NWLH and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2034

NWLH and Minister for Immigration and Border Protection (Migration) [2017] AATA 2034 (2 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/4784

Re:NWLH

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:2 November 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children – expectations of Australian community – decision affirmed

LEGISLATION

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

SECONDARY MATERIALS

Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A Poljak

2 November 2017

1. The applicant, NWLH, is a citizen of Tonga who first arrived in Australia on 26 August 1992, at the age of 15, as the holder of a Subclass 100 resident visa. Since then, he has held various Class BB Subclass 155 Five Year Resident Return visas.

2. On 11 April 2017, the Department of Immigration and Border Protection issued the applicant a notice that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

3. On 9 May 2017, the applicant made representations through his then migration agent seeking revocation of the mandatory cancellation decision.

4. On 10 August 2017, a delegate of the Minister for Immigration and Border Protection (“Minister”), decided not to revoke, under s 501CA(4) of the Act, the decision to cancel the applicant’s Class BB subclass 155 Five Year Resident Return visa (“visa”). This is the decision under review in these proceedings (“the reviewable decision”).

5. The issues to be determined in these proceedings are whether the applicant meets the character test as defined in s 501(6) the Act, and if not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii)).

   RELEVANT LEGISLATIVE PROVISIONS

6. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).

7. Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7).

8. Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

9. Section 501CA(4) of the Act provides that the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

10. The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, which commenced on 23 December 2014 (“the Direction”).

    CHARACTER TEST

11. The applicant fails the character test by reason of his November 2016 conviction and imprisonment for 13 months (see paragraph [19]), which meets the statutory definition of substantial criminal record in accordance with section 501(7)(c) of the Act.

12. The issue to be determined in these proceedings therefore is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.

    DIRECTION NO. 65

13. Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.

14. Under the heading General Guidance (paragraph 6.2), the Direction provides in part:

    (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.

15. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:

    (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 to forfeit the privilege of staying in, Australia.

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

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

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

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

16. The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.

17. The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:

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

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian Community.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

18. In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1 of the Direction, namely:

    (1)  When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…

    (2)  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

19. The applicant’s criminal history in Australia is extensive. The National Police Certificate dated 14 June 2017, details the applicant’s criminal offending, which may be summarised as follows:

Offence date	Court date	Offence	Sentence
18/09/1993	05/10/1993	Common assault (indictable)	12 month recognisance bond
25/04/2004	27/04/2004	Destroy or damage property      < $2000 Common assault	Fined $250 12 month good behaviour bond (section 9) – to fully comply with terms of AVO
01/03/2005	21/03/2005	Shoplifting < $2000	Fined $75
24/07/2006	22/08/2006	1.    Assault occasioning actual bodily harm	Community service order 200 hours
14/08/2006	06/12/2006	Use offensive language in/near public place Intimidate police officer in execution of duty	Fined $500 Fined $800
26/12/2006 26/12/2006 21/01/2007 04/03/2007 04/03/2007 04/03/2007 04/03/2007 04/03/2007	19/06/2007	1.    Assault occasioning actual bodily harm Destroy or damage property < $2000 Contravene AVO (domestic) Contravene AVO (domestic) Use offensive weapon to prevent lawful detention Escape police custody Assault police officer in execution of duty cause actual bodily harm Assault police officer in execution of duty cause actual bodily harm	Imprisonment 12 months from 05/03/2007 Imprisonment 4 months from 05/03/2007 Imprisonment 3 months from 04/03/2008 Imprisonment 6 months from 03/06/2007 Imprisonment 16 months from 03/06/2008, non-parole period 9 months Imprisonment 16 months from 03/06/2008, non-parole period 9 months Imprisonment 16 months from 03/06/2008, non-parole period 9 months Imprisonment 16 months from 03/06/2008, non-parole period 9 months (Severity appeal lodged, sentences confirmed on 18 July 2007)
02/11/2007	Assault occasioning actual bodily harm (call up of community service order imposed on 22/08/2006)	Imprisonment 3 months from 02/11/2007
10/08/2009	09/09/2009	Contravene AVO (domestic)	Imprisonment 6 months from 10/08/2009
26/06/2011	13/04/2012	Common assault	18 month recognisance bond. Probation 12 months.
29/07/2016	28/11/2016	Common assault Excluded person re-enter/attempt to re-enter premises Destroy or damage property Common assault Assault occasioning actual bodily harm	Imprisonment 7 months from 28/11/2016 Fined $220 9 month good behaviour bond (section 9) Imprisonment 7 months from 28/11/2016 Imprisonment 13 months from 28/11/2016, non-parole period 8 months (Severity appeal lodged, sentences confirmed on 01/12/16)

1. Taking into consideration the factors relevant to the present application, the applicant’s offences are very serious as they involve violence, including domestic violence, and on one occasion, the use of an offensive weapon (paragraph 13.1.1(1)(a)). The violent offences against police officers in the execution of their duty are also considered very serious (paragraph 13.1.1(1)(b)). Significantly, the repeated breaches of AVOs (domestic) and bail conditions show a blatant disregard for court orders.

2. Counsel for the applicant, Mr Poynder, submitted in written submissions that the applicant is not a dangerous man who represents a risk to the Australian community. He contends that the applicant’s offending amounts to “street-level offences committed in the past by a man who gets drunk and angry and throws punches, none of which have caused severe and long-lasting harm”. To address this submission it is important to look at the circumstances surrounding a number of the applicant’s offences.

3. The applicant has a significant history of domestic violence, and abusive conduct. The details of the following offences are obtained from NSW Police fact sheets, all of which are accepted by the applicant.

4. In April 2004, the applicant was convicted of common assault. The offence involved the applicant shouting at the victim while she was driving a vehicle and then punching the victim a number of times from the front passenger seat. The victim tried to leave the vehicle, but the applicant pulled her into the back seat and continued to punch her with both hands to the head region. When a witness intervened and distracted the applicant, the victim again tried to get away from the applicant but he chased her and forced her to the ground. Police arrived shortly thereafter and the victim was conveyed to hospital by ambulance.

5. In August 2006, the applicant was convicted of assault occasioning actual bodily harm. The victim in this incident was the uncle of the applicant’s ex-wife. It occurred in a public place outside a Woolworths. The victim was waiting for his niece and was reading with his head facedown. The applicant has grabbed hold of the victim’s hair with one hand and with the other hand, punched the victim in the top of his right eye. The victim suffered a cut to his right eye which required four stitches and he also suffered concussion as a result of the incident.

6. In June 2007, the applicant was convicted of, inter alia, assault occasioning actual bodily harm and contravene AVO (domestic). This is, on any account, a shocking incident. The details of which are clearly outlined in the fact sheet, some of which is as follows:

   The victim states that when she was showering her child entered the bathroom. The victim called out for her sister to collect him which she did. The victim did not realise that when the sister walked out the accused had walked in. Once inside the accused has with a clenched fist and with one single punch king hit the victim to the back of the head. Victim instantly fell to the bottom of the bath. It is a shower bath combination. The victim looked up and saw the accused pulling on the shower curtain. Unable to get up the victim placed her arms around her head to protect herself. The victim was repeatedly punched to the head area… Once the accused stop punching the victim he has grabbed at her hair and physically lifted her up from the floor. Once the victim was in the air the accused has let go of her hair and the victim has dropped to the floor. The victim cannot recall how long this assault took place but stated more than once.

   …

   This assault ceased and the accused left. The victim was still on the floor and the sister went to assist her by turning off the water and giving her a towel as she was naked. As the victim was placing the towel around her the accused entered the bathroom for a second time.

   The victim saw the accused was holding the child. The accused walked up to the victim and with one hand victim stating she thinks it was the accused right. He has begun to assault her by punching her with this hand about her head. Victim states her head was just bouncing everywhere and all she could do was scream. The victim’s sister tried to take the child from the accused however was unsuccessful and the accused left with the child. The accused has told the victim that if she reports what happened then he would be back to kill her.

7. The victim was treated at the scene by ambulance officers and was conveyed to hospital for further investigation and treatment. The cavalier attitude of the applicant to this assault is disturbing. Once the applicant was arrested and taken to the police station he advised the police he did nothing wrong. When he was told again the reasons why he was placed under arrest, the applicant stated “what you’re saying I’m the only one that does it”. The accused was advised he wasn’t but that it was against the law to which the applicant replied “oh well whatever”.

8. In June 2007, the applicant was also convicted of assaulting police officers in the execution of their duty. The full extent of this offence is detailed in the facts sheet. Relevantly, in response to a breach of an AVO (domestic), Police attempted to arrest the applicant, who responded with violence:

   “The accused pulled his left arm from the Police and began to push himself up from the floor. Whilst doing this, Constable [T] attempted to push him back to the floor. In doing so, the accused has punched Constable [T] to her face causing Constable [T] to fall to the bed. The accused at this time had the handcuffs on his left wrist. The accused approached Constable [T] while she was on the bed. Constable [T] kicked out at the accused forcing him backwards, in order to defend herself. The accused approached Constable [T] again. Fearing for her safety, Constable [T] kicked out again as the accused was swinging his arms at her with the handcuffs attached to his left wrist. Whilst the accused was swinging his arms at Constable [T], the accused has hit Constable [T] to her jaw area. Constable [T] felt a tooth break as a result. Constable [T] kicked him in the stomach in order to get herself off the bed.

   Whilst the accused was having this altercation with Constable [T], Constable [M] was attempting to pull the accused from Constable [T]. The accused threw Constable [M] onto the bed, throwing punches in the process… The accused has punched Constable [M] to the right side of the face.”

9. In June 2011, the applicant was charged, and later convicted, of common assault. The offence involved the applicant approaching a female victim, who was standing in line at a taxi rank. The applicant became involved in a short conversation with the victim whilst waiting in line but the victim became offended by a sexual comment made by the applicant. The applicant then pushed the victim causing her to fall on the ground, and strike her head against a taxi. When the victim has tried to stand back up, the applicant has again pushed her, forcing her rearwards onto the road. As a result of the assault, the victim sustained minor scrapes and lacerations to her elbows.

10. As to the circumstances of the most recent offences in July 2016, the sentencing remarks of Magistrate Antrum, reveal that the applicant was intoxicated at a pub, and after having been asked politely by an employee to leave the premises, punched a patron to the right side of his face, striking his nose and causing it to bleed over his shirt and onto the ground. When others attempted to assist, the applicant continued to punch the patron in the head at least 5 times, and also hit an employee of the pub in the face and body.

11. In the sentencing remarks Magistrate Antrum said:

    “Now [NWLH], it is well and truly past the time where people can make excuses about that kind of conduct. It is disgraceful conduct. You struck a man who was simply doing his job and made an entirely reasonable request on a number of occasions to you to leave the premises…

    …on top of what are very, very disturbing facts, any assault occasioning actual bodily harm is a serious offence but this is one in which you have struck someone who has not been provocative in the face with a closed fist and continued to hit other persons about their body…”

12. Having regard to the above facts, I do not agree with Mr Poynder that the applicant’s offending can be categorised as “street-level offences” and that the applicant is not a dangerous man who represents a risk to the Australian community. The offences detailed above involve incredible violence, some of which are unprovoked attacks and against members of the public, others against law enforcement officers in the execution of their duty and the remainder against his ex-wife and family members. Domestic violence is not a trivial offence, nor are the applicant’s other offences.

1. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to multiple terms of imprisonment ranging from 3 months to 16 months. In relation to the July 2016 offences, noting the facts and the applicant’s history of violence stretching back to 1993, the sentencing magistrate considered that no other penalty but full-time custody was required and sentenced him to 13 months.

2. The repeated nature of the applicant’s violent offending, particularly when viewed cumulatively with his other offending, is very serious indeed (paragraph 13.1.1(1)(d) & (e)).

3. At hearing, the applicant contended that there was a significant break in his history of offending and that his most recent offending in 2016 was an “aberration” and “out of character”. It is very well the case that there does appear to be a break in the applicant’s offending for a number of years from June 2011 to July 2016, however, I do not accept that the applicant’s most recent conduct can be seen as a one off, or out of character. His history must be considered as a whole. The characteristics displayed by the applicant in his most recent offences in July 2016, are not a departure from what is normal or expected of the applicant. His record shows that he is prone to extreme violence; often unprovoked.

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

4. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard, cumulatively, to: (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 applicant re-offending.

5. The nature of the harm to victims if the applicant were to reoffend in the future is very serious, and could involve significant physical and psychological harm to vulnerable members of the Australian community. The applicant has shown that he is capable of causing significant physical injury to others. Contrary to the applicant’s contentions, unprovoked physical assaults and in particular, severe domestic violence can cause psychological and nervous trauma, which can remain with a person for life.

6. Turning to the likelihood of reoffending, the applicant is a repeat offender with an extensive criminal history, which dates back to 1993. Contrary to the applicant’s assertions, the evidence suggests that he has not addressed the apparent causes of his offending behaviour and there is a significant risk that he will reoffend. The applicant’s violence is clearly fuelled by alcohol which, according to his wife, he uses in a binge fashion in lieu of more appropriate stress management strategies. This is consistent with the opinions expressed by Mr Tim Watson-Munro, clinical forensic psychologist, in his report dated 27 September 2017. However I note that in regard to the most recent spate of violence in 2016, the applicant says that it was in response to difficulties with his former partner and the departure of his children to live with their mother. This is inconsistent with what he said to Mr Watson-Munro, who states on page 6 of his report:

   “It is clear that he has a poor capacity to cope with pressure and in the absence of requisite skills to deal with stress when it arises, he has in the past resorted to alcohol as a means of self-medicating. This in turn has impacted upon his judgement, consequential thinking and impulse control at a level of significance. He stated however in relation to the most recent offence that he in fact was in a positive mood however as his boss was shouting drinks, he consumed in excess of 10 schooners of beer. It is clear that treatment needs to address his binge drinking in terms of regulating his consumption. Ideally this man should not consume alcohol at all.”

7. Moreover, the applicant’s prison records reveal a propensity for violence that does not appear to be solely due to alcohol abuse. The NSW Department of Corrective Services records note that the applicant was involved in 4 incidents of “fight or other (physical) combat” while incarcerated; twice in 2007, once in 2010 and again in 2017. When asked about these incidents at hearing, the applicant appeared to be surprised that the incidents would be considered negatively. He said that he was merely protecting himself and that it was a different environment in prison.    

8. At hearing, the applicant said that he “now knows” that he needs to change and that alcohol is not good for him. This submission has very little force given that the applicant has been aware, for many years, that alcohol is a significant problem in regards to his offending. This is apparent by the ACT Corrective Services case notes, tendered by the applicant. The case notes reveal that back in May and July 2012, it was reported that the applicant had “good insight into alcohol use and associated risks”. In an ACT Corrective Services Case Management Plan dated 25 May 2012, it is noted that the applicant “acknowledged alcohol abuse had been a major factor in his offending history” and that he “appears to have reflected on his offending and is evaluating the risks and rewards of crime”. When pressed at hearing, the applicant very reluctantly agreed that he knew from at least 2007 that alcohol was not good for him.

9. Given his history of reoffending, and noting that he has only recently sought treatment for anger-management issues despite being aware of the need to address them and his alcohol abuse and anger management issues, I have little confidence in the applicant’s claim that he is rehabilitated and will not reoffend. I am of the opinion that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community.

10. For the above reasons, applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, the protection of the Australian community weighs heavily in favour of not revoking the mandatory cancellation of the applicant’s visa.

    PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

11. Paragraph 13.2(4) of the Direction sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child; whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions.

12. The applicant has five children aged 3, 4, 12, 16, and 17.  He has made representations about the impact of his removal on his children. It is plain that the applicant has a strong and loving relationship with his children. All five children were present at the hearing to support their father. From what I saw of the interaction between the applicant and his two youngest children, there is no doubt they have a strong bond with their father.

13. Despite the obvious bond between the applicant and his children, I cannot ignore the applicant’s lengthy criminal history and alcohol and anger management problems and how this would have a negative impact on his children. When asked at hearing about whether the applicant believed his heavy drinking would have a negative impact or effect on his children, he said that he had never thought about it. Additionally, the evidence suggests that some of his older children have been exposed to incidents of domestic violence between the applicant and their mother. For these reasons, it is difficult to accept the assertion that the applicant has played a positive parenting role or would do so in the future (paragraph 13.2(4)(b), (c)).

14. The applicant’s wife gave evidence about one of her children who I will refer to as “Child 1”. She said that Child 1 suffered from separation anxiety; even more so since the applicant was incarcerated. She has not received a formal diagnosis of this condition but has had Child 1 seen by a hypnotherapist, who has provided a report in these proceedings. She said that stability is important as Child 1 needs confidence and security.

15. In a report dated 16 May 2017, Simone Hamilton, a children’s behavioural specialist and trauma hypnotherapist, opines:

    “[Child 1] would be severely impacted by the cancellation of his father’s visa as this decision and resulting deportation could lead to [Child 1] developing a more severe form of anxiety that could potentially impact his attendance at school and possibly lead to mental health issues during his childhood and adolescence stages of life.”

16. I am uncertain of the qualifications of Ms Hamilton and her expertise in expressing this opinion; I do however accept that the absence of a father as a result of either incarceration or deportation would be extremely difficult on young children. This is particularly so given the attachment that they have to their father.

17. If the applicant were to be removed from Australia, there are other people who fill parental roles for the applicant’s children. They are being cared for by their respective mothers and, in the case of the older children, also by their grandmother (paragraph 13.2(4)(e)). The applicant’s wife has a strong social network and most of her family in Australia, and appears to enjoy an ongoing, close relationship with the applicant’s family. Further, and in any event, there is no evidence of any significant impediments to the applicant’s wife and children relocating to Tonga, or being able to maintain regular contact with him through visits to Tonga and communication via telephone and other digital means.

18. Balancing all the reasons above, this primary consideration weighs in favour of revocation.

    PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

19. Paragraph 13.3(1) of the Direction 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 person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

20. In making the Direction, the Minister has made it clear that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.

21. Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly breached the trust of the Australian community by committing offences of a type that could endanger the safety of members of the community.

22. Relevantly, paragraph 13.3(1) of the Direction indicates that cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa. Given the nature of the applicant’s repeated violent offences, including with an offensive weapon and against police officers in the execution of their duty, the Australian community would expect that the applicant should not hold a visa.

23. Furthermore, domestic violence is conduct that is “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.”

24. I acknowledge that in line with Principle 5 (paragraph 6.3) of the Direction, the Australian community may afford a higher level of tolerance of criminal or other serious conduct to the applicant as he has lived in Australia since age 15.  However, given the nature of the applicant’s offences and his long history of offending, the Australian community would expect that the applicant should not hold a visa.

25. This primary consideration weighs heavily in the favour of non-revocation.

    OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65

26. Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.

27. Other considerations such as international non-refoulement obligations, impact on victims and the impact on Australian business interests are not relevant considerations in these proceedings.

    Strength, nature and duration of ties to Australia

28. Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

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

    (i) less weight should be given where the person 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; and

    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).

29. The applicant has substantial ties to Australia.

30. He arrived in Australia at age 15; however, in line with paragraph 14.2(1)(a)(i), less weight should be given to this consideration in circumstances where the applicant began offending one year after he arrived.

31. While the applicant has spent some time contributing to the Australian community through his engagement with football and Church, this does not outweigh his years of offending (paragraph 14.2(1)(a)(ii)). I acknowledge that the applicant’s five children, wife, and extended family reside in Australia and he claims to have no close family in Tonga. Members of the applicant’s family have provided statutory declarations in support of the applicant which I have read and considered.

32. While the applicant’s removal to Tonga may involve a physical separation from his children, there is no evidence before the Tribunal to suggest that his family would not be permitted to visit him in Tonga, or that his older children could not relocate to Tonga when they turn 18 years of age, noting that his oldest son is 17. Nor is there any suggestion that he would be unable to maintain contact with his family in other ways. While the applicant’s brother claims that his aging parents rely on the applicant, the applicant has other siblings who could assist with their care.

33. This consideration weighs in favour of revocation. However, it does not outweigh the primary considerations weighing heavily in favour of non-revocation.

    Extent of impediments if removed

34. I have taken into account that the applicant has concerns about returning to Tonga. The applicant claims that he has no close family in Tonga, but has extended family such as cousins and aunts. He would not encounter any language or cultural barriers and while the applicant may well face some initial difficulty re-establishing himself in Tonga, it cannot be said that the extent of the impediment would be insurmountable.

35. While Tonga may not offer the same economic opportunities that are available in Australia, the applicant would have access to the same social, welfare, and medical services as other Tongan citizens. In line with the Direction, the availability of support in Tonga has to be viewed in the context of what is available to the residents of that country.

36. Accordingly, I do not consider that this factor outweighs the primary considerations favouring non-revocation.

    CONCLUSION

37. While the primary consideration concerning the best interests of minor children in Australia favours revocation, it is considerably outweighed by the other two primary considerations. On balance, the extent of the applicant’s offending in Australia, the nature and seriousness of his offending, the expectations of the Australian community, and the risk of future harm outweigh the interests of the applicant’s minor children. I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.

38. The decision under review is affirmed.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 2 November 2017

Date(s) of hearing:	12 - 13 October 2017
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Hunter Flood Lawyers
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore