [1] G2, 100.

   [2] G2, 101.

2. On 20 November 2020, the Applicant was convicted in the NSW District Court of Assault causing death and sentenced to a term of imprisonment of three years and ten months with a non-parole period of two years, four and a half months commencing on 10 August 2018.[3]

   [3] G2, 46.

3. On 21 December 2020 the visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.  The Applicant was notified of the cancellation of his visa by way of letter dated 14 January 2021, delivered to him by hand.[4] The letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of receipt of the letter.[5]  At the time the Applicant was serving a sentence of full-time imprisonment at the Parklea Correctional Centre in New South Wales for an offence against a law in Australia.[6]

   [4] G11, 203.

   [5] G2, 101-106.

   [6] G2, 11.

4. On 18 January 2021, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[7]

   [7] G2, 56-75.

5. On 29 January 2021, the Department invited the Applicant to comment on further information,[8] namely an incoming passenger card dated 29 November 2006.[9] The Applicant did not respond to this letter.

   [8] G15, 210-213.

   [9] G2, 94.

6. On 11 August 2021, a delegate of the Respondent decided, under subsection 501CA(4), not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[10] The Applicant was notified of the non-revocation decision on 12 August 2021 via email to his authorised recipient.[11]

   [10] G2, 11-23.

   [11] G21, 227-228.

7. On 14 August 2021, the Applicant applied to the Tribunal (‘the first Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[12]

   [12]G1, 1-6.

8. The matter was heard by the Tribunal on 19 and 20 October 2021. The Applicant attended the hearing by videoconference from Christmas Island Immigration Detention Centre.  The following persons gave oral evidence by phone and were cross-examined at the hearing:

   • the Applicant;
   • the Applicant’s partner – MP
   • Dr Emily Kwok, psychologist
   • JC

9. The material before the Tribunal consists of:

   • Section 501G-Documents filed 24 August 2021 (G1-G21, pages 1- 228)
   • Respondent’s Tender Bundle (R1-R42, pages 1-618) filed 5 October 2021
   • Statutory Declaration of Applicant filed 14 October 2021 (‘Exhibit A1’)
   • Report of Dr Kwok dated 30 September 2021 filed 14 October 2021 (‘Exhibit A2’)
   • Statutory Declaration of JC filed 14 October 2021 (‘Exhibit A3’)
   • Statutory Declaration of MP filed 14 October 2021
   • Applicant’s Statement of Facts, Issues and Contentions filed 27 September 2021
   • Applicant’s Tender Bundle (pages 1-200) filed 14 October 2021  

10. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

    LEGISLATION

11. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)     The Minister must cancel a visa that has been granted to a person if:

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

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

    (ii)    …; and

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

12. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:

    (7)  For the purposes of the character test, a person has a substantial criminal record   if:

    (a)…

    (b)…

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

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    …

13. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

14. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). 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.

15. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 90

16. The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[13]

    [13] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).

17. On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[14]

    [14] Direction, para 2-3.

18. The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

    (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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens 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 by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

19. Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
    decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.

20. Paragraph 8 of the Direction identifies the following as primary considerations:

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

    b)Whether the conduct engaged in constituted family violence;

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

    d)Expectations of the Australian community.

21. Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:

    a)International non-refoulement obligations;

    b)Extent of impediments if removed;

    c)Impact on victims; and

    d)Links to the Australian community, including:

    (i)Strength, nature and duration of ties to Australia; and

    (ii)Impact on Australian business interests.

22. Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’

23. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[15]

    [15] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).

24. Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:

    … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.

    ISSUES FOR DETERMINATION

25. Before the power in sub-section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

26. There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[16] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):

    ... 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...[17]

    [16] [2018] FCAFC 151.

    [17] 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).

27. The issues for determination are:

    1)whether the Applicant passes the ‘character test’; and

    2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

28. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Background and employment

29. The Applicant was born in Romania in 1979.  He first entered Australia in August 1999 when he was aged 20 years to compete in a World Championship of wrestling in Sydney.[18] However he did not compete in the tournament and went to Nowra.[19]

    [18] G2, 35.

    [19] Transcript of proceedings 19 October 2021,12.

30. The Applicant has resided continuously in Australia for approximately 22 years, with two periods of temporary absence totalling four months recorded in his movement history.[20] He taught freestyle wrestling for about two years and later was employed in agriculture and vineyards from 2000 to 2007, in cotton farms from 2007 to 2010 and at Flemington Markets from 2011 to 2014.[21]

    [20] G2, 100.

    [21] G2, 35; G2, 73; A2 [14].

    Criminal history in Australia

31. The Applicant’s National Police Check dated 21 December 2020 records that between 30 September 2001 and 20 November 2020, the Applicant appeared before the courts for sentencing on 18   occasions and was convicted of 49 offences.[22] This history is set out in the table below:

    [22] G2, 24-28.

Date of offence	Offence	Date of sentence	Sentence
9 February 2017	Assault causing death	20 November 2020	Imprisonment: 3 years and 10 months, with a non-parole period of: 2 years, 4 months and 2 weeks
29 June 2017	Possess prohibited drug (x2)	21 August 2018	Imprisonment: 3 months
29 June 2017	Goods in personal custody suspected of being stolen	21 August 2018	Imprisonment: 3 months
29 June 2017	Custody of knife in public place	21 August 2018	Imprisonment: 3 months
15 February 2018	Possess prohibited drug	21 August 2018	Imprisonment: 2 months
15 February 2018	Goods in personal custody suspected of being stolen	21 August 2018	Imprisonment: 2 months
24 May 2018	Travel or attempt to travel without a valid ticket - adult	14 June 2018	Fine: $200
2 October 2017	Possess prohibited drug	18 October 2017	Bond: S9, 12 months
11 May 2017 10 June 2017 21 June 2017 29 June 2017	Drive motor vehicle during disqualification period (x4)	17 October 2017	Fine: $500; intensive corrections order: 18 months
22 June 2017	Goods in personal custody suspected of being stolen	17 October 2017	Bond: S9, 2 years
22 June 2017	Larceny	17 October 2017	Fine: $500; Bond: S9, 2 years
29 June 2017	Unlawfully possess number plates	17 October 2017	Fine: $100
29 June 2017	Use vehicle in breach of major defect notice	17 October 2017	Fine: $100
29 June 2017	Class A vehicle displaying unauthorised number plates	17 October 2017	Fine: $100
6 August 2017	Possess prohibited drug	17 October 2017	Fine: $500; Bond: S9, 2 years
25 August 2016	Use vehicle not comply with standard tyres	21 September 2016	Fine: $150
25 August 2016	Non comply with P1 licence- no P plates (class C)	21 September 2016	Fine: $150
25 August 2016	Novice driver drive with novice range PCA – 2nd+off	21 September 2016	Fine: $400; Disqualification- driver: 3 months
14 January 2016	Possess prohibited drug	14 March 2016	Fine: $2000; Bond S9: 2 years
5 January 2016	Possess a counterfeit prescribed security	24 February 2016	Fine: $600; Bond S9: 12 months
5 January 2016	Possess prohibited drug	24 February 2016	Fine: $600; Bond S9: 12 months
5 November 2015	Possess prohibited drug	20 January 2016	Fine: $400
5 November 2015	Possess knife in public place	20 January 2016	Dismissed S10; weapon/implement forfeited to the Crown
12 January 2014	Stalk/intimidate intend fear physical harm (personal)	20 July 2015	Bond S9: 2 years
16 October 2013	Drive with low range PCA	22 January 2014	Fine: $340; Disqualification: 6 months
29 August 2013	Possession of equipment for administering prohibited drugs	22 January 2014	Fine: $300
2 August 2013	Drive, licence suspended under s 66 Fines Act	26 September 2013	Bond S10: 12 months
2 August 2013	Possession of equipment for administering prohibited drugs	26 September 2013	Fine: $500
21 June 2013	Possess prohibited drug	17 July 2013	Fine: $400
21 June 2013	Possession of equipment for administering prohibited drugs	17 July 2013	Fine: $100
14 November 2010	Assaults occasioning actual bodily harm	16 February 2011	Sentence postponed due to bon-appearance
12 January 2002	Supply prohibited drug	4 December 2002	Imprisonment: 2 years, with a non-parole period of 9 months
22 January 2002 27 May 2002	Possess prohibited drug (x4)	4 December 2002	Fine: $200
22 January 2002	Self-administer/attempt self- administer prohibited drug	4 December 2002	Fine: $200
9 June 2002 14 July 2002	Common assault (T2) (x2)	4 December 2002	Imprisonment: 9 months
9 June 2002	Destroy/damage property	4 December 2002	Imprisonment: 9 months
14 July 2002	Assault officer in execution of duty	4 December 2002	Imprisonment: 9 months
27 May 2002	Drive vehicle recklessly/furiously or speed/manner dangerous	4 December 2002	Imprisonment: 9 months; Disqualification: 3 years
Unauthorised dealing with shop goods	28 June 2002	No conviction recorded; Fine: $60
6 November 2001	Drive with low range PCA	19 December 2001	Dismissed: S10
30 September 2001	Assault occasioning actual bodily harm	7 November 2001	Bond S9: 2 years

Domestic violence offences

1. A pre-sentence report prepared by the NSW Probation and Parole office in Bathurst on 3 December 2002 refers to the Applicant’s relationship with CY, who he met in Nowra when she was aged 17 years.[23]  The couple married in July 2000 when CY turned 18.[24]  She moved to Mudgee with the Applicant, where he had some “Romanian contacts” who had offered him employment.[25]  They separated in February 2001 and their son, MY, was born in April 2001.[26]  The Applicant saw his son when he was two months old and on three or four more occasions and paid child support payments for him for a few years.[27]

   [23] R7, 68-70.

   [24] A1 [5]; R30, 421-422.

   [25] R7, 68-70.

   [26] A1 [5]; R7, 68-70; Transcript of proceedings 19 October 2021, 14.

   [27] Transcript of proceedings 19 October 2021, 15-16.

2. NSW Police records record that on 31 October 2000, CY, who was  four months pregnant, alleged the Applicant had punched her in the head, causing a lump and bruising on her forehead and had attempted to throw her out of their van.[28] The Applicant was charged with an offence, but there is no conviction recorded in relation to this incident. CY’s mother reportedly told the NSW Probation and Parole Service that the couple’s relationship was abusive and exploitative, and that CY was pregnant when she returned to live in Nowra in December 2000.[29]  During cross-examination, the Applicant stated that the incident with CY occurred after she had been out at a disco where he saw her with other men, and then returned home late.  He said he did not hit CY.[30]

   [28] R30, 421-422.

   [29] R7, 68-70.

   [30] Transcript of proceedings 19 October 2021, 14.

3. The Applicant’s first conviction for Assault occasioning actual bodily harm was recorded at Mudgee Local Court on 7 November 2001.[31] The police fact sheet relating to that offence[32] records that during an argument with his then partner, KC, the Applicant grabbed and squeezed her throat until she could not breathe. When questioned about the incident by the police, the Applicant admitted to the offence.  When asked if it was wrong to assault people, he was alleged to have said ‘not really, it’s not so bad, she’s drunk’.  An apprehended violence interim order was made which records that KC suffered bruises to her face, neck and a small cut to her left hand.[33]

   [31] G2, 28.

   [32] R1, 2-3.

   [33] R1, 4.

4. During cross-examination, the Applicant stated that he did slap KC, but this was in response to her stabbing him with a screwdriver.[34]  He said that if he had choked her, she would have died.[35] He claimed that KC’s mother and sister influenced her to call the police.[36]  The Applicant denied KC’s allegation that he had tried to kill her by placing a hairdryer near the bath.[37] He said that he had warned her about having the hairdryer plugged in when she was in the bath.  The Applicant also denied KC’s allegation that he threatened to burn her house down and kill her family.[38]  He said that they had argued when she found out he was using drugs and she asked him to leave. He did leave and did not return.[39]

   [34] Transcript of proceedings 19 October 2021, 17-18.

   [35] Transcript of proceedings 19 October 2021, 17.

   [36] Transcript of proceedings 19 October 2021, 18.

   [37] Transcript of proceedings 19 October 2021, 19-20.

   [38] Transcript of proceedings 19 October 2021, 20.

   [39] Transcript of proceedings 19 October 2021, 20-21.

5. On 4 December 2002, the Applicant was convicted of 11 offences at Dubbo Local Court,[40] including two counts of Common assault -T2 and one count of   Destroy or damage property <=$2000-T2. The police records relating to these offences describe an assault by the Applicant on 9 June 2002 against his former de facto partner FM, who had recently left the relationship and moved in with her sister.[41] The police records record that the Applicant entered FM’s apartment without her  permission, called her a “fucking whore”, pushed her to the ground and kicked her about four times, grabbed her by the throat and choked her, punched her in the head twice and threw her computer on the floor.[42] The Applicant was sentenced to a term of imprisonment of nine months for Common assault -T2 offence and six months’ imprisonment for Destroy or damage property <=$2000-T2.  During cross-examination, the Applicant stated that he argued with FM but said that he did not assault FM, as he would ‘never do such a thing like that.’[43]

   [40] G2, 28.

   [41] R30, 416.

   [42] R30, 416.

   [43] Transcript of proceedings 19 October 2021, 22.

6. On 18 June 2018, the police attended the Applicant’s home after MP’s son, TM, contacted the police for assistance. When the police arrived, MP declined to   provide a statement and said that she been having a verbal argument with the Applicant but denied any physical violence.[44]  During cross-examination, the Applicant stated that he and MP had an argument but TM did not call the police and he was not scared because of him.[45]

   [44] R30, 355-356.

   [45] Transcript of proceedings 19 October 2021, 39.

   Drug offences

7. On 4 December 2002, the Applicant was convicted of four counts of Possess prohibited drug, one count of Self-administer/attempt to self-administer prohibited drug and one count of Supply prohibited drug at Dubbo Local Court.[46] NSW Police records relating to the events forming the bases for these convictions indicate that on 22 January 2002, police received information that the occupants of a particular address were involved in the supply of amphetamines and obtained a search warrant from Mudgee Local Court. When the police located the Applicant at the premises, they informed him that his vehicle would be searched thoroughly and he admitted that he had a quantity of ‘speed’. The Applicant admitted to owning bags of white powder found in his car and to self-administering a prohibited drug.[47].

   [46] G2, 28.

   [47] R30, 417-418.

8. The Applicant was convicted of numerous offences for Possess prohibited drug and Possession of equipment for administering prohibited drugs during the period from July 2013 to August 2018 for which he was fined and/or made subject to s 9 bonds for 12 months or two years.[48]

   [48] G2, 24-27.

   Other offending

9. On 4 December 2002 the Applicant was convicted of the offence Drive vehicle recklessly/ furiously or speed/manner dangerous.  This was in relation to an incident on 27 May 2002 where he drove at speed towards a crowd of about 30 people outside the Woolpack Hotel after he had been involved in a fight with another person at the hotel.[49]

   [49] R4, 36-37.

10. Police facts sheet record another offence committed by the Applicant on 14 July 2002.[50]  The Applicant was at FM’s house and when a male visitor arrived the Applicant approached him and punched him twice in the head causing him to fall to the ground.[51] At the time of this offence the Applicant was on conditional bail to appear at Mudgee Local Court in relation to several offences.  The conditions of his bail were that he not go within 500 metres of FM’s house or approach FM.[52]  When the police attended the scene, the Applicant refused to comply with their directions, punched the arresting officer in the head twice and attempted to pull the officer’s pistol from its holster.[53]  On 4 December 2002 the Applicant was convicted of 10 offences which included Assault officer in execution of duty and Common Assault,[54] and Supply prohibited drug which he committed on 12 January 2002.  He was sentenced to two years’ imprisonment with a non-parole period of nine months.  He also was required to undertake anger management and drug and alcohol programs as required by probation and parole.[55]

    [50] R7, 62.

    [51] Transcript of proceedings 19 October 2021, 23-24.

    [52] Transcript of proceedings 19 October 2021, 24.

    [53] R7, 62-65.

    [54] G2, 28.

    [55] G2, 28.

11. On 16 February 2011 a conviction was recorded in the Applicant’s absence at Saint George Magistrates Court in Queensland for Assault occasioning actual bodily harm.[56] This offence occurred on 14 October 2010 when the Applicant was working on a cotton plantation in Queensland.[57]  He went to the city with his friends and on the way he saw two girls wearing short skirts and said hello to them. They swore at him and he swore back.[58]  When they stopped at the petrol station a 15-year-old boy approached him.  The Applicant told the Tribunal that the boy abused him, and he was afraid he was going to hit him with his skateboard.[59]  The Applicant claimed he hit the boy in order to protect himself.[60] He did not attend court in relation to this offence because following the incident he was sacked by his employer and he left Queensland and returned to Mudgee. He did not have enough money to travel back to Queensland to attend court.[61] He said he is very sorry for this offence, and he did not know the boy’s age.[62]

    [56] G2, 27.

    [57] A1 [24].

    [58] A1 [24].

    [59] Transcript of proceedings 19 October 2021, 30.

    [60] A1 [24]-[26]; Transcript of proceedings 19 October 2021, 28.

    [61] Transcript of proceedings 19 October 2021, 28; A1 [26].

    [62] Transcript of proceedings 19 October 2021, 30.

    Assault causing death

12. On 20 November 2020, the Applicant was sentenced for the offence Assault causing death offence committed on 9 February 2017.[63] The agreed facts of the offence are set out in   the sentencing remarks of District Court Judge Sutherland dated 20 November 2020 as follows:[64]

    At a vacant warehouse in the Sydney suburb of Yennora in 2017, the offender assaulted the deceased with an open-handed slap to the head of the deceased. The deceased fell  to the concrete ground. The offender’s action caused an injury later described by …[the pathologist] as a “blunt force head injury”. The deceased [TD] died as a result of the blunt force head injury.

    [63] G2, 31 at [5].

    [64] G2, 34 at [21].

13. In his sentencing remarks dated 20 November 2020, Judge Sutherland noted that the offence had occurred while the Applicant, the victim [TD] and another man,   RW, were in the process of stealing copper wiring and other fittings and fixtures from a disused warehouse. They were all under the influence of ice at the time.[65] After the assault, the Applicant and RW left TD unconscious on the ground and bleeding from the head.[66]   Both men took steps to distance themselves from the events at the warehouse by disposing of their clothing and using a high-pressure cleaner on their motor vehicles.[67] After TD’s body was found on 13 February 2017, the Applicant partner’s identified him and RW as being at the                   warehouse with TD. Both men were interviewed by police and initially denied any involvement.[68]  Over the next 18 months, the police continued their investigation and on 12 July 2018, the Applicant was arrested for the offence after RW offered to give evidence against  the Applicant.[69]

    [65] G2, 31 at [6]-[7].

    [66] G2, 31-32 at [8]-[9].

    [67] G2, 32 at [11].

    [68] G2, 32 at [12]-[13].

    [69] G2, 33 at [15]-[18].

14. Judge Sutherland assessed the ‘objective criminality’ of the Applicant’s offending as being ‘towards the lower end of a range described as the mid-range’[70] in comparison to other so-called ‘one punch deaths’.[71]  The Applicant was sentenced to three years and 10 months imprisonment, with a non-parole period of two years, four months and two weeks.

    [70] G2, 34 at [25].

    [71] G2, 40-43 at [58]-[69].

15. During cross-examination the Applicant told the Tribunal that he only slapped TD once when he came towards him and spoke to him ‘in an aggressive way’.[72]  He ‘never thought one slap could kill somebody’. He put TD into the recovery position on his right side.[73]  The Applicant agreed that he told the police that TD was fine when they left the warehouse.  He claims that he suggested that an ambulance be called for TD but RW told him not to do so.[74]  The Applicant denied claims he had that he bragged about the assault on TD stating ‘[h]e got in my face. That was my zone.’[75]

    [72] Transcript of proceedings 19 October 2021, 41, 43; G2, 71.

    [73] Transcript of proceedings 19 October 2021, 42.

    [74] Transcript of proceedings 19 October 2021, 43.

    [75] Transcript of proceedings 19 October 2021, 44.

16. In his statement dated 14 October 2021, the Applicant admitted that he lied to the police when they asked him about the incident because he feared they would prosecute him.[76]

    [76] A1 [31].

17. The Applicant told the Tribunal that before the incident TD had been homeless and living under a bridge. He would often give TD food and clothes and also helped him with money.  He never meant to harm TD and he would never in his life want somebody to die.[77] He did not know TD was dying when they left him alone in the warehouse.[78]

    [77] Transcript of proceedings 19 October 2021, 45.

    [78] Transcript of proceedings 19 October 2021, 46.

    Failure to declare conviction

18. On 29 November 2006 the Applicant failed to declare his criminal convictions on an incoming passenger card.  He told the Tribunal that he was assisted by another person in completing this card due to his poor English and he did not reveal to them his convictions because he was embarrassed to do so.[79]

    [79] Transcript of proceedings 19 October 2021, 26.

    Drug addiction

19. In his statement dated 14 October 2021, the Applicant stated that he started using drugs at the end of 2001 when he and CY separated.  He relied on drugs to try and cope with their separation. He started using drugs every weekend and then almost every day.[80] He does not know when he became addicted, but he knew he had a problem when he started to sell drugs to support this habit.[81]

    [80] A1 [9].

    [81] A1 [11].

20. The Applicant admitted to police   on multiple occasions that he used the drug ice.[82] In March 2016, the Applicant told a community corrections officer that he had commenced  drug use in 2002 and used speed, ecstasy, heroin, cannabis and cocaine on a regular basis with friends but had only been using ice in the previous 12 months.[83]  He started using ice in order to stay alert when he was working two jobs between 2002 and 2011.[84] When he is on drugs his ‘mindset is not normal’ and he ‘cannot think straight and decide rationally.’[85]

    [82] R30, 377; R30, 375; R16, 104.

    [83] R39, 488.

    [84] A1 [13].

    [85] A1 [15].

21. In his statement dated 14 October 2021, the Applicant stated that he did not try to get help for his addiction and was ‘hanging around’ other drug users.  He did attend two or three counselling sessions while he was on parole.[86]  Shortly thereafter he started using drugs again.[87]  If he is permitted to remain in Australia, he will seek treatment for his drug addiction at Odyssey House.[88] He has vowed to stay clean for the rest of his life,[89] and will stay away from drug users and anyone who has anything to do with drugs.[90]  His partner, MP, has told him that she will leave him if he continues to take drugs.[91]

    [86] A1 [12].

    [87] A1 [21].

    [88] A1 [43]; Transcript of proceedings 19 October 2021, 5.

    [89] A1 [40].

    [90] Transcript of proceedings 19 October 2021, 34, 35.

    [91] Transcript of proceedings 19 October 2021, 34.

    Remorse and responsibility for offending

22. In his statement dated 14 October 2021, the Applicant stated the following in relation to the offence which led to TD’s death:

    I still think about what I could have done during those times, but the truth of the matter is, I never called the ambulance and a person died because of me.  I want to say I’m sorry to his family, even though I don’t deserve their forgiveness.[92]

    [92] A1 [32].

    Rehabilitation

23. The Applicant claims that he has not used drugs since he went to gaol in August 2018.  In gaol he worked in the kitchen and stayed away from people who use drugs. He has promised himself never to touch drugs again or to have people around him who are drug users.[93]

    [93] Transcript of proceedings 19 October 2021, 7.

    Relationship with partner - MP

24. In March 2014, the Applicant commenced a relationship with his de facto partner, MP.[94]  In his statement dated 14 October 2021, the Applicant stated he has ‘a wonderful fiancée’ who he loves and cares for very much.  MP needs surgery and she will need his support when she is recovering.[95]  

    [94] G2, 37.

    [95] A1 [39]; Transcript of proceedings 19 October 2021, 6.

    Relationship with step-son - TM

25. MP has a 13-year old son, TM from a previous relationship.[96] The Applicant lived with MP and TM in their house for about four and a half to five years before he went to gaol in August 2018.[97] The Applicant stated in his statement dated 14 October 2021 that he treats TM as his own son, and they have ‘a strong father and son bond.’  He shares equal responsibility with MP in parenting TM.[98]  He helps TM with his school work, and has taken him to wrestling classes and found him a coach.[99]  He also used to go camping with TM before he went to gaol.[100] He speaks on the phone to TM daily since he has been in the detention centre and MP and TM visited him in gaol.[101]  TM tells the Applicant that he misses their camping and fishing trips and all the activities they have done together.[102]  The Applicant told the Tribunal that ‘a parent needs to be very close to a child and organise and share the activities that they [do] together.’[103]  He could not do these activities with TM if he were removed from Australia.

    [96] A1 [37].

    [97] Transcript of proceedings 19 October 2021, 36.

    [98] A1 [37]; Transcript of proceedings 19 October 2021, 6.

    [99] A1 [37].

    [100] A1 [38].

    [101] Transcript of proceedings 19 October 2021, 37.

    [102] Transcript of proceedings 19 October 2021, 37.

    [103] Transcript of proceedings 19 October 2021, 7.

    Family members

26. The Applicant told the Tribunal that both his parents are alive, and they reside in Romania.  For the past two months he has been in contact with his father in relation to whether he can stay with them if he is returned to Romania and whether he will be able to find work.[104] He has a positive and stable relationship with his parents and they are aware he spent time in gaol.[105]

    [104] Transcript of proceedings 19 October 2021, 9.

    [105] Transcript of proceedings 19 October 2021, 10.

27. The Applicant has a brother who resides in France, a sister who lives in Spain and his other sister is living in Romania. He is in regular contact with his siblings via phone and social media.[106]

    [106] Transcript of proceedings 19 October 2021, 5, 10, 12.

28. In addition to MP and TM, the Applicant has two brothers-in-law, two sisters-in-law, a father-in-law, mother-in-law and a number of nieces and nephews who reside in Australia.[107]

    [107] G2, 70; Transcript of proceedings 19 October 2021, 68, 81.

    Impediments on return

29. The Applicant claims that if he were returned to Romania, he would face practical and financial hardship. He told the Tribunal that he has spoken to his brother and he has said the Applicant would be able to get work in agriculture in France.[108] As a citizen of the European Union, the Applicant will be able to travel freely and work in Europe.[109]

    [108] Transcript of proceedings 19 October 2021, 11.

    [109] Transcript of proceedings 19 October 2021, 11.

    Dr Emily Kwok, Psychologist

30. Dr Kwok interviewed the Applicant on 28 September 2021 and prepared a written report dated 30 September 2021. In her written report, Dr Kwok noted that the Applicant’s offending in February 2017 did not appear to be premeditated. Given his criminal history includes other assaults, malicious damage and drug-related offences, his likelihood of engaging in further criminal or other serious conduct ‘will … depend on his commitment and responsiveness to treatment that targets his impulsivity and aggression, substance abuse and pattern of antisocial attitudes and personality traits.’[110] The Applicant ‘would also need to find prosocial recreation and leisure activities in order to reduce his risk of re-offending.’ He needs to address his symptoms of post-traumatic stress disorder (PTSD) which has impaired his vocational functioning. The risk of him ‘re-engaging in problematic behaviours will further reduce if he is able to maintain stable employment.’ 

    [110] A2, 7.

1. In relation to the Applicant’s substance abuse problems, Dr Kwok recommended the Applicant ‘attend individual drug and alcohol counselling in order for treatment to be tailored to his specific needs’ and that this treatment ‘should continue for at least his first year back in the community.’ She suggested that the Applicant obtain a referral to see a psychologist so he can continue his treatment for PTSD.[111] Dr Kwok also recommended that the Applicant seek help to address his ‘impulsivity and aggression’, ‘loss of prosocial activities’ and his ‘pattern of antisocial attitudes and personality traits.’ The Applicant indicated to Dr Kwok his willingness to engage in treatment.[112]  She opined that based on the Applicant’s previous effort to apply for a drug and alcohol course, ‘he is likely willing to participate in treatment for substance abuse should this become available’.  Overall, she found that the Applicant’s prognosis for rehabilitation for his substance abuse is ‘positive.’[113]  Dr Kwok also noted that during her interview with the Applicant, he ‘expressed remorse for his behaviours and was able to speak about the impact which his behaviours had on the victim and on his own family.’[114]

   [111] A2, 9.

   [112] A2 9.

   [113] A2, 8.

   [114] A2 8.

2. Dr Kwok noted that there were protective factors that reduced the Applicant’s risk of re-offending. These include his demonstrated willingness to engage in treatment when he applied for anger management and drug and alcohol courses whilst on remand. He also has expressed a desire to abstain from illicit drug use in the community. Based on her assessment, she is of the opinion that without appropriate treatment the Applicant has a ‘moderate risk of re-offending and engaging in further serious conduct’.[115]  She concluded that having regard to the Applicant’s criminogenic needs and protective factors ‘he is a moderate risk/threat/danger to the Australian community.’[116]

   [115] A2, 7.

   [116] A2, 8.

3. During cross-examination, Dr Kwok confirmed that her opinion would have been different had she known that the Applicant had attended only three drug and alcohol sessions when he was required to do so as part of his probation requirements.[117]  In light of this she would recommend that the Applicant have stricter requirements imposed on him to undertake treatment such as attendance at a residential program.[118] Dr Kwok agreed that if the Applicant returns to live with MP and resumes socialising with some of the same people he associated with before, this would ‘increase his risk of or his likelihood of relapsing to drug use.’[119]  She also agreed that had she been aware the Applicant has two convictions for domestic violence offences against former partners it would have changed her opinion.  She told the Tribunal that it is known ‘that previous family violence or domestic violence does increase the risk of future domestic violence or violence against partners.’[120] The fact the Applicant had offended in this manner more than once would make her consider that there is ‘an increased risk or increased likelihood of this sort of offending.’[121] She stated that the choking involved in the Applicant’s domestic violence offending is ‘consistent with some of his other offending, which is the aggressiveness and his behavioural pattern.’[122]  Similarly, had she known about the Applicant’s assault on a 15 year old boy, this would have made her ‘reconsider [the Applicant’s] risk, whether it would be higher in terms of his future offending against children.’[123]

   [117] Transcript of proceedings 19 October 2021, 55.

   [118] Transcript of proceedings 19 October 2021, 55.

   [119] Transcript of proceedings 19 October 2021, 57.

   [120] Transcript of proceedings 19 October 2021, 57.

   [121] Transcript of proceedings 19 October 2021, 57.

   [122] Transcript of proceedings 19 October 2021, 57.

   [123] Transcript of proceedings 19 October 2021, 58.

   Evidence of MP – Applicant’s partner

4. In her statutory declaration dated 10 November 2021, MP stated that she and the Applicant commenced a relationship in March 2014.[124] They have been engaged for four years and plan to marry and build a family of their own.  Her son, TM, calls the Applicant ‘Dad’ and he has taken the Applicant’s surname.[125]  TM and the Applicant have a close relationship which they have maintained during his incarceration.  The Applicant has taken care of her and her son and provided for them ‘for a long time.’[126]  MP stated that the Applicant has never hurt her or her son physically or shouted at them.  He ‘has been nothing but loving and kind’.[127] The Applicant did not bring drugs into her house or use them in front of TM.[128]  She believes the Applicant is a good role model for her son.[129]

   [124] Statutory Declaration of MP filed 14 October 2021 [7].

   [125] Statutory Declaration of MP filed 14 October 2021[8].

   [126] Statutory Declaration of MP filed 14 October 2021 [9].

   [127] Statutory Declaration of MP filed 14 October 2021 [11].

   [128] Transcript of proceedings 19 October 2021, 68.

   [129] Transcript of proceedings 19 October 2021, 68.

5. MP told the Tribunal that when the Applicant was in gaol, she and TM would visit him once a month and TM and the Applicant would speak on the phone almost daily.[130] It has been ‘very hard’ for TM since the Applicant was incarcerated, and TM had problems at school which required him to have counselling and other support.[131] TM is now better although it has been difficult for him not being able to visit the Applicant due to him being moved around.[132] MP told the Tribunal that it would be very difficult for TM and the Applicant to maintain their close relationship if he were removed to Romania.[133]  They would be unable to go to Romania with the Applicant because she is her mother’s full-time carer.[134]

   [130] Transcript of proceedings 19 October 2021, 67.

   [131] Transcript of proceedings 19 October 2021, 67.

   [132] Transcript of proceedings 19 October 2021, 67.

   [133] Transcript of proceedings 19 October 2021, 68.

   [134] Transcript of proceedings 19 October 2021, 68.

6. MP told the Tribunal that she was aware that the Applicant was a drug user but she did not permit him to bring drugs into her house.[135]  She has tried to help the Applicant to quit drugs but has been unsuccessful.  She has wanted him to go into rehab and they have talked about it ‘but he never got around to actually doing it.’[136] She has told the Applicant that she is ‘kicking him out of the house once he touches drugs’ and she ‘won’t tolerate that anymore.’[137]  She has made inquiries with Odyssey House about the programs that may be suitable for the Applicant if he is released.[138]  She told the Tribunal that she wants to move from where they are currently living.  She made an application with the Department of Housing in 2014 to move to another area but this has not yet been approved.[139]

   [135] Transcript of proceedings 19 October 2021, 73.

   [136] Statutory Declaration of MP filed 14 October 2021 [12].

   [137] Statutory Declaration of MP filed 14 October 2021[25]; Transcript of proceedings 19 October 2021, 74.

   [138] Transcript of proceedings 19 October 2021, 76-77.

   [139] Transcript of proceedings 19 October 2021, 75.

7. MP stated that if the Applicant were returned to Romania it would ‘shatter’ her and TM. She would not be able to go to Romania with the Applicant because she is taking care of her mother who has cancer.[140]  MP suffers from a heart condition, irregular heartbeat,[141] is deaf in her left ear, and has a bulging disc in her neck.[142]Both her ear and neck require surgery.[143] Following the neck surgery she will need to wear a brace for six to eight weeks.[144]  She currently takes strong medication for her neck condition.[145]

   [140] Statutory Declaration of MP filed 14 October 2021[17].

   [141] Statutory Declaration of MP filed 14 October 2021[20].

   [142] Statutory Declaration of MP filed 14 October 2021[21].

   [143] Statutory Declaration of MP filed 14 October 2021[21]-[22].

   [144] Statutory Declaration of MP filed 14 October 2021[22].

   [145] Statutory Declaration of MP filed 14 October 2021[22].

   Evidence of JC – family friend

8. In her statutory declaration dated 12 October 2021, JC stated that she employed MP as her disability support worker and she has known MP and the Applicant for about eight years.[146]  The Applicant would often help with the physical aspects of her care such as getting her out of the wheelchair.[147]  He has never displayed any aggressive behaviour in front of her or towards his family. On one occasion when she had a seizure and was unconscious the Applicant tried to revive her and called an ambulance.[148] If the Applicant is removed to Romania they would all be ‘devastated’.

   EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

   [146] A3, 1.

   [147] A3, 3.

   [148] A3, 3-4.

   1)Does the Applicant pass the ‘character test’?

9. In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 21 December 2020 regarding his criminal convictions and sentences.  This report records that on 20 November 2020, the Applicant was sentenced in the District Court of New South Wales to three years and 10 months’ imprisonment for the offence Assault causing death. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 21 December 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.

10. Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.

    2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

11. In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.

    PRIMARY CONSIDERATIONS

    Primary Consideration 1 – Protection of the Australian community

12. Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:

    (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia; and

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

13. Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.

    (a)       Nature and seriousness of the Applicant’s conduct to date

14. Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:

    a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    i.violent and/or sexual crimes;

    ii.crimes of a violent nature against women or children, regardless of the sentence imposed;

    iii.acts of family violence, regardless of whether there is a conviction   for an offence or a sentence imposed;

    b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    i.         …

    ii.…

    iii.…

    iv.…

    c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    e)    the cumulative effect of repeated offending;

    f)     …

    g)    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 an absence of a warning should not be considered to be in the non-citizen’s favour).

15. The Applicant’s National Police Check records that between 30 September 2001 and 20 November 2020, the Applicant came before the courts for sentencing on 18 separate      occasions and that, prior to his conviction for Assault causing death, he had been convicted of 49 offences including for assaults, possession of prohibited drugs, driving offences, larceny and goods in custody.[149] 

    [149] G2, 24-28.

16. Having regard to the factors in paragraphs 8.1.1(1)(a)(i), (ii) and (iii) the Tribunal finds, for the following reasons, that the Applicant’s criminal offending is very serious. The Applicant has been convicted of six assaults and has engaged in other conduct that demonstrates his propensity for violence.  At least three former partners of the Applicant have made allegations of family violence against the Applicant to the police, resulting in convictions for Assault occasioning actual bodily harm-T2 at Mudgee Local Court on 7 November 2001,[150] and Common assault -T2 at Dubbo Local Court on 4 December 2002.[151]

    [150] G2, 28.

    [151] G2, 28.

17. The most recent of the Applicant’s offences, Assault causing death offence, carried a maximum sentence of 20 years’ imprisonment.[152]Although the sentencing judge, Judge Sutherland assessed the ‘objective criminality’ of the Applicant’s offending as being ‘towards the lower end of a range described as the mid-range’,[153] that was in comparison to other so-called ‘one-punch deaths’.[154]

    [152] G2, 30 at [1].

    [153] G2, 34 at [25].

    [154] G2, 40-43, at [58]-[69].

18. The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant offended over a period of almost two decades, ignoring numerous warnings from the courts, and after having been convicted of numerous offences and being sentenced to and serving a term of imprisonment. 

19. Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[155] The Applicant has been sentenced to terms of imprisonment on three occasions for terms ranging from a period of two months to a period of three years and ten months.  In the context of the penalties imposed on the Applicant for his criminal offending, his conduct must be viewed as serious.

    [155] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].

20. Having regard to paragraph 8.1.1(1)(d) of the Direction, the Tribunal finds that the Applicant’s violent offending, particularly against his female partners, has been frequent and re-occurring and resulted in two convictions for family violence related offences.  Over the past two decades, the Applicant has demonstrated an unwillingness to comply with the law, and has failed on multiple occasions to comply with conditions attached to bonds, and an intensive correction order.

21. In relation to paragraph 8.1.1(1)(e) of the Direction, the cumulative effect of the Applicant’s offending is also relevant to assessing the nature and seriousness of his conduct.  His repeated and serious offending has not only caused harm to his victims, but has burdened the resources of the police system, the court system and corrective services.[156]

    [156] DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1993 at [67].

22. The Applicant’s failure to declare his criminal convictions on an incoming passenger card on 29 November 2006,[157] engages paragraph 8.1.1(1)(f) of the Direction. Such conduct weighs against revocation of the Mandatory Visa Cancellation Decision as it was intended to mislead the Department in order to facilitate the Applicant’s entry into Australia.

    [157] G2, 94.

23. On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs strongly against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

24. Paragraph 8.1.2(1) of the Direction states:

    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harms increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

25. Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:

    a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    …

26. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any future reoffending by the Applicant may involve physical and/or psychological harm, including serious injury or death, to his victims. The Applicant’s most recent offence Assault causing death is self-evidently of a very serious nature, and if he were to commit a similar offence in the future, his victim would likely sustain serious physical injuries if they did not die as a result of his actions.

27. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence committed against at least three of his former partners.  He has been convicted and sentenced for two violent offences that were committed against two of his partners, namely Assault occasioning actual bodily harm-T2 at Mudgee Local Court on 7 November 2001,[158] and Common assault -T2 at Dubbo Local Court on 4 December 2002.[159] The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (‘XFKR’), the Tribunal observed at [45]:

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

    [158] G2, 28.

    [159] G2, 28.

1. The Australian community would also face direct and indirect serious harm if the Applicant continued to engage in drug-related offences. This could include mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly, and healthcare and law enforcement costs. The Applicant also has several driving and traffic offences and members of the public (including innocent road users and pedestrians) could suffer physical injury or loss of life and possibly psychological harm, if he were to repeat this criminal conduct.

2. The Applicant has demonstrated a propensity to act violently with disregard for the harm he causes his victims.  If his previous criminal behavior were to be repeated, this would pose a significant risk to members of the community, including women and children. As noted above, and recognised in XFKR, domestic violence offences inflict substantial physical and psychological harm on individuals and diminish respect for women and equality between the sexes in society more generally. If the Applicant were to inflict actual bodily harm on another victim, this could result in permanent injury or disability. In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant.  For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.

3. Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant has expressed his remorse for the offences he has committed.  The Applicant claims to understand the seriousness of his offences and says he regrets his actions and their severity.  In her report, Dr Kwok noted that during her interview with the Applicant he ‘expressed remorse for his behaviours and was able to speak about the impact which his behaviours had on the victim and on his own family.’[160]

   [160] A2, 8.

4. In response to a question in the Personal Circumstances Form dated 18 January 2021 submitted by the Applicant as part of his revocation request which asked him to outline any factors that explained his offending, the Applicant provided a detailed description of the circumstances surrounding  the offence that led to TD’s death. He claimed TD had been awake for ‘8 days straight from being on drugs’ and he spoke to the Applicant ‘in an aggressive way’.[161]  He stated that he slapped TD because he thought TD was about to attack him, causing TD to fall backwards and hit his head.  He claimed that TD ‘passed away over a silly argument [and] I wish it never happened it was an accident’.[162] These statements demonstrate a lack of insight by the Applicant into the connection between his drug and substance abuse and his criminal offending.  At the hearing, the Applicant claimed that it was TD’s drug use that caused his death.[163] These statements indicate that the Applicant has not taken full responsibility for causing TD’s death, which may have led him to take positive steps to address any underlying triggers or contributory factors.  They further indicate that the Applicant continues to minimise his actions by suggesting TD’s state of intoxication and aggressive behaviour contributed to his violent offending, and that the offence was an accident. Contrary to the Applicant’s contentions, the sentencing judge, Judge Sutherland, found the Applicant’s motivation for committing the offence was one of anger, rather than self-preservation, and that the calculated steps he took to avoid detection after he committed the offence demonstrated a lack of remorse at that time.[164]

   [161] G2, 71.

   [162] G2, 72.

   [163] Transcript of proceedings 19 October 2021, 45.

   [164] G2, 42, [70]-[71].

5. The Tribunal has had regard to information and evidence on the risk of the Applicant re-offending as required by paragraph 8.1.2(2)(b)(i) of the Direction.  In a pre-release report dated 31 December 2020, a Community Corrections officer from the Long Bay Parole unit reported that the Applicant’s criminal behaviour over the previous 20 years appeared to have occurred in the context of his methamphetamine abuse, his ‘normalisation of violence’ and his association with negative peers, and assessed him as being a ‘medium’ risk of reoffending. [165]  The author of the report opined that the Applicant’s attitude towards the offence that resulted in TD’s death was ‘poor’, and that he demonstrated ‘no insight into his proclivity for aggression and violence’ and ‘limited empathy for the victim’s family’. [166]  Further, whilst the Applicant expressed a willingness to engage in intervention to address his substance abuse issues, he was adamant that he did not require support in maintaining abstinence.[167] Given the Applicant’s history of criminal offending and the contribution of his drug use to that offending, the Applicant’s statements to the Corrections Officer demonstrate a concerning lack of insight into his offending and an absence of any genuine commitment to rehabilitation.

   [165] R27, 334-340.

   [166] R27, 335-336.

   [167] R27, 336.

6. In her report, Dr Kwok noted that the Applicant had indicated his willingness to engage in treatment,[168] and she found that the Applicant’s prognosis for rehabilitation for his substance abuse is ‘positive.’[169]She opined that without appropriate treatment the Applicant has a ‘moderate risk of re-offending and engaging in further serious conduct’.[170]  Dr Kwok concluded that having regard to the Applicant’s criminogenic needs and protective factors ‘he is a moderate risk/threat/danger to the Australian community.’[171]

   [168] A2, 8.

   [169] A2, 8.

   [170] A2, 9.

   [171] A2, 8.

7. The Tribunal has had regard to the evidence of rehabilitation as required by paragraph 8.1.2(2)(b)(ii) of the Direction. In his revocation request dated 18 January 2021, the Applicant stated that there were no anger management or drug and alcohol courses available to him while he was completing his gaol sentence.[172]  However, the Tribunal notes that the Applicant’s substance abuse problem pre-dates his most recent period of incarceration by many years. He has taken few, if any steps, over the past two decades to gain professional help for his anger issues and substance abuse problems. The Applicant claims that he has ‘positive rehabilitative prospects’ and a drug rehabilitation treatment  plan ‘will be determined’ by a clinical and forensic psychologist.[173] The evidence before the Tribunal is that the first time the Applicant sought assistance from a psychologist in immigration detention was on 27 September 2021 and there have been four such consultations.[174] The Applicant was released from gaol into immigration detention in January 2021 and therefore he waited nine months before seeking the assistance of a psychologist. This recent and coincidental recognition by the Applicant that he needs professional treatment for his substance abuse and anger management problems casts doubt on the genuineness of the Applicant’s commitment to undertake the necessary programs he requires to address these issues which were significant contributors to his criminal offending.

   [172] G2, 71.

   [173] Applicant’s Statement of Facts, Issues and Contentions filed 27 September 2021, 4 at [10].

   [174] Applicant’s Tender Bundle filed 14 October 2021, 55, 58, 63.

8. The Applicant claims that he has not used drugs since he was incarcerated in August 2018 and that he is willing to undertake treatment in the community for his drug addiction, specifically at Odyssey House. However, the evidence before the Tribunal is that the Applicant failed to attend more than a couple of the treatment sessions he was required to  attend as a condition of his probation in 2003.[175] Accordingly, the Tribunal cannot be satisfied that the Applicant will undertake the treatment he requires if he is permitted to re-enter the Australian community, and that he will not relapse into substance abuse and/or commit further violent offences   in the future.

   [175] Transcript of proceedings 19 October 2021, 55,

9. On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate.  In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, specifically family violence offending, the Tribunal finds this risk to be unacceptable.

10. For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs heavily against the revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration 2 – Family violence committed by the non-citizen

11. This Primary Consideration is relevant in the Applicant’s circumstances as he has been convicted of two offences that involve family violence.  The victims of these offences were two of the Applicant’s former domestic partners.

12. In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:

    a)    the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

    b)    the cumulative effective of repeated acts of family violence;

    c)    rehabilitation achieved at time of decision since the person's last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.efforts to address factors which contributed to their conduct;

    d)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement of other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.

13. Having regard to the frequency of the Applicant’s family violence offending and its cumulative effect in accordance with paragraph 8.2(3)(a) and (b) of the Direction, the Tribunal notes that the Applicant’s offending represents a pattern of violent behaviour towards his female partners. Whereas there are no recorded charges or convictions in relation to any alleged violence by the Applicant against MP, the Tribunal notes the incident on 18 June 2018 when TM phoned the police during a verbal argument between his mother and the Applicant.  On this occasion, MP denied any physical violence by the Applicant towards her and declined to give a statement.  Whereas MP and the Applicant are engaged and plan to marry, the Tribunal cannot be satisfied that MP is the Applicant’s only potential victim in the future.  If the Applicant were to enter into another relationship, there is a real potential, based on his history of violence against women, that he will assault a new partner.

14. In relation to the factors in paragraph 8.2(3)(c)(i) and (ii) of the Direction, there is no evidence that the Applicant accepts responsibility for his previous family violence conduct or has appreciated the impact of his conduct on his victims, or any witnesses.  Whereas the Applicant’s two family violence convictions are historical in nature having been recorded in 2001 and 2002, there is little evidence that he has an insight into the impact of this offending on his victims or has taken responsibility for his offending.  When he was questioned about these offences in cross-examination, his responses tended towards victim blaming.  For example, he stated that CY was promiscuous and had been unfaithful to him, and KC was drunk when he assaulted her.   These responses reveal a concerning lack of insight into the Applicant’s domestic violence offending. It is evident that the Applicant continues to downplay his violent behaviour towards his female partners and minimise his personal culpability by blaming the victim for his offending, indicating that he has not fully accepted responsibility for his actions. 

15. In relation to the factors in paragraph 8.2(3)(c)(iii) of the Direction, the Tribunal notes that whilst the evidence indicates the applicant was required to complete a course in Advanced Anger Management – Anger – Alcohol – Domestic Violence on 28 March 2003 whilst he was incarcerated for the offences detailed at paragraph 36 above, there is no indication that he has taken any other steps to obtain support or treatment for his behavioural issues towards women. Based on the evidence before it, the Tribunal cannot be satisfied that the Applicant has made efforts to address the factors that contributed to his violent offending towards multiple female partners.

16. Having regard to the factors in paragraphs 8.2(3)(d), the evidence is that the Applicant continued to commit acts of family violence against his female partners after having been convicted and sentenced for earlier crimes of this nature.  The Tribunal cannot therefore be satisfied that the threat of serious consequences will prevent the Applicant from committing further acts of family violence.

17. On the basis of the evidence before it, and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant’s offences involving family violence are very serious. Accordingly, Primary Consideration 2 weighs strongly against the revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration 3 – The best interests of minor children in Australia affected by the decision

18. Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).

19. In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:

    a)    the nature and the 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 the 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;

    h)    …

20. There is one child whose best interests must be considered by the Tribunal, namely TM who was born in 2008,[176] and is currently aged thirteen years. He is MP’s biological child and the Applicant’s stepson. In his revocation request dated 18 January 2021, the Applicant claimed he has a ‘very close’ relationship with TM and that they love each other very much. The Applicant regards TM as his son, and claims that a non-revocation decision would have  ‘a bad impact’ on TM.[177]  These claims are supported by the statutory declarations provided by TM and MP and the oral evidence given by MP and the Applicant at the hearing.[178]

    [176] G2, 66.

    [177] G2, 67.

    [178] G2, 77-79.

21. Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant lived with MP and TM in their home for a period of approximately four years until his incarceration in August 2018.  During these years MP and TM formed a close bond and they would often engage in various activities together including camping and fishing.  There is limited evidence of the positive parental role the Applicant has played in TM’s life other than these joint activities and the Applicant helping TM with his school work. The Tribunal notes that the period during which the Applicant was living with MP and TM overlaps with periods when the Applicant was engaged in drug abuse and criminal offending.  The Applicant however claims that he did not use drugs in the house or in the presence of MP and TM.  The evidence before the Tribunal is that MP and TM visited the Applicant regularly when he was in gaol, and that TM has maintained regular phone contact with the Applicant during his period in immigration detention.

22. In his statutory declaration dated 19 January 2021, TM states that the Applicant has ‘been …[his] dad for …[seven] years’ and although he has found it ‘very hard’ living  without the Applicant whilst he has been incarcerated, they have maintained contact by telephone at least three times per week. In another statement dated 1 October 2021, TM states that he and his Dad ‘love each other very much’ and he misses him a lot.  He wants him to come home so that they ‘can be a family once again’.  On the basis of this evidence, the Tribunal is satisfied that while the Applicant has not been physically present in TM’s life for the past three years, they have continued to have a meaningful father and son relationship.

23. In relation to the factors in paragraph 8.3(4)(b) and (c) the evidence is that there is potential for the Applicant to play a positive role in TM’s life in the five years until he turns 18.  However, based on the Tribunal’s findings in relation to the likelihood the Applicant will undertake the treatment required to prevent him relapsing into drug use, and its finding that there is a moderate risk he will re-offend, the Tribunal is not satisfied that the Applicant will play a positive parental in TM’s life until he reaches adulthood.

24. Having regard to the factors in paragraph 8.3(4)(d), (e) and (f), the Applicant’s ongoing physical separation from TM will have an impact on him as the evidence is that he loves and misses his father and wants him to come back home.  For the past three years TM has been in the primary care of his mother while the Applicant has been incarcerated or detained and TM has been doing well at school.  In his statement dated 1 October 2021, TM states that it would be very hard on him if the Applicant were returned to Romania as he ‘could no longer see him as he would be so far away’. The impact on TM of his separation from the Applicant could be mitigated by regular phone calls and communication by electronic means, which is how they have stayed in contact during his incarceration in gaol and immigration detention.  MP’s evidence is that it is highly unlikely that she would consider relocating with TM to Romania if the Applicant were removed there, and they would not be in a position financially to travel to Romania to visit the Applicant.

1. Relevant to paragraph 8.3(4)(g) is the evidence that in June 2018 TM phoned the police during a verbal argument between the Applicant and his mother, MP.  Whereas no charges were laid, and MP denied there was any physical violence, if a similar incident were to occur again, there is a real likelihood that TM would be detrimentally impacted by the Applicant’s behaviour. 

2. In his request for revocation dated 18 January 2021, the Applicant also claimed he played ‘a major role’ in the lives of the three children of MP’s sister, SP, as their father ‘isn’t around all the time’. The Applicant claimed he saw them ‘on a daily basis’, celebrating birthdays and Christmas and participating in family activities.[179] There was little additional evidence provided in relation to the Applicant’s relationship with these children, including their ages and whether they have maintained contact with the Applicant during his periods of incarceration and detention.  In the absence of any supporting statement from SP or the children, the Tribunal has given little weight to the impact on the children of the non-revocation of the Mandatory Visa Cancellation Decision.

   [179] G2, 69.

3. Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s stepson, TM, for the Applicant to have his visa reinstated and be permitted to remain in Australia.

   Primary Consideration 4 – The expectations of the Australian community

4. Paragraph 8.4 of the Direction states:

   (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

   (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

   a)acts of family violence; or

   b)…;

   c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;

   d)…

   e)…

   f)…

   (3)  The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   (4)  This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

5. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:

   ·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[180] 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.[181]

   ·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[182] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[183]

   [180] Charlesworth J at [66]; Stewart J at [91].

   [181] Charlesworth J at [67]; Stewart J at [104].

   [182] Charlesworth J at [76].

   [183] Stewart J at [97].

6. The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[184]  As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.

   [184] Charlesworth J at [77].

7. Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of 49 offences in Australia over a period of 19 years. The most recent offence committed by the Applicant was a violent assault against a co-offender, which resulted in his death. The Applicant’s offences also include family violence against two former partners, and an offence against a minor which, as recognised by paragraphs 8.4(2)(a) and (c) of the Direction, should generally result in the cancellation of the non-citizen’s visa.

8. The Applicant arrived in Australia at the age of 20 years and has resided here for more than two decades. Having regard to the factors in paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, this supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time. 

9. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision.

   OTHER CONSIDERATIONS

10. While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant.  Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’

11. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594 (‘Suleiman’)at [23]:

    124.... Direction 65 [now Direction 90] 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.

12. In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775, Wigney J held at [22] that this analysis ‘tends to overcomplicate or over intellectualise the issue.’ His Honour held at [23] that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations.’ His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary.’

13. The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.

    Extent of impediments if removed from Australia

14. The Direction states in paragraph 9.2:

    (1)Decision-makers must consider 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.

15. Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 42 years of age and is generally in good health.  The supporting materials, including Dr Kwok’s report and the Applicant’s self-reports, indicate that he was diagnosed with Post-traumatic Stress Disorder following a violent home invasion in 2014. If the Applicant were to require mental health treatment in the future, he may have difficulties obtaining it in Romania where the health system is poor compared to Australia and has been ranked last in Europe.[185]

    [185] A2, 8 citing The Economist. Romania’s health-care system, the EU’s worst, struggles to reform. Retrieved from: >

    Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Romania until the age of 20 years and therefore is familiar with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived since he was a young man. The Applicant’s evidence is that his mother, father and sister live in Romania and he has a good relationship with them.

16. The Applicant submits he would face practical and financial hardship if he had to return to Romania because he does not have a job and has not lived there for 20 years.[186] He told the Tribunal that he has recently been in contact with his parents and discussed with them whether he could live with them if he is returned to Romania.  He also has spoken to his brother who resides in France and is willing to assist the Applicant.  Based on this evidence, the Tribunal is satisfied that the Applicant will have the support and assistance of his family in overcoming any practical or financial hardship he may face on return.

    [186]Applicant’s Statement of Facts, Issues and Contentions filed 27 September 2021, 6 at [22].

17. Having regard to paragraph 9.2(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all Romanian citizens including health care, welfare benefits and social services. It however accepts, based on the evidence before it in relation to the Romanian health and welfare system, that these are not of the standard available in Australia. The Applicant’s evidence is that he would likely relocate to France and work in the agriculture sector. The Applicant’s good employment history in Australia demonstrates his resourcefulness and ability to establish himself in different locations and access networks to secure employment.  Further, if the Applicant relocates to France, he will have access to the health and welfare systems in that country as a citizen of the European Union.

18. In his revocation request dated 18 January 2021, the Applicant stated that if he is returned to Romania he will face ‘family [and] relationship breakdowns’ due to having to have ‘long distance relationships’.[187] Whilst the evidence is that MP and TM do not wish to be physically separated from the Applicant, this separation need not necessarily result in a breakdown of their relationships with him. The Applicant has maintained telephone contact with his parents and siblings overseas,[188] over the past two decades, which demonstrates his ability to maintain relationships with family members living in different countries.  Whereas the Applicant’s removal will prevent him from having physical contact with MP and TM, they will be able to remain in touch with him via telephone and other electronic means, and potentially visit him in Romania if and when their financial circumstances permit.

    [187] G2, 75.

    [188] R22, 232-234.

19. Having regard to the evidence before it, the Tribunal finds the Applicant will face initial hardship if he is required to establish himself in Romania, having not lived there since he was a young man.  This hardship will be exacerbated by his separation from MP and TM who will remain in Australia.  Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.

    Impact on victims

20. The Direction states in paragraph 9.3:

    (1)  Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

21. There is no evidence before the Tribunal of the views of the victims of the Applicant’s criminal offending. The Tribunal therefore finds that this consideration is of neutral impact in assessing the impact on the Applicant’s victims of his offending with respect to a decision to revoke the Mandatory Visa Cancellation Decision.

    Links to the Australian community

22. Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.

    Strength, nature and duration of ties to Australia

23. Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:

    (1)  Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)  Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.  In doing so, 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 non-citizen began offending soon after arriving in Australia; and

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

    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.

24. Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia for more than two decades, having arrived in Australia in August 1999 at the age of 20 years.  The Applicant committed his first offence on 30 September 2001, just two years after he first arrived in Australia.  According to paragraph 9.4.1(2)(a)(i) of the Direction, less weight should be given to the strength nature and duration of the Applicant’s ties to Australia for reason that he began offending soon after                 arriving in Australia.

25. The Applicant has lived and worked in Australia for more than two decades and has made a not insignificant contribution to the Australian community through his work in a range of positions. However, the Applicant has also spent considerable time in criminal custody, and has been the subject of the time and resources of police and the courts, at the expense of the Australian community

26. In relation to the factors in paragraph 9.4.1(1) and 9.4.1(2)(b) of the Direction, the Applicant has strong family ties in Australia, specifically with his fiancée, MP, and stepson, TM, as well as MP’s family members. Having regard to paragraph 9.4.1(1) and 9.4.1(2)(b) of the Direction, the evidence before the Tribunal is that MP and TM in particular would suffer significant emotional distress if the Applicant were returned to Romania.

27. In addition to the statement and her oral evidence in support of the Applicant provided by JC, the Applicant provided a number of character references from friends and family members which are summarised as follows:

    ·the Applicant’s neighbour, CS, who considers the Applicant to be a close friend and describes how the Applicant encouraged him to do a training course and find employment when he was unemployed and feeling discouraged;[189]

    ·the Applicant’s friend of 20 years and former employer, GD, who describes the Applicant as a ‘solid person’ who worked well with his colleagues, was trustworthy and would help anyone in need;[190]

    ·the Applicant’s friends, VF and SF, who say the Applicant is remorseful for his past actions and loves his family in Australia;[191]

    ·the Applicant’s friend, LP, who says he has known the Applicant since 2000  and believes he is a ‘reliable, trustworthy and decent person.’[192]

    [189] G2, 84-86.

    [190] G2, 87.

    [191] G2, 88-90.

    [192] G2, 92.

28. Whereas the Tribunal accepts that the Applicant has made a positive contribution to the community by working and paying taxes in Australia, it is difficult to reconcile his friends’ descriptions of him as being decent, reliable and trustworthy with the Applicant’s lengthy criminal history and the details of his violent offending, which includes domestic violence offences against his former partners and an assault against his co-offender that resulted in his death.  The authors of these character references refer only vaguely to ‘charges’ and being aware that the Applicant has ‘done wrong in the past.’  Neither JC’s evidence nor any of the character references meaningfully engage with the details and extent of the Applicant’s offending or explain why they hold the Applicant in such high regard given his extensive criminal history. Accordingly, the Tribunal has given limited weight to JC’s evidence and that contained in these character references.

    Impact on Australian business interests

1. The Applicant does not claim that any Australian business interests would be affected by his removal to Romania. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.

2. On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family and social ties in Australia, the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.

   CONCLUSION

3. In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh strongly against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly as it has involved violent offences against his former partners, a minor child and a co-offender who died as a consequence of the Applicant’s actions. The moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

4. Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s stepson for him to remain in Australia.  Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious family violence offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his twenty-year residency in Australia and his employment contributions to the community.

5. In regard to the relevant Other Considerations, only the impediments he will face on return to Romania and his links to the Australian community weigh marginally in favour of revocation of the Mandatory Visa Cancellation Decision.

6. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and decides that the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision must be affirmed.

   DECISION

7. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 11 August 2021 that the mandatory cancellation of the Applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth) not be revoked under section 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 3 December 2021

Date(s) of hearing:	19 and 20 October 2021
Solicitors for the Applicant:	Ms M Mamarot, SouthWest Migration & Legal Services
Solicitors for the Respondent:	Ms S Roberts, Mills Oakley