Patterson and Minister for Home Affairs (Migration)

Patterson and Minister for Home Affairs (Migration) [2019] AATA 5175 (29 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5780
Re:Rhys Patterson
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis

Date:29 November 2019
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]..........................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant failed to pass the character test – sentenced to 12 months imprisonment – whether there is another reason to revoke the cancellation of the Applicant’s visa – application of considerations in Ministerial Direction No 79 – no other reason to revoke cancellation decision – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Police Powers and Responsibilities Act 2000 (Qld)
South Bank Corporation Act 1989 (Qld)
Summary Offences Act 2005 (Qld)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Prasad and Minister for Immigration and Border Protection [2017] AATA 1506
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
29 November 2019
INTRODUCTION AND BACKGROUND

Mr Rhys Patterson (“the Applicant”) is a 27 year old citizen of New Zealand[1] who first arrived in Australia on 23 December 1997 as a five year old.[2] The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) which was last granted to him on 4 April 2015.[3]
[1] Exhibit 10, s 501 G-Documents, G20, pages 80-81.
[2] Ibid, page 81.
[3] Ibid, G3, page 9.
The Applicant’s criminal history in Australia commenced in June 2009 and continued until his most recent period of incarceration, which commenced on 14 June 2018.[4] His offending is of a varied nature. It includes offences as various as stealing, fraud, public nuisance, breaches of bail, probation and community service orders, unlawful use of motor vehicles, assaulting/obstructing police and contravention of domestic violence orders.[5]
[4] Ibid, G8, page 42. Note: the Applicant was sentenced to a term of imprisonment of 12 months on 5 September 2018. The time served in custody between 14 June 2018 and 5 September 2018 (84 days) was declared by the sentencing court as ‘time already served’.
[5] Ibid, G6, pages 32-38; see also Exhibit 8, Respondent’s Statements of Facts, Issues and Contentions (‘SFIC’), page 2, paragraph 7.
While serving this term of imprisonment, a delegate of the Minister for Home Affairs (‘the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 2 October 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6] Exhibit 10, s 501 G-Documents, G5, page 18, paragraph 4 of delegate’s decision.
On 24 October 2018, the Applicant made representations seeking revocation of the cancellation of his visa.[7] On 10 September 2019, the delegate of the Minister, pursuant to s 501CA(4) of the Act decided not to revoke the cancellation of the subject visa.[8]
[7] Ibid, G11, page 50.
[8] Ibid, G5, pages 16-31.
The Applicant lodged an application with this Tribunal on 16 September 2019 seeking a review of the non-revocation decision.[9] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[10]
[9] Ibid, G2, pages 3-8.
[10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[13] I will address each of these grounds in turn.
[13] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 5 September 2018, the Applicant was convicted of contravention of a domestic violence order (aggravated offence) and sentenced to a term of imprisonment of 12 months.
The Applicant has also been sentenced for a significant number of other offences across some 43 separate sentencing episodes running from June 2009 until September 2018. Some of those sentences involved early-release for time already served or probation. That said, I note that what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served[14].
[14] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
The Applicant concedes that he does not pass the character test. He made that concession in his written material[15] and in his evidence during the hearing.
[15] Exhibit 1, Applicant’s SFIC, page 1, paragraph 1; see also paragraph 1 on page 8.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[17]
[16] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[17] The Direction, subparagraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
·A non-citizen who has committed a serious crime, including 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 be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
·In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
·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;
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his criminal history which appears in a document entitled ‘Check Results Report’ from the Australian Criminal Intelligence Commission[18]. That Report/criminal history discloses that between June 2009 and September 2018, the Applicant came before the courts for sentencing on some 43 occasions and that he was convicted, inter alia, of offences involving stealing, fraud, public nuisance, breaches of bail, probation and community service orders, unlawful use of motor vehicles, assaulting/obstructing police and contravention of domestic violence orders.
[18] Exhibit 10, s 501 G-Documents, G6, pages 32-38.
The Nature and Seriousness of the Applicant’s Conduct to Date
Chronological Summary of the Nature of the Offending
At the hearing, the Applicant seemed to accept his very extensive history of offending. He did not appear to take issue with the suggestion that he is a frequent offender and that his offending has involved the occasioning of harm to the Australian community.
In his oral evidence before the Tribunal, he seemed accepting of the offences he had committed and he did not appear evasive to suggestions that his offending was serious. He directly responded to questions and did not seek to avoid responsibility for his offending history.
At the hearing, the Applicant spoke of a difficult period in his life resulting from a number of circumstances. As noted by Dr Jacqui Yoxall (psychologist and Associate Professor in Allied Health):
“Mr Rhys Patterson was born in Auckland, New Zealand on 10 January 1992. He is a citizen of New Zealand as is his mother, Ms Shelley Cope. His biological father left him and his mother before he was 4 years old. His mother partnered and married Andrew Cope. They subsequently had three sons together. Mr Patterson said that Mr Cope is the only father he has known as he doesn’t remember his biological father.
Mr Patterson said that from a young age he struggled with feeling ‘different’ to his brothers. He said that he was acutely aware of the absence of his biological father, even though he said that his stepfather loved him and treated him well. He said that thoughts of ‘not belonging’ to his family unit dominated him during childhood and adolescence. He said that his sense of disconnection and ‘not belonging’ plagued him for much of his life to date.”[19]
[19] Exhibit 4, Psychological Report from Dr Jacqui Yoxall, dated 27 October 2019, page 7-8.
As noted by the Applicant in his written material:
“7. At the age of 8, my mother had asked me if I would like to change my last name to Cope from Patterson. I declined as i [sic] felt that if i [sic] were to change my last name to my biological father would not be able to contact me in the future if he was to try.
8. Schooling life was difficult for myself as I was suffering from Idiopathic Juvenile Osteoporosis which also caused myself to be of short stature as well as having brittle bones. This made me an easy target to be bullied and made fun of by my pairs. [sic] It was always difficult going to school as I did not want to go.
9. This led me to misbehaving as a form to ‘get away’ in school which ultimately caused myself to spend time in detention as well as being suspended from school.
10. My education also fell behind. This was from being in detention and being suspended from school, but also missing allot [sic] of schooling days from attending hospital appointments due to my medical condition.
11. On attending the hospital for my medical condition. My mother had approached a social worker at the hospital about my behaviour at home and school. The social [sic] referred myself to a psychologist that works in the hospital.
12. The psychologist diagnosed myself at the age of 10 with Attention deficit Hyperactivity Disorder [ADHD] and depression.
13. The age of 11, my family had kicked myself out of home for the first time to my friends place because of my family not handling my rebellious attitude. I had stayed at my friends place for a period of 2 months.
14. The age of 14, I started my first job at Eagle Boys Carindale, this was very beneficial for myself as I was earning a wage and setting my independence in life.
15. The age of 16, my family had once again told me to leave my family home due to my behaviour and quitting school. They had brought [sic] me a plane ticket to New Zealand to live with my nanna and grandad. I resided in New Zealand for a brief term of 5 months.
16. On returning to Australia, I had no where to live so I went to live in Youth Hostels. I had resided in a numerous amount of Youth hostels till the a [sic] of 18 years of age.
17. When residing in youth hostels I met allot [sic] of other kids whom were in to drugs and crime. This influenced my behaviour which led me to being charged for my first offence in 2009 when I was 17 years of age at the time.
18. I was also introduced in to drugs at this time and this included mawajuana [sic] and speed and later the drug ice.
19. The age of 18, I moved in to my first private rental with an ex - partner of mine.
20. While living in my own home I felt secure and more independent in my life.
21. The age of 19 the real estate had evicted myself and my ex-partner due to late rent payments. The real estate had put myself on the TICA blacklist database. Due to my ex - partner being the age of 17 and I was 18 the extent of the bill and blacklist was prioritised to only myself.
22. Due to being evicted from my rental I found it hard to find a new place this was my downfall as past trauma had impacted on my life again. I ultimately ended up being homeless for a large period of my 20s and went from house to house couch surfing.
23. This really impacted my offending by stealing and property offences as I thought at the time was my only survival to live. [sic] I was receiving social welfare payments from Centrelink but this was not enough as it only paid half a weeks worth and [sic] food and rent which I payed to places i [sic] lived couch surfing.
…”[20]
[20] Exhibit 1, Applicant’s SFIC, pages 3-4, paragraphs 7-23.

The Respondent contends that upon an application of the relevant factors appearing in paragraph 13.1.1 of the Direction, the Applicant’s offending should be viewed as ‘very serious’. I find it difficult to disagree with that contention when one has regard to those factors and the relevant evidence surrounding each of them.
Cross Examination of the Applicant
The Applicant was taken to various offending episodes as recorded in material summonsed from relevant law enforcement entities.[21]
[21] Exhibit 9, Summonsed Records from Southport Magistrates Court and Queensland Police Service.
The first of those offending episodes occurred on 7 and 14 June 2018, respectively. This offending involved the Applicant breaching a certain domestic violence order between his former partner (and mother of his infant daughter). The relevant summary of facts reads as follows:
“…
Between 7th of April and the 14^th of June the defendant has sent the aggrieved numerous (approximately 67) text messages from mobile number [redacted] he has also called the aggrieved numerous times (approximately 50 calls) during this period as well, with a number of these calls being recorded by the aggrieved.
These calls and messages are primarily about the respondent wishing to see his daughter, and requesting to visit [name redacted] to allow this to occur. However, the messages and phone conversations have included times when the defendant has become irritated and derogatory towards the aggrieved, stating ‘fuck you’ and other words that were hurtful to the aggrieved.
A current Domestic and Family Violence Protection Act, Protection Order… has five conditions with condition 4, stating that the respondent must not directly or indirectly contact or attempt to contact the aggrieved by third party, or by phone, fax, SMS, email, or social media...
…
On 14^th of June 2018 police attended [address redacted] relation to the reports that the defendant was outside the address making a scene and causing a disturbance. The defendant was located by attending police, hiding within the aggrieved dwelling, in the toilet, where he had locked the door. The defendant was arrested and transported to the Southport Watch house.
The defendant was highly emotional and agitated and as such was not in the frame of mind for which an EROI could be undertaken.
…”[22]
[22] Ibid, page 11.
In response to this summary of this offending being put to him in cross examination, the Applicant said that he remembered the offending episode and that he was not under the influence of drugs or alcohol at the time. He said the disagreement or dispute giving rise to the breaches of the domestic violence orders arose because the Applicant’s former partner (and mother of his infant daughter) would not allow him to take a photo of his daughter. He noted that his ex-partner was suffering from depression. The Applicant sought to explain his conduct by saying “I kind of thought, it was the end of time. I take one step forward and three steps back. The birth of my child was the biggest event or fact of my life.” He acknowledged that his conduct caused him to “…go against the order.” He noted that his former partner has had another baby with her former partner but that they too have broken up and that there is a domestic violence order between her and that particular former domestic partner.
The second of those offending episodes that the Applicant was taken to in his cross examination involved offending that occurred on 21 January 2018. Once again, the offending involved a breach of a domestic violence order between the Applicant and his former spouse.
The relevant summary of the facts for this offending reveals the following:
“…
On the 21^st of January 2017 at approximately 2:00am the defendant attended the aggrieves [sic] at [address redacted]. The respondent has slept on the grass in the front yard until later that morning. At approximately 8:00am the respondent has approached the front door and proceeded to knock until the door was opened by the aggrieves [sic] partner. The respondent requested that he be allowed entry to have a shower. The aggrieves [sic] partner has allowed the respondent entry for this purpose.
After showering, the respondent has become distressed and sat on the bathroom floor. The respondent has then become abusive towards the aggrieved stating that everything was her fault. The respondent has eventually dressed himself during which time he became increasingly aggressive and has started pacing the hallway in the house and slamming doors. The respondent has become increasingly abusive to the aggrieved and has continued to shout at her. The respondent was swearing at the aggrieved telling her to ‘fuck off’.
The respondent became verbally abusive towards the named persons on the order and has used profane language. The respondent has become physical with one of the named persons on the order and has used both hands to shove the named person. The respondent has then threated [sic] to punch the same named person.
The aggrieved and her partner have requested numerous times that the respondent leave the premises. The respondent has ignored these requests and remained at the premises. Police were called to attend the premises by one of the named persons. Police arrived shortly afterwards and located the respondent in the dwelling.
…”[23]
[23] Ibid, page 34.
When this episode of offending was put to the Applicant in cross-examination, he did not appear to deny the circumstances of the breach of the subject order but sought to suggest that there was no ‘other person’ in the premises as alleged by the above mentioned factual summary.
The third offending episode put to the Applicant in cross-examination involved certain offending – again, in the nature of a breach or breaches of an extant domestic violence order, occurred on 14 and 15 December 2017 and also on 22 December 2017.
The offending on these former two dates is summarised as follows in the summonsed material:
“…
On Thursday the 14th of December 2017, a midwife has attended the home address of the aggrieved and has observed the respondent running from the rear of the property.
On Friday the 15th of December 2017 at about 4:00am the respondent has phoned the mobile phone of the aggrieved from a withheld number.
The aggrieved has answered the call and has clearly heard respondent say ‘Hi, can I come and see my daughter’. The Applicant has said ‘No’ and has then hung up the phone.
On Friday the 15th of December 2017 at about 6:00pm the aggrieved has observed the respondent walk in through the rear door of the house.
The respondent observed the aggrieved and has walked straight back out the back door.
…”[24]
[24] Ibid, page 43.
The offending on 22 December 2017 is summarised as follows in the summonsed material:
“…
At 5:00pm on 22/12/2017 the aggrieved has returned home from the shops in a taxi.
As she has arrived outside her home address she has seen the respondent walking down the path on right side of her house.
The respondent has walked towards the bus stop which is close to the house and the aggrieved has entered her home.
The respondent has then turned around and walked to the front door of the aggrieved s [sic] house.
The aggrieved locked her front screen door and has told the applicant to go.
The respondent refused and has said “I just want to see my daughter”.
The aggrieved again told the respondent to leave.
The respondent has waited at the front door for about two minutes and then walked back to the bus stop.
After about 5 minutes he has returned to the aggrieved s [sic] house and has attempted to open the garage door.
The door was locked and the respondent was unable to open it.
The witness then approached the respondent and has also asked him to leave but he has refused.
About 5 minutes later, the respondent has walked to the bus stop and at 5:20pm, has boarded a bus”[25]
[25] Ibid, pages 44 and 45.
When this offending episode was put to him in cross-examination, the Applicant said “… I knew I’d be breaching the orders, I knew that, I pleaded guilty…”
The fourth offending episode put to the Applicant in cross-examination involved another one of his domestic violence order breaches. This breach occurred on 24 July 2015. This offending did not involve any former partner or other domestic spouse of the Applicant. Rather, the conduct was aimed at members of his immediate family. It appears from the material that the aggrieved parties in the order that was breached comprised the Applicant’s mother and his step-father. However, it should be noted that the name of the “aggrieved” is redacted and the name of the “named person” is also redacted from the summonsed material. Be that as it may, the Applicant’s evidence in cross-examination left little or no doubt as to the identity of the parties sought to be protected under the order.
The material discloses that the relevant order was made on 22 January 2014 and that it continued in force until 21 January 2016. That said, the relevant conduct giving rise to a breach of that order is described in the material as follows:
“…
At approximately 5:47pm on the 24^th July 2015 police attend [sic] a disturbance at [address redacted]. On arrival police have seen four males standing in an outdoor area and a fifth male sitting on a lounge chair in the same outdoor area. Police saw the male sitting down had dried blood on his mouth and several small cuts to his hand. Police saw a window that had a broken glass pane and there was bits of shattered glass on the floor and window ledge.
Police spoke to the male sitting on the couch. The male identified himself as Rhys Jonathan PATTERSON. Police computer inquiries confirmed this identity. PATTERSON is the respondent and defendant in this matter. Police spoke to another adult male present who identified himself as [name redacted], the named person a husband of the aggrieved in this matter. Police spoke to a female inside the dwelling who identified herself as [name redacted], the informant and aggrieved in this matter.
The named person and the aggrieved stated to police that this address of [address redacted] is their residence.
The aggrieved stated that on 24^th July 2015 at about 4:00pm the defendant had requested the named person take the defendant away from the address as she was fearful of him and did not want to see him on her return. The named person has complied with the aggrieveds [sic] request and taken the defendant over to a friend’s house to get him away from the address.
At approximately 5:30pm the defendant returned to the aggrieved’s residence demanding to be let inside the dwelling. The aggrieved has not allowed the respondent entry and has ignored him. The aggrieved stated the respondent has struck a window pane multiple times causing it to break. The aggrieved called the named person who returned to the address and confronted the respondent about the damage.
The named person stated that the respondent has approached him aggressively after he inquired why he would break the window and has pushed the respondent away from himself. The respondent became more aggressive and a physical altercation occurred between him and the respondent. This has resulted in punches thrown. Other persons present have been able to calm the RESP down.
…”[26]
[26] Ibid, page 71.
When this offending was put to the Applicant in cross-examination, he confirmed that this incident involved his mother, his step-father and himself. He said: “…2015 was a bad year…I was on drugs at the time… Regarding the altercation with my step-father, I put my fist through the window… There was a brief scuffle with my step-father.”
The fifth episode of offending put to the Applicant during cross-examination involved an incident that occurred at South Bank, South Brisbane on 27 September 2014. This offending involved disruptive, anti-social and threatening behaviour by the Applicant towards, most notably, law enforcement officers. The offending caused law enforcement authorities to engage the provisions of legislation designed to exclude offenders from places that are frequently visited by significant numbers of the general public. The offending also demonstrated the Applicant’s lack of respect for lawful authority and the rights of the general community to enjoy publicly available amenities.
The description of the offending behaviour in the material is sobering. It reads as follows:
“…
…The location [i.e. South Bank] is a public thoroughfare used by persons accessing the Southbank Parklands, Cinemas and surrounding business [sic]. The location is part of the area governed by the Southbank Corporation Act. At the time of the offence, the area was extremely busy with foot traffic due to the Riverfire fireworks, including large numbers of children.
At about 7:30pm on Saturday 27^th September 2014, Police…were conducting patrols of the area when they located a male person staggering on the footpath. Police spoke to this male who identified himself as Rhys Jonathan PATTERSON…
Rhys Jonathan PATTERSON is the defendant in this matter.
IN RELATION TO CHARGE ONE[27]
When speaking to the Police, the defendant was unsteady on his feet, slurred his words frequently, had bloodshot eyes, and smelled strongly of liquor. The defendant stated he had consumed alcohol during the course of the night. The defendant was acting in a belligerent manner.
As a result of the defendant’s behaviour, South Bank Security Officer [name redacted] attended and issued the defendant with a Temporary Exclusion notice for a period of ten days, effective from 7.50pm on 27^th of September 2014. PATTERSON was directed to leave and provided with a period of time, about two minutes, to collect his belongings and move on.
After this time, the defendant had made no attempt to move on from the area. Police further warned the defendant to move on or he may be arrested. The defendant yelled “fuck off” to Police, and as a result, was arrested.
IN RELATION TO CHARGE TWO[28]
As a result of the arrest, in relation to charge one, Police attempted to place the defendant’s arms behind his back and place handcuffs on his wrist to effect the arrest. During this process, the defendant tensed the muscles in his arms, preventing Police from completing the arrest.
The defendant was warned by Police twice to stop resisting arrest, otherwise he would be charged with obstructing Police. The defendant failed to comply with this warning and continued to tense his arms to hinder police in carrying out their duties. The defendant was handcuffed a short time later.
IN RELATION TO CHARGE THREE[29]
After being arrested and awaiting a van for transportation to the Brisbane City Watch House, the defendant began to kick out and yelled words to the effect of “Fuck off” and called Police “cunts” several times. The defendant was then transitioned to the ground, where he continued to yell obscenities directed at police and nearby members of the public.
…”[30]
[27] Breach of Section 83(6) of the South Bank Corporation Act 1989 (Qld): Power to Exclude Persons Causing Public Nuisance – Number of Days
[28] Breach of Section 790(1) of the Police Powers and Responsibilities Act 2000 (Qld): Assault or Obstruct Police Officer
[29] Breach of Section 6(1) of the Summary Offences Act 2005 (Qld): Commit Public Nuisance
[30] Ibid, pages 75-76.
In response to this offending being put to him in cross-examination, the Applicant accepted he had committed the offences and that they had occurred at South Bank in Brisbane. His further evidence was that he could not recall very much about the offending conduct because he was “…very intoxicated at the time.”
The sixth offending incident put to the Applicant in cross-examination again involved conduct that directly challenged and threatened the legitimate power of the police to maintain the observance of law and order in our community. The offending also demonstrated a lack of respect for the rights of other members of the community to partake in and enjoy publicly available amenities. The offending involved two counts of assaulting or obstructing a police officer in breach of Section 790(1) of the Police Powers and Responsibilities Act 2000 (Qld). It also involved a breach of Section 6(1) of the Summary Offences Act 2005 (Qld).
The summonsed material summarises the offending as follows:
“…
Summary of facts for charges 1 to 3 are as follows:
The defendant in this matter is Rhys Jonathan PATTERSON.
On the 15th March [2014] at about 11:50pm police were detailed to attend the Rode Road shops at the corner of Appleby and Rode Roads, Stafford Heights, in relation to a group of youths congregating at the bus stop, causing disturbance.
On arrival, Police spoke with a large group of intoxicated persons at the bus stop in relation to their disorderly and offensive behaviour. Whilst speaking with the group police have arrested 3 males due to their behaviour.
Whilst Police were attempting to restrain one of the males who was violently resisting, a male person… has approached in close proximity to Police and attempted to intervene in the arrest. This male person was later identified as Rhys Jonathan PATTERSON, the defendant in this matter.
The defendant yelled at Police several times “leave him alone you cunts” while circling around Police as they attempted to restrain the violent male. The defendant stood in the path of Police, preventing them from attempting to place the violent man in the rear of a police sedan while continued to yell at Police that they were “cunts”.
The defendant would continually stand in the way of police and interfere with the arrests of the other males by attempting to grab at the arrested males and attempting to incite violence towards police.
As Police walked away to secure the violent male in a Police vehicle, the defendant pointed at a police officer and yelled “You’re dead ya cunt…you’re dead ya cunt.” Police approached and advised the defendant he was under arrest for public nuisance and obstruct Police.
The defendant told Police to “fuck off” and pulled his arms away as they attempted to restrain him. The defendant continued to violently resist and wrestle with Police and was placed onto the ground where further attempts were made to handcuff him. The defendant refused to place his hands behind his back and braced his arms beneath his body while yelling for bystanders to intervene. As a result of this, [name of injured police officer redacted] injured his left knee, later requiring medical treatment at hospital.
The defendant was handcuffed and led by Police a short distance and placed in the rear of a police van which had arrived at the request of Police on scene for urgent assistance.
Upon being placed in the van, [name of police officer redacted] began closing the rear steel door when the defendant has suddenly kicked the door with significant force causing it to fly open rapidly and strike [name of police officer redacted] to the top of her left hand.
…”[31]
[31] Ibid, pages 80-81.
The Applicant accepted the offending as particularized in the summonsed material. He said “I was heading home from a party…I was very drunk and intoxicated… I caused a scene… One thing led to another…”
The seventh offending episode put to the Applicant in cross-examination involved offending during his time in immigration detention. This conduct involved various incidents since he has been in immigration detention.
·The first incident described in the material occurred on 8 May 2019. While the Applicant was a patient at the Liverpool Hospital Mental Health Unit, he became aggressive towards nursing staff and was refusing to take his prescribed medicine as he wanted something stronger. The G Documents reveal that:
“… detainee PATTERSON RHYS JONATHAN… was becoming abusive and aggressive towards nursing staff and he was refusing to take his prescribed medication.
Detainee Patterson was becoming aggressive towards nuses [sic] and was also swearing and yelling at them to which they have called DSO… to attend location within the unit along with 4 x Hospital Security staff.
4 x Hospital security staff have then used unplanned use of force and restrained detainee PATTERSON placing him in an isolated room.
Detainee PATTERSON has then calmed down and remains in isolation room within the Mental Health Unit with no further issues.
…”[32]
[32] Exhibit 10, G-Documents, G21, page 83.
·When this conduct was put to the Applicant in cross-examination, he said he had “…just learnt my mother was very ill. I was starting to feel overwhelmed… at this time… my anxiety was going through the roof.”
·The second incident described in the material occurred on 24 January 2019. The material discloses:
“…
…at approximately 14:30 hrs on 24^th January 2019 Spontaneous Unplanned Use of Force utilised on detainees…Detainee PATTERSON Rhys Jonathan…involved and assaulted ERT member [name redacted] by kicking and hitting on ERT officer [name redacted] back…the three detainees involved in the incident [name redacted], PATTERSON and detainee [name redacted] were relocated to Hotham High Care for good order of the centre.
…”[33]
[33] Ibid, page 84.
·The third incident described in the material occurred on 9 December 2018. The material discloses:
“…
...at approximately 1440hrs a matrix room search on Dorm 2, Room M6 by Detainee Service Officers (DSO)… and Emergency Response Team (ERT) Officers… The room houses detainees now known as PATTERSON, Rhys and [name redacted]. During the room search, ERT Officer [name redacted] was searching in the room shelves and located the 1 x purple RID bottle, made into a makeshift drug…paraphernalia implement known as a bong. Further into the search, ERT Officer [name redacted] located a syringe, a syringe tip, a bong, cone piece and half a nail clipper in the window seal and window curtain. ERT Officer [name redacted] conducted a further search on a… mattress and located a [sic] orange lighter. DSO [name redacted] was also conducting a room search in the same room location and found 5 x plastic clear medical satchels and 5x Prison photo id cards. All contraband have been photographed sealed into evidence bags…
A short time later, Detainee Service Manager [name redacted] attended dorm 2 and was advised by searching officers of the found…contraband. DSM [name redacted] located both detainees housed in room M6 and questioned them about each contraband found.
Detainee PATTERSON stated words to the effect of, “Chief, that’s all mine. I own them.” Detainee PATTERSON was cautioned in regards to the contraband’s [sic] found and reminded about his, rights and responsibilities whilst housed in a detention center and… should be in according [sic] with the Australian Border Force (ABF) standard. Detainee PATTERSON was also informed this may… result in him losing 10 IAP points from his Buy Ups.
…”[34]
[34] Ibid, page 85.
·In response to both of these offending episodes (i.e. 24 January 2019 and 9 December 2018) the Applicant said that “Villawood was a fight or flight situation. I had mental health problems down there. You had to get along with everyone.” With particular reference to the incident that occurred on 9 December 2018, the Applicant said “I put my hand up for this offending, they weren’t mine, I don’t know whose they were to be honest. I don’t smoke weed – I never have…I didn’t know there was drug paraphernalia in the room.”
·The fourth incident described in the material occurred on 30 November 2018. This offending involved a direct challenge to the authority of security officers responsible for the maintenance of good order in the detention facility then found himself. The material discloses the following conduct:
“… at approximately 22.23 29/11/2018 Detainee PATTERSON RHYS JONATHAN… was asked multiple times… to move back and return to his dorm – Dorm 2… However, the detainee refused to cooperate… and return to the Dorm on his own accorded. [sic]
Detainee remained non compliant and refused to even speak to the ERT officers… Detainee PATTERSON was asked on a number of occasions to return to his dorm. The detainee still refused to move and/or acknowledge the officer’s presence. Both ERT officer [names redacted] applied approved escort position… on the right side and… on the detainee’s left side.
The ERT officers then escorted Detainee PATTERSON… toward Dorm 2 when he started to behave aggressively and erratic. The detainee tried to pull his arm out… using his own strength… the detainee tried to trip ERT Officer [name redacted] over by using his right leg.
As the ERT officers arrived at Dorm 2 doorway, Detainee PATTERSON… started to head-butt… and… ERT Officer [name redacted] gave a verbal direction to [name redacted] “Take him down”… took Detainee PATTERSON on the ground using approved takedown technique.
Officer [name redacted] controlled PATTERSON’s left arm and… his right arm and… the detainee’s legs using approved leg lock. At approximately 22:25 Officer handcuffed PATTERSON who was still trying to fight with the officers.
…”[35]
·In response to this incident put to him in cross-examination, the Applicant said “…this was accurate… I was going through a tough day that day… I wanted to be alone… I wanted to have space…” The Applicant added that the offending was a result of concern about his mother’s health conditions and that it arose from earlier “mental breakdowns” he had experienced.
[35] Ibid, page 87.

There was a clear and undeniable trend and theme in the Applicant’s evidence involving offending he committed while under the adverse influence of illicit drugs and/or alcohol. He spoke of being in a “very emotional” and “highly anxious” state while he was at the Villawood Immigration Detention Facility. He said that he needed “coping mechanisms”. He spoke of trying to find those coping mechanisms in cognitive behavioural therapy, counselling and relapse prevention therapy. He acknowledged that “there’s still a long way to go” [in terms of him coming to terms with his issues with illicit drugs and/or alcohol] and that “I can’t change overnight. No-one can.”
He acknowledged that illicit drugs and alcohol have been at the heart of his “life’s struggles”. He acknowledged that his abuse of these substances had “…put me in a bad situation”. He acknowledged that his difficulties with these substances have brought him to the brink of deportation that has kept him and may indefinitely keep him “away from my family and away from my daughter”.
He accepted he has had and continues to have significant problems with alcohol and illicit drugs. In terms of alcohol, he said he commenced drinking when he was 12 years of age and that he started drinking heavily when aged 15-16. By “heavy drinking”, he meant consuming up to one and a half bottles of either bourbon, vodka, or scotch per night and that he did so two-three times per week from his late teens to his early adulthood.
He said that he turned to hard illicit drugs when aged 15-16 when he was residing at the various youth shelters. These hard drugs comprised methamphetamine, ice and, occasionally, heroin. He said his drinking had moderated after the birth of his infant daughter approximately two years ago.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members if the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)…;
h)…;
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention;… is serious,…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There is no doubt the Applicant’s criminal history includes crimes of violence. The violence has been perpetrated upon (1) police officers in the course of their duties, (2) in domestic violence incidents involving both his former partner and indeed members of his own family, and (3) security officers in a detention facility in which the Applicant has found himself. The nature of the violence has been such as to cause the Southport Magistrates Court to involve a custodial term of imprisonment of 12 months. The various offences leading to his convictions in September 2018 were committed by the Applicant only one day after being sentenced to an intensive corrections order for a similar type of offending.
As noted by the Respondent, while the offences leading to the cancellation of his visa did not involve any “violent attacks”, it is clear from the above-quoted portions of the factual summaries of his offending that the Applicant’s conduct must surely have been frightening to at least his former spouse and members of his immediate family. While his conduct at the South Bank facility may not have caused any great apprehension in the police officers who dealt with him, it cannot be ignored that his conduct would have alarmed families, including young children, who would not be used to such anti-social, threatening and menacing conduct in the midst of an enjoyable night out such as a fireworks display. The learned sentencing Magistrate[36] at the Southport Magistrates Court had little or no hesitation in revoking the Applicant’s previously imposed (and non-custodial) intensive corrections order in favour of re-sentencing him to 12 months’ imprisonment. As the learned sentencing Magistrate noted:
“And, my concern from a community point of view is that because you keep doing this, my grave concern is that although at this stage it has not led to any violent attacks, it – things like this do escalate when you keep putting yourself into a position where you are confronting the aggrieved. It increases the chances of something worse happening…”[37]
[36] Ms Michelle Dooley SM
[37] Exhibit 10, Section 501 G-Documents, G7, page 40, lines 14-18.
I am of the view that the circumstances of the totality of the Applicant’s offending must, for the purposes of this subparagraph (a) be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. One can only echo the above mentioned sentencing remarks of the learned sentencing Magistrate. I agree with the Respondent’s contention that the Applicant’s domestic violence offending involved unacceptable and menacing conduct towards a quite young mother of three young children trying to raise them in very difficult circumstances. There is no benefit for the Applicant’s ex-partner, or, indeed, their children, for the Applicant to adopt a belligerent attitude towards his ex-partner involving repeated abusive text messages or to otherwise show up unannounced at her residence in a state that can only be described as “out of control”. As demonstrated in the above quoted factual summaries of his offending, the Applicant has acted in this way towards his ex-partner on several occasions.
Perhaps the learned sentencing Magistrate put it best in her sentencing remarks in September 2018.
“…And, of course, through all of this, your child, who is the person you say you are trying to see and have a relationship with – she is suffering. She gets to see all of this going on. She gets to see the aggrieved being distressed when all of this occurs. It is not a good thing for your child. If you put as much energy into applying yourself to completing courses and getting your matter before the Federal Circuit Court and getting some sort of properly organized regime of time with your child – if you put as much energy into that, you would be so much better off. But instead, you have decided to use your energy in this other way.”[38]
[38] Ibid, lines 18-25.
Legal authority also militates strongly against violence against women, especially in a domestic context. This Tribunal, in the matter of Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 has said that the Australian community has “zero tolerance” for violent offending against women and for domestic violence offending against anyone, and that such conduct is to be regarded as “unacceptable at any time – in any place – in any circumstances.”[39] Similarly, this Tribunal has found that domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community.”[40]
[39] At paragraph [48], per Senior Member Puplick.
[40] Prasad and Minister for Immigration and Border Protection [2017] AATA 1506 at paragraph [32], per Deputy President Constance.
There is thus little or no doubt that the type of conduct the Applicant has exhibited towards members of his immediate family, his former partner, and infant daughter necessarily attracts a measure of weight pursuant to this sub-paragraph (b) in favour of a finding that it is very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction stipulates that crimes committed against vulnerable members of the community and government officials or representatives are serious.
This sub-paragraph usually has application in circumstances where the offending has been perpetrated against either the very young or the elderly. While, to an extent dealt with in my consideration of sub-paragraph (b), it is pertinent to note that the Applicant’s offending did involve offending against elderly and vulnerable people. His mother and step-father are people who are at least one generation older than the Applicant. Similarly, the Applicant’s former partner and their two year old daughter cannot be said to be well-disposed to the type of conduct he has displayed towards them. The Applicant’s mother, step-father, former partner and infant daughter are all vulnerable people for the purposes of this sub-paragraph (c).
This sub-paragraph (c) also has relevant application when one has regard to the Applicant’s offending history involving the assault or obstruction of police officers and immigration detention security officers in the course of their duties. He has multiple convictions for offending against Queensland police officers and directly challenging their authority to maintain peace and order in the community to which this Applicant now wants to be returned. Similarly, he has acted aggressively and unacceptably towards government employees trying to maintain the peace and good order in our detention facilities. His behaviour in immigration detention has required the intervention of forced outcomes upon him. His behaviour towards nurses and other people seeking to administer medical care to him while he has been in immigration detention has been similarly abusive, menacing and threatening.
The Applicant’s offending against the vulnerable people in his life, such as his mother, step-father, ex-partner and infant daughter, together with his direct and physical challenge to the lawful authority represented by police officers and immigration detention security officers attracts application of this sub-paragraph (c) in favour of a finding that his offending has been very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant. The cumulative total of custodial terms imposed on the Applicant clearly militates in favour of a finding that his offending to date has been very serious. We are talking about an offending history that runs from mid-2009 until September 2018 involving some 43 sentencing episodes that dealt with approximately 80 individual offences. This sub-paragraph (d) militates for no other finding than that this Applicant’s offending is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it.
First, with reference to the frequency of his offending, the Applicant’s criminal history discloses the he has found himself before lawful authority as a result of his offending on at least 43 occasions between 2009 and 2018. Approximately 80 individual offences were dealt with by the sentencing courts on these 43 sentencing occasions. There is no other finding than that the Applicant’s conduct has clearly been of a frequent nature. As noted by the Respondent, the Applicant has found himself before lawful authority for sentencing on every single year of his offending history from 2009 to 2018, with the exception of 2017.[41]
[41] Exhibit 8, Respondent’s SFIC, page 8, paragraph [32].
Second, his criminal history seems to have been serious from its commencement. While I accept the very early phases of his history involved minor-level summary-type offences, within 12 months of its commencement, the Applicant is committing stealing offences which are indictable offences punishable by terms of imprisonment. His penchant for disrespecting lawful authority is evident in his history from its commencement. The first entry in his criminal history involves a refusal to follow a lawful direction by a police officer. Put at its highest, the Applicant’s offending history displays a lack of respect for both the personal and property rights of others (domestic violence and stealing offending) and a similar lack of respect for lawful authority (offences against police officers, immigration detention officers, multiple breaches of bail and breaches of domestic violence orders).
The clearly discernible “trend” in the Applicant’s offending is its frequency and consistency in terms of nature and severity of the nature of his offences. It is clear that his unresolved and obviously serious issues with illicit substances and alcohol completely disorient him such that he cannot marshal or control his conduct, whether it is in public with other people, in a domestic setting, or in the closed circumstances of immigration detention. In my view, this frequency and consistency in his offending has perpetuated for as long as it has because of the underlying and pernicious influence of illicit drugs and alcohol on his conduct. Put simply, he has never resolved those issues and thus has never resolved his propensity to offend.
Thus, an application of this subparagraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and the consistent level of its severity is such as to attract a finding that it has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Three things can be said about the cumulative effect of the Applicant’s repeated offending. First, his lengthy and historical connection with the sentencing process has afforded him an opportunity to moderate his conduct by the imposition of non-custodial forms of punishment. These included being placed on bail, being placed on probationary orders and community service orders. None of these measures have caused the Applicant to develop insight into the nature of his behaviour and the issues that are causative of his offending. He has continued to offend and, indeed, very seriously so.
Second, another cumulative effect of his offending is that the Applicant cannot be found to have any semblance of respect for the lawful authority governing the community to which he seeks to be returned. He has multiple convictions for obstructing and assaulting police officers. He has multiple convictions for breaching the terms of non-custodial sentences that, while not necessarily resulting in his incarceration, compel him to do something or meet certain lawfully imposed requirements. He repeatedly failed to do so.
Third, the Applicant’s unresolved issues with illicit drugs and alcohol give rise to a serious lack of predictability in his offending. Put simply, if the extent of the symptoms that are causative of his offending remain unidentified and untreated, there is no telling exactly where this Applicant’s pattern of offending conduct will take him and any of his victims. It is not overstating the position to say that there is a discernible “out of control” element in much of his offending, especially in a domestic context.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of a very serious nature.
I have had regard to the provisions of sub-paragraph (g) of paragraph 13.1.1(1) of the Direction and cannot find any evidence in the material that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. This sub-paragraph (g) is not relevant to determination of this matter.
I have had regard to the provisions of sub-paragraph (h) of paragraph 13.1.1(1) of the Direction and cannot find any evidence in the material that the Applicant has re-offended since being formally warned, in writing, about the consequences of further offending in terms of his non-citizen’s migration status. This sub-paragraph (h) is not relevant to determination of this matter.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction points a decision-maker to take into account a situation where the non-citizen is in Australia and has committed a crime while that non-citizen was in immigration detention. The Applicant has been a problematic immigration detainee. There is no other way to put it. I have earlier identified at least four incidents that have occurred during his time in immigration detention:
·On 8 May 2019: while a patient at the Liverpool Hospital Mental Health Unit, the Applicant became aggressive towards nursing staff. His conduct required four hospital security staff to apply unplanned force to restrain him and eventually place him in an isolated room;
·On 24 January 2019: the Applicant assaulted a detention centre security officer by kicking and hitting that officer. This conduct caused him to be relocated to the Hotham High Care facility “for the good order of the [detention] centre”;
·On 9 December 2018: a search of the Applicant’s room located “makeshift drug paraphernalia known as a bong”. Further drug paraphernalia was found. The Applicant said this material was “…all mine. I own them,”;
·On 30 November 2018: the Applicant directly challenged the lawful authority of the security officers in the detention facility. Consequent upon aggressive and erratic conduct, including an attempt by the Applicant to head-butt a security officer in the detention facility, at least two security officers had to administer an approved apprehension and restraining technique upon the Applicant, involving forcibly “taking him down”. Even after he was so restrained, the material reveals the Applicant was still trying to fight with the facility’s security officers.
In considering weight attributable to this sub-paragraph (i), it is important to remember that it refers to “…a crime committed while the non-citizen was in immigration detention;…”. While not actually charged or convicted of any offence committed while in immigration detention, the Applicant’s conduct while so detained and his unconvincing explanations for that conduct can lead to no other finding than that this sub-paragraph (i) should weigh strongly in favour of a finding that the Applicant’s conduct can be readily characterised as very serious. However, given that the Applicant was not charged or convicted of any offence while in detention, I will, for the purposes of this decision, allocate neutral weight to this sub-paragraph (i).
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider 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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that the nature of harm if the Applicant were to re-offend:
“…could involve physical and psychological harm to members of the Australian community (in the event the applicant commits further domestic violence crimes) or economic harm (in the event the applicant commits further stealing or fraud related crimes). The consequences of either of those types of harm being inflicted upon the community are so serious that any risk of similar conduct in the future is unacceptable.”[42]
[42] Exhibit 8, Respondent’s SFIC, page 12, paragraph [34].
I agree with this contention from the Respondent.
Any assessment of the nature of harm the Applicant would cause were he to engage in further criminal or other serious and unlawful conduct, is best gauged by the nature of his previous offending and the harm it has already caused. As I have mentioned earlier, there is no either actual indication or diagnosed likelihood that the Applicant’s propensity to offend has ameliorated. In these circumstances, any assessment of the nature of future harm the Applicant may cause is informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
In his written material, the Applicant says:
“28. As I grew older I believed my extent of offending grew less as I was learning on how to deal with difficulties in life. Unfortunately when bad times happened I fell back to my old ways and relapsed, this was very traumatic to myself as I felt of [sic] going back to ground zero and had to start again. It was a difficult downward spiral that I could not see how to get out of.”[43]
[43] Exhibit 1, Applicant’s SFIC, page 5, paragraph [28].
The stark reality for the Applicant is that the evidence does not disclose that he is any better now at dealing with “difficulties in life” than he was before. He speaks of things going awry for him “when bad times happened”. Again, the stark reality of life is that difficult periods and bad times frequently happen. For present purposes, I am not convinced that the Applicant has had the benefit of sufficient or adequate remedial and or other therapy to properly equip him for dealing with difficult or dark times in his life.
The Applicant’s unresolved issues with illicit drugs and alcohol, combined with the nature of offending apparent in his criminal history, leads to a conclusion that his future conduct in the face of perceived difficulty, stricture and challenge is therefore unknown and unpredictable. His involvement with unlawful drugs has made him incapable of distinguishing between right and wrong. This has caused his behaviour to be both unpredictable and unregulated. It has also caused him to have unclear and undefined boundaries of respect for the lawful authority represented by the police or those in positions of administrative authority, nor for the rights of other people in the community, most notably women, but including members of the general community as well. One need look no further than the Applicant’s above-described conduct while in immigration detention to understand that the unresolved issues and symptoms pre-disposing him to offend remain live and current.
It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s history of offending is both lengthy and voluminous. He has received virtually the full ambit of sentencing regimes ranging from non-custodial terms to terms in actual custody. There is nothing in his criminal history to demonstrate the Applicant has experienced any form of deterrent effect such as to result in him ceasing his offending.
In his Personal Circumstances Form, the Applicant responded to certain questions as follows:
“If yes, please indicate why you re-offended.
I breeched [sic] my domestic violence order as I tried to contact my ex-partner about my daughter, there is was [sic] a condition of no-contact but after being convicted family law exceptions was applied. Which allows contact
What do you think is the likelihood that you may re-offend now? Please give reasons for your answer
Honestly I do not want to or think that I will reofend [sic]. I’m a proud father and want the best life for my little girl and I will not allow myself to show her my past behaviour as I don’t want her to think it’s right to offend and being on drugs.
Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates.
I’m doing a class in RITA. Also undertaking relapse prevention online.”[44]
[44] Exhibit 10, s 501 G Documents, G12, page 65.
In a written submission made to the Respondent on 26 March 2019, the Applicant noted:
“Violence has come into play due to family issues. Yes these issues are still very much real and still need to be resolved. But it is still possible to resolve these issues while being in Australia’s community if I choose to use the right avenues in support. I have this feeling that I am at the cross roads of my life right now and would like to remain in Australia. If I am granted my visa, I do not want to take the wrong path again and repeat the same mistakes, only to have my visa canceled again and deal with emotions and effect this has played on my future.”[45]
[My underlining]
[45] Ibid, G14, page 73.
The immediately preceding and quoted paragraph is concerning. The predictive nature of Primary Consideration A (in assessing future risk) is not concerned with issues that “still need to be resolved”. If something is unresolved, it is very difficult to perform the predictive exercise required by this component of Primary Consideration A. Similarly, the predictive exercise cannot be performed in circumstances where the Applicant says he will be of low risk “…if I choose to use the right avenues in support.” The predictive exercise requires those avenues to have been explored, adopted and implemented. This has not occurred with this Applicant.
The Respondent has, validly to my mind, identified five factors[46] which point to either (1) an unknown level of risk of the Applicant’s future offending or (2) a virtually insurmountable difficulty in making such an assessment:
(i)No independent report writer has verified or described any steps taken by the Applicant (or administered upon the Applicant) in terms of effective rehabilitation for the issues that are causative of his offending. Any “therapy” or measures seem to be largely self-administered and/or self-reported;
(ii)He has a 10 year history of offending that have included terms of imprisonment. As mentioned earlier, non-custodial terms have not had the desired effect of ameliorating his conduct. This does not support his evidence given at the hearing that he now, for all intents and purposes, wants to put his past behind him;
(iii)His criminal offending has seen him in either criminal custody and/or immigration detention on a continuous basis since September 2018. Any purported “rehabilitation” has not been tested in the broader Australian community in which the Applicant proposes to live on an unsupervised basis. Put simply, sufficient time has not elapsed with the Applicant living in the Australian community on an unsupervised basis to allow any meaningful testing of his claimed rehabilitation. It is a matter of concern that the Applicant has said that there are issues in his life “that still need to be resolved,” so that he can be said to be at a low risk of re-offending. With due respect to him, those issues will not go away: his mother’s terminal illness will not go away, nor will his unfortunate bone condition. Likewise, there appear to be significant challenges awaiting him in the family law proceedings involving his infant daughter;
(iv)The Applicant has not been devoid of a supportive network around him. There are references and/or letters of support in the material from, variously, his mother, grandmother, former employer and two friends. As noted by the Respondent, this support network did not prevent him from committing offences in the past, nor is there anything by way of convincing evidence that such support would lower his future risk of offending. While the references speak positively of the Applicant, perhaps the most critical point about them arises with regard to that of the Applicant’s mother: while she says the expected positive and aspirational things about her son, there is no explanation of why or how the Applicant’s future conduct would be any different were his visa to be restored to him;
(v)While mostly accepting of the number and nature of his offending episodes as put to him in cross-examination, the Applicant sought to explain that conduct on the basis of him being in a bad phase in his life or otherwise having to deal with difficult circumstances. Similarly, for an offence put to him that occurred in 2015, he responded with words to the effect of “2015 was a bad year for me”. These sorts of responses are not demonstrative of him having any insight into his offending. While accepting of what he had done, there did not appear to be any strongly detectable theme of remorse or regret in those explanations or acceptances.
Report of Dr Jacqui Yoxall (Psychologist and Associate Professor in Allied Health)
[46] See Exhibit 8, Respondent’s SFIC, pages 12-14, paragraph [36(a)-(e)].
Dr Yoxall has provided a detailed and authoritative report. It appears in the material.[47] As I understand it, the report was commissioned by the Applicant and written on his behalf. I note, with some concern, that the Applicant did not call Dr Yoxall to give evidence at the hearing. His reasons for not calling her are not clear. As best as I understood the Applicant’s reason for not calling her, it had something to do with the notion that her giving evidence at the hearing was not part of her overall retainer. Whatever the reasons may be for not calling Dr Yoxall, it should be noted that the Respondent was not afforded the opportunity of cross-examining her, nor did the Tribunal have the opportunity to further explore her findings. The Respondent does not object to the receipt of Dr Yoxall’s abovementioned report into evidence and, indeed, says that great weight should be allocated to it in terms of the Tribunal forming a view as to the Applicant’s future risk of offending.
[47] See Exhibit 4, Report or Dr Jacqui Yoxall, dated 27 October 2019.
It is thus not possible for the Tribunal to now summarise or have regard to any oral evidence from Dr Yoxall. I will therefore proceed to summarise Dr Yoxall’s findings and allocate weight to her report based upon those findings, which can be quoted as follows:
“…
7. According to validated risk assessments (focussed on static and dynamic risk factors) the risk of Mr Patterson engaging in violence against strangers or family is moderate but the risk of engagement in violence against partners is high.
8. The risk of general recidivism is moderate.
9. It is my opinion that Mr Patterson’s risk of re-offending in terms of drug offences is essentially conditional upon his ability to abstain from drug and alcohol use. He has been in a controlled environment now for 13 months. Prior to that he made attempts to resolve his drug use and had experienced periods of life drug free. However, with ongoing problems with poor emotional regulation, impulsivity, depression and chronic pain, he inevitably relapsed to drug and alcohol dependence.
10. Transition to community will require substantial support and will bring with it a risk of relapse to drug use regardless of the level of insight and realisation Mr Patterson has achieved in the prison/detention environment.
11. In my opinion Mr Patterson requires comprehensive drug rehabilitation which is best served in an evidence based residential drug program, of which there are various available in Brisbane and on the Gold Coast. Such a program should occur in conjunction with assessment of adult ADHD symptoms, and therapy to address vulnerability to depression, emotional regulation (including anger management), management of chronic pain and adaption to the current shared parenting arrangement he has with Ms Shannon [the Applicant’s former partner].
12. Upon completion of such a program Mr Patterson would require ongoing drug counselling to maintain abstinence. If Mr Patterson were to be successful in completion of such treatment and rehabilitation and was able to remain abstinent from illicit drug use, and manage his impulsivity and regulate his emotions, then in my view his risk of reoffending in regard to his drug offending, would be low.
13.In my opinion Mr Patterson’s risk of reoffending in regard to domestic violence offences is moderate to high. This is due not only to historical factors but also related to the nature of his brief but significant history of spousal assault. Impulsivity, drug use, jealousy and poor anger regulation are all factors that contribute to his risk of reoffending. Assessment and or management of these factors should occur in conjunction with the recommended drug and alcohol rehabilitation and treatment and should involve an evidence-based treatment program for perpetrators of domestic violence…Following completion of such a program, Mr Patterson would benefit from ongoing individual psychological intervention to assist him to manage emotional regulation over time and safely navigate the establishment and maintenance of an intimate relationship free from domestic violence. In my view, Mr Patterson’s risk of reoffending in regard to domestic violence offences can be substantially reduced with completion of such intervention.”[48]
[My underlining]
[48] Ibid, pages 28-29, paragraphs [7]-[13].
I make the following comments (and findings) consequent upon Dr Yoxall’s abovementioned comments:
·in no facet of the Applicant’s violent offending can there be said to be an assessed low risk of re-offending. Dr Yoxall assesses his risk of violent offending against strangers or family members as moderate. She assesses the risk of violence against domestic partners as high;
·at best, his risk of general recidivism is said to be “moderate”;
·his risk of re-offending in terms of drug offences is essentially conditional upon sustained abstinence from drug and alcohol use. There is no convincing evidence of a likelihood of such abstinence;
·his transition to the broader community will require “substantial support” to prevent a relapse of the causative factors behind his offending. Whatever support was around him in the past did not successfully deter him from offending and continually re-offending;
·the Applicant requires “comprehensive drug rehabilitation”. Such a program must happen in conjunction with (1) expert assessment of his adult ADHD symptoms; (2) therapy to address his depression and difficulty with emotional regulation; and (3) his anticipated difficulty with adapting to the current shared parenting arrangement with his former partner. None of these therapies or interventions have yet been implemented;
·when the immediately preceding program of treatment is completed (as mentioned, it has not yet even started), the Applicant “would require ongoing drug counselling to maintain abstinence”. No such drug counselling can be said to have started in relation to the Applicant. Accordingly, it would be unsafe to make any assumption that in any such future circumstances (were the Applicant to complete these courses/treatments) that any risk of him re-offending would be “low”;
·perhaps of most significant concern is Dr Yoxall’s assessment that the Applicant’s risk of re-offending in a domestic violence context is “moderate to high”. The Applicant is a very long way from meeting (or even commencing) the stipulated treatment regime described by Dr Yoxall, which involves:
oassessment and/or management of factors such as impulsivity, drug use, jealousy and poor anger regulation should occur in conjunction with the recommended drug and alcohol rehabilitation and treatment;
osuch assessment and/or management of these factors should involve an evidence-based treatment program for perpetrators of domestic violence;
othat following completion of such a program, the Applicant would benefit (I understand that as “require”) from “ongoing individual psychological intervention” to possibly render him of lower risk of re-offending in a domestic violence context.
The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
I am also mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[49]
[49] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
This Applicant has been given multiple opportunities to modify and ameliorate his conduct. He has failed to grasp those opportunities and, instead, has continued to persistently offend, and very seriously so. He is a very long way from meeting the treatment and other intervention-based therapies stipulated by Dr Yoxall such that his risk of re-offending could move downwards from Dr Yoxall’s current assessment as “moderate” (for violence against strangers or family members) and “high” (for violence against domestic partners).
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to subparagraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia

Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community. Deputy President Block of this Tribunal, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[61]
[61] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[62] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
[My underlining]
[62] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[63]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[63] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[64] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[64] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs[65], Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[66] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [67]
[My underlining]
[65] [2019] FCA 500 (“FYBR”).
[66] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[67] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)The ‘expectations of the Australian community’ cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[68]
(b)It is not for the Tribunal to determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[69]
(c)The Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have due regard of those statements, if made;[70]
(d)In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[71]
[68] Afu at paragraph [85].
[69] FYBR at paragraph [42]
[70] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[71] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The can be no doubt that with his very extensive criminal history, this Applicant has breached the expectations of the Australian community because he has consistently, and often very seriously, failed to abide by the laws of Australia. Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the Applicant has made little to no positive contributions to the Australian community;[72]
(ii)the Applicant has lived in Australia for approximately 22 years;[73]
(iii)the removal of the Applicant would have an adverse impact on his minor child and his immediate family in Australia.[74]
(iv)the very serious nature of the Applicant’s offending to date to other people in the community, most notably women, but including members of the general community as well;
(v)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal and property rights of others, the dreadfully adverse effect domestic violence upon the Australian community, both in terms of individual harm and in terms of the community’s law enforcement and public health resources that it consumes;
(vi)his lack of insight into the severity of what he has done and my finding of a convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(vii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[72] The Direction, paragraph 6.3(7).
[73] Ibid, paragraph 6.3(5).
[74] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm, and none of the evidence suggests a risk of harm, should he be returned to New Zealand. This consideration is not relevant to the determination of the application.
(b) Strength, nature and duration of ties
The Respondent concedes:
·that the Applicant has resided for over 20 years in Australia, since he was seven years old;[75]
·that while the Applicant has some ties to Australia, those ties are “weak”;
·the weakness of those ties should lead to the conclusion that this Other Consideration (b) does not outweigh the relevant Primary Considerations A and C which weigh heavily against revocation.[76]
[75] Exhibit 8, Respondent’s SFIC, page 19, paragraph [55].
[76] Ibid, page 21, paragraph [61].
In his Personal Circumstances Form,[77] the Applicant makes reference to his mother, step-father, three brothers and daughter residing in Australia. In terms of other close family members, he makes reference to two grandparents, a nephew and an uncle who also reside here. It is reasonable to attribute some measure of weight to this Other Consideration (b) in favour of the Applicant on the basis that he has both immediate and extended family residing in Australia, pursuant to paragraph 14.2(1)(b) of the Direction.
[77] Exhibit 10, s 501 G-Documents, G12, page 64.
This weight (attributable to paragraph 14.2(1)(b) of the Direction) ought to be understood with regard to the following factors regarding the extent and/or nature of his ties to those immediate and/or extended family members:
·While the Applicant says there is a “family tie” to his infant daughter, I repeat my finding of an absence of any meaningful relationship with her. He has only been (at best) a physical presence in her life for three of the 24 months of her life thus far. The findings of Dr Morris and the provisions of the interim orders of 12 September 2019 do not militate in favour of anything beyond limited and supervised interactions between the Applicant and his infant daughter;
·The Tribunal accepts the Applicant’s mother is suffering from a terminal blood cancer condition. While she has spoken of the Applicant being a possible “significant help” to her as she undertakes her treatment, it is notable that she has been in remission since 30 September 2019. The condition was diagnosed in September 2017 and it would appear the Applicant’s mother has been able to attend her medical appointments without direct involvement from the Applicant. In cross-examination, when asked about the nature of the support she expected to receive from the Applicant were he to remain in Australia, she said “most of all, emotional support…is the support I would get from Rhys;”
·There is a contradictory statement in the mother’s written evidence, where she says if the Applicant is “…able to walk on Australian soil again…I, my husband and 3 other sons will be able to build their relationship with Rhys which has been severed many years ago.”[78] The difficulty with this evidence is that it implies the absence of a current relationship between the Applicant and his immediate family members and, indeed, confirms that it had previously been “severed”. This is entirely consistent with the reality of the Applicant’s domestic violence offending, an aspect of which involved members of his immediate family.
[78] Exhibit 3, Statement of the Applicant’s Mother, dated 30 September 2019, page 2.
Any weight attributable to this Other Consideration (b) should also be tempered by a finding, pursuant to paragraph 14.2(1)(a)(i) of the Direction, that the Applicant began offending in Australia at 17 years of age and has repeatedly offended for the entirety of his adult life here.
With specific reference to paragraph 14.2(1)(a)(ii), it is possible to allocate a slight measure of additional weight to this Other Consideration (b) given the Applicant’s contributions to the Australian community. The Applicant has an employment history in Australia. He discloses a work history running from 2017-2018 as follows:
“2017-2017: Pool lining with the employer [name 1 redacted]
2017-2018: Farmhand with the employer [name 2 redacted]
2018-2018: Apprentice diesel mechanic with [name 2 redacted]”[79]
[79] Exhibit 10, s 501 G-Documents, G12, page 66.
He gave evidence at the hearing that he would be able to return to similar or factory-hand types of work were he to be returned to the Australian community. He has also done “…some volunteer work with rosies [sic] helping the homeless would like to do more for charity.”[80]
[80] Ibid, G12, page 66.
I have also had regard to the various letters of support and similar supportive documents appearing in the material.[81] While the comments in this material are supportive, this support has not stopped him from seriously offending in this country since 2009.
[81] Ibid, G17, 18 and 19, pages 77-79.
It is clear there is a measure of strength in the Applicant’s ties to Australia. Consistent with Paragraph 14.2(1)(b) of the Direction, those ties, and thus this Other Consideration (b), favours revocation and the Applicant.
In the final analysis, any weight attributable to this Other Consideration (b) due to the Applicant’s family ties in this country must also be tempered by respective ancillary findings that any time he may be said to have spent contributing positively to the Australian community has been significantly outweighed by his very serious criminal conduct during the corresponding period.
Accordingly, while this Other Consideration (b) weighs in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on his victim(s). There is nothing in the form of a victim impact statement (or equivalent) from one of the Applicant’s victims. While Dr Morris makes certain observations[82] about the nature of the Applicant’s conduct in a domestic context, those findings and observations were made for the purposes of a family report and cannot equate to a victim impact statement.
[82] Ibid, G26, pages 156-157 – actually pages 18 and 19 of Dr Morris’ Family Report.
Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on any victim(s). Accordingly, I do not consider that this Other Consideration (d) is relevant to determination of this application.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include: (a) the non-citizen’s age and health; (b) whether there are any substantial language or cultural barriers; and (c) any social, medical and/or economic support available to that non-citizen in that country.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a young man of 27 years of age. He speaks of two health conditions: depression/anxiety and osteogenesis imperfecta (brittle bone disease). It appears that he is and has been medicated for both of those conditions. For his anxiety he takes “Endep 50mg” and “Syriquel 50mg”.[83] For his osteogenesis imperfecta he takes “Zohdronic Acid”.[84] One would expect that these medications will be available to the Applicant were he to be returned to New Zealand, and that he would have available to him the necessary and appropriate level of medical care for those conditions, as are available to other citizens of New Zealand.
[83] Ibid, G12, page 67.
[84] Ibid.
There are no significant or substantial language or cultural barriers to the Applicant’s return and re-establishment in New Zealand. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of New Zealand.
New Zealand is culturally and linguistically similar to Australia. It cannot be said the Applicant will face significant linguistic or cultural barriers were he to be compelled to return there. To the extent that he may face some difficulty in re-establishing himself in New Zealand, this would only present as a short term hardship and would not preclude resettlement.[85]
[85] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
I refer to the evidence of the Applicant’s maternal grandmother who resides in New Zealand.[86] This witness provided both written and oral evidence. In her oral evidence, the maternal grandmother said “If he came here [New Zealand] he would go to a motel then he would have to live on his own. I can’t have him living with me because I’m a pensioner. There’s no work prospects or transport for him to get to work because I live in an isolated area.” As I understood her evidence, the Applicant’s maternal grandmother sought to make it clear that she could not house him in New Zealand.
[86] Exhibit 10, s 501 G Documents, G16, page 76.
While there was some reference to a step-uncle of the Applicant in New Zealand (i.e. his step-father’s brother), my recollection of the oral evidence from the Applicant’s mother is that it would be unlikely that the step-uncle would house the Applicant were he compelled to return to New Zealand. While the first two components of this paragraph 14 of the Direction (the Applicant’s age and state of health, and any substantial language or cultural barriers) do not necessarily present impediments, I am of the view that his initial difficulties in finding housing do present an impediment. Be that as it may, and although such an impediment may present a difficulty, I do not consider it an insurmountable difficulty. It is nevertheless an impediment that weighs in favour of the Applicant.
I are thus of the view that this Other Consideration (e) carries a moderate, but not determinative, measure of weight in favour of the Applicant in the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of limited weight in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: is of moderate weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 168 (one hundred and sixty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[SGD]............................................
Associate
Dated: 29 November 2019

Date(s) of hearing: 15 November 2019

Applicant: Appeared in person

Solicitors for the Respondent: Mr Jake Kyranis (Solicitor)

Sparke Helmore Lawyers

[2019] AATA 5175

29 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	15 November 2019
Applicant:	Appeared in person
Solicitors for the Respondent:	Mr Jake Kyranis (Solicitor)
Sparke Helmore Lawyers