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

Mitchell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 937 (23 April 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0646
Re:Thomas Mitchell
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:23 April 2020
Place:Brisbane

The decision under review is affirmed.
...................................[SGD].....................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
23 April 2020
THE ISSUE BEFORE THE TRIBUNAL

Mr Thomas Mitchell (“the Applicant”) is a 38 year old citizen of New Zealand. He moved to Australia with his family in March 1987 when he was five years old. He was away from Australia for two years between April 1994 and April 1996. Since then, he has had three short periods outside Australia.[1] The most recent visa granted to him was a Class TY Subclass 444 visa (“the visa”).[2]
[1] Exhibit G1, G-Documents, G-13, pages 97 to 98.
[2] Ibid, G-3, page 9.
Between 1999 and 2003, the Applicant committed numerous offences. In March 2004, he was sentenced to imprisonment for 12 months (suspended for three years) for assault occasioning bodily harm in company. In 2009, he was convicted of having breached the terms of that suspended sentence.[3]
[3] Ibid, G-8, pages 52 to 53.
In February 2010, the (then) Department of Immigration and Citizenship (“Department”) notified the Applicant that his visa could be cancelled on character grounds under s 501 of the Migration Act 1958 (Cth) (“the Act”).[4] In July 2010, the Department advised the Applicant in writing that his visa would not be cancelled. That written notification contained the following warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.[5]
[4] Ibid, G-3, page 9.
[5] Ibid.
In 2015, the Applicant breached a Domestic Violence Order (“DVO”). From the end of 2017 to mid-2018, he committed numerous property offences. On 11 November 2018, the Applicant was convicted of seven property and fraud offences for which he was sentenced to 12 months imprisonment. In that sentencing episode, he was also convicted of a further six property offences and sentenced to eight months imprisonment (concurrent), and possession of dangerous drugs and sentenced to six months imprisonment (concurrent).[6]
[6] Ibid, G-8, pages 50 to 51.
This led to a delegate of the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) deciding to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act on 23 November 2018.[7] On 24 December 2018, the Applicant made representations as to why the decision should be revoked. On 29 January 2020, the Respondent decided not to revoke its decision (“Decision under Review”).[8]
[7] Ibid, G-6, page 16.
[8] Ibid, G-7, page 33.
The Applicant lodged an application with this Tribunal on 6 February 2020 seeking a review of the Decision under Review.[9] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[9] Ibid, G-2, page 3.
The hearing of this application proceeded on 15 April 2020. The Applicant gave evidence by video-link. The Applicant’s mother, sister and ex-partner gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
“… 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…”[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] I will address each of these grounds in turn.
[12] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to concurrent terms of imprisonment of 12 months, eight months and six months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[13] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[14] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[13] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
[14] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 8.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[15]
[15] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[16] and “Other considerations”.[17] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[16] Ibid, paragraph 13.
[17] Ibid, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]
“… Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[19]
[18] [2018] FCA 594.
[19] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant moved to Australia when he was five with his mother and step-father.[20] He began to smoke marijuana and drink alcohol at around the age of 16. When he was 17, his step-father kicked him out of home. He moved in with a friend whose circle of friends were older and used “heavier drugs” and committed crimes. The Applicant said this is when his offending began.[21]
[20] Exhibit G1, G-Documents, G-11, page 83; Exhibit A5, Letter of Support – Sister, 26 March 2020 in which she stated that she and her other brother were 27 and 29 years old respectively, meaning they were not yet born when the Applicant moved to Australia.
[21] Exhibit G1, G-Documents, G-11, page 83.
The Applicant’s criminal history starts in April 1999 when he was 17 years old. Between 1999 and 2001, he committed some 20 offences, mainly arising from breaking, entering and stealing. That offending resulted in nine sentencing episodes. The penalties imposed by the courts included a Community Service Order (which he breached), probation (which he breached), a suspended sentence of imprisonment (which he breached) and actual imprisonment.
In May 2001, the learned sentencing Judge who convicted the Applicant of breaching a probation order, and sentenced him to a suspended sentence of imprisonment, said:
“Mr Mitchell, it is very disappointing to see you back here. You have been before the Courts on a number of occasions. You have been treated with leniency each time you have been before the Courts, but you have continued to offend and in a serious way.
… You have pleaded guilty to five counts of entering motor vehicles. You broke into five motor vehicles on the one night and you were apprehended.
What is a disturbing aspect of it is that you were subject to two probation orders at the time…
… What it means is that you have simply been thumbing your nose at the criminal justice system. You keep doing that and you go to gaol…
I am imposing a suspended sentence which I will suspend wholly for a period of 18 months. If you are back here for further criminal conduct which renders you liable to a term of imprisonment, you will almost certainly have to serve this suspended sentence…
I am very pessimistic about your future. I think you will be back here and you will have to go to gaol, but that is your choice. You will find gaol a very unpleasant place to be spending your time, but you have been warned…
There is an adverse report from your probation officer and I am satisfied that you are not a suitable person for any community based order.”[22]
[22] Exhibit R1, Tender Bundle, TB2, pages 168 to 169.
In April 2002, the learned sentencing Judge who convicted the Applicant of breaching that suspended sentence (and of other offences), and imposed sentences of actual imprisonment, said:
“Mr Mitchell, I have read your letter which tells me that being incarcerated has been a salutary lesson to you and you have had time to think about your past mistakes and realise that prison is not what you want to do with your life…
The difficulty I have is this: you are a young man, you are only 20. You have a significant criminal history for one so young. But the worst part is I have read the sentencing remarks and I know that other Judges have spoken to you the way I am speaking to you and you have just ignored them. Just purely and simply ignored them.
…
[23] Ibid, pages 175 to 176.
I think I am being extremely kind to you, too, and I think this is the third time District Court Judges have been extremely kind and I’m going to order that you serve part of the suspended sentence and not the whole of it to reflect the time you have spent on remand in custody…”[23]
The practical effect of the sentence imposed was that the Applicant had to serve five months in prison. He was released in September 2002.[24] He said he initially moved in with a friend, but, not wanting to commit offences anymore, he then moved to his parent’s home. He got a job in the scaffolding industry with his step-father. He started to find structure in his life.[25] The Applicant’s criminal history does not contain any property offences from this point until 2017.
[24] Exhibit G1, G-Documents, G-11, page 83.
[25] Ibid.
However, within only a few months of being released from prison, on New Year’s Day 2003, after being ejected from a nightclub, the Applicant and his friends were involved in a fight in which a man (“the victim”) was stabbed with a broken bottle. The Applicant gave evidence that “everyone had been drinking a lot”.[26] In March 2004, the Applicant was convicted of assault occasioning bodily harm on the basis that he punched or kicked the victim, but did not stab him. He was sentenced to imprisonment for 12 months, fully suspended for three years. The Applicant told the Tribunal that he punched someone in the fight and it could have been the victim.[27]
[26] Transcript, page 37, line 6.
[27] Ibid, page 36, line 40 to page 37, line 13.
In February 2006, the Applicant committed a public nuisance offence which breached the suspended sentence. The offence involved a public fight outside a McDonald’s restaurant in which the Applicant, at the very least, yelled and mouthed profanities. The Applicant was not dealt with for breaching that suspended sentence until 2009. When he was, the learned sentencing Judge commented that “The fact that there was violence involved and alcohol as well, is similar to the principal offence…”[28] The Applicant was ordered to serve six months of the suspended sentence and given immediate parole.[29]
[28] Exhibit R1, Tender Bundle, TB2, page 180.
[29] Exhibit G1, G-Documents, G-8, pages 52 to 53.
In between committing the public nuisance offence, and being sentenced in relation to it, the Applicant committed further offences. In 2007, a knife was found in his vehicle when he was apprehended on traffic matters[30] and he was subsequently convicted of unlawful possession of a knife in a public place. In 2008, he contravened a lawful direction or requirement and was subsequently convicted in relation to that conduct.
[30] Ibid, page 50 to 53.

In February 2010, the Applicant was given the warning referred to above that his visa could be cancelled on character grounds. The Applicant says that “This made me take a step back this explains the 7 year gap in my offending between 2009 to 2016”.[31]
[31] Exhibit G1, G-Documents, G-11, page 85.
At some point the Applicant began a relationship. In 2012, he and his girlfriend had a son, who is now seven years old. In 2013, they had a daughter who is now six years old.[32] In 2013, the Applicant went to work in the mines on a fly-in, fly-out basis. The stress and loneliness led him to start gambling and resume using drugs, and had a negative impact on his relationship. In 2014, he and his girlfriend broke up, and he subsequently moved back to Brisbane and in an effort to reconcile.[33]
[32] Ibid, pages 74 and 79.
[33] Ibid, page 83.
In June 2015, the Applicant’s girlfriend obtained a DVO against him. She told police that she had been separated from the Applicant since December 2014, but that he often stayed at her home to take care of their children. She said that the Applicant had grabbed their 10-month-old baby from her arms and punched her with a closed fist once on her thigh. The Applicant’s girlfriend said that he used both his hands to push against her chest and he lifted her off the ground with both his hands around her neck. She said her son from a previous relationship started to cry and the Applicant let go. The Applicant had told the police that he put his hands around his girlfriend’s neck and mouth to try to stop her talking and denied choking her. The Applicant’s girlfriend told police that he had lost his job around a month prior, was a drug user and was becoming more aggressive towards her.[34] When all this was put to the Applicant at the hearing, he agreed that it was accurate. However, he said that he did not pick his girlfriend up by her throat, but that he did put force on her throat.[35]
[34] Exhibit R1, Tender Bundle, TB1, pages 151 to 152.
[35] Transcript, page 31, line 20 to page 32, line 7.
In December 2015, the Applicant breached the DVO. He was convicted of breaching the DVO and also of assault or obstruct police in April 2016. With respect to the breach of the DVO, the police report says that the Applicant had been in his girlfriend’s home, they were arguing, the Applicant picked up a china bowl, and threw it at the front door. He then pulled the tray from the baby’s highchair and threw it at a container on the fridge which was holding CDs, breaking the container. His girlfriend then picked up her one year old child and the Applicant pushed her. He then picked up her mobile phone and threw it on the floor causing the screen to smash. The report says when police attended, the Applicant made full admissions to throwing the highchair tray, damaging the container holding CDs and smashing the mobile phone.[36]
[36] Exhibit G1, G-Documents, G-9, page 65.
The Applicant’s evidence to the Tribunal was that he threw a bowl at the door, but his girlfriend threw a plate at a box of CDs and she smashed his PlayStation onto the ground.[37] He denied that he had been using drugs when this happened.[38] He said she often called the police and the last time she called them he had scratches all over his face so they put a DVO on her.[39]
[37] Ibid, G-17, pages 100 to 101; Transcript, page 39, lines 13 to 21.
[38] Transcript, page 39, lines 44 to 45.
[39] Ibid, lines 37 to 40.
The police report states that when the police attended, the Applicant became argumentative and hostile. While holding his one year old child, the Applicant suddenly walked away from the police and back inside the dwelling. He aggressively thrust the child at a (male) police officer who managed to catch the child. When the police attempted to handcuff the Applicant, he swung his arms pulling away. He continued to struggle and the police deployed capsicum spray in order to restrain him.[40]
[40] Exhibit G1, G-Documents, G-9, page 65.
The Applicant also disputed this version of events. He gave evidence that he was trying to give his baby to his girlfriend. When the police stopped him from walking towards his girlfriend, he tried to hand the baby to the male police officer who refused to accept the baby, so he then handed the baby to a female police officer. He said he held his hands out in front of him for the police to put handcuffs on. Once the male officer had the handcuffs on one of his hands, he bent the Applicant’s arm upwards behind his back, forcing him to bend over forward. The Applicant pulled back, trying not to overbalance and fall forward. As the Applicant gave this evidence, he stood up and demonstrated the position of his hands and his body. He said he was not trying to resist, and that he put his hands out for the female officer to cuff which she did before the male officer applied the pepper spray.[41]
[41] Transcript, page 42, lines 1 to 37.
For both offences, the Applicant was sentenced to probation for 12 months. He successfully completed his probation.
In May 2016, the Applicant’s then girlfriend left, without warning, with his children.[42] He described this as “hard to get over” and said that “… all my bad decisions happened after my ex partner took off without saying a word…”[43] The Applicant attributed losing his job to his worry about his girlfriend’s and his children’s safety, because he was unable to contact them.[44] He said “I looked at my life and thought I had to do better for the sake of my kids, hence why I did not commit any crime for a two year period.”[45] A friend of the Applicant provided a letter of support in which he said “When Thomas had his children move away from him, I believe this caused him unmanageable mental anguish, stress and trauma that he is only now coming to grips with and trying to find his place again”.[46] It is apparent from the evidence the Applicant gave in the hearing that the sudden absence of his children from his life, and his inability to even contact them or know where they were, was very difficult for him. I accept that this situation has been distressing and difficult for him.
[42] Exhibit G1, G-Documents, G-11, page 75.
[43] Ibid, page 79.
[44] Ibid, page 84.
[45] Ibid, page 84.
[46] Exhibit A3, Letter of Support – Friend, 10 February 2020.
The Applicant’s ex-girlfriend and children now live in New Zealand. In a letter of support provided by the Applicant’s mother, she said she was in contact with the children and she has a healthy relationship with their mother.[47] The Applicant’s efforts to have contact with his children have been unsuccessful until very recently. He said his ex-girlfriend blocked him when he asked if he could come to New Zealand to see the children.[48] He was communicating with the children through his parents,[49] and it is only in the last few weeks that he has been in contact with them though the Messenger application. The Applicant said they send messages to each other and use it for FaceTime (which I take to be the audio-visual function in Messenger).[50]
[47] Exhibit A4, Letter of Support – Mother, 30 March 2020.
[48] Transcript, page 7, lines 20 to 28.
[49] Ibid, lines 32 to 35.
[50] Ibid, lines 1 to 17.
In 2017 and 2018, the Applicant was in a relationship with a new partner. Of that relationship he said:
“In 2018 I found my jobless and on downward spiral as the breakup was still affecting my mood. I found myself in another relationship that turned toxic quickly as we both were using Metha - Amphedimenes. I was trying to support my addiction and put a roof of my partners and myself heads so I turned back to crime. This is what led to the number of property offences and ultimatley led to myself serving a term of imprisonment.”[51]
[Errors in original]
[51] Exhibit G1, G-Documents, G-11, page 84.
On 30 December 2017, the Applicant’s partner reported an incident of domestic violence to the police. She said she had been in a relationship with the Applicant for 18 months and that following an argument he had punched her twice, in the eye and mouth, causing cuts and bruising. She added that she had previously sought medical treatment for acts of violence that he had committed upon her that she did not report to the police, including very forcefully kicking her a few weeks prior. She told police that he consistently committed acts of physical and psychological violence against her and constantly sent her abusive text messages and phone calls. She said his drug use had been increasing over the past month and she believed he had an undiagnosed mental illness.
The victim of this incident was present on two occasions when police found numerous items of stolen property (see paragraphs 45 and 55). She provided a letter of support for the Applicant[52] and she gave evidence in the hearing. Her evidence was mostly favourable to the Applicant. In relation to the domestic violence, she said the incident in which he punched her occurred at the peak of his drug use, and that he was physically violent with her when he was taking a lot of drugs.[53] The Applicant admitted in his evidence that the reported incident occurred[54] and he admitted to psychological abuse.[55] However, he denied having committed previous acts of physical violence against his ex-partner.[56] He added that his ex-partner would get upset with him and punch and scratch him.[57]
[52] Exhibit A1, Letter of Support – Ex-Partner, dated 8 December 2019.
[53] Transcript, page 61, lines 22 to 40.
[54] Ibid, page 24, lines 1 to 32.
[55] Ibid, page 25, lines 7 to 19.
[56] Ibid, lines 1 to 6.
[57] Ibid, lines 20 to 32.
Between November 2017 and July 2018, the Applicant committed some 26 offences.[58] These offences were dealt with in two separate sentencing episodes.
[58] Exhibit G1, G-Documents, G-8, pages 50 to 52.
On 1 May 2018, the Applicant was convicted of:
·receiving tainted property (x 6);
·possess by night instrument of housebreaking prior conviction of crime relating to property;
·possess utensils or pipes;
·possession of a knife in a public place or school;
·dishonestly obtain property from another; and
·driving under the influence of alcohol.[59]
[59] Ibid, G-9, page 58, lines 13 to 14.
Two of the receiving tainted property charges arose from the Applicant being in possession of items including a camera and lens, jewellery worth $5,000, computers, and electronic equipment that had been stolen from residences in November and December 2017. In one burglary, the back door had been smashed in. The other home had been broken into while the residents were away over the Christmas break.[60] A third charge arose from the police discovering a large amount of stolen property at his partner’s address. She told police that the items belonged to him, he had left on bad terms, and he had texted her asking for his property back and made a number of threats about the property.[61]
[60] Exhibit R1, Tender Bundle, TB1, page 22 and page 57.
[61] Ibid, page 58.
The offence of “dishonestly obtained property from another” arose from the Applicant selling the stolen camera to cash converters.[62]
[62] Ibid, page 57.
The remaining charges related to the events of 10 March 2018 when the Applicant was intercepted by the police in his vehicle and found to be in possession of bolt cutters, screwdrivers and gloves, a glass pipe which he admitted had been used to smoke drugs, a “Stanley” knife which was open and in the driver’s footwall within reach of the Applicant, women’s jewellery, handbags, and mobile telephones.[63] On that date, the Applicant was remanded in custody.[64]
[63] Ibid, pages 66 to 67 and 71 to 72.
[64] Exhibit G1, G-Documents, G-8, page 52.
For possession of utensils or pipes and possession of a knife in public, the Applicant was sentenced to seven days imprisonment. For dishonestly obtaining property from another, he was sentenced to six months imprisonment. For drink-driving, he was fined.[65] For the remaining offences, he was sentenced to nine months imprisonment. All sentences were ordered to be served concurrently, and the Applicant was granted immediate parole.[66]
[65] Ibid, G-9, page 58.
[66] Ibid, G-8, pages 51 to 52.
The Applicant said that after he was released from jail he discovered that his partner, who he had entrusted to look after his car, had sold his car and he was therefore unable to work in the scaffolding industry given the travel involved.[67]
[67] Ibid, G-11, page 85; Transcript, page 53, lines 31 to 40.
Within a month of being released, while on parole, the Applicant commenced reoffending.[68] On 27 June 2018, he was returned to prison for breaching his parole.[69]
[68] Ibid, G-8, pages 50 to 51.
[69] Ibid, G-19, page 104.
On 12 November 2018, the Applicant was convicted of numerous offences some of which had been committed before the previous sentencing episode and eight of which had been committed after.
He was convicted of “Enter premises and commit indictable offence by break” which related to him breaking into a commercial property and stealing numerous power tools and laptops.[70]
[70] Exhibit R1, Tender Bundle, TB1, page 106.
The Applicant was convicted of two offences of “Enter premises with intent to commit indictable offence”[71] which arose from him:
·forcing open the front door of a vacant property, and ransacking it;[72] and
·cutting the power to a commercial premises, breaking into it, ransacking the drawers and cupboards, damaging locks, and spitting on the ground.[73]
[71] Exhibit G1, G-Documents, G-8, pages 50 to 51.
[72] Exhibit R1, Tender Bundle, TB1, page 98.
[73] Ibid, page 86; Exhibit G1, G-Documents, G-8, page 51.
The Applicant was convicted of receiving tainted property (x4) arising from his possession of stolen household and personal items and industrial tools, including bank and credit cards, driver’s license, and a mobile that had been stolen from office premises.[74]
[74] Exhibit R1, Tender Bundle, TB1, pages 42, 114, 78 and 122.
The Applicant was convicted of two offences of “Unlawful possession of suspected stolen property” arising from police finding stolen property in a hotel room where the Applicant and his partner was staying and in a storage shed rented by the Applicant. The stolen items had been taken in several separate burglaries.[75]
[75] Exhibit R1, Tender Bundle, TB1.
The Applicant was convicted of two offences of “Fraud-dishonestly obtained property from another” arising from:
·his use of several electrical power tools that have been stolen from a building site to obtain a loan of $280;[76] and
·his use of a nail gun that was stolen from a different building site to secure a $100 loan.[77]
[76] Ibid, page 135.
[77] Ibid, page 139.
The Applicant was convicted of “Burglary and commit indictable offence” and “Unlawful use of motor vehicles and aircraft or vessels” arising from him and his co-offenders entering a dwelling by cutting a fly screen on a sliding door. They ransacked the property and drove the victim’s vehicle, which had been locked and secured in the garage, away from the dwelling.[78]
[78] Ibid, pages 42 to 43.
The Applicant was also convicted of possessing utensils or pipes and possessing dangerous drugs.[79]
[79] Exhibit G1, G-Documents, G-8, page 51.
For the property offences that the Applicant committed before he was sentenced to prison in May 2018 and granted parole, he was sentenced to eight months imprisonment. For the property offences he committed while on parole, he was sentenced to 12 months imprisonment. For the possession of dangerous drugs, he was sentenced to six months imprisonment. For the possession of utensils or pipes he was convicted and not further punished. All sentences of imprisonment were ordered to be served concurrently.
There is no evidence before me that the Applicant has consumed illicit drugs or re-offended during his most recent incarceration in prison and immigration detention, and he claims that he has not. I accept that the Applicant has been drug free and of good behaviour since 27 June 2018, when his most recent period of incarceration began.
For most of the period between 2005 and 2016, the Applicant had gainful employment in the scaffolding industry and in the mines.[80] For one season, he voluntarily assisted with coaching a football club to which he has social ties.[81] He has friends from the area in Brisbane where he grew up and from high school.[82] His parents, siblings, nieces, and nephews live in Australia.
[80] Transcript, page 20, lines 7 to 23.
[81] Ibid, lines 24 to 45.
[82] Ibid, page 21, lines 12 to 20.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above,[83] the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)…
[83] Factor (b) refers to the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. This principle is not relevant to the present application.
Factors (a) and (b) of paragraph 13.1.1(1) of the Direction provide that violent and/or sexual crimes, and crimes of a violent nature against women or children, are viewed very seriously. The Applicant has been convicted of two violent crimes, being assaulting a man outside a nightclub and breaching a DVO.
The Applicant committed the assault in 2003 within months of being released from prison in relation to property offences. In a written document dated 20 July 2019, the Applicant described the incident as follows:
“When we walked out of the Underdome Night Club, there were alot of people around the male that we had a problem with earlier in the night club. The male had a group of his friends around him they were shouting and the followed by throwing puched at us. I managed to get away with two of my friends and a group of females. I thought it was over. So we decieded to go to the Victory Hotel as we were walking down the street a Police car pulled up beside us. A Security Guard pointed and accused us that we pucnhed and kicked [the victim] earlier and stabbed him.”[84]
[Errors in original]
[84] Exhibit G1, G-Documents, G-11, page 84.

In this version of events, the Applicant did not admit any wrongdoing. When giving evidence at the Tribunal, he admitted that he punched someone. However, he would not commit to saying that the person he punched was the victim. The Applicant was sentenced on the basis that he either punched or kicked the victim and I am satisfied that he did. I am also satisfied, on the basis of the remarks of the honourable sentencing Judge, that the victim was stabbed by the Applicant’s friend in that same incident.[85] Accordingly, I am satisfied that the Applicant and at least one other person, together, attacked the victim.
[85] Ibid, G-9, page 61.
With respect to breaching a DVO in December 2015, the Applicant admitted to having thrown a bowl against the door, but he denied the rest of the allegations. I am satisfied that at the very least the Applicant violently threw an object in anger.
Neither of these offences were trivial or committed under circumstances that could mitigate their seriousness. The Direction provides that they are to be viewed very seriously.
In addition, on two separate occasions, the Applicant engaged in violence against a woman that led to the issuing of a DVO. The Applicant agreed to the facts alleged in relation to both incidents. His violent conduct towards his former girlfriend in 2015 involved physical violence in front of his infant child and her son from another relationship. It was only when her son started to cry that he took his hand from around her neck. I accept that this occurred. I further accept that in 2017, he punched his next partner twice in the face and that he was psychologically abusive towards her. The Applicant gave evidence that this partner used to physically attack him sometimes.[86] I accept that this happened. The Applicant did not contend that his abusive behaviour was in self-defence and I am not satisfied that it was.
[86] Transcript, page 39, lines 37-39.
The Applicant was not charged or convicted in relation to these incidents of domestic violence, so they cannot be characterised as violent offences. However, paragraph 13.1 of the Direction requires an evaluation not only of a non-citizen’s crimes, but also of their conduct. Accordingly, these incidents are relevant to my assessment of the nature and seriousness of the Applicant’s conduct to date. Both reported incidents of physical violence, one of which was committed in front of the victim’s children, are objectively serious. This is serious conduct and must weigh in favour of non-revocation.
The violent offending and other serious conduct discussed above weigh convincingly in favour of non-revocation.
Factor (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against Government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has one conviction for assault or obstruct police. There is no allegation that this offence involved violence. When the Applicant gave his version of the events that gave rise to that offence, his oral evidence and his physical demonstration appeared natural and authentic. I am satisfied that the Applicant was trying to hand his child to his girlfriend and then to police, and that he did not intentionally obstruct police. This conviction does not carry any determinative weight in favour of non-revocation.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the courts for the Applicant’s crimes. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing Court. That is clearly demonstrated by the Applicant’s criminal history. The courts initially gave the Applicant the benefit of community-based orders, being community service and probation, which he breached. The Applicant was given a stern warning by the learned Judge who sentenced him after he breached probation. That Judge imposed a sentence of nine months’ imprisonment, fully suspended, which is not an insubstantial penalty. The Applicant breached that sentence and was ordered to serve five months of the original sentence in prison. The Applicant was subsequently sentenced to periods of:
·12 months imprisonment (fully suspended) for the assault in 2003, then six months imprisonment (with immediate parole) for breaching that suspended sentence;
·nine months, six months and seven days imprisonment with immediate parole (which he breached) after having served 52 days in pre-sentence custody, for offences in 2017 and 2018; and
·12 months, eight months and six months imprisonment for offences in 2018.
It is apparent that the courts have sought to use the non-custodial mechanisms available to them to deter the Applicant from re-offending and these have been largely ineffectual. The Applicant has then been sentenced to substantial periods of imprisonment and required to serve some of those periods in custody. These sentences indicate that the Applicant’s offending, particularly his offending in 2003 and since 2017, has been viewed seriously by the courts. This factor weighs heavily in favour of non-revocation.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant committed some 53 offences between 1999 and 2018 not including breaches of previous sentences. His offending can be summarised as:
·very frequent property related offending (between 1999 and 2001;
·occasional offending between 2002 and 2008 – being an assault in 2003, public nuisance in 2006, possession of a knife in a public place in 2007, and contravene a direction or requirement (x2) in 2008;
·a gap in offending between 2009 and 2014;
·a breach of a DVO in 2015; and
·very frequent property offending and some drug related offending from late 2017 to mid-2018.
In two of the periods when the Applicant was offending, it was certainly frequent. Even when he did not commit property offences, between 2002 and 2008, he committed other types of offences.
There does appear to be an upward trend in the seriousness in the Applicant’s offending. The breach of DVO occurred in 2015 and the Applicant embarked on a spree of property offences in 2017 and 2018, which only stopped when he was incarcerated.
This factor (e) weighs heavily in favour of non-revocation.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending. There are some readily apparent impacts of the Applicant’s repeat offending. The violent conduct in 2003 caused injury to the male victim. The domestic violence cause fear and injury. These members of the community have been made to feel frightened or have been injured by the Applicant.
The Applicant was convicted of some offences that arose from him breaking into premises and stealing from them. Many other offences involved him having possession of property that had been stolen from premises that were broken into. In relation to those, the Applicant either stole the property or acquired it after it was stolen. Dealing in stolen property fuels property crime by providing a benefit to those who steal. The cumulative effect of the Applicant’s property offences is that private residences have been violated and individuals have been deprived of property that has monetary, practical, and/or sentimental value. Moreover, businesses premises have been broken into and damaged, and businesses have been deprived of their operating equipment such as computers and tools. The invasion of a private and previously secure space, the damage to property, and the loss of valuable items often has an adverse psychological impact on victims on top of any monetary loss. There were many victims of the Applicant’s property crimes.
The violence and the property crime have adversely impacted several members of the Australian community, rendering them serious. Moreover, the Applicant’s prolific offending has significantly burdened the criminal justice system, as he has been dealt with by courts on 17 occasions, arrested by the police on many more, and consumed the resources of Corrective Services while subject to community based orders and incarcerated. This factor weighs heavily in favour of non-revocation.
Factor (h) of paragraph 13.1.1(1) of the Direction refers to 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. The Applicant did indeed receive such a warning. In February 2010, he was notified that his visa could be cancelled on character grounds. In July 2010, he was notified that it would not be cancelled and given the following warning:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[87]
[87] Exhibit G1, G-Documents, G-3, page 9.
The Applicant concedes that he received these notifications and he understood the warning to mean that if he re-offended he “…could be kicked out of Australia”.[88] In these circumstances, where the Applicant had been given the benefit of keeping his visa and he was warned about the consequences of further offending, the fact that he went on to commit numerous further offences must weigh heavily against him.
[88] Transcript, page 14, lines 8 to 38.
I do not consider factors (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the reviewable decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The nature of the harm were the Applicant to engage in further violent conduct of the kind he has previously engaged in, which includes punching a woman’s face and holding his hands around a woman’s neck, includes psychological and physical injury, possibly of a very serious nature. The nature of harm arising from property offences includes the impacts that I have previously identified, being the sense of violation felt by victims, loss of items of personal and commercial value, and damage to premises. The stolen property included personal and business computers. It is likely that such items contain sensitive, personal, and commercial information that could well become compromised when the computer is stolen and sold. Another impact of property crime in relation to commercial premises includes financial loss if the business has to cease operating while damage is fixed or essential equipment is replaced. Accordingly, the harm to the community from property offences of the kind committed by the Applicant is multifarious and includes serious harm.
The Likelihood of the Non-Citizen Engaging in Further Criminal or other Serious Conduct
The Applicant said, of his offending:
“Since my imprisonment I have had alot of time to think about the lives I have impacted not only have I hurt people through my property crimes that I have hurt the people closest to me, my mother and sister who had to drive miles to see me while in custody… So if released into the public eye I will be further pushing my life achievements to be an upstanding figure in the community I will go back to help coaching and trainning the children at my old football club again… I still feel I have alot to achieve in my life but lately I had let my laziness and bad judgement pursue stupid decisions that have hurt the way society looks at me. This happened back in 2002 and I was imprisoned, this scared me straight for a long time, till I was troubled from my own self abuse that I am wide awake to now and I will not be doing any of that again. I have been clean from drugs since june last year and don’t plan on using any drugs for the rest of my life. I have done programs for the first time that have helped me realise environments, people, places and coping strategies that will help stop any further drug use and or put myself in a position where I might jepardise my future.”[89]
[Errors in original]
[89] Exhibit G1, G-Documents, G-11, page 87.
The Applicant explained to the Tribunal:
“I was a bit blasé about the whole thing…. I didn’t realise that until I got like my G documents and my contentions and like what I’d done because it had sunken in to a certain point but just the way I feel about myself committing offences towards other people - it’s just - yes, it’s just traumatising for everyone else. People that don’t even know me that have to put up with me, you know. So I’m sorry for that…
I don’t want to do drugs anymore, yes, I just want to work and get my life back on track here in Australia.”[90]
[90] Transcript, page 75, lines 5 to 15.
I am satisfied that the Applicant has some insight into the impact of his offending on members of the community. I am further satisfied that he is genuinely remorseful. However, it is very concerning that it took this long, and so much intervention by the criminal justice system, plus the cancellation of his visa for him to reach this point in his thinking. Further, he has previously expressed a similar desire to turn over a new leaf. In April 2002, a District Court Judge referred to a letter that the Applicant had written in which he represented that, in her Honour’s words, being incarcerated had been a salutary lesson, he had had time to think about his past mistakes, and he realised that prison was not what he wanted to do with his life. Despite this, the Applicant committed further offences.
The Applicant has an underlying problem with substance abuse. Linked to that, he appears to have unresolved issues with violence. He committed the assault outside the night club in 2003 when he had been drinking.[91] He was involved in a melee involving alcohol outside a McDonald’s restaurant in 2006. He physically attacked his ex-girlfriend in June 2015 when, according to her, he was a drug user. He was physically and verbally abusive to his next partner around December 2017 when, according to her, he was at the height of his drug use. The Applicant partly attributed his most recent spate of property crimes to his drug use in the sense that he stole to pay for drugs and his living expenses. His evidence about his first spate of property crimes between 1999 and 2001 is less clear. That offending appears to have had more to do with the people he was associating with at the time.
[91] Ibid, page 37, lines 5 to 6.
The Applicant’s sister and ex-partner both alluded to the Applicant possibly suffering a mental illness. The Applicant gave evidence that he was diagnosed by a psychologist when he was around 20 years old, although he did not specify the nature of the diagnosis. He said he did not get treatment, explaining “I get depressed and that sort of thing, but I just, you know, keep going forward”.[92] He has been offered medication, but he does not agree with taking medication.[93]
[92] Ibid, page 9, lines 37 to 38.
[93] Ibid, page 10, lines 3 to 4.
Previously, the intervention of the criminal justice system has not stopped the Applicant from offending. He attributed the seven year gap in his criminal offending to the warning that he could lose his visa and being generally happy with his life. I do not have the benefit of expert evidence about any psychological condition he might suffer or of his prospects of successful rehabilitation in an unregulated environment where he may not always be happy with his life.
Further, I have concerns that the Applicant’s ex-partner could compromise his rehabilitation if he is returned to the wider community. They had a “toxic” relationship in which both used methamphetamine.[94] There was violence in the relationship. The Applicant competed a course (Choices: Recovery From Substance Abuse) while in prison.[95] He gave evidence that the course helped him to identify “triggers”.[96] When asked how he would avoid bad influences, he said there was only a small group of his friends that used drugs and he would not go near them.[97] He identified his ex-partner as a trigger, although not a bad person,[98] and he said he did not intend to resume their relationship.[99] However, he has tried to cease all contact with her before and been unsuccessful.[100] His ex-partner, in her evidence, said she did not wish to resume her relationship with the Applicant but she left open the possibility of resuming contact with him and offering her support if “he was being his genuine self”.[101]
[94] Ibid, page 17, lines 24 to 25.
[95] Ibid, page 50, lines 33 to 46.
[96] Ibid, page 22, line 14.
[97] Ibid, lines 1 to 24.
[98] Ibid, page 54, lines 13 to 17.
[99] Ibid, page 26, lines 30 to 32.
[100] Ibid, page 54, lines 33 to 44.
[101] Ibid, page 63, lines 23 to 34.
The Applicant has completed the following additional programs while in detention:
·Bend Don’t Break: Building strengths that build resilience;[102]
·Do – It Program (by Lives Lived Well);[103] and
·Self Esteem Curriculum.[104]
[102] Exhibit G1, G-Documents, G-11, page 89.
[103] Ibid, page 90.
[104] Ibid, page 91.
The Applicant was not provided with certificates of completion and there is no evidence before me of how effective these courses were.
The Applicant’s criminal history shows persistence in offending and also a tendency to return to offending after periods of being law-abiding. His rehabilitative efforts are at an early stage and I am not confident that he is likely to abstain from drugs and crime if he is returned to the wider community. In addition, I am concerned that despite his current intention to avoid his ex-partner if he is returned to the community, there is a real possibility that they will resume contact of some kind and that this could lead to drug use or violence (including violence against her).
I consider that there is at least a moderate risk that the Applicant will re-offend if he is returned to the wider community.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person;
·the extent to which the person is likely to play a positive parental role in relation to the child;
·the likely effect that any separation from the person would have on the child;
·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;
·whether there are any other people who fill parental roles with the child; and
·any known wishes of the child.
The Applicant’s two children live with their mother in New Zealand. There is no reliable evidence before me to suggest that this is likely to change in the future. I note that the Applicant told the Tribunal that his children have “… been talking about moving back”[105], however the intentions or plans of their mother is unknown. Further, the Applicant’s mother, who says she is on friendly terms with the mother of his children, did not give any evidence to that effect. The Applicant’s children are not minor children in Australia, therefore this Primary Consideration does not require a consideration of the impact of the non-revocation of the decision under reviews on their best interests.
[105] Transcript, page 30, line 20.
The Applicant’s ex-partner has children from a previous relationship. The Applicant gave evidence that he used to help with her children when they were together, but he does not have any contact with them at present. There is no other information before me about these children except that they are two, three, and 10 years old. Neither the Applicant, nor his ex-partner, intends to resume their relationship if he is returned to the Australian community. The Applicant did not claim that revocation of the reviewable decision was in the best interests of these children. His ex-partner provided an impassioned letter of support and she gave evidence that that was mostly favourable to the Applicant. However, she has not made any claim to the effect that the Applicant’s removal to New Zealand would adversely impact her children. I do not consider any such claim to arise on the evidence. I am unable to allocate any determinative weight to this Primary Consideration with respect to these children.
The Applicant’s sister has five children. Child A was born in 2012, Child B was born in 2013, Children C and D (twins) were born in 2015, and Child E was born in 2017.[106] They live in Brisbane. The Applicant’s sister said the father of these children “picks and chooses when he wants to be involved” in their lives and that currently he has no involvement.[107] She said she relies on help from her parents and other brother, but they work full-time.[108] Of the Applicant’s absence from her life, she said:
“It’s been really hard just trying to get my life in order and try to deal with my son and his problems and myself and my own problems and getting everyone where they need to be and what-not, so it has been hard like that and just not having [the Applicant] there.”[109]
[106] Exhibit G1, G-Documents, G-11.
[107] Transcript, page 67, lines 27 to 30.
[108] Ibid, lines 34 to 36.
[109] Ibid, lines 36 to 40.
The Applicant gave evidence that he used to take the children to school and swimming and he took his nephew to football training.[110] He has seen only the two year old since being incarcerated, as his sister brought that child with her when she visited him.[111]
[110] Ibid, page 18, lines 13 to 18.
[111] Ibid, page 68, lines 20 to 23.
The Applicant’s sister said the Applicant used to help her look after her children, for example he took them to kindergarten and looked after them for the night.[112] She said Child A struggles with post-traumatic stress disorder and severe anxiety. The Applicant took good care of Child A and this child felt confident to open up to the Applicant about things he did not mention to her.[113] She said that when the Applicant was incarcerated Child A would ask about him every day and his confidence and motivation slowly drifted away. However, now that the Applicant is in immigration detention and is allowed a phone, Child A has been able to contact him which has had a positive effect on him.[114] Child A talks about the Applicant one day taking him to school or picking him up or spending time with him at Easter or Christmas.[115] The Applicant’s sister expressed concern that if the Applicant is deported, her son would once again lose all motivation and that he would “spiral downwards mentally”.[116] The Applicant gave evidence that he does not communicate with the children from the detention centre. He said “They just say hello while I’m speaking to my sister, pop their heads in and that”.[117]
[112] Ibid, page 65, lines 35 to 38.
[113] Exhibit A5, Letter of Support - Sister, 26 March 2020.
[114] Ibid.
[115] Ibid.
[116] Ibid.
[117] Transcript, page 19, lines 19 to 24.
The Applicant returned to Brisbane from working in the mines in 2014. His girlfriend left with their children in mid-2016. He estimated that he lived with his sister and her children for around a year[118] before they had a falling out,[119] which he initially said occurred around a year before he was incarcerated[120] (which would make it mid-2017) and later said happened at the end of 2017.[121] The Applicant said he did not see the children during the period of estrangement.[122] The Applicant’s sister gave evidence that, although she had no contact with the Applicant, her children continued to have telephone contact with him and he “would still help out with picking them up and dropping them off”.[123] I find it implausible that the Applicant’s sister would continue to have the Applicant care for her young children at a time when she had nothing to do with him. I prefer the Applicant’s evidence on this issue.
[118] Ibid, lines 31 to 33.
[119] Exhibit A5, Letter of Support – Sister, 26 March 2020.
[120] Transcript, page 18, lines 34 to 36.
[121] Ibid, page 27, lines 34 to 35.
[122] Ibid, page 18, lines 27 to 32.
[123] Ibid, page 66, lines 10 to 26.
I am satisfied that between 2014 and mid-late 2017 the Applicant spent time with his sister and her children and helped her care for them, and that for around a year he lived in the same house as them. I do not accept that the Applicant spent time with them after late-2017, but I accept that he may have had some telephone contact with them from that time. I consider that the Applicant’s sister tended to exaggerate the extent of the Applicant’s past and current involvement in her children’s lives. With respect to her evidence that her son had telephone contact with the Applicant after the Applicant moved to immigration detention, I find, consistent with the Applicant’s evidence, that this was limited to her son interjecting in conversations between the Applicant and his sister.
The youngest of the Applicant’s children, Child E, was born in September 2017. The Applicant could not have had any meaningful relationship at all with this child. Children C and D, who were born in late 2015, would have been toddlers when the Applicant last spent time with them, making the duration of their relationship with him very short. The Applicant’s sister said the Applicant never acted in a violent manner or used drugs around her children.[124] I accept that the Applicant played a positive role, albeit not a parental role, in the lives of Child A and Child B for a few years.
[124] Ibid.
The Applicant’s mother gave evidence that all of the children ask about the Applicant “all the time”.[125] I find it implausible that Children C, D, and E ask about the Applicant, much less all the time, and I reject that part of the Applicant’s mother’s evidence. There is no reliable evidence before me of any known wishes of any of the children apart from what I can infer with respect to Child A, which is that Child A would like the Applicant to be physically present in his life. Child A has been having counselling.[126] The Applicant’s sister agreed, when giving evidence, that her children would be able to communicate with the Applicant by phone or digital means if he were to be removed to New Zealand.[127]
[125] Ibid, page 59, lines 21 to 25.
[126] Ibid, page 66, lines 40 to 45.
[127] Ibid, page 67, lines 1 to 5.
There is no evidence that the Applicant has ever played a parental role, or is likely to ever play a parental role, with respect to any of the children as their mother already fulfils that role.
Due to the young ages of the children, there is significant potential for the Applicant to be a positive influence in their lives in the capacity of a non-parental relative. If he is removed to New Zealand, he will not be able to be physically present in their lives. However, he will be able to use electronic communication to establish and maintain relationships with them.
Conclusion: Primary Consideration B
I am satisfied that it would be in the best interests of all five children, especially Child A, for the Applicant to remain in Australia. However, applying the relevant factors contained in paragraph 13.2(4) of the Direction, I find this consideration carries only limited weight in favour of revocation. Primary Consideration B weighs slightly in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian Government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[128]
[128] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia at a very young age (he was five years old) and he has spent over three-quarters of his life here (32 years);
·he committed his first offence when he was 17 years old, eleven years after moving here;
·he has committed numerous property offences and some violent offences, and he has engaged in violent conduct towards two female partners;
·his offending is serious in nature;
·intervention by the police and the courts has failed, on previous occasions, to deter him from offending, indicating a lack of respect for the laws that govern the community that he wishes to re-enter;
·there is at least a moderate risk that if he is returned to the wider Australian community he will re-offend and that such re-offending will pose a risk of serious harm to individuals and the community;
·after an extended period when he did not offend, he suffered the breakdown of his relationship with the mother of his children, and he was then separated from his children and unable to contact them for around four years which caused him great anguish;
·between 2005 and 2016, he largely had gainful employment, and for one season he volunteered with a football club. He also helped his sister with her children between 2014 and 2016. I consider that he has made a modest positive contribution to the Australian Community;
·his absence from Australia will adversely impact his family in the sense that, according to his mother, there will be a “missing link in the family”.[129] Further, his sister will not be able to call on him to help her with her five young children; and
·he has had some involvement in the lives of his sister’s children up to this point, and if he is removed to New Zealand there will not be any potential for him to spend time with them or help take them to school and extra-curricular activities. In particular, he will not be able to spend time with his nephew who has some psychological challenges and with whom he has a special bond.
Conclusion: Primary Consideration C
[129] Transcript, page 59, lines 22 to 25.
The Applicant has repeatedly breached the trust of the Australian community. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia since the age of five. He commenced offending eleven years after his arrival at the age of 17. On account of his youth when he relocated, the time he has been here, and the fact that he did not commence offending soon after arriving in Australia, he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a) of the Direction.
The Applicant spent over 10 years in gainful employment and has done a small amount of volunteer work. These matters add a modest measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has social ties to people from the area where he grew up, from his high school and at a football club. His parents, siblings, nieces, and nephews live here. I am satisfied that the Applicant has long-standing, close familial and social ties to the Australian community. This weighs significantly in his favour.
Overall, I am satisfied that the strength, duration, and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant did not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). The Applicant’s ex-partner is a victim of at least one incident of physical violence. Removing the Applicant to New Zealand could well serve her interests by eliminating the risk that she will fall back into a relationship with the Applicant that is toxic and puts her at risk of violence. However, in her letter of support she said she it would “destroy” her if the Applicant is returned to New Zealand.[130] When asked to clarify what she meant by that she said:
“But, like, he’s always - there was always a connection between me and him. I can’t explain it. After everything that happened I still love him dearly, and he has a place in my heart. And it would, it would destroy me knowing that his life that he knows - you know, he spent his whole life here pretty much. This is - to send him home with no support, no - it’s throwing him to the wolves. I’m sorry, but it is.”[131]
[130] Exhibit A1, Letter of Support – Ex-Partner, dated 8 December 2019.
[131] Transcript, page 63, lines 39 to 45.
When she was asked “Are you saying that you would feel terrible for him, not so much that it would destroy your life?”, she replied:
“For him and myself… knowing that I wouldn’t have a chance to see him again, knowing that I wouldn’t have - you know, we wouldn’t have the ability to maybe reconnect as friends. You know, to build a friendship.”[132]
[132] Ibid, page 64, lines 1 to 7.
I take this witness’s evidence to be that, if the Applicant is removed to New Zealand, she would feel bad for him and for herself. In circumstances where the Applicant’s removal from Australia could serve to protect his victim from becoming involved in a potentially harmful friendship or other kind of relationship but will cause her emotional pain, this Other Consideration (d) does not have determinative weight one way or the other. This Other Consideration is neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant did not claim to have any medical problems. He gave evidence that he suffers from depression, but that he has not sought treatment, and will not take medication for it.
His Statement of Facts, Issues and Contentions states that his scaffolding qualifications are not recognised in New Zealand and that he would have to obtain new qualifications in order to work in his trade in New Zealand. When giving evidence, the Applicant clarified this statement. He said he would have to do a test in New Zealand to obtain his “tickets” and that he understood it took about six years, however he could still work in the scaffolding industry “Just like labouring sort of work, but not actual scaffolding”.[133]
[133] Ibid, page 9, line 29.
The Applicant has three uncles and their children in New Zealand who he says he has not spoken with in years.[134] He claimed not to have any connections in New Zealand.[135] However, he said that he if he went back to New Zealand he would try to make contact with his children.[136]
[134] Ibid, page 29, lines 1 to 3.
[135] Ibid, lines 5 to 6.
[136] Ibid, page 30, lines 16-24.
At the age of 38, the Applicant is relatively young and there is no evidence before me to suggest that he is not able-bodied. He has a good work history in the scaffolding industry, and thinks he will be able to work as a labourer in New Zealand. He has relatives in New Zealand, although he has not had recent contact with them. It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand, which is culturally and linguistically similar to Australia.

It is likely that the Applicant will face some difficulty in re-establishing himself in New Zealand as he does not have an existing social or support network there, he will have to secure accommodation, and he will have to obtain a job or arrange income support. However, any such difficulty would be short-term only and would not prevent him from successfully re-settling there.[137]
[137] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
Accordingly, I am of the view that this Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..................................[SGD]......................................
Associate
Dated: 23 April 2020

Date of hearing: 15 April 2020

Applicant: By video-link

Solicitors for the Respondent: Mr Jake Kyranis
Sparke Helmore
“Attachment A – Exhibit List”

Exhibit

Description of Evidence

Party

Date of Document

Date Received by Tribunal

G1

Section 501 G-Documents (paged 1-139)

R

-

21 FEB 20

R1

Tender Bundle

R

-

23 MAR 20

A1

Applicant’s Statement of Facts, Issues and Contentions

A

30 MAR 20

30 MAR 20

R2

Respondent’s Statement of Facts, Issues and Contentions

R

23 MAR 20

23 MAR 20

A2

Letter of Support – Ex-Partner

A

8 DEC 19

17 MAR 20

A3

Letter of Support – Friend

A

10 FEB 20

17 MAR 20

A4

Letter of Support – Mother

A

30 MAR 20

17 MAR 20

A5

Letter of Support – Sister

A

26 MAR 20

6 APR 20

[2020] AATA 937

23 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	15 April 2020
Applicant:	By video-link
Solicitors for the Respondent:	Mr Jake Kyranis Sparke Helmore

Exhibit	Description of Evidence	Party	Date of Document	Date Received by Tribunal
G1	Section 501 G-Documents (paged 1-139)	R	-	21 FEB 20
R1	Tender Bundle	R	-	23 MAR 20
A1	Applicant’s Statement of Facts, Issues and Contentions	A	30 MAR 20	30 MAR 20
R2	Respondent’s Statement of Facts, Issues and Contentions	R	23 MAR 20	23 MAR 20
A2	Letter of Support – Ex-Partner	A	8 DEC 19	17 MAR 20
A3	Letter of Support – Friend	A	10 FEB 20	17 MAR 20
A4	Letter of Support – Mother	A	30 MAR 20	17 MAR 20
A5	Letter of Support – Sister	A	26 MAR 20	6 APR 20