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

Oldbury and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 807 (25 March 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0536
Re:Jaron Oldbury
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:25 March 2022
Date of written reasons: 21 April 2022
Place:Sydney

The Tribunal decides that the reviewable decision dated 7 December 2021 is set aside, and in substitution, decides not to exercise the discretion under section 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, issued on 30 July 2019.
..................................[SGD]........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – substantial criminal record – whether to cancel visa under section 501(2) – decision not to exercise discretion to cancel visa – considerations under Direction No. 90 – applicant lived in Australia from early age – separated from child due to family breakdown – record of family violence committed as a young person many years ago – rehabilitation – new relationship – decision under review set aside
LEGISLATION
Evidence Act 1995 (Cth) – s 135
Migration Act 1958 (Cth) – ss 499(1), 499(2), 499(2A), 500(6J), 501(2), 501(6), 501(7) and 501G
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
21 April 2022
INTRODUCTION

The applicant was born in New Zealand in 1993 and adopted at birth. He was brought to Australia as a child in November 1999.[1] He was granted a Class TY Subclass 444 Special Category (Temporary) visa on 30 July 2019, after a short absence from Australia.[2] In these proceedings the applicant seeks a review on the merits of a decision by the authorised delegate to cancel his visa under section 501(2) of the Migration Act 1958 (Cth) (‘the Act’) on character grounds, arising from multiple breaches of domestic violence (‘DV’) orders in the period 2014-2017.
[1] G5, 372.
[2] G2, 43.
The Tribunal is required to consider the matter afresh, standing in the shoes of the original decision-maker. The question for the Tribunal is whether, in light of the applicant’s failure of the character test, the discretion to cancel his visa should be exercised. I have decided not to exercise the discretion to cancel his visa, for the reasons set out below.
PROCEDURAL HISTORY
On 4 December 2019 the Department of Home Affairs (‘the Department’) issued the applicant with a Notice of intention to consider cancellation (NOICC) under section 501(2) of the Act. The applicant was invited to comment on the information indicating that he might not pass the character test, and to provide reasons why his visa should not be cancelled even if he did not pass the character test.[3]
[3] G2, 45.
On 13 January 2020, in response to the invitation, the applicant’s representative provided a completed Personal Circumstances Form, dated 10 January 2020,[4] including a detailed statutory declaration.[5]
[4] G2, 69,73.
[5] G2, 91-105.
On 7 December 2021, a delegate of the Minister cancelled the applicant’s visa issued on 30 July 2019 pursuant to section 501(2) of the Act.[6]
[6] G2, 14.
By letter dated 20 January 2022, the applicant was informed that his visa had been cancelled.[7] He was informed that the particular ground under which he had failed to satisfy the delegate of the Minister that he did not pass the character test was that he had a substantial criminal record as defined by paragraph 501(7)(d) of the Act. Under that provision a person will have a substantial criminal record if the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more. A document entitled ‘Statement of Reasons for Cancellation of Visa under s 501(2) of the Migration Act 1958’, and dated 7 December 2021, was attached to the letter.[8]
[7] G2, 10.
[8] G2, 32.
In February 2022, officials of the Australian Border Force detained the applicant and he has been held in immigration detention since. On 24 January 2022, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the reviewable decision.
THE LEGISLATIVE FRAMEWORK
Under section 501(2) of the Act, the relevant Minister or delegate 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.
Under section 501(6) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’, as defined by section 501(7).
Section 501(7) provides that if the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more, then they have a substantial criminal record.
It is conceded by the applicant’s solicitor that he has a substantial criminal record, and therefore he does not pass the character test. I am satisfied that the applicant does not pass the character test.
In considering the discretionary power not to cancel the applicant’s visa under section 501(2) of the Act, the Tribunal is required by section 499(2A) of the Act to apply Direction No.90 (the Direction).
THE DIRECTION
Paragraph 5 of the Direction states the following principles which are said to provide the framework within which decision-makers should approach their task of deciding whether to cancel a non-citizen's visa under section 501.
Of particular relevance to this case are the following:
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia: 5.2.2
·The Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community: 5.2.3.
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age: 5.2.4
·In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling the non-citizen’s visa. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community:5.2.5 [emphasis added]
Paragraph 8 of Direction No 90 provides that in making a decision under section 501(2) the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct; (PC1)
(2) whether the conduct engaged in constituted family violence; (PC2)
(3) the best interests of minor children in Australia;(PC3)
(4) expectations of the Australian community.(PC4)
Paragraph 9 provides that in making a decision under section 501(2) other considerations must also be taken into account, where relevant. These considerations include (but are not limited to):
(1) international non-refoulement obligations;(OC1)
(2) extent of impediments if removed;(OC2)
(3) impact on victims;(OC3)
(4) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;(OC4.1)
ii. impact on Australian business interests (OC4.2)
THE HEARING
The hearing was held by videoconference on 21-22 March 2022. The applicant was represented by Ms J Samuta. The respondent was represented by Mr R Donaldson. The applicant filed a Statement of Facts, Issues and Contentions dated 22 February 2022. The respondent filed a Statement of Facts, Issues and Contentions dated 9 March 2022.
The following documents were admitted into evidence.
The plaintiff’s evidence bundle (JJO 1 – JJO 34) consisting of the following documents:
1)         Letter from Damien Waters confirming Joint Mortgage
2)         Letter from Metro Finance confirming Business Loan
3)         Screenshots of Loan Amounts
4)         Social Media photos of house build timeline
5)         Payslip of J J Oldbury from Green Home Green Planet Pty Ltd
6)         Extension of ACT Government Working with Vulnerable People Card
7)         Australian Clean Energy Council Accreditation
8)         Recent Certificate of Qualifications in Solar Design and Installation
9)         Character Reference from David McCarron (including the associated Statutory     Declaration)
10)      Statutory Declaration from Joshua Gregory Hargrave
11)      Statutory Declaration from Lydia Paris Faith Oldbury
12)      Statutory Declaration from Robert Fletcher Gane
13)      Letter of Support from Dr Brett Morgan
14)      Updated Email from Kea Legal (Family Lawyer)
15)      Email from Kea Legal (Family Lawyer)
16)      Research on Salary Outcomes in Australia versus New Zealand
The respondent filed a set of documents (375 pages) provided under section 501G of the Act (the ‘G docs), and the summons material, filed as Tender Bundle (RTB) numbering 1152 pages.
Eight witnesses gave evidence to the Tribunal, in the following order:
(a)The applicant;
(b)Mr G. Caeser, personal friend;
(c)Mr R. Abela, personal friend;
(d)Ms L. Morris, psychologist;
(e)Ms H. Kirk-Harkin, current partner;
(f)Ms K. Abela, Family Law solicitor;
(g)Dr B. Morgan, counsellor;
(h)Ms L. Oldbury, sister.
BACKGROUND
The applicant is a 28 year old New Zealand citizen. His adoptive parents brought him to Australia in December 1999 when he was six years old.[9]
[9] See G5, 371; G2, 299.
He was diagnosed with attention deficit hyperactivity disorder (ADHD) while he was at school.[10] He told the Tribunal that he was quite hyperactive, had a lot of energy, poor attention span, and his teachers said that he was disruptive in class. He said that his parents took him to a number of specialists to diagnose his condition and he was medicated for a number of years.[11] The medical records pertaining to this condition are not before the Tribunal.
[10] G2, 299.
[11] Transcript, 21 March 2022, 17.
In April 2007, he returned to New Zealand to live with his adoptive grandmother.[12] She passed away not long afterwards. He went to live with his aunt, whose marriage was unstable, and she later passed away. He made a few trips back over the next two years to see family members. In 2009 he returned to Australia.
[12] Statutory Declaration, para 4(b), JJO, 27.
He dropped out of school in year 11. By the age of 16 he was living independently on the Gold Coast. He worked briefly as an apprentice butcher, but in 2012 he started an apprenticeship as an electrician. He is now a licensed electrician and runs his own company which provides some specialist services. His employment record as an electrician is strong.
His offending history commenced as a teenager. Between 2013 and 2014, he committed a number of minor offences, including public nuisance, obstruct police officer, contravene direction, and being drunk in a public place.[13]
[13] G2, 39.
In 2012, he formed a relationship with an eighteen year old girl. I will refer to her as LX. The relationship was unstable and volatile. The couple were involved until 2017 and have one male child, referred to in these reasons as CX.
A Domestic Violence Order (DVO) was implemented in November 2013 and remained in force for two years. The order prohibited the applicant from contacting LX or approaching within 100 metres of her. The existence of non-contact provisions did not deter the couple, and in October 2014, they had a child.[14] The pregnancy created family difficulties between LX and her parents, amplifying the volatility of the relationship. During this period, the couple and child lived periodically with his parents.[15]
[14] G2, 78.
[15] G2, 301.
PC 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 8.1(1) of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
I must also give consideration under paragraph 8.1(2) to the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I deal with these matters below, after setting out his criminal history.
Criminal Record
In 2013 and 2014 the applicant was convicted of a number of public nuisance type offences.
(a)On 21 January 2013, he was dealt with in the Southport Magistrates Court for public nuisance and assault or obstruction, with no conviction recorded.
(b)On 25 November 2013, the Southport Magistrates Court imposed a $500 fine (no conviction recorded), for contravening a direction on 5 November 2013.[16]
(c)On 9 December 2013, the Coolangatta Magistrates Court imposed a $100 fine (no conviction recorded) for contravening a direction on between 5 and 12 November 2013.[17]
(d)On 29 March 2014, the Brisbane Magistrates Court imposed a $200 fine (no conviction recorded) for contravening a direction on 29 March 2014.[18]
(e)On 24 June 2014, the Southport Magistrates Court imposed a $200 fine (no conviction recorded) for an offence of "Being drunk in a public place" committed on 8 June 2014.[19]
(f)On 24 September 2014, the Southport Magistrates Court imposed a $400 fine (no conviction recorded) for the offence of public nuisance committed on 6 September 2014.[20]
[16] G2, 39.
[17] G2, 39.
[18] G2, 39.
[19] G2, 39.
[20] G2, 39
In October 2014, his son CX was born.
Between 2014 and 2017, the applicant’s offending relates primarily to contraventions of domestic violence orders.
(a)On 19 May 2014, the Southport Magistrates Court imposed:[21]
[21] G2, 39.
(i)an $800 fine for contravening a DV order on 5 April 2014;
(ii)an $800 fine for contravening a DV order on 13 April 2014;
(iii)an $800 fine for an offence of public nuisance committed on 19 April 2014.
(b)On 14 January 2015, the Southport Magistrates Court imposed a two year probation period contravening a DV order committed on 7 December 2014.[22]
[22] G2, 39.
(c)On 17 January 2015, the Southport Magistrates Court sentenced the applicant to three months imprisonment (suspended for one year) for contravening a DV order on 16 January 2015.[23]
[23] G2, 39.
(d)On 31 March 2015, the Southport Magistrates Court imposed a sentence of four months imprisonment for contravening a DV order on 28 March 2015.[24] The Court also invoked the suspended sentence imposed on 17 January 2015.[25]
[24] G2, 38.
[25] G2, 38.
(e)On 23 July 2015, the Southport Magistrates Court
(i)imposed a $400 fine for contravening a DV order on 20 May 2015.[26]
[26] G2, 38.
(ii)Imposed a $200 fine for breaching the probation order imposed on 14 January 2015.[27]
[27] G2, 38.
(f)On 25 September 2015, the Southport Magistrates Court imposed a six month good behaviour period with a $300 recognisance for contravening a DV order on 16 August 2015.[28]
[28] G2, 38.
(g)On 15 July 2016, the Southport Magistrates Court sentenced the applicant to three months imprisonment for contravening a DV order (Aggravated Offence) committed on 14 July 2016. [29]
[29] G2, 38
(h)On 29 July 2016, the Southport Magistrates Court recorded a conviction (not further punished) for:
(i)Using a carriage service to menace or harass or cause offence.
(ii)Breaching a probation order imposed on 14 January 2015.[30] He was resentenced for the original offence dealt with on 14 January 2015 with a 12 month probation period.
(i)On 16 December 2016, the Southport Magistrates Court sentenced the applicant to six months imprisonment (suspended for two years) for contraventions of a DV order in the period 11 – 17 August 2016.[31] The court ordered the conviction to be a DV offence.
(j)On 6 April 2017, the Southport Magistrates Court imposed a $50 fine (no conviction recorded) for breaching a bail condition on 17 March 2017.[32]
(k)On 15 November 2017, the Southport Magistrates Court
(i)Sentenced the applicant to one month imprisonment (suspended for two years) for the offence of contravening a DV order (Aggravated Offence) committed on 13 May 2017.[33]
(ii)Invokes the suspended sentence, imposed by the Southport Magistrates Court on 16 December 2016, due to the Applicant's breach of the order imposed.
[30] G2, 38.
[31] G2, 38.
[32] G2, 38.
[33] G2, 38.
In his last court appearance (15 November 2017) the Magistrate varied the DV order to prohibit any contact with his former partner or his son. The applicant states in his Statutory Declaration dated 10 January 2020 that this was a turning point. He states:
Having a completely clear unambiguous rule of no contact helped me immensely to get out of the destructive pattern of behaviour I was in. Of course, I should have just done this on my own but I believe the magistrate made a great call here.[34]
[34] G2, 109
The applicant has not offended since, nor made any effort to contact his son CX or his former partner LX.
Paragraph 8.1.1 - The nature and seriousness of the Applicant’s conduct
In considering the nature and seriousness of the applicant’s conduct, I must have regard to the matters listed at paragraph 8 of the Direction.
Under paragraph 8.1.1(1)(a) acts of family violence are regarded as very serious, regardless of whether there is a conviction for an offence or a sentence imposed, and so are violent and/or sexual crimes and crimes of a violent nature against women or children, regardless of the sentence imposed.
I also note that while in general the Tribunal must have regard to the sentence imposed (paragraph 8.1.1(1)(c)), the Tribunal need not do so when considering crimes of a violent nature against women or children, or acts of family violence (regardless of whether there is a conviction for an offence). This underlines that family violence is to be regarded as very serious, regardless of whether a criminal charge is laid or a conviction recorded.
An important indicator relates the frequency of the offending and whether there is a trend of increasing seriousness: paragraph 8.1.1(1)(d).

The applicant’s solicitor concedes a regular pattern of offending during the years of his previous partnership. However, she argues that there has been no offending since they separated more than five years ago.
The Tribunal also takes into account the cumulative effect of repeated offending (paragraph 8.1.1(1)(e)), which serves to undermine the authority of a court and therefore its capacity to protect victims, especially victims of DV.
Paragraph 8.1.2 - The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I take account of the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
I also have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The issue of risk and rehabilitation is covered more fully in the next section dealing with family violence. As explained below, my conclusion in relation to the likelihood of him committing further offences or engaging in other misconduct is that it is low to very low.
I conclude that PC1 weighs moderately in favour of cancelling the applicant’s visa.
PC 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The Direction defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. The Direction sets out various examples of behaviour that may constitute family violence. The core concept involves coercive or controlling behaviour aimed at a family member that is violent or threatening, or causes the family member to be fearful. The examples do not purport to cover every instance of family violence.
The applicant’s solicitor concedes that he has been convicted of offences involving family violence.[35] She did however raise an issue as to the extent of his family violence offending. She submitted that the preponderance of offending involved “mere breaches of the non-contact provision of the protection orders” and did not constitute family violence. She instanced the following:
(a) Contravention of DV Order (on 29/03/2014);
(b) Contravention of DV Order (on 16/01/2015);
(c) Contravention of DV Order (on 20/05/2015);
(d) Contravention of DV Order (on 16/08/2015);
(e) Contravention of DV Order (on 14/07/2016) and
(f) Contravention of DV Order (btn 11/08/2016 and 17/08/2016);
[35] ASFIC, paragraph 37-39.
She also submitted that the Contravention of DV Order (on 13/05/2017) did not constitute family violence under the Direction.
It is a question of fact whether a particular breach of a non-contact provision within a protection order amounts to family violence. I accept that a ‘technical’ breach of a non-contact order initiated by the person in need of protection (PINOP) would not necessarily amount to family violence.
During the course of the hearing, the applicant conceded that some of his conduct went beyond merely threatening, and was physically abusive. He gave as an example the flicking of his cigarette at his partner when she was with someone else, resulting in a burn to her neck, her panicked flight and the intervention of a stranger. The applicant expressed shame and remorse about this incident.
The incident occurred on 17 November 2013, although it is described in different terms in the Police Report. He was alleged to have used a cigarette lighter to burn his partner’s neck in a fit of jealous rage. The police made a temporary protection order which was converted to a Full Order by the Southport Magistrate’s Court on 20 November 2013.[36]
[36] On 7 February 2014, an Order made by the Coolangatta Magistrate’s Court on 6 December 2013 relating to the same incident was vacated to avoid the existence of duplicate orders:SM5/1068, 1070.
The applicant was not charged with any offence as a result of this incident, but I am satisfied that on either account, his conduct satisfies the definition of family violence.
I note allegations by the person or persons aggrieved in various applications for protection orders, including an application made by LX’s parents.[37]
[37] SM5, 1105.
His contravention of DV orders resulted in the imposition of terms of imprisonment, and is undoubtedly a serious matter. In each of 2015[38] and 2016[39] he was sentenced to two separate terms of imprisonment, and the following year he was sentenced to a further term of imprisonment.[40]
[38] 3 months suspended on 17 January 2015; 4 months on 31 March 2015.
[39] 3 months on 15 July 2016; 6 months suspended for 2 years on 16 December 2016.
[40] 1 month suspended for two years on 15 November 2017.
The offending record shows a degree of recalcitrance and defiance on the part of the applicant. He was resistant to change, and it appeared that even court orders would not deter him. There is no doubt that the relationship with LX was volatile and unstable. These were difficult times for two young persons, involving the emotional challenges of a baby and a lack of stable family support. Some of their behaviour was precipitous and impulsive. I stress, as did the applicant in his evidence, that LX’s behaviour is not relevant in judging his behaviour. Extenuating circumstances for family violence are never to be found in the behaviour of the person in need of protection.
Paragraph 8.2(1) states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen. The Tribunal is required to consider the seriousness of the family violence by reference to certain factors identified in paragraph 8.2(3). These must be considered where relevant.
The frequency of the conduct
The frequency of the applicant’s conduct has been noted above. After the birth of his son, the applicant appeared in court ten times in respect of 13 discrete offences.
The cumulative effect of repeated acts of family violence
Although his acts were not often violent as such, and for the most part consisted of breaching the court orders that had been made for his partner’s protection, there is no doubt that his offending caused considerable emotional stress and upset to his partner.
Rehabilitation achieved at time of decision since the person's last known act of family violence
The applicant provided a very long statutory declaration setting out in great detail his perception of the various offences described above.[41] In relation to rehabilitation, he states:
I attended the men's domestic violence course between first between 22 January 2015 and 23 July 2015 and then from 27 August 2015 and 13 April 2016. In total I completed approximately 12 months of these classes. I also had mental health support including free sessions with Dr Clark between January 2015 and July 2015. Although it was commented by the magistrates that I got "nothing" from these courses and in developing the mindset that allowed me to rehabilitate and that I am still today digesting and thinking about the lessons I got from these courses today. counselling, as I kept reoffending, I maintain that these courses were very important
[41] G2, 91.
The applicant contacted a counselling service Everyman, in February 2022, after his visa was cancelled. He was seen by a counsellor, Dr Morgan, who provided a short report detailing the consultations he had had with the applicant – three in all.[42] He considered that the applicant demonstrated appropriate levels of remorse and a fit understanding of the inappropriateness of his actions. Overall, his evidence to the Tribunal was couched in positive terms.
[42] JJO30.
When asked why he had not sought such help sooner, he said:
Question: So, I asked earlier, you haven't committed domestic violence related offences, or any other kind of offences, since May 2017 and recently you've engaged with EveryMan. Can you explain why you've chosen to do that now?
Applicant: Yes. I think over the past five years, I've done a really - my therapy has been training and working. It hasn't been so much that I've been going to therapy but then I haven't had any specific events in my life that have triggered an emotion in me so detrimental that I felt that I needed an intervention. I've been able to manage my anxiety and emotions myself. Yes, having the skills now to identify those problems, I think being in this situation, and reliving a lot of past experiences that I had not - not relived every day has been traumatic. It's been an event that I don't believe I can unpack by myself and it's been important to get help to unpack them, so that I don't curl up in a ball. So that I can maintain my ability to eat and sleep and know that I've had support and someone's listening to me. [43]
[43] Transcript, 21 March 2022, 27.
Dr Leesa Morris, clinical psychologist, provided a written report in which she opined that:
12.3 These considerations place Mr Oldbury at low risk of reoffending. Changes to his lifestyle since his offending suggest that Mr Oldbury is motivated to make a contribution to his community and to build and provide for his family. I have no concerns for Mr Oldbury’s character in the future. I believe that he may benefit from some further psychological intervention in time to address his underlying grief and anger, however this is not a priority at this stage.[44] [emphasis added]
[44] G2, 126.
She confirmed this evidence in her oral testimony to the Tribunal.
During the hearing, the applicant was examined at length about his offending history. He demonstrated considerable insight into his behaviour. For example, he was asked by the respondent’s solicitor about the conduct of his former partner.
Do you think LX played a part in your offending? Was she responsible at all for what you did?‑‑‑I don't think it's relevant to - to ask what LX did. I did what I did during those years of my offending. There's no one else that's harder on myself for what I done and the way I behaved. Nobody forced me to do anything. There's a lot of times where, I guess, I should - yes, looking back, I wish I knew what I knew then now - or knew now what I - then.
I wish I had the maturity. I wish I had the support when I was going through these things. That I wish I was able to identify the problems and that my behaviours, that they were wrong. [45]
[45] Transcript, 21 March 2022, 46.
I also note the evidence of his present partner. She made a very favourable impression on the Tribunal as a sincere person. She told the Tribunal that the applicant told her about his offending at the early days of their relationship. This is important. She said that she had read “all the papers”.
The sum total of this evidence supports a finding that at this time the applicant has achieved a high degree of rehabilitation.
Reoffending after formal warning
Although there is no reference to any administrative warning issued to the applicant, he did receive numerous warnings from judicial officers, often in the context of imposing sentences of imprisonment.
The applicant’s solicitor notes that the Department did not consider cancelling his visa at the height of his criminal offending between 2012 and 2017. Indeed, he made several short trips out Australia and upon re-entry to Australia declared his criminal convictions. He was interviewed at the international airport, but granted a Class TY Subclass 444 Special Category (Temporary) visa on each occasion.
I do not regard this fact as pressing. The fact that an immigration officer decided to grant a temporary visa despite the existence of a criminal record is immaterial for present purposes.
Conclusion on Family Violence
I make the following findings:
(a)I am satisfied that between 2013 and 2017 whilst in a relationship with his former partner, the applicant engaged in family violence. In short, he engaged in conduct that was coercive or controlling and aimed at his former partner. Such conduct was occasionally violent or threatening, and caused her and her parents to be fearful. The applicant’s behaviour was verbally abusive and potentially very frightening. There are several instances of such behaviour in the materials before the Tribunal;
(b)I note at least one instance that caused physical harm to his former partner (flicking a cigarette in anger) although I accept that the applicant did not intend to injure her;[46]
(c)The instances of family violence occurred when the applicant was relatively young, immature and emotionally unstable. His instability was aggravated by the birth of his son, by his exclusion from the newborn child at birth and in the ensuing months, and by his sense of parental rejection by his own adoptive parents;
(d)His criminal offending record consists primarily of non-compliance with various court orders made for the protection of his former partner and/or her parents. Some of this offending satisfies the definition of family violence;
(e)Before the Tribunal, the applicant demonstrated insight into his behaviour and did not seek to blame either his partner or her parents, who were no doubt extremely concerned about the safety of their daughter, and grandson. The applicant did not attempt to minimise his responsibility for his conduct or blame his victim. He has not sought to argue that he was himself the victim of emotional abuse. He expressed deep shame, embarrassment and regret about his behaviour;
(f)The applicant has not had contact with his former partner for the past almost five years;
(g)During the past five years, the applicant has been a law abiding citizen, and runs a successful business as an electrician. He is in a stable and loving relationship, and is building a house in Queensland with his partner. They have a substantial mortgage to the bank;
(h)The applicant has initiated proceedings in the Family Court, with the assistance of an experienced family solicitor, Ms Abela;
(i)The likelihood of further outbreaks of family violence, whether directed to his present partner or at the mother of his child, is low to extremely low. His experience in immigration detention and the realisation that future offending may lead to deportation are potent deterrents.
[46] I note that his criminal record contains one conviction in 2013 for assault or obstruction of a police officer, but this is not an instance of family violence and is dealt with below.
Paragraph 5.2.5 of the Direction provides that, in some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling the non-citizen’s visa.
Ongoing contact in Australia may bring the applicant into contact with LX. It is relevant to consider whether this presents an unacceptable risk of the conduct being repeated. One cannot exclude the possibility that future contact between the former partners might be emotional or even fractious, but I consider the risk of further outbreaks of family violence to be low.
Paragraph 5.2.5 specifically mentions family violence, referring to the inherent nature of certain conduct such as family violence as being so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal is not however spared the task of applying these principles within the factual matrix of the particular case. In applying principle 5.2.5 it is the non-citizen’s actual conduct, not family violence in general, that is front and centre in the inquiry. There is no straight line running directly from a finding of family violence in any degree to automatic visa cancellation. That is not the present law.
The applicant engaged in family violence with a specific partner over a discrete period some five to ten years ago. In terms of seriousness, the applicant’s conduct is not such as to negate all other countervailing considerations. The presence of family violence weighs against the applicant, but in the circumstances, not heavily.
PC 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction requires a decision-maker to make a determination about whether cancellation is in the best interests of minor children in Australia who may be affected by cancellation of the applicant’s visa.
Paragraph 8.3(2) provides that this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision to cancel the visa is expected to be made. As shown by the following Table, there are 13 minor children who potentially fall for consideration. Paragraph 8.3(3) provides that if there two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The applicant has six nieces and six nephews, in addition to his seven year old biological son. The youngest is four and there are four teenagers. Their ages are as set out below:
(a) nephew 1, 17 years old;
(b) nephew 2, 16 years old;
(c) nephew 3, 14 years old;
(d) niece 1, 13 years old; and
(e) niece 2, 11 years old;
(f) nephew 4, 10 years old;
(g) nephew 5, nine years old;
(h) nephew 6, four years old;
(i) niece 3,11 years old;
(j) niece 4, nine years old;
(k) niece 5, eight years old; and
(l) Niece 6, eight years old.
Paragraph 8.3(4) provides that in considering the best interests of the child, certain factors (eight in number) must be taken into account. I deal with them in turn.
a) the nature and duration of the relationship.
There is evidence from third parties that the applicant had a positive relationship with his two year old son CX and was a loving father.
I note the evidence of his adoptive parents, who state:
We had [the child] in our lives from birth until the 2nd time Jaron went to jail he was around 2 years old We had [LX] and [the child] live with us twice at different houses we cared for [LX] and [the child] often when [LX] went to work or needed a babysitter we would look after [the child]. [LX] would admit to us how helpful [the applicant] is with [the child] how great he is as a father so we thought we would closely observe his and [the child’s] relationship. Given his erratic behaviour and that he was facing criminal charges and his mental state was clearly demolished. We were worried but this did not impact of his ability to care for his son we clearly saw that [the applicant] was a hand’s on, caring, loving, protective father to [the child] and would do just about anything to help [LX] with him as any great father would.[47]
[47] G2, 299-301.
On 21 January 2015, LX made an application to vary the DV order made on November 2014 to enable physical contact with the consent of both parties.[48] It appears that she wanted the Order to be varied as he was seeing a psychologist and attending a domestic violence prevention program. She wanted him to be able to see CX, and felt “comfortable with him making these changes and wanting to be the dad he is for his son”.[49] In September 2015, she sought a further variation in order for the applicant to have regular access. She wrote “the sooner the better, because he has missed out on his son’s life and he would like to have contact with his son”.[50]
[48] SM5, 1071.
[49] SM5, 1073.
[50] SM5, 1085.
The applicant has had no contact with CX for the past five years. Less weight should generally be assigned where there have been long periods of absence between the applicant and the relevant child, or limited meaningful contact (including whether an existing Court order restricts contact).
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

The evidence of parents, friends, solicitor and counsellors, taken together with the numerous references provided to the Tribunal in support of the applicant, give the Tribunal confidence that he is capable of playing a positive role in the future and wants to do so.
In February 2022, the applicant initiated proceedings in the Family Court for parenting orders and hopes to be awarded 50 to 100 per cent custody of his son.[51]
[51] JJ0, 28
The respondent’s solicitor asked the applicant about the timing of the family court proceedings. The applicant said that he always wanted to have shared custody of his son. The cost of building made it impossible to commence proceedings sooner. He said:
It was always the - it was always the plan. As discussions with my solicitor go back to 2015/16, it was always the plan that the decision was made on that day. I need to go away for a period of time. I need that to be a period of time where I can demonstrate that I'm a safe person, that I have rehabilitated, so that I could provide a safe environment for [CX], both mentally, financially, that he has a bed to come home to that's - that he feels safe in. During these times, in the past, it wasn't a case that I didn't love him, or I didn't want to have him in my life. It's been that I've wanted him so badly that I've made these hard decisions to leave and the purpose of contact with my solicitor over the last few years was that once my house was built, this was always the plan. We were going to launch a legal fight to get custody of my son and be reintegrated into his life, so that now that I can give him that safe environment that I've always wanted to. [52]
[52] Transcript, 21 March 2022, 27.
I am satisfied that the applicant is likely to play a positive role in his son’s life.
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
The respondent’s solicitor asked the applicant about the impact of his conduct on his son.
Looking back then on your conduct, how do you think your conduct affected [CX]? I think that my conduct would have affected [LX’s] ability to parent [CX] during those particular times in a stress-free environment.[53]
[53] Ibid, 66.
Given that CX was two years old at the time of last contact, and that there has been no contact for the past five years, it is doubtful whether the applicant’s conduct has had any lasting negative impact on the child.
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways
The applicant has had no contact with his son CX for the past five years. As noted above, their last contact took place when the child was two years old. He said that his son was very distressed when he took leave of him for the last time.
The applicant’s solicitor provided a number of academic articles which spoke to the impact of father absence and problems in later years. A paper by McLanahan, et al, states:
Our assessment is that studies using more rigorous designs continue to find negative effects of father absence on offspring well-being, although the magnitude of these effects is smaller than what is found using traditional cross-sectional designs. The evidence is strongest and most consistent for outcomes such as high school graduation, children's social-emotional adjustment, and adult mental health.[54]
[54] Sara McLanahan, Laura Tach, and Daniel Schneider, ‘The Causal Effects of Father Absence’ (2013) 39 Annual Review of Sociology 399, 422;
A paper by Flouri, et al, notes:
Father absence seems to be mainly the cause rather than the outcome of child problem behaviour in young UK families, and to affect boys and girls similarly. There were some child (mostly externalizing) behaviour effects on father absence, particularly in the early years.[55]
[55] E. Flouri, M. K. Narayanan and E. Midouhas, ‘The cross‐lagged relationship between father absence and child problem behaviour in the early years’ (2015) 41(6) Child: Care, Health and Development 1090.
A paper by Markowitz, et al, states:
Findings indicate that father departure later in childhood is associated with increased delinquency in adolescence but not with greater depressive symptoms. Moreover, father departure in early childhood was not associated with problematic behavior in adolescence. Both findings suggest that parental monitoring rather than disrupted socialization or emotional distress may account for links between having a nonresident father and adolescent delinquency. [56]
[56] Anna J Markowitz and Rebecca M Ryan, ‘Father Absence and Adolescent Depression and Delinquency: A Comparison of Siblings Approach’ (2016) 78(5) Journal of Marriage and Family 1300.
This is no doubt a rich and contested field of academic study, but I am reluctant to base any specific findings on this sample of academic studies. The desirability of shared parenting is an accepted norm of modern family law. The removal of a parent curtails the potential for daily contact and is in most cases adverse to the interests of the child. In extreme cases, ongoing contact may be disruptive or even dangerous. I do not understand the respondent’s solicitor to argue that this is such a case.
If the applicant is removed from Australia, he may lack the emotional or financial resilience to pursue contact in the short term and the effect of ongoing separation is likely to make it more difficult to reconnect in the future. His solicitor, Ms Abela told the Tribunal that his removal from Australia would not necessarily prevent the making of appropriate contact orders.
I am satisfied that CX will be disadvantaged if he has no meaningful physical contact with his father in the future.
The applicant’s solicitor contends that the Tribunal should find that the applicant has a relationship with each of his nieces and nephews, and that they would suffer emotionally were he to be removed from Australia. There is however nothing to suggest any particularly close bond between the applicant and his nieces and nephews. He does not provide financial or emotional support for any of them, who have parents to provide them with primary care.
(e) Whether there are other persons who already fulfil a parental role in relation to the child
The applicant told the Tribunal that he did not know the whereabouts of his son. He said that he was told in around July last year by someone he trusted that CX had been removed from LX. His solicitor Ms Abela said she had obtained a location order from the Family Court to trace the child’s whereabouts but could not serve it on LX because she had moved. She was hoping to obtain an order for substituted service on the grandparents.
If CX is no longer in LX’s care, it is probable but not certain that he is in the care of his grandparents.
(f) Any known views of the child
There is no evidence of any such views.
(g) Evidence of abuse or neglect by the non-citizen
There is no evidence of abuse or neglect.
(h) Evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct
There is no evidence of harm to the child resulting from the applicant’s offending.
The respondent concedes that the best interests of minor children affected by the decision weigh in favour of not exercising the discretion to cancel the applicant’s visa.
I find that PC 3 is a powerful factor supporting a decision not to cancel the applicant’s visa.
PC4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction requires consideration to be given to the expectations of the Australian community.
Paragraph 8.4 states: (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
The High Court declined to grant special leave to appeal from the majority decision.[57]
[57] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
The majority decision in FYBR states that it is for the Tribunal to determine, in light of the particular circumstances of the case, the weight to be assigned to this consideration. The views of the executive government must be taken into account. They are encapsulated within the Direction. In general, the more serious the breach, the more it weighs against the applicant, and it may even be decisive.
As noted by Stewart J at [103] in the passage quoted above:
In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
My assessment is that the applicant’s conduct falls at the lower end of the scale relating to family violence. While PC4 weighs in favour of exercising the discretion to cancel the applicant’s visa, it does not weigh heavily against him.
OTHER CONSIDERATIONS
The Direction sets out other considerations that must be taken into account where relevant, in deciding whether to cancel a visa. They are as follows.
OC1: International non-refoulement obligations
The applicant’s solicitor has not raised any non-refoulement issues.
OC2: Extent of impediments if removed
The Tribunal is required to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The applicant has very solid employment credentials. He has been employed continuously since he was 16 and has undertaken two apprenticeships. He has his own electrical contracting business ‘Spark It Up Electrical & Data’. He has been granted various industry accreditations and registrations, including an ACT Government Working with Vulnerable People Card, Australian Clean Energy Council Accreditation and Qualification in Solar Design and Installation.
The solicitor for the respondent submitted that by virtue of his energy and qualifications he would easily find work in New Zealand. However, the applicant has indicated that he may not be able to satisfy the registration requirements as an electrician if he is deported to New Zealand, specifically, that he may not satisfy the ‘fit and proper’ test.
The applicant said that his resources would be significantly depleted if he were removed from Australia. The sale of the incomplete house would not clear the mortgage owed to the bank. His trade vehicle would also be sold at a loss. It was not worth more than the finance owing on it. His tools had little second hand value but would be expensive to replace. He did not think he could take them into New Zealand due to quarantine restrictions.
I am satisfied that the applicant’s removal from Australia would cause a significant financial disruption. His depleted financial state would undoubtedly create significant financial challenges in establishing himself and maintaining basic living standards in New Zealand.
On a personal level, the applicant has some relatives in New Zealand – specifically relatives of his adoptive parents – but has had no regular contact with them. He has had no contact with his birth mother and said that he did not want to have anything to do with her.
In terms of cultural awareness, the applicant lived in New Zealand as a teenager. He is not a stranger to the country.
Given his employment record, drive, health, and youth, I do not consider that he would experience severe impediments. Such impediments as might exist are nevertheless not insignificant, and weigh moderately against cancellation of the applicant’s visa.
OC3: Impact on victims
There is no evidence before the Tribunal as to the impact of the applicant’s removal on his former partner.
OC4: links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
The applicant is now 28 years of age. He came to Australia at the age of six. He has lived in Australia for more than two thirds of his life, taking into account the two years spent in New Zealand as a teenager.
The applicant has an extended family in Australia. He has siblings and close friends in this country, including supportive and pro-social adults. The applicant has provided references from past and present employers, family friends, and from his solicitor. He appears to be making some progress in reconciling differences with his adoptive parents. He has strong ties within the Australian community.
I am satisfied that over the past five years the applicant has taken important steps towards his complete rehabilitation.
Finally, the applicant has a partner in Australia. The relationship is well established and they appear to be very committed to each other. She has no desire to relocate to New Zealand, other than to be with her partner. She has strong family ties in Australia.
I consider that this factor weighs heavily in favour of not cancelling his visa.
ii. impact on Australian business interests
The respondent’s solicitor cast doubt on whether his employment as an electrician was relevant under this heading, suggesting that it did not involve the delivery of a major project or delivery of an important service in Australia.
Be this as it may, I have no doubt that his work as an electrician in a specialised field has been of considerable assistance to the community, and further demonstrates the depth of his community ties. Even if not strictly relevant to ‘Australian business interests’, I consider that such specialised work adds weight to his positive contribution to the Australian community. When taken with his employment record as a whole, I am satisfied that his links to the Australian community weigh heavily in favour of exercising the discretion not to cancel his visa.
WEIGHING THE FACTORS
I have reviewed the evidence provided to the Tribunal in both documentary form and in oral testimony, including the various references and the applicant’s statutory declarations. The Tribunal was fortunate to hear from a number of witnesses, including the applicant’s present partner.
This material has been considered in terms of the primary and other considerations referred to in the Direction. The written and oral submissions made by the representatives for each of the parties have also been taken into account.
I am persuaded by the solicitor for the applicant that his offending history relates to a distinct period during which he was involved with his former partner, in a relationship that was immature and volatile, and has now ceased, and that for the past almost five years he has not committed any criminal offences.
The applicant’s solicitor notes that since his last offending in 2017 he has been a “model citizen and established sincere relationships and a pro-social support network”.[58]
[58] Closing Submission, para 2(f).
The description of the applicant as a “model citizen” is perhaps somewhat inflated, but he has undoubtedly matured. Ms Abela, his family law solicitor, said that she known him “warts and all” from a young age. She did not “love him to pieces” because “he could be very loud”. But she had chosen to stand by him very firmly and was present when the decision of the Tribunal was handed down.
Having examined the applicant’s offending record, I am satisfied that the circumstances of this case are not such that the presence of family violence committed as a young man five years ago excludes other countervailing considerations. In this case the countervailing considerations are sufficiently strong to be cumulatively decisive. The best interests of his son CX weigh powerfully against cancelling his visa, as does his links to the Australian community. The extent of impediments if removed also weighs in his favour, if only moderately (OC2).
Three of the primary factors (PC1, PC2 and PC4) weigh in favour of cancelling the applicant’s visa. I note that under paragraph 7(2) of the Direction, primary considerations should generally be given greater weight than other considerations. However, this is not decisive in and of itself, and in the particular circumstances of this case the cumulative weight of the primary and other considerations in favour of not exercising the discretion outweigh those primary considerations.
DECISION
The Tribunal decides that the reviewable decision dated 7 December 2021 is set aside, and in substitution, decides not to exercise the discretion under section 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa, issued on 30 July 2019.

I certify that the preceding 138 (one hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..............................[SGD]..........................................
Associate
Dated: 21 April 2022

Date(s) of hearing: 21, 22, and 25 March 2022

Solicitors for the Applicant: Ms J Samuta, SAMUTA MCCOMBER LAWYERS

Solicitors for the Respondent: Mr R Donaldson, CLAYTON UTZ

[2022] AATA 807

25 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	21, 22, and 25 March 2022
Solicitors for the Applicant:	Ms J Samuta, SAMUTA MCCOMBER LAWYERS
Solicitors for the Respondent:	Mr R Donaldson, CLAYTON UTZ