NBCM and Minister for Home Affairs (Migration)

[2018] AATA 2387

NBCM and Minister for Home Affairs (Migration) [2018] AATA 2387 (23 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2526

Re:NBCM   

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:23 July 2018

Place:Sydney

The reviewable decision is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – section 501 visa cancellation – Class TY Subclass 444 Special Category visa – failure to pass character test – substantial criminal record – sentenced to two or more terms of imprisonment totaling 12 months – whether the discretion to cancel the visa should be exercised – application of Direction 65 – protection of the Australian community – best interests of minor children affected by the decision – expectations of the Australian community – other considerations – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601

Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310

Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390

Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316

Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999

Murphy v Minister for Immigration and Border Protection (Migration) [2018] AATA 750

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Linda Kirk

23 July 2018

1. NBCM (the Applicant) was born in New Zealand in 1970. On 28 September 1997 he was granted a Class TY Subclass 444 Special Category (Temporary) visa and has since resided in Australia [G7, 33].

2. On 16 January 2015 the Respondent wrote to the Applicant seeking further information about his circumstances in light of his criminal convictions, noting that the cancellation of his visa was not under formal consideration at that time [G9, 37]. The Applicant responded on 13 February 2015 [G10, 38-41].

3. On 6 April 2017 the Department of Immigration and Border Protection issued a notice of intention to consider cancellation (NOICC) of the Applicant’s visa [G8, 34]. The Applicant responded to the NOICC via his representative on 4 August 2017 [G14, 67]. He conceded that he did not pass the character test, but submitted that his visa should not be cancelled.

4. On 30 April 2018 the delegate exercised her discretion to cancel the Applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). It is this decision of which the Applicant seeks review (the Reviewable decision).

5. On 7 May 2018, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable decision.

6. The matter was heard in Sydney on 10 July 2018. The Applicant attended the hearing in person and was represented by counsel. The Applicant and his daughter (NBEM) gave evidence.

7. The material before the Tribunal consists of:

   ·Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 25 June 2018;

   ·Applicant’s Response to Respondent’s Statement of Facts, Issues and Contentions dated 5 July 2018;

   ·Statutory Declaration of the Applicant dated 5 July 2018;

   ·Letter from Sylviane Vincent, Bobby Goldsmith Foundation dated 5 July 2018;

   ·Letter from Alice Gibian, Senior Social Worker, NSW Health, South East Sydney Local Health District dated 4 July 2018;

   ·Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 2 July 2018;

   ·the s 501 documents (G-documents) (GD) (G1 to G30 pages 1 to 180);

   ·Respondent’s Tender Bundle (RTB) (TB1 to TB3 pages 1 to 505); and

   ·Email from NBDM to AAT Sydney registry dated 10 July 2018 (R1).

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

   ISSUES FOR DETERMINATION

9. Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if:

   (a) the Minister reasonably suspects that the person does not pass the character test; and

   (b) the person does not satisfy the Minister that the person passes the character test

10. Section 501(2) contains a discretion by virtue of the word ‘may’. That is, if the Applicant does not pass the character test, the decision-maker has a discretionary power to cancel the visa.

11. The issues therefore are:

    1)Does the Applicant pass the “Character Test” contained in s 501(6) of the Act; and, if not

    2)Whether the Tribunal should exercise the discretion available in s 501(2) of the Act to cancel the Applicant’s visa.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

    Character test

12. The “character test” is set out in s 501(6) of the Act, as augmented by s 501(7):

    (6)       For the purposes of this section, a person does not pass the character test if:

    (a) the person has a substantial criminal record (as defined by subsection (7)); or

    …

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

    (a) the person has been sentenced to death; or

    (b) the person has been sentenced to imprisonment for life; or

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

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

    (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

    (f) the person has:

    (i) been found by a court to not be fit to plead, in relation to an offence; and

    (ii) the court has nonetheless found that on the evidence available the person committed the offence; and

    (iii) as a result, the person has been detained in a facility or institution

    Applicant’s Offending History

13. The Applicant’s National Police Certificate dated 25 March 2017 [G5, 29-30] lists the following convictions and sentences for the following offences:

    24 November 2014 (November 2014 convictions)

    ·Assault occasioning actual bodily harm – 10 months

    ·Contravene prohibition/restriction in AVO (domestic) – 10 months

    2 April 2014 (April 2014 convictions)

    ·Assault occasioning actual bodily harm – 6 months

    ·Stalk/intimidate intend fear physical etc harm (domestic) – 6 months

    28 January 2014 (January 2014 conviction)

    ·Contravene prohibition/restriction in AVO (domestic) – $500 fine

    4 August 2009 (August 2009 conviction)

    ·Common assault – 12 month good behaviour bond

    2 May 2001 – fined and issued with good behaviour bonds (May 2001 convictions):

    ·Assault (first instance warrant)

    ·Use of offensive language in/near public place/school

    ·Assault officer in execution of duty

    ·Common assault

    ·Resist or hinder police officer in the execution of duty

14. As the Applicant has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more the Applicant has a ‘substantial criminal record’ pursuant to s 501(7)(d) of the Act.

15. The Applicant concedes and the Tribunal finds that he does not pass the “character test” under s 501(6)(a) of the Act.

    SHOULD THE TRIBUNAL EXERCISE THE DISCRETION TO CANCEL THE VISA?

16. As the Applicant does not pass the “character test”, the issue is whether the Tribunal should exercise the discretion in s 501(2) of the Act to cancel his visa.

    Ministerial Direction No. 65

17. In considering whether to exercise the discretion in s 501(2) of the Act the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

    Objectives

18. The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[1]

    [1] Direction No. 65 at para 6.1(1).

19. The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.

    General Guidance and Principles

20. The first paragraph of the General Guidance (paragraph 6.2) provides:

    (1)  The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

21. Paragraph 6.3 sets out the Principles that should inform the decision-maker in exercising the discretion:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    Exercise of the Discretion

22. Paragraph 7(1) provides guidance for decision-makers as to how the discretion under s 501 is to be exercised. Relevantly it provides:

    (1)  Informed by the Principles in paragraph 6.3 above, a decision-maker:

    a)    Must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;

    b)    ...

23. In the Applicant’s case, Part A of the Direction is applicable as it provides the considerations relevant in determining whether to cancel the visa of a non-citizen.

24. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.[2]

    [2] Direction No. 65 at para 8(1).

25. Paragraph 9 of the Direction provides the three Primary considerations that the Tribunal must take into account:

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

    (b)The best interests of minor children in Australia affected by the decision; and

    (c)Expectations of the Australian community.

26. The Other considerations which must be taken into account are provided in a non-exhaustive list in Paragraph 10 of the Direction:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties [to Australia];

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

27. Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[3] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of a visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[4]

    Primary Considerations

    [3] Direction No. 65 at para 8(2).  

    [4] Direction No. 65 at paras 8(4) and 8(5).

    (1)  Protection of the Australian Community from Criminal or other Serious Conduct

28. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1(2) of the Direction provides that decision-makers should also give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a)The Nature and Seriousness of the Applicant’s Conduct to Date

29. The Applicant’s National Police Certificate dated 25 March 2017 [G5, 29-30] lists convictions and sentences for some eleven offences – see [13] above. These are the:

    ·May 2001 convictions

    ·August 2009 conviction

    ·January 2014 conviction

    ·April 2014 convictions

    ·November 2014 convictions

30. In addition, the Applicant has a criminal record in New Zealand [G6, 31] as follows:

    ·11 February 1994 – convicted of assaulting a female and fined $NZD400.00

    ·October 1990 – convicted of burglary and sentenced to community service and payment of reparations of $NZD1,300.

    February 1994 conviction in New Zealand

31. A New Zealand Ministry of Justice Criminal and Traffic History dated 21 March 2017 [GD, 31] records a conviction on 22 February 1994 for an offence the Applicant committed on 11 February 1994. When questioned about this offence at the hearing, the Applicant told the Tribunal that the victim of this assault was his former partner, NBDM. At the time of the offence he was heavily intoxicated.

32. The Applicant first met NBDM at a hotel in Sydney in 1989. They commenced a relationship and moved in together after about one month. Their relationship has been ‘on and off’ over the past 20 years. They have never lived together permanently as a couple but retained separate residences throughout their relationship. They have five children aged 27 years, 25 years (NBEM) and 23 years; and a daughter aged 14 years and a son aged seven years. The two youngest children live with their mother. The Applicant and NBDM are no longer a couple but they have a continuing relationship because of their children.

    May 2001 convictions

33. On 2 May 2001 the Applicant was convicted of five offences and was fined and issued with good behaviour bonds pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

34. The New South Wales Police Service Fact Sheet [RTB 445] records the details of the Common assault offence for which the Applicant was convicted on 2 May 2001. In the early evening of 1 February 2001, police were called to the home of the Applicant and the victim (NBDM). The Fact Sheet describes the incident:

    The Defendant has entered the room and picked up three school bags that were sitting on the ground and thrown these one by one at the Victim. The Victim has raised her hands in front of her face to protect herself. The Victim has then asked for her daughter to go and call the police.

    The Victim has got up from the lounge to go to another part of the house and has been stopped by the Defendant who has struck her with both of his fists to her head area. [Their] son has stepped between them and has said ‘Stop it Dad, Stop it, the police are coming.’

35. The Applicant was taken to Liverpool Police station where he was not interviewed due to his level of intoxication. He was charged with Common Assault.

36. On the same date, the Applicant was convicted of a further four offences. The New South Wales Police Service Fact Sheet [RTB 448-451] records these as arising from an incident which occurred on 7 April 2001 involving an argument between the Applicant and his neighbour which became heated and resulted in the Applicant attempting to assault the neighbour. Police attended the property and attempted to arrest the Applicant who resisted arrest and spat on a police officer. As he was being driven away in the caged police vehicle he yelled abuse at the neighbour.

    August 2009 conviction

37. On 4 August 2009 the Applicant was convicted of Common assault. A New South Wales Police Service Fact Sheet [RTB 472-473] records the details of the offence arising from an incident that occurred on 28 July 2009. The Applicant and the Victim (NBDM) argued about their five year old daughter being left home alone. The Victim took their daughter to the bedroom to prepare to sleep. The Fact Sheet continues:

    A short time later the accused has entered the bedroom whilst the victim and their daughter were laying in bed, the accused has stated to the victim, ‘You fucking bitch, you did this’, before [he] has grabbed the victim by the hair, pulling her up and spinning her around, this has caused a significant amount of pain to the head of the victim, the accused has then punched the victim to the facial area leaving a small abrasion to the left side of the victim’s nose, the victim cannot recall whether she was struck once or twice. The victim has managed to bite the accused on the finger and run out of the house with her daughter.

38. When interviewed by the police, the Applicant said that he could not recall the incident and denied the assault. When the Applicant was asked about this incident at the hearing he said he doesn’t recall the details of the incident or the police attending the house, nor does he remember denying the assault.

    January 2014 conviction

39. A New South Wales Police Service Fact Sheet [RTB 338-341] records the details of an incident of alleged Assault Occasioning Actual Bodily Harm and Intimidation involving the Applicant and NBDM. As a consequence of this incident, an Urgent Apprehended Violence Order (AVO) was applied for and granted on 12 January 2014. The Persons in Need of Protect (PINOPS) were listed as NBDM and her younger children, then aged 10 years and 3 years. The AVO restricted the Applicant from, inter alia, going within 500 metres of the premises at which the PINOPS reside. On the evening of 12 January 2014, Police attended NBDM’s residence to provide her with a copy of the AVO and check on her welfare. They asked her whether the Applicant had been to her residence or contacted her. She said he had been there and he was currently in the bedroom. Police entered the bedroom and found the Applicant who was hiding. He was arrested and cautioned. On 28 January 2014, the Applicant was convicted of the offence Contravene prohibition/restriction in AVO (domestic).

    April 2014 convictions

1. On 2 April 2014 the Applicant was convicted of the offences Assault occasioning actual bodily harm and Stalk/intimidate intend fear physical harm (domestic). He was sentenced to six months imprisonment for both offences.

2. A New South Wales Police Service Fact Sheet [RTB, 485-487] records the details of the offence arising from an incident that occurred on 11 January 2014. The Applicant and the victim (NBDM) had an argument over ‘his controlling nature’:

   The Accused raised his right hand with a closed fist and punched the Victim in the right eye, causing a laceration and bleeding. The Accused raised his right arm a second time and punched the Victim in the left eye causing immediate pain. During this, the Accused has said to the Victim, ‘You are a dumb bitch, you fucking cunt.’

   The Victim was so fearful for her safety and the safety of her children, that she was unable to call for assistance straight away. The Victim tried to avoid the Accused for the rest of the night in an attempt to prevent any further assault occurring.

   …

   When the Accused was not looking the Victim has grabbed her mobile phone and called police stating that she had been assaulted by her husband.

   November 2014 convictions

3. On 24 November 2014 the Applicant was convicted of the offences Assault occasioning actual bodily harm (dv) and Contravene prohibition/restriction in AVO (domestic). He was sentenced to 10 months imprisonment for both offences, which were served concurrently.

4. A New South Wales Police Service Fact Sheet [RTB 368-372] records the incident that occurred on 19 October 2014, two weeks after the Applicant’s release from gaol following his sentence for the April 2014 convictions. At this date, there was a current AVO granted on 2 April 2014, listing the accused as the defendant and NBDM as the person in need of protection.

5. The Applicant and the victim (NBDM) were sitting on the balcony of their unit and the Applicant became aggravated when a passer-by called out a man’s name. He accused the Victim of seeing another man and hit her on the forehead with the back of his palm. The Victim ran inside and the Applicant followed her and again hit the Victim in the head. Police arrived at the unit and spoke to the Victim who said there was nothing wrong. The Applicant and the Victim then went into the bedroom:

   The accused placed his hand over the mouth of the victim [and] grabbed the necklace [she] was wearing. The victim kicked her legs and thrashed her arms in an attempt to get free from the accused. The accused bit down on the right hand of the victim which broke the skin causing the wound to bleed.

   [The police] could hear the victim yelling out ‘Help me, help me, NBCM get off me’. Police ran to the door of the unit and forced entry … Police observed there to be smashed glass throughout the unit and spots and smears of blood over the bed and walls in the bedroom … hall and lounge room area of the unit.

6. When asked at the hearing about these offences, the Applicant said he had no independent recollection of any of the incidents as he was heavily intoxicated on each occasion. He now realises that alcohol was a factor in his offending but it was not the only factor. He ‘is not a violent man’. He can now control his alcohol consumption and ‘things are much different now.’

7. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 9.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevant factors in this case are:

   (i)Nature of the offences – violent and/or sexual crimes are viewed very seriously – paragraph 9.1.1(1)(a);

   (ii)Victims of the crimes – crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)… are serious - paragraph 9.1.1(1)(b);

   (iii)Sentence imposed by the courts for a crime or crimes - paragraph 9.1.1(1)(e);

   (iv)Frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness - paragraph 9.1.1(1)(f); and

   (v)Cumulative effect of repeated offending - paragraph 9.1.1(1)(g).

   Nature of the offences and victims of the crimes

8. Having regard to paragraph 9.1.1(1)(a) and paragraph 9.1.1(1)(b) of the Direction, the Tribunal finds that the Applicant’s offences were violent crimes that were committed against a vulnerable person, his former domestic partner. His offences were perpetrated in the family home and were, on more than one occasion and to his knowledge, witnessed by his children who at the time were minors. The children not only witnessed the violent attacks on their mother, they were forced to intervene to prevent the violence, including by contacting the police.

9. Domestic or family violence is intrinsically a serious offence and its devastating impact on victims is widely recognised by the Australian community. The Tribunal has previously highlighted the seriousness of this type of offending – albeit in a citizenship case – in the matter of Ahori and Minister for Immigration and Border Protection [2017] AATA 601, in which Senior Member Sosso stated at [53]:

   Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.

10. The Applicant’s assaults against his former partner NBDM were frequent and increasingly violent throughout the duration of their 25 year defacto relationship. The Tribunal considers this offending to be of a very serious nature, both due to the harm the Applicant occasioned to his former partner NBDM, and its occurrence in a domestic setting in very close proximity to the couple’s young children.

11. The Applicant concedes in his Statement of Facts, Issues and Contentions that the Applicant’s crimes were serious and ‘of a violent nature’, he argues that it ‘should be considered to be on the lower end of the scale’ for reason that the sentences imposed were ‘low-moderate’ and the ‘victim was not a vulnerable member of society.’ For the reasons stated above, the Tribunal finds that the Applicant’s victims included not only his former domestic partner NBDM who was inherently in a vulnerable position vis-à-vis the Applicant, but also his children who witnessed many of the assaults against their mother and who would have been terrified and felt helpless both during and after each attack.

12. The impact of the Applicant’s offences on his victims is evidenced by the statement NBDM provided to the Tribunal via email on the morning of the hearing [R1]:

    This week 2/7/18 I have come to realise the true impact of domestic violence.

    I understand the effects, physical, verbal and psychological abuse towards me has had on both myself and my children.

    Enough is enough.

    More often than not I have been made to feel unimportant, unworthy, stupid, infectious (HIV was how all the domestic violence began, as I was falsely accused of passing it onto the defendant), unloved and isolated.

    I feel great concern for my safety as the defendant has been to jail a number of times for domestic violence.

    I was subjected to multiple forms of mental and physical abuse in front of our children throughout the entirety of our relationship.

    However I would not follow through with the relevant authorities as my self esteem had been diminished so severely.

13. The impact of domestic violence offences specifically in the context of visa cancellation was explained by Deputy President Kendall (as his Honour then was) in XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385 (XFKR) at [45]:

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

14. The Tribunal endorses this description by Deputy President Kendall of the effects and consequences of domestic violence. It finds that the Applicant’s behaviour is a ‘textbook’ example of the devastating physical and psychological impact of domestic violence on its victims, and the power imbalance between domestic partners that causes such behaviour to frequently be downplayed or ignored, and thereby go unreported and unpunished.

15. It is against this background that the Tribunal has considered the Statutory Declaration of NBDM dated 12 December 2017 [G28, 143-145] in which she stated:

    Whilst I acknowledge that our relationship has been turbulent and I have been the victim of domestic violence, I know that NBCM is a good man and has always been a good provider for our family…

    NBCM is my main source of support and is instrumental in helping me through tough times…

    Since NBCM’s release from gaol, there have been no instances of violence towards me. I have noticed positive changes in NBCM that have made me feel safe and positive about building our future together. We are now getting along very well and have been able to move forward, put the past behind us and are moving forward together as an united couple.

16. The Applicant’s evidence to the Tribunal is that NBDM scaled back her contact with him in April 2018. In his Statutory Declaration dated 5 July 2018, the Applicant stated that he and NBDM are not currently in a relationship and he understands that she does not want to give evidence at his review hearing and he respects her wishes.

17. The Tribunal has considered the apparently contradictory statements made by NBDM in her Statutory Declaration dated 12 December 2017 and in her email to the Tribunal Registry on the morning of the hearing (R1). It has afforded greater weight to the latter for reason that, as a victim of domestic violence at the hands of the Applicant for more than two decades, it is not unlikely that, for reasons of fear or insecurity, NBDM would express support for her former partner when asked to provide a statement in support of his application for review of a decision to cancel his visa. Her email directly to the Tribunal on the day of the hearing is a more reliable indicator of her feelings towards the Applicant, which are revealed in the email to be ones of trepidation and concern for her own safety and well-being and that of her children if the Applicant remains in Australia:

    I feel if the defendant is to remain in Australia then the mental and physical well-being of both myself and my children has to be assured, as I am not confident the defendant has taken all the necessary steps to improve himself.

    Sentences imposed by the courts

18. Having regard to paragraph 9.1.1(1)(e) of the Direction, the Tribunal has had regard to the sentences of imprisonment the Applicant has received for his criminal offending. The Tribunal notes that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and finds that the four sentences of imprisonment he received for the domestic violence offences indicate the objective seriousness of the Applicant’s offences.

19. The Applicant argues that the sentences of six and ten months imprisonment respectively for the April 2014 and November 2014 assault convictions when compared with the five year maximum sentence for these offences indicates that the sentences imposed on the Applicant were ‘low-moderate’. In his Sentencing remarks on 2 April 2014 [GD, 55-61], Magistrate Clisdell in the Local Court of Liverpool, found that ‘a sort sharp sentence is probably the best way of getting through to you the fact that you cannot behave in the fashion in which you have elected to behave on this occasion’. In his sentencing remarks on 24 November 2014 [GD, 62-66], Magistrate Holdsworth observed that the Applicant reoffended 18 days after he had been released from custody in relation to the April 2014 convictions and noted ‘that the previous sentence in terms of specific deterrents [sic] had little if any effect on [his] thinking.’ He found that the Court must ‘impose a sentence of imprisonment on the basis of the objective seriousness of these facts.’

20. The imposition of terms of imprisonment and the remarks of the Magistrates undoubtedly indicate the seriousness of the Applicant’s offences and weigh strongly in favour of the exercise of the discretion to cancel his visa.

    Frequency of offending and trend of increasing seriousness

21. With regard to paragraph 9.1.1(1)(f) of the Direction, the Tribunal notes that the Applicant was convicted of four domestic violence assaults over the period 2001 to 2014. The two offences for which he received a term of imprisonment occurred in January and October 2014. There is a clear trend of increasing seriousness in his offending as seen in the escalating violence associated with the domestic assaults against NBDM. Magistrate Holdsworth noted in his sentencing remarks [GD, 65] that the November 2014 offence was ‘a very serious example of a domestic assault’ evidenced by the smashed glass and blood throughout the unit which ‘tends to indicate the nature and ferocity of the assault committed’ by the Applicant upon NBDM.

    Cumulative effect of repeated offending

22. The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with paragraph 9.1.1(g) of the Direction. The Tribunal finds that the Applicant’s criminal offending demonstrated a pattern of behaviour that became more frequent and violent with the passage of time and had a cumulative effect on and NBDM and his children, who also were victims of his crimes. The cumulative effect of the Applicant’s offending is made clear in NBDM’s email dated 10 July 2018 in which she describes the physical harm and psychological impact on her and their children of the Applicant’s repeated and unrelenting criminal behaviour.

23. To summarise, the nature and seriousness of the Applicant’s offences, including the vulnerability of his victims, the increasing frequency and the escalating levels of violence associated with the assaults against his former partner, the sentences imposed by the courts and the cumulative effect of his repeated offending indicate the objective seriousness of the Applicant’s conduct. These factors weigh heavily in support of the exercise of the discretion to cancel his visa.

    (b)     The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

24. Paragraph 9.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 9.1.2(2). They are:

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

    b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community.

    (a)       Nature of the harm to individuals or the community

25. With respect to the first of these factors, the potential impact on and harm to individuals if the Applicant were to reoffend is considerable, and includes psychological and physical harm. The crimes for which the Applicant has been convicted are ones which subject their victims to regular and repeated harm, coupled with fear or knowledge that the behaviour will recur, and an associated reluctance to report the behaviour to the authorities because of the potential repercussions, including being subjected to further violence. If the Applicant were to continue the offending behaviour that led to his convictions, the potential victims of his crimes would include his former partner and their children and/or a future domestic partner and/or her children. The risk of harm to individuals if the Applicant were to reoffend is unacceptable.

    (b)      Likelihood of engaging in further criminal or other serious conduct

26. The Applicant argues that the likelihood of him engaging in further criminal or other serious conduct is ‘low’ and ‘is not of a “real” risk.’ [Applicant’s SFIC at paragraph 25]. This is claimed for reason that the Applicant:

    (a)has demonstrated his remorse about his actions;

    (b)is no longer living with NBDM;

    (c)is committed to sobriety and rehabilitation and has a strong support network; and

    (d)has become involved in the community.

    Remorse for his actions

27. In his Statutory Declaration dated 30 June 2017 [G17, 89], the Applicant stated:

    I am deeply remorseful about my past criminal history, in particular the physical and emotional hurt I have caused to NBDM, and also how my actions affected my children emotionally.

    …

    It is a horrible feeling to know that I have hurt my partner and the mother of my children. I am deeply ashamed and I know that I am guilty. If I could take it all back I would, and I will do whatever I can to make up for the pain I have caused my family

    …

    Although I have committed crimes whilst in Australia, I am truly sorry for my actions. I believe I am a changed person and am working very hard to ensure that I never reoffend.

28. The Applicant further claims that he accepts the seriousness of his offence and that it was violent in nature and accepts that alcoholism was a major contributing factor to his offending [Applicant’s SFIC, paragraph 36]

29. The Respondent claims that the Applicant’s expressions of remorse and statements that he will not reoffend in the future should be viewed with caution as he made the same claims when he was sentenced for the April 2014 convictions [G12, 59], in just 18 days following his release from gaol, he committed the assault that led to the November 2014 convictions [Respondent’s SFIC at paragraph 32].

    Sobriety and rehabilitation

30. In his Statutory Declaration dated 30 June 2017 and in his evidence at the hearing, the Applicant claimed that he has actively engaged in various courses and rehabilitation programs to address his issues. These include:

    ·CALM – Controlling Anger and Learning to Manage;

    ·The Nexus release program;

    ·Alcoholics Anonymous; and

    ·EQUIPS Foundation Course.

31. In prison, he frequently attended counselling sessions with the Salvation Army Prison Chaplain. He is presently engaging in therapy to work through the issues surrounding his alcohol abuse, including a traumatic incident that occurred in his childhood. He is being assisted by a social worker at the Bobby Goldsmith Foundation, and is seeking appropriate treatment for his mental health issues and HIV condition. Since leaving prison he has continued involvement with the Salvation Army and ‘gave his life to God’. He attends church regularly and has assisted in the Red Shield Appeal.

32. In a report dated 31 July 2017, Dr Richard Furst, Consultant Forensic Psychiatrist, wrote:

    When combined with his current clinical profile, living away from NBDM, supports he is receiving in the community, abstinence from drinking and his current medical care/attitudes, his risk factors and protective factors relevant to his future risk of domestic violence, [NBCM] falls into a group of domestic violence offenders best considered at moderate risk of re-offending over the longer term.

    His risk of re-offending in the short-term is best considered low-moderate …

1. At the hearing, the Applicant was asked about his attendance at Alcoholics Anonymous and his abstinence from drinking. He told the Tribunal that he continues to drink although he can now ‘control his alcohol consumption.’

2. On the basis of the evidence before it, the Tribunal finds that whereas the Applicant has taken a number of steps to address the underlying causes of his offending, particularly his alcohol abuse, and he has not offended for a period of almost four years, there is a not insignificant risk of him re-offending. This finding is based on the independent opinion of Dr Furst that there is a moderate risk of the Applicant re-offending over the longer term, and the risk in the short-term is low-moderate. The Tribunal notes that Dr Furst’s assessment of the risk of the Applicant re-offending was based on an assumption of his ‘commitment to abstinence from alcohol’, which according to the Applicant’s evidence, has ceased since Dr Furst assessed him on 18 July 2017.

3. The Applicant has now been out of gaol for three years and has not offended since October 2014, a period of almost four years. However the passage of time has not to date been a reliable indicator that the Applicant will not re-offend. There were seven years between his first conviction for assault against NBDM in New Zealand in February 1994 and his assault against her that led to the May 2001 convictions. A further eight years passed until his next assault against NBDM which resulted in the August 2009 conviction. Similarly, there was five years between the Applicant’s August 2009 conviction and his April 2014 convictions for Assault Occasioning Actual Bodily Harm for which he served six months imprisonment. A mere 18 days following his release from gaol, he assaulted NBDM again and was convicted of Assault Occasioning Actual Bodily Harm in November 2014. He was sentenced to 10 months imprisonment and released on parole after serving seven months.

4. Accordingly, the Tribunal finds that the almost four year period during which the Applicant has not offended, whilst a promising indicator that the risk of him re-offending is not as great as it has been, there remains a not insignificant risk that he will re-offend should the ‘triggers’ for his offending present themselves.

5. For the reasons above, and applying the guidance in paragraph 9.1 of the Direction, the Tribunal finds that Primary Consideration 1 weighs heavily in favour of the exercise of the discretion to cancel the Applicant’s visa.

   (2)  The best interests of minor children in Australia affected by the decision

6. Primary Consideration 2 of Part A in Paragraph 9.2(1) requires decision-makers to make a determination about whether cancellation is, or is not, in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[5]

   [5] Direction No. 65 at para 13.2(2).

7. The evidence before the Tribunal is that the Applicant is the father of two Australian citizen minor children (aged 14 years and 7 years) and grandfather to his daughter’s (NBEM) three children (aged 6 years, 3 years and 1 year).

8. The Applicant’s evidence to the Tribunal and in his Statutory Declaration is that he has a close and loving relationship with his two youngest children and is actively involved in their upbringing. He sees them on an almost daily basis and will pick them up from school and help with their homework. He often takes them to church, cultural events and Boys’ and Girls’ Brigade. They stay with him at his home in Darlinghurst or he will go to see them at their home in Liverpool.

9. In her evidence to the Tribunal, NBEM confirmed that the Applicant has a close relationship with her younger siblings and also with her three children. He sees them at least once a week and does many activities with them including taking them to the Australian Open earlier this year.

10. Independent evidence before the Tribunal[6] confirms the positive parental role the Applicant plays in the children’s lives and his potential to support them emotionally and contribute to their upbringing. The involvement of the Applicant in their children’s lives was confirmed in the Statutory Declaration of NBDM dated 12 December 2017:

    NBCM has always been a loving father to all our children and cares deeply for their safety and wellbeing. NBCM is, and always has been a very involved father and I know that all of our children love spending time with him. He has never been violent towards any of our children, and I always encourage them to spend time with their father.

    [6] Statement of Sylviane Vincent [GD22, 126], Statement of Leo Baretto [GD24, 129], Statement of Thuy Tien Jade To [GD27, 142], Statement of Lieutenant Ayly Girling [GD21, 125].

11. In the Respondent’s SFIC, the Respondent accepts on the basis of the evidence that the best interests of minor children in Australia weigh in favour of the Applicant’s visa not being cancelled but that minimal weight should be afforded to this consideration in view of the not insignificant risk of his re-offending [Respondent’s SFIC at paragraph 38]. In oral submissions at the hearing, the Respondent relied on evidence given by the Applicant’s daughter (NBEM) that when she was growing up, she witnessed the harm caused by her father to her mother and she was constantly worried when her parents consumed alcohol because it always led to a fight. The Respondent submitted that the disregard the Applicant demonstrated towards his children who frequently witnessed him assault their mother indicates that this Primary Consideration cannot weigh in his favour and can only be a neutral factor in the exercise of the discretion.

12. The Tribunal finds on the basis of the evidence before it, particularly the impact on the Applicant’s two minor children, that Primary Consideration 2, weighs marginally against the cancellation of the Applicant’s visa.

    (3)  The Expectations of the Australian Community

13. Paragraph 7(1) of the Direction provides guidance for decision-makers as to how the discretion under s 501 is to be exercised. A decision-maker, ‘informed by the Principles in paragraph 6.3’ must take into account the relevant Primary and other considerations.

14. The third Primary Consideration emphasises the relevance of the expectations of the Australian community in the exercise of the discretion. Paragraph 9.3(1) provides :

    (1)  The Australian community expects non-citizens to obey Australia’s 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. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

    The Effect of this Primary Consideration on the Exercise of the Discretion

15. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Justice Mortimer said that this description of community expectation in paragraph 13.3(1) [equivalent 9.3(1) in Part A] operates as a ‘deeming provision’ and is inevitably adverse to any applicant:

    [76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [77] … It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).

16. A number of Tribunal decisions have questioned the assumption contained in Justice Mortimer’s observations that community expectation will always dictate non-revocation of a cancellation decision. In Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310 Deputy President Forgie said:

    [65] …To assume that the expectations of the Australian community will always be a consideration that will weigh against a visa applicant who has failed to pass the good character test does not, I respectfully suggest, sit comfortably with the discretionary nature of the power given to the Minister. The Minister himself recognises in the Principles set out in paragraph 6.3 of Direction No. 65 that a discretion is involved. He talks in terms of what should generally be expected as in paragraph 6.3(3), of there being some circumstances in which the harm that would follow is so great as to be unacceptable even if there are other countervailing considerations paragraph 6.3(4). These are but two of the seven principles in paragraph 6.3 but each of the seven shows that what may be, and what may not be, acceptable to the Australian community is a matter of balance to be considered in each case.

    [66] It follows that I respectfully suggest that the statement made by Mortimer J in YNQY that “It was inevitable that this consideration [being that in [13.3]] would weigh against revocation; that is what it is intended to do …” is too broadly stated. It may be that it has that effect in some cases but I respectfully suggest that the way in which it is framed overlooks that paragraph 13.3, and so paragraphs 11.3 and 13.3 are drafted in terms that recognise that a decision-maker has discretion to come to a conclusion about the expectations of the Australian community in a particular case. It requires the decision-maker to have regard to the Government’s views but they are views that, as I said, allow regard to be had to the whole of the circumstances.

17. In Murphy v Minister for Immigration and Border Protection(Migration) [2018] AATA 750 Senior Member Taylor referred to what he described as the ‘prescriptive nature of the concept of community expectation’ in paragraph 13.3 emphasised in Justice Mortimer’s observations in YNQY and suggested that when the paragraph is considered as a whole, ‘it does not dictate an inflexible conclusion that community expectation will always call for non-revocation’ (at [58]):

    [58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.

18. The third Primary Consideration, Expectations of the Australian Community, is one to which appropriate weight must be given in the exercise of the discretion. The Tribunal finds that it is for the Tribunal to determine the weight to be attached to this consideration and it cannot be regarded as inevitably favouring non-revocation.

19. Having regard to paragraph 9.3 and informed by the Principles in paragraph 6.3, the Tribunal must have regard to whether the offences for which the Applicant has been convicted would create a community expectation that the Applicant’s visa be cancelled.

20. An appropriate consideration of this Primary Consideration requires an objective analysis of the Applicant’s offending with regard to his individual circumstances and the nature and consequences of his criminal offending. Of relevance are the Principles in paragraph 6.3 of the Direction:

    ·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (paragraph 6.3(2));

    ·non-citizens who commit serious crimes, including of a violent or sexual nature, should generally expect to forfeit the privilege of staying in Australia (paragraph 6.3(3));

    ·in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (paragraph 6.3(4));

    ·a higher degree of tolerance of criminal or other serious conduct may be afforded to a long term non-resident (paragraph 6.3(5)); and

    ·the length of time a non-citizen has been making a positive contribution to the community (paragraph 6.3(7))

21. In Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316 at [60], Deputy President McCabe observed in relation to this Primary Consideration:

    The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.

22. A similar formulation of the approach was expressed in Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36]:

    … the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.

23. Deputy President McCabe in Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390 at [23] outlined the Tribunal’s approach to determining the community’s expectations:

    A decision-maker is, to some extent, required to guess at the community’s expectations ... As I begin my deliberations, I assume the Australian community would be fair-minded and mature... The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.

24. Deputy President Forgie in Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999 at [68] observed that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” That assessment should be made on the basis of the individual circumstances of each case and considered in light of the purpose of the legislation.

25. In most cases, multiple convictions for domestic violence offences would be sufficient for the Australian community to expect the cancellation of the visa of the offender. In the case of the Applicant, many of the Principles contained in paragraph 6.3, which must inform the Primary Considerations, are applicable to his circumstances.

26. Having regard to paragraph 6.3(2) and 6.3(3) the offences the Applicant committed, involved violence and were perpetrated against vulnerable individuals. These factors weigh in favour of a finding that the expectations of the community would be that the Applicant’s visa be cancelled as non-citizens who commit serious, including violent crimes, should generally expect to forfeit the privilege of staying in Australia.

27. Having regard to paragraph 6.3(5) the Tribunal notes that the Applicant has been resident in Australia for more than 20 years, arriving here in 1997 at the age of 27 years. The length of time the Applicant has been living in Australia supports a finding that there is a higher level of tolerance by Australia for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time.

28. The length of time the Applicant has been in Australia makes relevant paragraph 6.3(7). He is a qualified cook and he worked in various hospitality roles in Australia. From 1997 to 2000 he was employed as a Food and Beverage Purchasing Officer at the Sydney Opera House and from 2002 to 2014 he worked for Compass Group. Through this employment the Applicant has paid taxes and contributed to the economy as well as to the community more generally. Since his release from gaol he has been actively involved with the Salvation Army and has assisted in the Red Shield Appeal. The fair-minded Australian would not want to see the cancellation of the Applicant’s visa used as an opportunity to inflict further punishment. However, a fair minded member of the community would likely consider that the crimes committed by the Applicant were very serious and take into account the likelihood that his victims continue to suffer from the harm he inflicted against them and their fear that he will reoffend.

29. Having regard to paragraph 9.3 and informed by the Principles in paragraph 6.3 the Tribunal finds that given the Applicant’s convictions for multiple domestic violence offences and the risk he will reoffend and inflict further harm on vulnerable individuals, the Australian community would not be prepared to given him another opportunity and the community’s expectation would be that the Applicant’s visa be cancelled.

30. The Tribunal finds that this third Primary Consideration weighs strongly in favour of the cancellation of the Applicant’s visa.

    Other considerations

31. While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 10 that Other considerations must be taken into account by the decision-maker where relevant.

32. The five Other considerations are summarised in paragraph 10(1):

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

    (a)  International non-refoulement obligations

33. The Applicant has made no claims in his evidence that may give rise to international non-refoulement obligations.

    (b)  Strength, nature and duration of ties

34. Paragraph 10.2(1) of the Direction sets out two main factors to be considered in assessing this consideration:

    … Reflecting the Principles at 6.3, decision-makers must have regard to:

    (a)       How long the non-citizen has resided in Australia, including whether   the non-citizen has arrived as a young child, noting that:

    (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

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

    (b)       The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

    Length of time resident in and positive contribution to Australia

1. The Applicant was granted a visa in September 1997 and has resided here for more than 20 years. The Applicant commenced criminal offending in Australia less than four years after his arrival and in 2001 he was convicted of his first domestic violence offence. Since then he has been convicted and sentenced to imprisonment for domestic violence offences in 2009 and 2014. Having regard to paragraph 10.2(1)(a)(i), less weight is given to the length of time the Applicant has resided in Australia as he began offending shortly after his arrival.

2. The Applicant was employed from 1997 to 2014, with only a relatively short period between 2000 and 2002 when he did not work. Having regard to paragraph 10.2(1)(a)(ii), the Tribunal finds that the length of time the Applicant has spent in Australia and his positive contributions to the Australian economy and community between the period 1997 and 2014 support a finding of the strength and duration of the Applicant’s ties to Australia.

   Strength, nature and duration of any family or social links

3. The evidence before the Tribunal is that the Applicant has substantial family ties to Australia, including five children and three grandchildren. Three of his children are Australian permanent residents, and the two younger children and his grandchildren are Australian citizens.

4. The Applicant’s family, particularly his younger children and grandchildren, will be significantly impacted if he is returned to New Zealand as they have a close bond with him and he is involved in their daily lives and upbringing. There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to New Zealand. There is no evidence that his family members would be unable to visit the Applicant in New Zealand, finances permitting.

5. Having regard to the factors in paragraph 10.2(1)(a) and 10.2(1)(b) and the evidence before it, the Tribunal finds that this consideration on balance weighs against the cancellation of the Applicant’s visa.

   (c)  Impact on Australian business interests

6. Paragraph 10.3(1) of the Direction states:

   (1)  Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

7. The Applicant’s employment during the period 1997 and 2014 was as a cook in the hospitality industry. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.

   (d)  Impact on victims

8. Paragraph 10.4(1) of the Direction states:

   (1)  Impact of a decision not to cancel on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

9. The Tribunal finds that the impact on the victims of the Applicant’s criminal activity of a decision not to cancel his visa is considerable.

10. In her email dated 10 July 2018, NBDM stated:

    I feel if the defendant is to remain in Australia then the mental and physical well-being of both myself and my children has to be assured, as I am not confident the defendant has taken all the necessary steps to improve himself.

11. The Applicant’s former partner clearly has concerns about the safety and well-being of herself and her children should the Applicant remain in Australia. As outlined above, NBDM and her children were the victims of the Applicant’s vicious attacks on her over a period of more than two decades. If the Applicant remains in Australia the psychological impact on his victims, particularly the fear of future harm he may inflict upon them, will be ongoing.

12. Having regard to the factors in paragraph 10.4 and the evidence before it, the Tribunal finds that this consideration weighs in favour of the cancellation of the Applicant’s visa.

    (e) Extent of impediments if removed from Australia/not permitted to return

13. The Direction states in paragraph 10.5(1) that:

    (1)  The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)The non-citizen’s age and health;

    (b)Whether there are substantial language or cultural barriers; and

    (c)Any social, medical and/or economic support available to them in that country.

14. The evidence before the Tribunal is that the Applicant spent the first 27 years of his life in New Zealand. He is 47 years of age and an experienced cook who is qualified to work in the hospitality industry. His evidence is that he has no relationship with his family in New Zealand, including his parents and siblings, and therefore he has no meaningful ties or connection with his country of birth.

15. The evidence before the Tribunal is that the Applicant has a number of health conditions; he is HIV positive and has a mental health condition. In his report [G19, 111], Dr Furst indicated that the Applicant suffers from:

    recurrent episodes of depression, severe at times, since his teens, consistent with a diagnosis of major depressive disorder.

16. Dr Furst also notes in his report that there may be a correlation between a childhood trauma the Applicant experienced and his long term substance and offending history.

17. The evidence before the Tribunal is that the Applicant has established a number of support networks which are assisting him to manage his health conditions. Ms Sylviane Vincent of the Bobby Goldsmith Foundation wrote in her letter dated 5 July 2018 that she has:

    witnessed the efforts [he] was putting towards adhering to his medications regime, completing the treatment for Hep.C, accessing Alcohol and Drugs counselling, getting support from the Salvation Army program [and] re-engaging with the Church …

18. The Applicant gave evidence at the hearing that he is concerned about returning to New Zealand due to the ‘stigma’ that surrounds his HIV condition, particularly from his family members. There is no evidence that New Zealand does not have similar health and welfare services to Australia nor that the Applicant could not access mental and physical health services for support that are available to other citizens of the country.

19. The Tribunal finds that the obstacles the Applicant may experience in finding employment, accessing health and support services and reintegrating into the community on his return are real but are not insurmountable.

20. Based on the evidence before it, the Tribunal finds that this consideration is neutral to the Applicant and weighs neither for nor against cancellation of his visa.

    CONCLUSION

21. There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In considering whether to exercise the discretion to cancel the Applicant’s visa, the Tribunal has had regard to the Considerations in the Direction.

22. For the reasons outlined above, Primary Considerations 1 and 3 weigh heavily in favour of the cancellation of the Applicant’s visa. Both these Primary Considerations outweigh the weight of Primary Consideration 2, which favours the non-cancellation of the visa. One of the Other Considerations weighs in favour of the non-cancellation of his visa and another weighs in favour of cancellation. Having regard to the Primary and Other Considerations, the Tribunal finds that the discretion in s 501(2) be exercised to cancel the Applicant’s visa.

    DECISION

23. The reviewable decision is affirmed.

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 23 July 2018

Date(s) of hearing:	10 July 2018
Solicitors for the Applicant:	HIV/AIDS Legal Centre
Solicitors for the Respondent:	Sparke Helmore Lawyers