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

[2020] AATA 3762

MXDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3762 (28 September 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2020/4062
GENERAL DIVISION  )

Re: MXDK
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Mr Rob Reitano, Member

DATE of CORRIGENDUM:              6 October 2020

PLACE:           Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

1. the sentence in paragraph 15 beginning “He returned to the house later…” is replaced with a sentence reading “He returned to the house later, when Ms GH had left for her mother’s home, and ‘trashed it’, kicking things over, destroying and upending property and damaging a television in ‘just a display of violence and aggression’.”
2. the sentence in paragraph 16 ending “…I’m going to upload stuff on Facebook to embarrass you” is replaced with a sentence reading “Ms GH answered some of the calls during which she was met with the words ‘You’re a slut, you’re sleeping with other guys, I’m going to break into your house, I’m going to upload stuff on Facebook to embarrass you’.”
3. the sentence in paragraph 62 beginning “He then lived with…” is replaced with a sentence reading “He then lived with Ms GH and his son for about 11 months before he went to prison and after that was placed in detention.”
4. the reference to “Ms G” in paragraph 28 of the decision is replaced with “Ms GH”.

..................................[sgd].................................

Mr Rob Reitano, Member

Division:GENERAL DIVISION

File Number(s):      2020/4062

Re:MXDK

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:28 September 2020

Place:Sydney

I affirm the delegate’s decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa.

.................................[sgd]....................................

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – Applicant is a citizen of New Zealand – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

BP v R [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

SECONDARY MATERIALS

Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA

REASONS FOR DECISION

Mr Rob Reitano, Member

28 September 2020

1. On 11 January 2019 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required by ss.501(3A) of the Migration Act 1958 (Cth) (Act) to cancel MXDK‘s Class TY Subclass 444 Special Category (Temporary) Visa (Decision) which meant that MXDK was no longer able to remain in Australia.

2. The delegate was required to make the decision to cancel the visa because MXDK could not satisfy the Minister that he passed the character test in the Act as he had a ‘substantial criminal record’ by reason of his being sentenced to a term of imprisonment of 12 months or more. This was because on 9 November 2018 he was sentenced to serve a period of imprisonment of three years and 10 months concerning his conviction for the offence of assault with intent to commit a robbery whilst in company.

3. On 22 January 2019 MXDK made representations to the Minister about why the Minister should revoke the decision that had been made to cancel his visa, claiming that there was ‘another reason’ why the original decision to cancel his visa should be revoked.

4. On 6 July 2020, after considering MXDK’s representations, a delegate of the Minister decided not to revoke the decision to cancel the visa.

5. On 7 July 2020 MXDK made an application to the Tribunal seeking a review of the decision refusing to revoke the decision to cancel the visa. MXDK seeks, by that application, to have the decision cancelling his visa revoked.

6. I have decided to affirm the delegate’s decision for the reasons that follow.

   ISSUE

7. The only issue is whether the Tribunal is satisfied that there is ‘another reason’ under ss.501CA(4)(b) of the Act to revoke the decision cancelling the Visa. This is because MXDK made representations to the Minister seeking revocation of the decision to cancel the visa which is the prerequisite to the exercise of the power to revoke that decision.[1] The only other basis on which the visa could be restored is if MXDK passes the character test. However, for the reason I have already referred to, he is unable to satisfy the character test.

   [1] ss.501CA(4)(a)

8. The question of whether there is ‘another reason’ to revoke the mandatory cancellation of the Visa depends upon the application and consideration of the matters arising under ‘Direction No 79 – Visa Refusal and Cancellation under s.501 and Revocation of a Mandatory Cancellation of a Visa under s.501CA’ (Direction) because the Direction provides a framework about the principles and matters that need to be considered.

   FACTS

9. In 2002 MXDK, who was then 5 years of age, came to Australia with his mother, brother and sister. He has lived in Australia ever since. He has not been outside of Australia since his arrival. He regards Australia as his home. He has no family or friends in New Zealand.

10. On arrival in Australia, his family settled in the western suburbs of Sydney. He grew up without anyone in his life who he says could be described as a father figure. He had a stepfather who was ‘an alcoholic and was violent towards him’. He completed school to year 10 level, having attended three different primary schools and four different high schools. He played sport. He was apparently suspended from school many times, 30 or 40 times according to him. He left home at 17 years of age.

11. When he was about 12 years of age, he and Ms GH became close friends after they met on the train. For MXDK, it was ‘love at first sight’. He and Ms GH would meet on weekends and ‘shop, eat and go to the beach together’. A few years later, they decided ‘to enter into a serious relationship.’ Some years after that, they began to live with each other in a de facto relationship.

12. In early September 2012, when he would have been about 15 years of age, MXDK was found guilty of offences involving causing malicious damage to property for which he received a caution. Later the same month he was found guilty of the offence of aggravated break and enter and was placed on a probation order that required him to be of good behaviour for 18 months. These offences obviously involve violence against property.

13. In May 2013 MXDK was found guilty of a series of offences involving throwing a bottle at a police officer, assault occasioning actual bodily harm, larceny, robbery and breaching his probation order. For these offences, he was placed on a probation order that required him to be of good behaviour for three months except for the assault charge for which he received a suspended sentence of three months and was placed on a good behaviour bond. For none of these offences was he convicted. It is not necessary to say much about these offences perhaps other than to identify that, in varying degrees of seriousness, they involved violence to people including punching and kicking people, threats of violence to people and perhaps only slightly less seriously, the taking of property. They involved something of an escalation in seriousness from his previous offences which only were against property.

14. In February 2014 after they had been living together for a while, about a year or so, MXDK and Ms GH had a son. On 2 February 2015 whilst they were living together, there was an incident between MXDK and Ms GH. The police facts sheet for the offence suggests that MXDK and Ms GH were not living together at the time. I reject that suggestion. There was not the slightest doubt created by either MXDK’s or Ms GH’s evidence that they were living together at that time and had been living together since before their son was born. In any event, I am not sure that it makes any real difference whether they were living together at the time or not.

15. Returning to the narrative, MXDK and Ms GH had an argument that day. At some stage during the argument, MXDK dragged Ms GH into the bedroom and pushed her down onto the bed. He punched her thigh whilst holding her head down into the bed. Whilst grabbing her hair he ‘managed to give her a black eye by some reckless act’. The argument continued. Eventually MXDK punched a hole in the door and left. After he left MXDK sent Ms GH a series of text messages. He returned to the house later, when Ms GH had left for her mother’s home, and ‘trashed it’, kicking things over, destroying and upending property and damaging a television in ‘just a display of violence and aggression’. During the whole time of the assault and the destruction of property, MXDK and Ms GH’s son was fortuitously being minded by Ms GH’s mother and was not present when any of the offending conduct occurred.

16. On 10 February 2015 an apprehended violence order was made that, among other things, prohibited MXDK from contacting Ms GH. A few weeks later MXDK contravened that order by making a large number of phone calls to Ms GH over the space of about two hours between 1:50am and 3:45am. Ms GH answered some of the calls during which she was met with the words ‘You’re a slut, you’re sleeping with other guys, I’m going to break into your house, I’m going to upload stuff on Facebook to embarrass you’. Later the same day Ms GH received some more phone calls. The details of what were said have not been provided but they were described in the police facts sheet as involving ‘swearing and threatening the victim’ like the calls that had been made earlier.

17. MXDK was charged with offences of assault occasioning actual bodily harm and causing malicious damage to property valued between $2000 and $5000. He was bailed on these charges, but his bail was revoked when he contravened the terms of his bail. As I understand the sequence of events, he was then also charged with offences concerning his contravention of a restriction or prohibition in an apprehended violence order and using a carriage service to menace and harass or offend.

18. On 14 May 2015 MXDK was sentenced to terms of imprisonment of nine months for the assault offence and the malicious damage offence, four months imprisonment for contravening the apprehended violence order and placed on a good behaviour bond for 18 months in relation to the offensive phone calls. Significantly, all his custodial sentences were suspended based on him entering into good behaviour bonds. In taking this course, the Magistrate noted that by the time he came to sentence MXDK, MXDK had already spent about two and one half months in custody after his bail had been revoked. The Magistrate also said that in taking that course, he was having regard to MXDK’s young age so that MXDK would be given the ‘opportunity to prove to himself, most importantly, but also to the community that he can turn his life around and stop offending in this way.’ He was also ordered to be subject to supervision by way of counselling and education relating to drug and alcohol rehabilitation. Based solely on MXDK’s evidence, that involved weekly visits to a probation officer and being urine tested.

19. After MXDK was sentenced and released from custody, he and Ms GH, and so it would seem, their one year old son, did not see each other for about 12 months. At some stage in 2016, most probably (on the estimates provided by MXDK and Ms GH) in about April or May 2016, MXDK and Ms GH spoke. Ms GH formed the view that MXDK was genuinely sorry for what had happened and she decided to ‘forgive him and give him one chance for our family’. Since then nothing like what happened in February 2015 has happened again and MXDK has been a ‘dedicated partner and father’.

20. On 30 September 2016 the opportunity given to him by the Magistrate went awry as MXDK committed another criminal offence. This offence was the one that triggered the mandatory cancellation of MXDK’s visa, of assault with intent to rob in company. The circumstances of the offence were that MXDK and his co-offender approached a man, the victim, in Mount Druitt during the early hours of the morning. The victim was walking to Mount Druitt train station in order to get the train to go to work. The co-offender took the man’s almost empty packet of cigarettes. MXDK demanded that the man give MXDK his mobile phone. MXDK struck the victim on the arm with a branch from a tree. He, or his co-offender, were found to have pushed the man to the ground. The victim was then punched and kicked by MXDK and the co-offender whilst he was on the ground. The victim got to his feet and tried to walk away. MXDK and the co-accused followed him. The victim suffered lacerations to his face, arm, fingers and knee. The only property that was stolen was the almost empty packet of cigarettes. MXDK was intoxicated by alcohol and affected by methamphetamine at the time.

21. Between 30 September 2016 and 23 August 2017, a period of almost one year, MXDK was in custody. He was granted bail on 23 August 2017 which was revoked on 6 July 2018 when a jury returned a verdict of guilty. MXDK did not commit any offences whilst he was on bail. His evidence, and that of Ms GH, was that he worked in full time employment during that time and provided for Ms GH and his young child.

22. On 9 November 2018 MXDK was sentenced. The sentencing judge found the offence to be slightly below the mid-range of seriousness for such offences. When he was sentenced, a pre-sentence report was prepared and provided to the Court. The report assessed MXDK as having a low to moderate risk of re-offending. There was also a report from a forensic psychologist that identified that MXDK presented as a person with ‘poor impulse control and a history of engaging in anti-social behaviour with little regard for the impact of his actions on others’. The sentencing judge expressed the opinion that MXDK ‘has reasonable prospects for rehabilitation’. The sentencing judge expressed the opinion that MXDK’s prospects of rehabilitation largely depended on his capacity to avoid drugs, to stay away from ‘negative peer associations’ and to obtain employment upon his release. The sentencing judge expressly found that MXDK had a profound deprived early background so as to engage the principle in sentencing discussed in Bugmy v The Queen.[2] MXDK was sentenced to three years and 11 months imprisonment with a non-parole period of two years and four months.

    [2] (2013) 249 CLR 571.

23. MXDK’s most recent period in custody was punctuated by episodes of aggressive behaviour or behaviour that demonstrated a tendency towards violence. On 26 July 2018 whilst in prison, MXDK was found to have assaulted another inmate whose face was ‘covered in blood’ and taken that inmate’s buy up. Although the records show that MXDK ‘pleaded guilty’ to the charge and was penalised for it, he claimed in his evidence that he punched the other inmate in self-defence because the other inmate had pushed him. He denied taking the inmate’s buy up. On 21 November 2019 MXDK kicked a door and demanded to be let back into the wing after which he told an officer to ‘[f]uck off and go check the cameras’. On another occasion whilst in detention in March 2020 he was ‘hostile’ towards officers, called them ‘dogs’ and refused to be searched. MXDK admitted much of this kind of behaviour, said he was ashamed of it and put it down to the stress associated with being in custody or detention. MXDK conceded that he had been aggressive towards officers whilst in prison and in detention. He conceded at various times he had acted disrespectfully or inappropriately towards officers and at times said that those officers were only doing their job and did not deserve to be treated that way.

24. There were some other instances of similar conduct in the documentary material that was produced under summons and tendered in evidence, but it is not necessary to refer to it or deal with it in any detail. In at least some cases the weight accorded to it is not great in the face of the fact that MXDK denied some of it and there was no evidence called to support the factual matters in the documents. In general, where such information concerns allegations of misconduct which are disputed, I am not prepared to place any reliance on that material absent direct evidence, having regard to the potentially serious consequences associated with relying upon it in proceedings like this one.

25. On two occasions, MXDK has been found to be in possession of illegal drugs: once whilst in prison with two buprenorphine wafers in August 2019 and the other in detention as recently as March this year when he was discovered with a bag of what he described as ‘only weed’. MXDK claimed he did not know that the buprenorphine wafers were illegal.

26. MXDK expressed remorse for his criminal offending, particularly in relation to his offences against Ms GH and the victim of his assault with intent to commit robbery in company. He says, amongst other things, that he is determined not to offend again and to avoid the influence of drugs and alcohol. He put his offending down to the fact that he was young at the time and did not know better. MXDK showed some understanding about his offending associating it with his substance abuse and the people who he engages with. He says he wishes to establish a family life and be rid of his criminal offending in the future. He has been offered full time work on his release.

27. MXDK describes his son as his ‘pride and joy’ and someone with whom he tried to spend as much time as possible. He spent time with his son and Ms GH by taking him to the park, venturing out to dinner and in visiting his and Ms GH’s families. Ms GH said that their son misses his father dearly and ‘beg[s] for daddy to come home multiple times a day’. She says she does not know what to tell her son. MXDK also has an eight year old niece who is the daughter of MXDK’s sister. He has helped with her care since she was a baby. He says he treated her like his own daughter and that he saw her every second weekend or when he had time. He would take her and his son shopping on weekends.

28. There were a series of testimonials that were referred to in evidence which attested to the ‘change’ in MXDK. These were from Ms GH, Ms D, Mr S and Mr C. Almost all of them did not know the details of MXDK’s offending but attested to the fact that they were confident he would not re-offend in the future. If one thing was clear from their evidence, it was that MXDK would have some level of support if he were released into the Australian community.

29. I will refer to some other relevant facts as the need arises.

    IS THERE ANOTHER REASON FOR REVOCATION?

30. Subsection 499(2A) of the Act requires the Tribunal, in exercising its functions and powers under the Act, to comply with any written directions given by the Minister under ss.499(1). I am required, when considering whether ‘there is another reason why the original decision should be revoked’, to be informed by the Direction. The Direction is ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act…to revoke a mandatory cancellation under section 501CA of the Act’.[3] Its object is to provide ‘a framework within which decision-makers should approach their task of deciding whether…to revoke a mandatory cancellation under section 501CA’. The Direction identifies ‘relevant factors that must be considered in… making a revocation decision’.[4] The Direction ‘principles’ and ‘relevant factors that must be considered’ are required to be applied in a particular way. The ‘principles’ and the ‘relevant factors that must be considered’ condition the evaluative judgment that a decision-maker is required to make under s.501CA(4)(b)(ii) of the Act.

    [3] Cl.6.1(4)

    [4] Cl.6.2(3)

    The principles

1. The principles ‘inform’ a decision-maker about the matters that must be considered in determining whether the mandatory cancellation of a visa will be revoked.[5]

   [5] Cl.7(1)

2. The first of the principles records the sovereign right of Australia to determine whether non-citizens of ‘character concern’ are allowed to ‘remain in Australia’.[6] It records the fact that being in Australia is a privilege that is conferred in the expectation that non-citizens are ‘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’. The principle is about the fact that it is Australia who decides who can be in Australia and that Australia permits people to be here on the express basis that they will abide with Australian law.

   [6] Cl.6.3(1)

3. The second principle refers to the expectation of the Australian community 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’.[7] This principle is reiterated later in the factors that must be considered, but it is important that it is the ‘expectation’ of the Australian community that is relevant and not the general proposition that those who commit serious crimes in Australia or elsewhere should be refused entry or have their visa cancelled. The expectation referred to in the principle is normatively established by the principle itself. The expectation is re-iterated expressly in the factors that are to be considered.

   [7] Cl.6.3(2)

4. The third principle refers to ‘a non-citizen who has committed a serious crime 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… forfeit the privilege of staying in, Australia’.[8] This operates on the premise of a ‘general’ expectation or rule and not one that is either to be applied in every case, or more importantly, in specific circumstances. The word ‘generally’ could refer to the character test found in the first limb of s.501CA(4)(b) because the product of failing the character test based on the commission of serious criminal offending produces that outcome. In any event, the word ‘generally’ suggests that in a given set of circumstances the ‘general’ will, or might, give way to the specific.

   [8] Cl. 6.3(3)

5. The fourth principle opens with the words ‘[i]n some circumstances’, indicating that there will be specific cases that attract its attention.[9] The ‘some circumstances’ are those where ‘criminal offending or other conduct… may be so serious, that any risk of similar conduct in the future is unacceptable’ and it is ‘[i]n these circumstances’ that ‘even other strong countervailing considerations may be insufficient to justify not cancelling… the visa’. This principle leaves open two possibilities relevant to not cancelling a visa. The first is where criminal offending or other conduct is not so serious that ‘strong countervailing considerations’, or even countervailing considerations alone, might justify not cancelling a visa. The second is where ‘strong countervailing considerations’ may be, in any event, sufficient to justify not cancelling a visa.

   [9] Cl.6.3(4)

6. The fifth principle is that: ‘Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia ‘may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age’.[10] So far as this principle is concerned, sight should not be lost of the fact that living in the Australian community for most of their life, or from a very young age, is not at all qualified by the words ‘participating in, and contributing to’ as applies in the case with those who have only been in Australia for a short time. Although it is not expressed to be the case, these are likely to be amongst the ‘countervailing considerations’ that are relevant to the fourth principle. It is also important that living in Australia for ‘most of their life’ or ‘from a very young age’ is not something that is to be regarded as an automatic exception to the general position of ‘low tolerance’; the word ‘may’ suggests that the issue is an open one presumably dependant on other principles, the relevant factors that must be considered and, naturally enough, the circumstances of the particular case.

   [10] Cl.6.3(5)

7. The sixth principle refers to Australia’s ‘low tolerance of any criminal or other serious conduct’ such that those who hold a limited stay visa can have no expectation that they may remain here permanently.[11]

   [11] Cl.6.3(6)

8. The seventh principle, like the fifth, states that the ‘length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa…cancellation for minor children and family members’ are considerations.[12] The use of the conjunction ‘and’ suggests that a positive contribution is not relevant to the issue of consequences for minor children and family members so that, so far as consequences for minor children and family members are considered, time is immaterial. Again, these are likely to be among the countervailing considerations referred to in other principles.

   [12] Cl.6.3(7)

   The primary and other considerations

9. The Direction requires that the principles inform the decision-maker’s consideration of the matters referred to in Part C.[13] Part C contains ‘primary considerations’ and ‘other considerations.’ Both classes of considerations may weigh in favour of or against revocation of the mandatory cancellation of a visa;[14] rationally, some of them in particular cases, might be entirely neutral or even irrelevant. Primary considerations should ‘generally be given greater weight than other considerations’.[15] Again, the use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘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’.[16] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is reasonably left to the good sense of the decision-maker in weighing the relevant matters.

   [13] Cl.7(1)(b)

   [14] Cl.8(3)

   [15] Cl.8(4)

   [16] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]

10. The ‘primary considerations’ are the protection of the Australian community from criminal or other serious conduct,[17] the best interests of minor children in Australia,[18] and the expectations of the Australian community.[19] The ‘other considerations’ include, noting that the class of other considerations is not closed, international non-refoulment obligations,[20] the strength, nature and duration of ties,[21] the impact upon Australia business interests,[22] the impact on victims,[23] and the extent of impediments if a non-citizen is removed from Australia.[24] I note that international non-refoulement obligations and the impact upon Australian business interests are not relevant considerations in this case.

    [17] Cl.13.1

    [18] Cl.13.2

    [19] Cl.13.3

    [20] Cl.14.1

    [21] Cl.14.2

    [22] Cl.14.3

    [23] Cl.14.4

    [24] Cl.14.5

11. It is necessary to consider each of the considerations informed by the principles referred to earlier. It is convenient to record, consider and deal with each of the primary and other considerations in turn, dealing with the facts relevant to each of them as they are considered.

    Protection of the Australian community

12. So far as this consideration is concerned, I am directed to give consideration to: ‘the principle that the Government is committed to protecting the Australia community from harm as a result of criminal activity or other serious conduct by non-citizens’; and that ‘[r]emaining in Australia is a privilege that Australia confers on non-citizens’ in the expectation that they will obey the law, will respect Australia’s institutions and will not cause or threaten harm to individuals of the community.[25] I am required to consider the nature and seriousness of the conduct and the risk to the Australian community should further offences or other serious conduct be engaged in by the non-citizen.[26]

    [25] Cl.13.1(1)

    [26] Cl.13.1(2)

13. The Direction details nine matters I must have regard to in assessing the nature and seriousness of the offence. The use of the word ‘including’ in the introduction to the sub-paragraphs means that I may consider other matters. The phrase ‘nature and seriousness of the offence’ is redolent of the kinds of things routinely considered in sentencing for criminal offences, but the use of that phrase should probably not be interpreted strictly in a criminal law sense because the sub-paragraphs which follow require consideration of matters that strictly are not relevant to the nature and seriousness of the offence. In particular, consideration of ‘the sentence imposed by the courts’ will naturally enough involve matters concerning the moral culpability of the offending and the subjective factors that accompanied commission of the offence. The phrase ‘nature and seriousness of the offence’ in this instance most probably has a wider meaning than it is accorded in criminal law circles.

14. The specific matters I must consider in this case are: ‘[t]he principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’;[27] ‘[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’;[28] ‘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’;[29] ‘the sentence imposed by the Court for a crime or crimes’;[30] ‘[t]he frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’;[31] and ‘the cumulative effect of repeated offending’.[32] I have considered the remaining factors[33] and they are irrelevant in this matter. Neither party suggested otherwise.

    [27] Cl.13.1.1(1)(a)

    [28] Cl.13.1.1(1)(b)

    [29] Cl.13.1.1(1)(c)

    [30] Cl.13.1.1(1)(d)

    [31] Cl.13.1.1(1)(e)

    [32] Cl.13.1.1(1)(f)

    [33] Cl.13.1.1(1)(g)-(i)

15. The domestic violence offence committed against Ms GH and the assault with intent to commit robbery in company are both objectively viewed as serious offences. They both involved violence and the domestic violence offence in particular, involved violence directed at a woman. The fact of violence and of violence directed at a woman attracts the application of the principle that the offence is to be viewed very seriously. I should add that the domestic violence offences did not simply involve the physical violence occasioned by the punch to Ms GH’s thigh, grabbing her hair and causing her to have a black eye, but it also involved emotional and psychological violence associated with the fear or terror that would fairly naturally have been caused to her by the phone calls and text messages she received and the destruction of property in every room of her house. It is also relevant that although the other offence did not involve someone who was definitionally ‘vulnerable’ by reason of sex, disability or age, the victim of the assault with intent to commit robbery in company was rendered vulnerable because the offence was committed in company, involving ‘two against one’ in a reasonably isolated environment, because it was committed in the early hours of the morning when not very many people were likely to have been around. That is partly reflected by the serious nature of the offence itself, but sight should not be lost of that fact when assessing the overall seriousness of the conduct to which this consideration is directed.

16. The maximum sentences for the offences of assault occasioning actual bodily harm and causing malicious damage to property are both five years imprisonment. They were serious offences having regard to the maximum penalty that could be imposed. The maximum sentence reflects the community expectation that such offences are and should be treated as serious. The actual sentence for those offences might be considered by some to have been very light, involving suspended sentences of nine months’ imprisonment and a good behaviour bond of nine months. The other offences at that time attracted sentences of four months imprisonment which was suspended and an 18 month good behaviour bond with a recognisance of $500. The sentences were informed by the Magistrate’s regard to MXDK’s young age and the objective of giving him a chance to prove himself. Nonetheless, the sentencing Magistrate described the offences as ‘inordinately serious’ which is consistent with my view that they are, when objectively viewed, very serious offences.

17. The maximum sentence for the assault with intent to commit robbery in company offence was 20 years imprisonment. Again, the maximum sentence provided for that offence speaks for the fact that the community at large regards such offences at the high end of seriousness. The sentencing judge considered that the offence fell near the mid-range of seriousness for such offences. The offence again involved physical violence, striking with a tree branch and the punching and kicking of the victim whilst he was on the ground. The offence of assault with intent to rob in company is a very serious offence and the fact that the sentencing Judge found that the offence in this case fell just below the mid-range of seriousness for such offences does not at all detract from the very serious nature of the offence here.

18. MXDK’s other and earlier offending when he was a juvenile is to be viewed as less serious largely for the same kinds of reasons that the criminal law approaches such issues; offending as a young person generally needs to account for emotional immaturity and a less than fully developed capacity to control impulses.[34] This perhaps explains the sentences that were imposed upon MXDK for many of his juvenile offences; namely that the criminal law accounts for those things in sentencing. In sentencing MXDK for the assault with intent to rob in company offence, the sentencing Judge took those principles into account because when he committed that offence, he was only 19 years of age and properly regarded as a ‘young adult offender’. That is relevant to the assessment I am required to make so far as his overall offending is concerned.

    [34] BP v R [2010] NSWCCA 159 at [4]-[6]

19. MXDK’s history of offending demonstrates that his offending has been fairly regular. It also appears to have been increasing in seriousness which is reflected both in the sentences he has received for his offending and in the nature of the offences moving as they have from property related offences to the exertion of physical violence against a woman and then later a stranger. The last offence is objectively the most serious offence especially because it was committed in company and involving kicking and punching a person on the ground. The overall offending is serious when viewed as a whole.

20. The offending conduct, especially so far as the domestic violence offences and the assault with intent to rob in company are concerned, is made up of very serious offences. They weigh fairly heavily in favour of not revoking the mandatory cancellation.

21. The next matter to consider is the risk to the Australian community should MXDK engage in further offences or other serious conduct. This directs regard to both ‘[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’,[35] and ‘[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: information and evidence on the risk of the non-citizen reoffending’.[36]

    [35] Cl.13.1.2(1)(a)

    [36] Cl.13.1.2(1)(b)

22. The nature of the harm is reasonably obviously identified as physical and psychological harm to individuals as a result of violence. The kinds of injuries to people occasioned by being punched and kicked or struck with tree branches might be as they were when MXDK kicked and punched the victim of his assault with intent to rob in company, restricted to lacerations. I doubt that kicking and punching necessarily always limits itself to injuries of that kind. Things could have been much worse. Likewise, the harm to Ms GH caused by the assault to her could potentially have been much worse. Also, there is the fear and psychological damage that is occasioned to victims of those kinds of crimes which is often incapable of precise quantification or measurement. The kinds of harm that might be occasioned to individuals by MXDK should he offend again are at least similar to those which were the results of his previous offending and could quite probably be much more serious.

23. Assessing the likelihood of MXDK reoffending is difficult. There are several matters that point to a reasonable likelihood that MXDK will reoffend. First, when he was sentenced for his most recent offence the pre-sentence report, prepared by someone trained and qualified in making assessments as to likelihoods of reoffending, placed his likelihood of re-offending in the low to mid-range. Second, whilst the sentencing judge expressed the prospects of rehabilitation as reasonable, it is important that one factor relevant to this was MXDK’s capacity to deal with his drug abuse. The fact that he has continued to use drugs whilst detained, though in a limited way, suggests that at least for now that issue continues unresolved. Third, his behaviour whilst incarcerated has demonstrated that MXDK retains an inclination towards violent behaviours. This is despite his incarceration and despite the fact that he is now about three years older. That is significant because even though some of his offending might be explained by his young age, now into his adulthood, he still exhibits some propensity towards violence. The incident involving the other inmate whose face was left covered in blood demonstrates so much. His other anti-social behaviour, although less relevant, points in much the same direction. MXDK’s suggestion that his striking the other inmate as well as his other anti-social behaviour whilst incarcerated and detained was due to the ‘stresses’ of being in prison and in detention really only begs the question as to how he will cope with the stresses of daily life once he is released. I do not consider that his behaviour whilst incarcerated and in detention should be exaggerated for its importance because of the very nature of that environment, but it cannot be overlooked in the context of considering the existence of a likelihood to engage in violent and anti-social behaviour in the future.

24. There are factors that point against MXDK’s likelihood of re-offending. First, as I have already said, there is the fact that much of his offending was in his youth and needs to be understood against that background and the kind of principles that the criminal law has developed in relation to youth offences to which I have referred. MXDK’s long history of offending as a juvenile should not of itself be taken as indicative of his likelihood to re-offend. Second, his long period in custody and now in detention should be given some weight as having a deterrent effect, as that is one of the purposes of incarceration. Third, there is the fact that he has exhibited some remorse for his offending. He has shown some insight into his offending, pointing to the fact that the victim of his most recent offence ‘did not deserve to be treated like that’. He has expressed shame for his behaviour. Fourth, there is the fact that for a period of about 11 months whilst he was awaiting trial for his most recent offence, he did not come to attention in respect of any criminal or other misconduct. This must, of course, be tempered by the fact that at the time MXDK well knew he was confronting a criminal trial and the very real prospect of being sentenced for any conduct that he was found guilty of. Fifth, some weight should be given to his stated intention of staying out of trouble, staying away from the associations he had and avoiding drugs and alcohol. Sixth, he has employment available to him in the Australian community and has the stability that will necessarily be associated with living with his partner and child, in addition to the support he has been offered by his friends, especially those who gave evidence on his behalf.

1. As I have said, the question of MXDK’s likelihood of re-offending is a difficult one, but I consider the view expressed in the pre-sentence report that his risk of re-offending upon release is likely to be low to medium but more close to a medium risk of reoffending than a low one mainly because of his conduct whilst incarcerated. His leaving another inmate’s face covered in blood looms large in this regard, but that is not the only conduct that points in the direction of the prospect of reoffending.

2. Having regard to both aspects of this primary consideration being the seriousness of the offending to date, its consequences if repeated and the likelihood of repetition, I consider that the protection of the Australian community is a very significant factor that weighs in favour of non-revocation of the decision to cancel MXDK’s visa.

   Best interests of minor children in Australia affected by the decision

3. Next, I am required to consider the best interests of children who may be affected by the decision to either revoke or not revoke the mandatory cancellation of the visa. The Direction provides that I only consider minor children, that is children under the age of 18 years when I make my decision.[37] I must only consider the interests of any such children individually to the extent that their interests may differ.[38] This consideration focuses on any relevant children and not at all upon MXDK. His interests are quite beside the point, if not irrelevant.

   [37] Cl.13.2(2)

   [38] Cl.13.2(3)

4. In considering the best interests of minor children I must consider a list of factors. Those which are relevant here are: ‘[t]he nature and duration of the relationship between the child and the non-citizen’ noting that ‘[l]ess 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’;[39] ‘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…’;[40] ‘[t]he 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’;[41] ‘[t]he likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways’;[42] ‘[w]hether there are other persons who already fulfil a parental role in relation to the child’;[43] and ‘[a]ny known views of the child (with those views being given due weight in accordance with the age and maturity of the child).’[44]

   [39] Cl.13.2(4)(a)

   [40] Cl.13.2(4)(b)

   [41] Cl.13.2(4)(c)

   [42] Cl.13.2(4)(d)

   [43] Cl.13.2(4)(e)

   [44] Cl.13.2(4)(f)

5. There are two other matters I am required to consider that relate to evidence concerning any neglect or abuse of the child or children[45] and evidence concerning any physical or emotional trauma occasioned to the child or children.[46] These clearly have no relevance to this matter and neither party suggested otherwise. I do not need to deal with them.

   [45] Cl.13.2(4)(g)

   [46] Cl.13.2(4)(h)

6. So far as the matters I must consider are concerned, the minor children who are directly concerned are MXDK’s son and MXDK’s now eight year old niece who is the daughter of MXDK’s sister. Both children are under 18 years of age. I consider the factors relevant to them in turn.

7. MXDK’s son is six years of age. His mother already, obviously fulfils a parental role. There is evidence given by Ms GH that MXDK’s son wishes to be with his father, begging for him to come home daily. There is no other father figure in his son’s life.

8. MXDK lived with his partner, Ms GH, and his son for a little more than the first year of his son’s life. In February 2015, the domestic violence offence occurred, after which Ms GH and MXDK were separated for about a year. After this MXDK did not, it would seem, have much to do with his son. In around May 2016 MXDK lived with Ms GH and his son for several months before he went into custody over the assault with intent to rob in company offence when he spent about another year in prison before he was bailed. He then lived with Ms GH and his son for about 11 months before he went to prison and after that was placed in detention. There have therefore been three significant periods, the first two of about a year and the third approaching nearly two years, where MXDK has not been present at least in any fulltime parental role in his son’s life. Those long periods of absence where there appears to have been little meaningful contact mean that less weight should be given to this consideration.

9. It is difficult to assess the likelihood of MXDK playing a positive parental role in the future especially having regard to the prospect that he might reoffend and be absent from his son’s life for a period or period in the future. That likelihood is evenly balanced and cannot be resolved with any confidence either way. I will give that consideration some weight because if MXDK were to be around that would, in the view I take, be a positive influence on his son. Also, there is nothing in MXDK’s offending that suggests his offending is likely to impact upon his son.

10. There can be little doubt that if MXDK is unable to remain in Australia his absence will have a negative impact on his son’s life. MXDK’s son’s actual physical contact with his father would be intermittent at best and he would be restricted to contact by phone, social media, and the like. There is no doubt that restricting the relationship between MXDK and his son in that way would be inimical to the best interests of the child.

11. As to his niece, the relationship is obviously not parental and has been interrupted by MXDK’s periods in custody in much the same way as his relationship with his son has been interrupted. The prospect of him playing a positive part in her life as a child is equally equivocal. There was little if no evidence about the effect on her should the visa be revoked. She, like MXDK’s son would have the capacity to visit her uncle in New Zealand and to maintain contact by other means. I do not know much about the living arrangements concerning his niece so as to say any more about them and the role MXDK might play in her life in future. The position in relation to his niece is nowhere near as significant as that of his son.

12. So far as the best interests of minor children are concerned, I consider that the best interests of MXDK’s son weigh in favour of revocation, but the weight I would give to this fact is not as significant as it might otherwise be given the interruptions in the parental relationship, the relatively short period of the parental relationship and the uncertainty of the future insofar as MXDK not returning to custody. I do not think the position in relation to MXDK’s niece changes the weight I would give to this consideration in any material way. I consider that the best interests of MXDK’s son and niece carry with them weight that favours revocation, but it is nowhere near as significant as the weight to be given to protection of the Australian community. I will accord it intermediate weight in favour of revocation.

    Expectations of the Australian community

13. The third primary consideration is that found in cl.13.3(1) of the Direction which provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not hold a visa. Decision-makers should have due regard to the Governments views in this respect.

14. This primary consideration imputes to the Australian community the expectation that those who have permission to remain in Australia will obey Australian laws. I am not required to consider what or what not the Australian community expects because that is normatively expressed in the consideration itself. The question is whether it is appropriate to give more or less weight to the deemed community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[47]

    [47] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] per Charlesworth J

15. The principles obviously point to this consideration as being one that generally carries weight in favour of non-revocation. The fourth principle provides that some offences are so serious that any risk of similar conduct in the future is unacceptable such that even strong countervailing considerations may be insufficient to cancel a revocation decision. In my view MXDK’s offending does not fall into that category of offence; albeit serious, I do not consider it so serious that any risk of similar conduct should not be accepted.

16. The fifth principle which I referred to earlier refers in terms to the fact of having ‘lived in the Australian community for most of their life, or from a very young age’ as being a factor that means the Australian community may extend more tolerance to a non-citizen’s criminal conduct. The seventh principle refers to the length of time a person has been making a positive contribution to the Australian community, and the consequences for minor children and other immediate family members, as being considerations relevant to visa cancellation. These two principles are important to an assessment of the weight to be accorded to this primary consideration.[48]

    [48] FYBR at [22] per Flick J; at [77] per Charlesworth J

17. MXDK has been in Australia since he was 5 years of age, that is now the best part of 18 years. He has spent in total about three and one half years in prison or in detention. His offending conduct continued for about four or so years before his most recent period of incarceration. He has in terms of the fifth principle lived in Australia for most of his life and from a very young age. That principle directs that in those circumstances the Australian community would be more tolerant of his conduct. The length of time he has been making a positive contribution to the community, by and largely through his engagement in paid employment, is relatively short. The consequences for his child and his partner Ms GH and for his mother and siblings, his immediate family, are significant. This is especially so should Ms GH and his son decide not to follow MXDK to New Zealand. The seventh of the principles would suggest that these are factors that moderate the weight given to the expectations of the Australian community. The degree of tolerance is to be weighed against the period of his offending and its seriousness.

18. I consider that the length of time MXDK has been in Australia, especially having regard to his young age and the effect that non-revocation will have on his child, partner, mother and siblings, moderates the weight that would be given to this consideration. This is principally because the Australian community would be more tolerant of his conduct in those circumstances. That tolerance is itself moderated, as I have said, by the length of time that the offending conduct has occurred over and, of course, the seriousness of that conduct.

19. The weight that should be given to this consideration points in favour of non-revocation, but it should only be accorded weight in the middle of the spectrum from low to high. This is because although the offending in this case is serious the Australian community would be more tolerant given the existence of the countervailing factors to which I have referred.

    Strength, nature and duration of ties

20. The Direction requires that attention be paid to the strength, nature and duration of ties in Australia.[49] I am first required to address the issue of how long MXDK has resided in Australia, but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia[50] and ‘more weight’ where ‘time has been spent positively contributing to the Australia community’.[51] Second, I must consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.[52]

    [49] Cl.14.2

    [50] Cl.14.2(a)(i)

    [51] Cl.14.2(a)(ii)

    [52] Cl.14.2(b)

21. MXDK’s offending started about 10 years after he came to Australia which was some time after he arrived in Australia. This is explained by the fact that he was a child when he arrived and his offending started in his early teenage years. Nonetheless it cannot be said that his offending started ‘soon after arriving in Australia’. He has made some positive contribution to the Australian community by way of his limited periods of permanent employment in Australia whilst he has not been incarcerated or in detention.

22. It is fair to say that MXDK has many social ties in Australia with family and friends: Ms GH and his son who are both Australian citizens, his mother who is a permanent resident with whom he has a close relationship, Ms GH’s grandmother, MD, MC, an uncle and his friend EG who is the grandmother of one of his friends. These ties appear to be relatively strong. There was not much evidence about the ties he has with his sister and brother but, such as it was, it enables me to find that he has some ties to them. PS is another of the ties MXDK has with the Australian community. He is the pastor of a church MXDK attended while he was on bail. The effect, emotional and otherwise, on these people would be significant if MXDK were to leave Australia.

23. I consider that this consideration is significant in counting in favour of revocation.

    Impact on victims

24. This consideration requires attention being given to the ‘[i]mpact of a decision not to revoke on members of the Australia community, including victims of non-citizen’s criminal behaviour, and the family members of the victim or victims where the information is available and the non-citizen being considered for revocation has been afforded procedural fairness’.[53]

    [53] Cl.14.4(1)

25. There is no evidence about the impact of the decision upon the victim of the robbery in the park, but there is evidence from Ms GH about the likely impact of revocation upon her. Ms GH said that she would be devastated, and things would be financially difficult for her if MXDK were required to return to New Zealand. The prospect that Ms GH will necessarily have to confront the decision to move to New Zealand is a potential impact upon her as well that must be accounted for even if it is a decision that she has not yet made. The consequence for her of non-revocation will be separation from her immediate family with whom she is undoubtedly close. These considerations need to be balanced against the fact that Ms GH has been able to deal with many of the same kinds of issues created by the separation that followed MXDK’s incarceration and detention.

26. The question is a difficult one involving as it does ‘[t]he complexities of relationships involving domestic violence [that] are not well understood’.[54] Accepting Ms GH’s evidence about the potential impact upon her, this factor slightly weighs in favour of revocation.

    [54] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [32] per Rangiah J

    The extent of impediments if removed

27. I am required to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard if removed from Australia. I am required to consider age, health, language and cultural barriers and social, medical and economic supports that may be available.

28. There is no language, cultural, social or economic barriers that obviously confront MXDK if he is returned to New Zealand. New Zealand is a liberal democratic developed country with advanced and well developed social and economic systems.

29. MXDK is a relatively young man. There was no evidence that he suffers from any medical condition that would affect his establishing himself in New Zealand. He will have some capacity to remain in contact with many of his family and friends in Australia by telephone and other means. This will ameliorate although not eliminate many of the difficulties he will, at least in the immediate term, be required to meet. There is no doubt that he will have some difficulty, emotional and otherwise, re-establishing himself in New Zealand. There is some prospect because of his plans to relocate Ms GH and his child that this will not be as hard for him as it might otherwise be.

30. This consideration weighs in favour of revocation although not significantly so.

    CONCLUSION

31. I have found that the protection of the Australian community weighs significantly in favour of the non-revocation having regard especially to the seriousness of MXDK’s offending and its repeated nature as well as the moderate risk that I consider there is of MXDK reoffending. I have also found that the expectations of the Australian community favours that outcome albeit moderately so given the countervailing considerations in particular: MXDK’s long time in Australia from a young age and the interests of his minor child and his immediate family members. I have found that the best interests of MXDK’s child and of his niece weigh moderately in favour of revocation. The primary considerations in this case weigh fairly strongly in favour of non-revocation.

32. I have found in respect of the other considerations that the strength, nature and duration of MXDK’s ties to Australia weigh strongly in favour of revocation; that the impediments if MXDK is removed to New Zealand weighs slightly in favour of revocation; and that the impact upon Ms GH as a victim, weighs slightly in favour of revocation. The other considerations taken together weigh in favour of revocation albeit not as strongly as the primary considerations weigh in the other direction.

33. In any event, the Direction requires that I should generally accord greater weight to the primary considerations over the other considerations. There is no reason to depart from that general position in this case. In doing so I am compelled to the conclusion that the primary considerations outweigh the other considerations so that I am unable to find that there is another reason why the mandatory cancellation of the visa should be revoked.

34. I affirm the delegate’s decision not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa.

I certify that the preceding 88 (eighty - eight) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

..................................[sgd].................................

Associate

Dated: 28 September 2020

Date(s) of hearing:	8 and 9 September 2020
Solicitors for the Applicant:	Mr M Sanders
Solicitors for the Respondent:	Mr A Zhang