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

[2021] AATA 458

Ore Parraga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 458 (10 March 2021)

Division:GENERAL DIVISION

File Number:          2020/8357

Re:Roberto Ore Parraga

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Reitano

Date:10 March 2021

Place:Sydney

The decision under review is affirmed.

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

Member Reitano

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass character test – whether there is another reason to revoke the original visa cancellation decision – consideration of Direction No. 79 – protection of the Australian community – best interests of minor children – strength, nature and durations of ties – extent of impediments if removed – expectations of the Australian community – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

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

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Reitano

10 March 2021

1. Roberto Enrique Ore Parraga (Mr Ore Parraga) is a citizen of the Republic of Peru (Peru) who held a Class WE Subclass 050 Bridging (General) Visa (visa) until 28 April 2020 when a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Minister) was required to cancel the visa under subsection 501(3A) of the Migration Act 1958 (Cth) (Act) because the Minister was satisfied that Mr Ore Parraga had a substantial criminal record and therefore did not pass the character test and was at that time serving a period of imprisonment (the cancellation decision).[1]

   [1] Subsection 501(3A) of the Act states 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 due to the operation of subsections 501(6) and 501(7) of the Act. In this case, Mr Ore Parraga, has a ‘substantial criminal record’ (see subsection 501(7)) and does not pass the ‘character test’ (see paragraph 501(6)(a)).

2. On 6 May 2020, responding to an invitation from the Minister, Mr Ore Parraga made representations to the Minister in the time and manner required by the Migration Regulations 1994 (Cth) about why the Minister should revoke the cancellation decision.[2]

   [2] Subsection 501(CA)(3) of the Act requires representations to be made within the period and in the manner set out in the Regulations. Relevantly, r 2.52(2)(b) of the Regulations stipulates a 28-day period within which such representations must be made, calculated with reference to when the person is given the notice and the particulars of information under paragraph 501CA(3)(a) of the Act.

3. On 9 December 2020, the Minister’s delegate, after considering those representations, decided not to revoke the cancellation decision (the decision under review).

4. Mr Ore Parraga applied to the Tribunal for a review of the decision under review with the objective of having the Tribunal exercise the power to set aside that decision and substitute in its place a decision revoking that decision.

5. I have decided to affirm the decision under review for the reasons that follow.

   BACKGROUND

6. Mr Ore Parraga was born in Lima in Peru in 1985. He arrived in Australia in March 2009 when he held a temporary student visa. That visa was cancelled because it was claimed that he failed to conform to course attendance requirements, which was a condition of that visa. He applied to have that decision revoked and was then granted the bridging visa that is the subject of this application.

7. Mr Ore Parraga’s application in relation to the revocation of the cancellation of his temporary student visa is yet to be finally determined. The consequence of this is that as he has been unsuccessful in setting aside the cancellation decision he will not be removed from Australia but will be held in detention until the application in relation to his student visa is determined.

8. Mr Ore Parraga’s childhood in Peru was marked by his father’s excessive drinking and threats and assaults of his mother. His parents separated when he was young. He did his schooling in Lima. He studied printing for a year after he finished school although he did not finish that course. After that, he worked with his father in the construction industry.

9. In Australia, he did not complete his course in English which, although a little unclear, appears to have been a prerequisite to him commencing another course as a chef. He said he was told by the college he was attending that he needed to resolve his immigration status before he could continue the course. He did not know that his temporary student visa had been cancelled until much later when ‘he got involved with the police’. He only attended college for about a year and after that he worked.

10. He worked between about 2010 and about 2014 as a part-time cleaner and as a part-time bricklayer. He only worked about 20 hours a week because his temporary student visa restricted the number of hours that he worked. He said that because of the nature of the work he was doing he did not work continuously throughout the period and was unemployed at times. He was unemployed for about two months before he went to prison in early 2020.

11. Those members of his family who are living in Australia consist of his grandfather, aunts, uncles, two nieces and his son. He says that all of his father’s side of the family live in Australia. His son, who was born in April 2020, and his son’s mother, Chantelle De La Torre (Ms De La Torre), who is also Mr Ore Parraga’s former partner, are both Australian citizens.

12. His parents live in Peru respectively with their current partners and their families. His sister lives in Peru with her own family. He has two stepbrothers and one stepsister who are 15, 13 and 7 years of age respectively. He has some other aunts and uncles in Peru, but he has no contact with them, and he says he is not close to them. He has a 14-year-old son in Peru who lives with his mother. He does not have much contact with either of them.

13. Mr Ore Parraga says that it would be difficult for him to stay with any of his family if he returned to Peru because they have their own lives. He says that his family would be unwilling to assist him with somewhere to live if he returned to Peru, but he anticipated that his mother would try to help him as best she could, but he did not want to be a burden to her. He also anticipated that it would be difficult to gain employment in Peru, but he said would nonetheless try to obtain employment. He thought at 35 years of age he would have difficulty given what he says is the preference of employers in Peru for younger people.

14. Mr Ore Parraga says that his former partner in Peru’s partner threatened him ten years ago and so he fears for his safety if he returns to Peru. He says that things in Peru are not as they are in Australia and he will have little protection from this man. He provided no detail about threat or any evidence from anyone else about it.

    Criminal offending

15. Mr Ore Parraga has a criminal record which started shortly after he arrived in Australia when he committed two relatively minor criminal offences. These involved driving whilst he was not licenced and driving with a low range prescribed content of alcohol. He was convicted, fined $600 for each offence, and disqualified from driving for six months. I observe that these offences, like Mr Ore Parraga’s later offending, involved the consumption of alcohol, but otherwise these offences are fairly immaterial to the outcome of this matter.

16. On 26 July 2019, Mr Ore Parraga’s serious criminal offending started when he was convicted of the offence of stalk/intimidate with the intention to cause physical or mental harm to his partner which happened a few days earlier. There is not much else known about the circumstances of this offence. Mr Ore Parraga was unable to shed much light on the detail of the circumstances of the offence other than the fact that it was result of a disagreement between him and Ms De La Torre. He agreed, at least at one point in his evidence, that the offence for which he was convicted ‘related to [him] having a knife and threatening [his] partner with it’ but went on to say elsewhere in his evidence that he did not in fact have a knife. I take from this that he agreed that the essential factual element of his conviction involved him having a knife and threatening his partner, but he now denies both of those facts.

17. I am not able to go behind the conviction for the purpose of this application. There can be no challenge to the essential facts underlying the conviction. The essential facts relating to this offence are that Mr Ore Parraga stalked or intimidated his partner with intent to cause her physical or mental harm and did so whilst threatening her with knife.

18. As a result of this offence Mr Ore Parraga was convicted and sentenced to a conditional release order for 12 months. An apprehended violence order was also issued that restricted Mr Ore Parraga from approaching or being in the company of Ms De La Torre within 12 hours of consuming alcohol. I should note here that a conditional release order is one of the lightest forms of punishment available in the criminal justice system having the effect of releasing the offender on conditions, generally speaking, that they not offend again and that they appear before the Court to be sentenced if they do so.

19. On 8 November 2019, Mr Ore Parraga was convicted for two offences he committed on 17 August 2019: contravening a restriction or prohibition in an apprehended violence order (domestic), for which he was fined $500, and the offence of common assault for which he was placed on a 12 month community correction order. His conditional release order in respect of his earlier offence of stalk/intimidate was called up and he was fined $400.

20. Again, in respect of the common assault offence, Mr Ore Parraga sought to rely on facts that impugned the essential ingredients of his conviction. One of those facts was that Mr Ore Parraga kicked Ms De La Torre in the stomach. She was seven weeks pregnant at the time. That this was a factual ingredient of the offence, and one of the facts upon which Mr Ore Parraga was sentenced, is apparent from the sentencing remarks concerning this offence that occurred when the community correction order was called up on 16 April 2020. The magistrate said: ‘He breached the good behaviour of that order on 18 (sic) August 2019, when he assaulted Ms De La Torre by kicking her in the stomach whilst pregnant’. And again, despite his denial in his evidence of kicking Ms De La Torre in the stomach, it was an essential fact relevant to his conviction. I am unable to go behind the essential facts of the conviction.

21. On 2 March 2020, Mr Ore Parraga was found guilty, after a contested trial, of three offences: intentionally choke a person without consent, common assault and contravening a restriction or prohibition in an apprehended violence order (domestic). Again, there are some essential facts of the conviction and sentencing which Mr Ore Parraga sought to call into question in some of his evidence. The essential facts behind the conviction involve Mr Orr Parraga choking his then six month pregnant partner, Ms De La Torre, in her home.

22. The offence of choking without consent has as one of its essential elements choking someone and doing so without their agreement. Mr Ore Parraga denied in his evidence that he choked Ms De La Torre although at one stage he said he did not know if he choked her. In any event his denial or equivocation carries no weight given the fact of his conviction and the essential facts behind it. It is not so clear on the evidence what the essential facts behind the common assault and contravention of the apprehended violence order convictions were, but it is likely that there was some overlap between all of the offences given the condition of the apprehended violence order that was breached involved a prohibition on assaulting his partner.

23. On 16 April 2020, Mr Ore Parraga was sentenced in respect of each of these offences. He received an indicative sentence of 12 months imprisonment for the offence of intentionally choke a person without consent for which the maximum sentence is five years imprisonment; an indicative sentence of six months imprisonment for the offence of common assault for which the maximum sentence is two years imprisonment; and an indicative sentence of 16 months imprisonment for the offence of contravening a restriction or prohibition in an apprehended violence order for which the maximum sentence is two years imprisonment. His earlier community corrections order was called up and he was sentenced in relation to that offence with an indicative sentence of three months imprisonment. He received an aggregate sentence of 20 months imprisonment with a non-parole period of 12 months for all of the offences.

24. It is instructive to refer to some of the observations of the sentencing magistrate. First, it was found that the offences involving the choking and the common assault were considered to fall within the mid-range of seriousness. Second, the magistrate said that the offences were aggravated by the fact that Mr Ore Parraga was on a community correction order at the time. Third, the magistrate considered that the offences were committed at a place where the victim was entitled to feel safe, namely in her home. Fourth, the offences, that is the one subject to the call up and the more recent ones, were committed at a time when the victim was pregnant. Fifth, Mr Ore Parraga did not show any remorse or acceptance of responsibility for the offences because he did not plead guilty to them. Finally, the magistrate described Mr Ore Parraga’s prospects of rehabilitation as ‘not promising’. A community corrections officer assessed his risk of re-offending as being medium to low risk which was something the magistrate considered.

25. Mr Ore Parraga told the Tribunal that he was remorseful for what he had done in his ‘past life’. This of course did not sit at all well with his denials of various of the matters that went to each of his convictions for offences against Ms De La Torre, which is a matter to which I will return later.

    Children in Australia

26. Mr Ore Parraga’s son was born in April 2020 whilst Mr Ore Parraga was in custody. He has met his son once by video shortly after his birth but has not seen him since. He has been sent a photo of him. He has not had any contact with Ms De La Torre or his son since he had a dispute with Ms De La Torre over his son’s surname about a week or so after he was born. Mr Ore Parraga says he needs to be in Australia to support his son and to raise him. He also says he needs to provide income for him to be supported. There was no evidence that the child needs that support whether financial or otherwise.

27. Mr Ore Parraga said that his main reason for wanting to stay in Australia was so that he could be ‘here for [his] child and to be able to look after him and his wellbeing’. He said that, in particular, he wants to be there for his son and wants an opportunity to demonstrate that he is a good father. He wants to be a good example for his son. He is concerned about who would look after his son if something were to happen to his mother. There was no evidence that his son needs a role model or that there are not others around to fulfil that role. There was no evidence that suggested that there are not others who would be able to assist should something happen to the child’s mother.

28. Mr Ore Parraga said that Ms De La Torre suffers from epilepsy and bipolar disorder, that she only has the assistance of the child’s maternal grandfather to assist with his child’s care and that the child spends 10 hours a day in childcare.

29. The claim about the time that the child spends in childcare was raised late in the hearing. There was no evidence about the hours the child spends in childcare and that information was not set out in a written statement given to the Minister at least two business days before the hearing.[3] I consider that, as the Minister’s representative put to the Tribunal, I should not have regard to it.

    [3] Subsection 500(6H) of the Act.

30. Mr Ore Parraga has two young nieces who are six and three years old respectively. Their father, Mr Ore Parraga’s uncle, Jhony Luis Leon Carazon, gave evidence that Mr Ore Parraga frequently visited them before his imprisonment and at times baby sat them. Mr Ore Parraga also visited them on weekends. He said the children are always asking when Mr Ore Parraga will be coming to see them again, and that they miss him and love him. Both children live with their mother and father who are their primary carers.

31. Carmina Vasquez was Mr Ore Parraga’s partner before his most recent partner. The two met about five years ago and lived together for a period of about a year before the relationship ended. He also spent a considerable amount of time living with her for about another year even though he had his own house during that period. I will return to Ms Vasquez in a moment when I refer to some of the facts relevant to her but for now it is relevant to deal with Mr Ore Parraga’s relationship with her children.

32. Ms Vasquez has four daughters aged 20, 15, 14 and eight years of age. Mr Ore Parraga had a relationship with the children when he lived with Ms Vasquez and when he spent a deal of time in Ms Vasquez’s house before he lived with her. This involved things like helping the youngest with her homework and playing with her and talking a great deal and watching movies with the oldest one. He cooked for them, put them to bed and generally looked after them. Ms Vasquez said that he was like a father for her daughters. The children have a father and visit him on the weekend every two weeks except if one of them is sick. The two youngest children have a serious form of asthma.

    Links with the community

33. Apart from his family members in Australia to whom I have already referred, and Ms Vasquez’s children, Mr Ore Parraga has a number of other ties to the community.

34. Ms Vasquez has known Mr Ore Parraga for about five years. They had a close personal relationship for about two years some time before Mr Ore Parraga took up with Ms De La Torre. They lived together for a year or so together with Ms Vasquez’s four daughters. Mr Ore Parraga and Ms Vasquez remained friends after the relationship ended. Ms Vasquez visits Mr Ore Parraga in detention every weekend. She telephones him every day.

35. Mr Ore Parraga gave evidence that he was intending to marry Ms Vasquez. When he was asked whether this was because he thought it might assist his fate so far as this application was concerned Mr Ore Parraga said that ‘if I get married it has nothing to do with being deported or preventing me from being deported. Like I said before the only reason why I'm wanting to stay is so that I can have access to my child and I can see him grow up’.

36. Ms Vasquez had difficulty recalling when she decided to resume a romantic relationship with Mr Ore Parraga, but ultimately when pressed said it was in late January 2021. Her inability to readily recall that she had had decided only a month or so earlier to pursue a more serious relationship with Mr Ore Parraga is something that creates some doubt about the credit to be accorded to her evidence. The fact that things appear to have moved so quickly is another reason to have some concerns about the genuineness of what is suggested about them getting married. Mr Ore Parraga was unable to satisfactorily explain why things had moved so quickly suggesting that it was really up to Ms Vasquez. They have made a request to get married whilst Mr Ore Parraga is in detention.

1. Alison Vasquez, Ms Vasquez’s oldest child, gave evidence about how her mother and Mr Ore Parraga had, when they had previously been in a relationship, spoken about buying a house and getting married. She did not know the current state of play. She said she was close to Mr Ore Parraga and that she enjoyed a good relationship with him as a child. She spoke to him by phone the day before the hearing but had otherwise not spoken to him for about a year.

   Other matters

2. Mr Ore Parraga says that if allowed to remain in Australia he will attend rehabilitation programs for alcohol, domestic violence, and other help he needs. He would then attend to having his son’s name changed. He would need to check his visa status to see if he could work and for how long. He would start his study again to get a certificate of bricklaying and in welding. He also wants to study English.

3. Mr Ore Parraga also says that he has a health issue that concerns his heart, and that he suffers from depression and stress. There is limited medical evidence about his conditions although he has undertaken some tests and has been to hospital several times, particularly in respect of his heart condition. He is on medication for his heart condition. Mr Ore Parraga did not bring any evidence of any diagnosis from a medical practitioner or cardiologist. Nor did he bring any evidence other than his own self-serving evidence that any condition he might have would not be capable of being treated in Peru.

   ISSUE TO BE DETERMINED

4. The Tribunal may revoke the cancellation decision in respect of the visa if the Tribunal is satisfied that Mr Ore Parraga passes the character test (ss.501CA(4)(b)(i)) or if it is satisfied that there is another reason why the cancellation decsion should be revoked (ss.501CA(4)(b)(ii)).

5. Mr Ore Parraga does not pass the character test as he has a substantial criminal record as defined by the Act because he was sentenced to serve a period of imprisonment of more than 12 months.

6. It follows that the only issue for the Tribunal is whether it is satisfied that there is ‘another reason’ why the cancellation decision should be revoked under ss.501CA(4)(b) of the Act.

   IS THERE ANOTHER REASON FOR REVOCATION?

7. Sub-section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under ss.501CA(4) not to revoke a decision to cancel a visa.

8. Direction No. 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction), a written direction made by the Minister under s.499 of the Act, is relevant to the exercise of power under ss.501CA(4) because ss.499(2A) of the Act requires the Tribunal to comply with any written directions given by the Minister.

9. The Direction contains both ‘principles’ and the ‘relevant factors that must be considered’ that are required to be applied in a particular way. That is, the principles ‘inform’ the matters that must be considered in determining whether the mandatory cancellation of a visa should be revoked.[4] It is not necessary to set all of the principles out here but some of them are particularly important in this matter so I will refer specifically to them. I have had regard to all of them.

   [4] Direction, cl. 7.1.

10. The principles refer to the sovereign right of Australia to determine whether non-citizens of ‘character concern’ are allowed to ‘remain in Australia’[5] and the expectation that non-citizens are ‘law abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community’. Further, the principles refer to the expectation of the Australian community that ‘the Australian Government can and should refuse entry to non-citizens, or cancel their visa, if they commit serious crimes in Australia or elsewhere.’[6]

    [5] Direction, cl. 6.3(1).

    [6] Direction, cl. 6.3(2).

11. The principles specifically provide that ‘a non-citizen who has committed a serious crime of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled should generally expect to … forfeit the privilege of staying in, Australia.’[7] The principles expressly provide that ‘In some circumstances criminal offending or other conduct that is so serious that any risk of similar conduct in the future is unacceptable’ and it is ‘[i]n these circumstances’ that ‘even strong countervailing considerations may be insufficient to justify not cancelling…the visa.’

    [7] Direction, cl. 6.3(3).

12. The principles further provide that ‘Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia ‘may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age’.[8] Further the ‘length of time a non-citizen has been making a ‘positive contribution to the Australian community, and the consequence of a visa…cancellation for minor children and family members’ are considerations.[9] The use of the conjunction ‘and’ suggests that a positive contribution is not relevant to the issue of consequences for minor children and family members so that, so far as consequences for minor children and family members are considered, time is immaterial.

    [8] Direction, cl. 6.3(5).

    [9] Direction, cl. 6.3(7).

    The primary and other considerations

13. The Direction requires that the principles inform the decision-maker’s consideration of the matters referred to in Part C.[10]

    [10]Direction, cl. 7(1)(b).

14. Part C contains ‘primary considerations’ and ‘other considerations.’ Both classes of considerations may weigh in favour of or against revocation of the mandatory cancellation of a visa.[11] Primary considerations should ‘generally be given greater weight than other considerations.’[12] The use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is left to the good sense of the decision maker.

    [11]Direction, cl. 8(3).

    [12] Direction, cl. 8(4).

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

15. It is necessary to consider each of the specific considerations referred to in the Direction, where relevant and as informed by the principles that I have referred to earlier. It is convenient to record, consider and deal with each of the primary and other considerations in turn dealing with the facts relevant to each of them as they are considered. I note that the considerations involving impact on victims and impact on Australian business interests are not relevant.

16. I will now deal with each of the factors that need to be weighed in determining whether there is another reason for revoking the cancellation decision.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community from criminal or other serious conduct

17. I am directed to consider 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’ and that ‘remaining in Australia is a privilege that Australia confers on non-citizens’ in the expectation that they will obey the law, will respect Australia’s institutions and will not cause or threaten harm to individuals or the Australian community.[14] I am to consider the nature and seriousness of the conduct to date and the risk to the Australian community should further offences or others serious conduct be engaged in.[15]

    [14] Direction, cl. 13.1(1).

    [15] Direction, cl. 13.1(2).

18. The Direction catalogues nine factors that I must have regard to in assessing the nature and seriousness of the offence.[16] The use of the word ‘including’ in the introduction to the sub-paragraphs suggests I may consider other matters. The phrase ‘nature and seriousness of the offence’ and many of the matters referred to in the list are redolent of the kinds of things that are routinely considered by sentencing judges when dealing with sentences for criminal offences.  

    [16] Direction, cl. 13.1.1(1).

19. The factors that I consider relevant to this case are: ‘the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’ (cl.13.1.1(1)(a)); ‘the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’ (cl. 13.1.1(1)(b)); ‘the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled) … are serious’ (cl.13.1.1(1)(c)); ‘the sentence imposed by the Court for a crime or crimes’ (cl.13.1.1(1)(d)); ‘the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’(cl. 13.1.1(1)(e)); and ‘the cumulative effect of repeated offending’ (cl.13.1.1(f)).

20. All of Mr Ore Parraga’s criminal offending during 2019 was very serious. The first offence involved a threat with a knife to a woman. The second offence involve kicking a pregnant woman in the stomach. The third involved choking the same woman when she was six months pregnant. All of these offences are violent. All involve violence towards a woman. The latter offences put the victim and the baby in jeopardy.

21. The offence involving choking his partner attracted a maximum sentence of 5 years imprisonment and the common assaults attracted a maximum sentence of 2 years imprisonment. They are objectively serious offences. The sentence of twenty months imprisonment for his criminal offending especially the offences concerned with choking his partner, assaulting her and his contravention of the prohibition in the apprehended violence order is a sentence that points to objectively serious offending. The magistrate found them to be in the mid-range of seriousness.

22. It is important that all of Mr Ore Parraga’s offending involved serious domestic violence offences which occurred on three discrete occasions within a six month period. As the magistrate noted, his most recent offending was aggravated by the fact that only a very short time before he was placed on a community correction order for his previous offending.

23. I do not consider that Mr Ore Parraga’s problem with alcohol, or his financial difficulties arising from the impending birth of his child and his unemployment, in any way detract from the very serious nature of his offending. Nor do I consider that his character references are particularly telling given his repeated criminal offending against the backdrop of chances extended to him by a conditional release order and a community correction order. I do not consider that the complexion that Mr Ore Parraga sought to put on the circumstances of his offending involving kicking and choking his pregnant partner as arising from argument in which she was claimed to be the protagonist for the violence in any way detracts from the very serious nature of his offending. This is particularly so given that he denied the kicking, or at least any knowledge of it, and denied the choking.

24. I find that the nature and seriousness of Mr Ore Parraga’s conduct to date is at a high level of seriousness having regard to the matters I have referred to above.

25. In dealing with the risk to the Australian community should further offences or other serious conduct be engaged in I am required to have regard to, ‘cumulatively’, ‘the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’ (cl.13.1.2(1)(a)); and ‘the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending’ (cl.13.1.2(1)(b)).

26. The precise harm caused by Mr Ore Parraga’s actual offending was not in evidence, but the risks posed by kicking or choking a woman and by kicking or choking a pregnant woman are capable of being assessed on a common-sense basis: the offences potentially involved serious injury or death to both the victim and her unborn baby. The potential harm is serious physical harm with a likelihood of psychological harm. The conduct if repeated has the potential to seriously harm individuals.

27. The more difficult question is the likelihood of Mr Ore Parraga engaging in further serious offending or conduct. The pre-sentence report that accompanied Mr Ore Parraga’s sentencing assessed him as being at a ‘medium to low risk of re-offending’. That assessment points in the direction that there is a real likelihood of re-offending.

28. The fact that Mr Ore Parraga has undertaken a domestic violence course during his imprisonment ameliorates slightly that assessment, but the fact remains that he has not undertaken any rehabilitative steps so far as his alcohol and anger are concerned. I accept it is his intention to do so, but in respect of alcohol, anger and domestic violence, it is difficult to say whether his prospects of positively responding to those things are good at all. None of those things has in any way been tested, not simply because so far as alcohol counselling and anger management are concerned they have not been undertaken, but also because he has not been in the community since imprisoned.

29. One matter that is of significant concern is Mr Ore Parraga’s failure to accept responsibility for his offending: he denied choking his partner and could not recall kicking her. This evidence was in the face of criminal findings of guilt and of convictions which at their very heart had those two elements in respect of offences for which convictions were imposed only 12 or so months ago. His failure to accept responsibility for those things when giving his evidence creates significant doubt about what his likely behaviour in the future might involve. His lack of any remorse during his evidence demonstrates a serious lack of insight about his offending that does not augur well for the future.

30. Another factor relevant to his likely future conduct and his likelihood of re-offending is to be gleaned from his attitude to the apprehended violence orders which he has contravened on two occasions and the conditions that were attached to his conditional release order and community correction order; each of which he has contravened. Further, conviction and the prospect of imprisonment has left Mr Ore Parraga undeterred in repeated offending in the past. This, of course, needs to be balanced against the fact that he has not served a custodial sentence in the past.

31. Mr Ore Parraga’s ties to his family and friends, the prospect of him obtaining employment with Mr Chavez Huiza, and the possibility that he will take up with Ms Vasquez are matters that suggest he will have some pro-social factors that point against re-offending. Of course, his family and friendship ties did not operate in the past to prevent his offending. The security and permanence of any employment and his suggested marriage to Ms Vasquez are very much unknown factors so far as future offending might be concerned. The fact that a relationship with Ms Vasquez failed in the past as well as Mr Ore Parraga’s most recent relationship failure do not augur well for the future.

32. I consider that that the prospect of Mr Ore Parraga offending again is real given the repeated nature of his offending, the underlying association of his offences with alcohol and violence, and his failure to engage in any rehabilitative steps regarding his problem with alcohol. His failure to accept responsibility for his offending, demonstrated by his denial of the essential elements of his most serious offending, is important. I also consider the pre-sentence report that placed his risk of repeat offending at the medium to low level to be significant.

33. I consider the nature and seriousness of Mr Ore Parraga’s criminal offences to be very serious and consider that there is a real risk of harm to the Australia community posed by the prospect that Mr Ore Parraga is likely to reoffend. The protection of the Australian community is a matter that weighs very firmly against undoing the cancellation decision.

    Best interests of minor children in Australia affected by the decision  

34. Next, I am required to consider the best interests of minor children who may be affected by the decision to either revoke or not revoke the cancellation decision.

35. Clause 13.2(2) of the Direction requires that I only consider minor children, that is children under the age of 18 years when I make my decision. Clause 13.2(3) requires that I consider the interests of any such children individually to the extent that their interests may differ.

36. It is important to stress that this consideration does not at all focus on Mr Ore Parraga’s interest or interests such as in him having a relationship with his son or seeing his son grow up or having relationship with any of the other children, to which my attention has been directed by Mr Ore Parraga, but rather directs attention to the best interests of the minor children who are relevant.

37. Clause 13.2(4) requires that in considering the best interests of minor children I consider a range of factors as relevant. The factors that I consider relevant here are: ‘the nature and duration of the relationship between the child and the non-citizen [noting that] less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact …’ (cl. 13.2.(4)(a)); ‘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 …’ (cl. 13.2(4)(b)); ‘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’ (cl. 13.2(4)(c));  ‘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’ (cl. 13.2(4)(d)); ‘whether there are other persons who already fulfil a parental role in relation to the child’ (cl. 13.2(4)(e)); and  ‘any known views of the child (with those views being given due weight in accordance with the age and maturity of the child’ (cl. 13.2(4)(f)).

38. The relevant minor children are Mr Ore Parraga’s son who is soon to be one year old, his two nieces who are six and three years old and the 3 daughters of Ms Vasquez who are 15, 14 and eight years of age. I will deal with each of the matters relevant to the children in turn.

39. Mr Ore Parraga is the father of his child in Australia. The child is almost one year old. Mr Ore Parraga has had no relationship with the child since his birth. There has been no period of meaningful contact between father and son. Mr Ore Parraga has not been at any time a primary carer for the child. The child being has been in the care of his mother the whole of his life to date.

40. It is not possible to say a great deal about Mr Ore Parraga’s likelihood of playing a part in his son’s life given that there is presently a dispute between he and Ms De La Torre that has resulted in the child not visiting Mr Ore Parraga whilst in detention. Mr Ore Parraga said he will seek to spend time with his son if he remains in Australia and will seek Court orders to that effect if necessary. It is not possible to say anything conclusive about that prospect, but I will proceed on the basis that Mr Ore Parraga would have some prospect of spending some time with his son in the future if he remained in Australia.

1. The likelihood of Mr Ore Parraga being a positive influence for his son is also difficult to assess but given the view I take about his likelihood of re-offending and the nature of his offences. I do not consider the prospects of him having a positive influence to be good at all. His conduct, if repeated, will negatively affect the child and I have assessed the prospects of repeated conduct as being real.

2. There was no evidence about Mr Ore Parraga’s capacity to remain in contact with his son should he be returned to Peru, although it is likely that should he desire to do so as the child grows older there would be some facility by phone or social media to do so. I am also mindful of the fact that the child is not yet one year old so the effect of separation may not be as significant as it might be if the child were older.

3. There is no evidence to suggest that Ms De La Torre or the child need Mr Ore Parraga’s support whether financially or otherwise. There is no evidence that the child will not have people to stand in the position of role models during his life in the absence of Mr Ore Parraga.

4. I find that, so far as Mr Ore Parraga’s son is concerned, the best interest of the child weights in favour of revocation of the cancellation decision. The weight I accord to this consideration is ameliorated by the lack of any relationship between Mr Ore Parraga and his son to date, the lack of any meaningful contact since the child’s birth and the prospect that Mr Ore Parraga will have a negative effect upon the child in future.

5. So far as Mr Ore Parraga’s relationship with his nieces is concerned, the relationship is non-parental. Mr Ore Parraga is not their primary care giver. He has been absent from their lives for the last year given his imprisonment.

6. I accept that he had a good relationship with both children and that the effect on the young children was that they would very sad and upset to not be able to see Mr Ore Parraga. This factor weighs in favour of revocation of the cancellation decision but given that the relationship is non-parental and given that both children have their own parents as primary care givers I accord this factor less weight.

7. So far as Ms Vasquez’s children are concerned, again, the relationship is non-parental. All three children have their mother and their father although they only spend time with their father every second or so weekend except when they might be sick. They have a good relationship with their father. The evidence is that they have known Mr Ore Parraga for about five years, having lived with him for a year or two when he and their mother were dating sometime around about 2017 or 2018. The regularity of him being in their home living with them was a little unclear but I am prepared to accept in that time he had a close relationship with the children before he was imprisoned. That appears to have been interrupted at least by his relationship with Ms De La Torre and then by his period in prison.

8. His future role in their lives should he remain in Australia is uncertain because it is not at all certain how his relationship with Ms Vasquez will work out, but even should he marry their mother, which he says is what he proposes to do, the prospect of him remaining in their lives as a positive influence is uncertain given what I have said about his likelihood of reoffending.

9. This factor so far as these children are concerned weighs in favour of revocation of the cancellation decision but given that the relationship is non-parental, is of reasonably short duration, has been accompanied by a period of absence, and given that the children have their own parents as primary care givers, I accord this factor less weight in their cases.

10. I consider that I should give weight to the best interests of the minor children I have identified in favour of revocation of the cancellation decision, but that weight is moderated by the matters to which I have referred. I will accord this factor moderate weight.

    Expectations of the Australian community

11. The third primary consideration in clause 13.3 imputes to the Australian community the expectations that those who have permission to remain in Australia will obey Australian laws and that ‘[w]here a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not hold a visa’.[17]

    [17] The Direction, cl. 13.3(1).

12. I am not required to consider what or what not the Australian community expects because that is normatively expressed in the consideration itself. Rather, the inquiry is whether it is appropriate to give more or less weight to a deemed community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[18]

    [18] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

13. This consideration generally carries weight in favour of non-revocation. In this case, there are limited factors that would moderate this consideration: Mr Ore Parraga has not been in Australia from a very young age or most of his life. He has lived in Australia for a little over ten years from about 23 years of age. His time making a positive contribution to the Australia community has been limited because he has been unemployed during some of his time in Australia. Further, he has only worked part-time during his period of employment such that his contribution to the Australian community has, in overall sense, been fairly limited. The consequences for the children and his family members in Australia are important, as I have noted earlier and those things would be matters that would moderate, slightly the expectations of the Australian community.

14. I consider that this consideration weighs firmly against revocation of the cancellation decision because of the relatively short time Mr Ore Parraga has been in Australia, the limited contribution he has made to the community in that time and the seriousness and nature of his offending. Although the Australian community might extend a little tolerance to Mr Ore Parraga given the consequences for the minor children he has identified and his family members, those matters do not materially alter the firm weight that this consideration has against the revocation of cancellation decision.

    OTHER CONSIDERATIONS

    Australia’s international non-refoulement obligations

15. Clause 14.1 requires consideration of Australia’s international treaty obligations not to return a person to a place where they will be at risk of harm.

16. Mr Ore Parraga identified a man in Peru who he said had threatened to harm him about ten years ago. The man was the husband of his former partner in Peru. Mr Ore Parraga has provided very limited evidence about the claimed threat and how it is relevant to Australia’s international non-refoulement obligations.

17. Whether or not this threat engages any question of non-refoulement obligations, and I very much doubt it does, I reject it as something I should accord any weight to as a consideration relevant to revocation of the cancellation decision because I am not satisfied any threat was ever made or that there is any extant threat. I have serious reservations about Mr Ore Parraga’s credit about whether any such threat was ever made. His evidence was self-serving, uncorroborated and had an air of unreality about it given the lack of any detail or circumstances that surrounded the existence of the claimed threat.

18. Even if such a threat were made and was relevant today, I consider that Mr Ore Parraga would be able to seek the protection of the relevant authorities and law of Peru. This would equally apply to the extent that such a threat could be considered another category of harm which does not engage Australia’s international non-refoulement obligations, or an impediment to Mr Ore Parraga if removed.

    Strength, nature and duration of ties

19. The Direction requires that attention be paid to the strength, nature and duration of ties in Australia.[19] I am required to address the issue of how long Mr Ore Parraga has resided in Australia, but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia[20] and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’.[21] I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.[22]

    [19] The Direction, cl. 14.2.

    [20] The Direction, cl. 14.2(1)(a)(i).

    [21] The Direction, cl. 14.2(1)(a)(ii).

    [22] The Direction, cl. 14.2(1)(b).

20. Mr Ore Parraga has lived in Australia for about 12 years although for a little over the last year he has been in prison and in detention. His offending, in any material sense, did not commence until he had been in Australia for about ten years. Although he has made some positive contribution through paid employment that has been interrupted by periods of unemployment and by his limited capacity to work, being restricted to 20 hours a week. This factor is of some but limited weight in favour of undoing the cancellation decision.

21. Mr Ore Parraga has community ties with family and friends in Australia. I identified earlier his family in Australia: his grandfather, aunts, uncles, two nieces and his son. He also has ties with others such as Ms Vasquez, who he says he proposes to marry and her oldest daughter who is 20 years of age as well as her other three daughters who I identified earlier. He also has ties to friends such as Ms Jimenez who is a friend of Mr Ore Parraga’s family and Mr Chavez Huiza who proposes to employ him if he remains in Australia. I accept that all of these people, in particular his family members and Ms Vasquez and her children, will be adversely affected by a decision to not revoke the cancellation decision.

22. I should say something specifically about Mr Ore Parraga’s relationship with Ms Vasquez. Although I have some doubts about the evidence concerning their intended marriage, I accept that he and Ms Vasquez have a close personal relationship that is relevant to this consideration. They have known each other for about five years, with only two of them said to be in a partnered or romantic relationship some years ago. Their romantic relationship was recently recommenced after Mr Or Parraga was released from prison. There was a suggestion that the romantic relationship was rekindled while Mr Ore Parraga was in quarantine in January 2021. The duration of their most recent close personal relationship is relatively short-lived, a period of about 2 months whilst Mr Ore Parraga has been in quarantine and detention. I consider it a matter I should accord some weight to, but only moderate weight having regard to the overall short-term nature of the entire relationship, five years, and particularly considering the very short time it has been a close personal relationship in more recent times and the uncertainty that therefore accompanies its future.

23. This factor overall weighs moderately in favour of revoking the cancellation decision, but not strongly so given the limited time in which Mr Ore Parraga has been positively contributing to the Australian community.

    The extent of impediments if removed

24. Clause 14.5 of the Direction requires me to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard for themselves in their home country. I am required to consider age, health, language and cultural barriers, and social, medical and economic support that may be available.

25. Mr Ore Parraga is 35 years of age and speaks Spanish, which is the national language of Peru. He would undoubtedly be familiar with the culture of Peru having lived there for the first 23 years of his life. His mother and father live in Peru albeit they are elderly. He has another son who lives in Peru. He has some skills in the construction industry which he developed in Peru.

26. He said at his age he would have difficulty obtaining employment in Peru. He also suggested that he suffers from a medical condition affecting his heart but there was limited medical or other reliable evidence that supported the existence of any particular condition. There is nothing in the medical reports that suggest the investigations into any heart condition he might have is of such a nature that if he is returned to Peru, he would somehow be adversely affected or that he would not be able to have investigations about any condition he may have undertaken or receive treatment for any condition he might be found to have.

27. I do not consider this factor weighs in favour or against revocation of the cancellation decision because any impediments associated with his removal are fairly immaterial and likely to be short-term.

    CONCLUSION

28. I have found that both the protection of the Australian community, and the expectations of the Australian community weigh firmly in favour of the non-revocation of the cancellation decision. I have found that the best interests of Mr Ore Parraga’s son, his two nieces and Ms Vasquez’s minor daughters weigh moderately in favour of revocation of the cancellation decision. The primary considerations weigh firmly against revocation of the cancellation decision.

29. I have found that Australia’s non-refoulement obligations and the impediments of removal, to the extent that either of those considerations are relevant, neither weigh in favour or against non-revocation of the cancellation decision. I have found that the strength, nature and duration of Mr Ore Parraga’s ties to Australia weigh moderately in favour of revoking the cancellation of the visa.

30. I consider that the very serious nature of Mr Ore Parraga’s criminal offending in 2019, the real prospect that he might re-offend in future and the potential harm to members of the Australian community as well as the expectations of the Australian community outweigh both the best interests of the minor children who I have identified and the nature duration and strength of his ties to Australia such that I am not satisfied that there is another reason why the decision cancelling the visa should be revoked.

31. For these reasons, I affirm the decision under review.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member Reitano

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

Associate

Dated: 10 March 2021

Dates of hearing:	25 & 26 February 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor