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

Pavey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4978 (24 December 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4518
Re:Stephen Pavey
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:24 December 2021
Date of written reasons: 13 January 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate, dated 9 July 2019, to refuse to revoke the Mandatory Visa Cancellation Decision, dated 12 July 2018, is set aside. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.
............................[SGD]............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – links to the Australian community – impediments to removal – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Migration Act 1958 (Cth), ss 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
13 January 2022
BACKGROUND

The Applicant is a 30-year-old citizen of the United Kingdom, born on 14 November 1991.[1] He first arrived in Australia on 16 April 1992 and has not left Australia since 2002.[2]
[1] Exhibit R2, 155.
[2] Exhibit R2, 209.
The Applicant has a long criminal history dating from when he was teenager. Details of his offences throughout his adult life are attached as “Annexure A” to these reasons.
In particular, on 7 June 2018, the Applicant was convicted in the Hervey Bay District Court of:[3]
(a)Supplying schedule 2 dangerous drugs (5 counts);
(b)Supplying dangerous drugs-Schedule 1 and 2; and
(c)Breach of suspended sentence imposed on 16/11/2016 (re: supplying schedule 1 drugs x4, supplying schedule 2 drugs x3, supplying dangerous drugs).
[3] Exhibit R2, 134.
For the 2018 offences, the Applicant was sentenced to an aggregate of 14 months’ imprisonment.
Following these convictions, the Applicant’s visa was mandatorily cancelled on 12 July 2018.[4] On 2 August 2018, the Applicant sought revocation of that decision and on 9 July 2019, a delegate of the Minister decided not to revoke the cancellation.[5] The Applicant was notified of the decision not to revoke the cancellation of his visa on 19 July 2019.[6]
[4] Exhibit R2, 17.
[5] Exhibit R2, 118.
[6] Exhibit R2, 116.
On 26 July 2019, the Applicant applied to the Tribunal for review of the delegate’s decision.[7] On 11 October 2019, the Tribunal affirmed the decision of the delegate. The Applicant then applied to the Federal Court for review of the Tribunal’s decision.
[7] Exhibit R2, 10.
On 23 March 2021, Collier J made orders issuing writs of certiorari and mandamus, quashing the Tribunal’s decision and requiring the Tribunal to determine the Applicant’s application for review according to law,[8] giving rise to the current proceedings.
[8] Exhibit R2, 508.
ISSUE
It is agreed between the parties that the Applicant does not pass the character test in s 501(6) of the Migration Act 1958 (Cth) (the Act) due to his aggregate sentence of 14 months’ imprisonment for his offences in 2018.
Therefore, the issue before the Tribunal is whether there is ‘another reason’ why the cancellation decision should be revoked under s 501CA(4) of the Act.
LEGAL FRAMEWORK
Legislation
Under s 501(3A) of the Act, the Minister must cancel a visa held by a non-citizen, if the non-citizen does not pass the ‘character test’ and is serving a full-time custodial sentence of imprisonment. Section 501(3A) is in the following terms:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The ‘character test’ is set out in s 501(6) of the Act, which relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Whether a person has a ‘substantial criminal record’ is defined in s 501(7), which relevantly states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
Any cancellation decision made under s 501(3A) of the Act may be revoked pursuant to s 501CA(4) of the Act, which provides as follows:
(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 in section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
Ministerial Directions
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory (Direction 90), which commenced on 15 April 2021. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 5.1(2) of the Direction provides, in part:
Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 provides general guidance and directs that the “factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2”.
That paragraph also sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction, contained in Part 2, sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 5.2, a decision-maker must “take into account” the relevant primary and other considerations in sections 8 and 9 in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. Primary considerations should generally be given greater weight than the other considerations. However, other considerations should not properly be viewed as ‘secondary’; in certain cases, other considerations may outweigh primary considerations.
Section 8 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)   protection of the Australian community from criminal or other serious conduct;
(2)   whether the conduct engaged in constituted family violence;
(3)   the best interests of minor children in Australia;
(4)   expectations of the Australian community.
Section 9 sets out other considerations to be taken into account where relevant. It provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests.
THE EVIDENCE
The Applicant
The Applicant confirmed his statement of 15 September 2021. The Applicant confirmed he was born in November 1991 in the United Kingdom, and that he came to Australia at the age of five months. He has lived in Australia ever since, except for very short trips abroad, including a trip to the UK in 2009 to see his grandparents, who were getting very old at that stage. The Applicant said that he had some family in the UK but that he currently had no communication with them. He said that they had “wiped their hands” of him. He did not currently have friends in the UK.
When questioned about his work history, the Applicant said that he had done a variety of work in Australia, including farm work, as a mechanic and also as a plasterer. He said he could look at pursuing work in plastering or welding in the UK, but that the qualifications required there were different from those required in Australia. He had basic qualifications in engineering and welding. The Applicant said he would look for work opportunities in Australia if he were to be released. However, this would be dependent on his need to care for his mother until her death. He had been treated for back issues whilst in detention, but would be able to do light duties. His back problems resulted from a motorbike accident that occurred when he was younger.
The Applicant gave evidence that while he was young, he had lived with his family and that he attended school up until year 10. He said he had lived with his mother until 2015 and then following his release from prison, he had resumed living with her until he moved in with his ex-partner for about one year. He then lived on and off with his mother. The Applicant had lived with his ex-partner, CB, from 2011 on and off until 2012 or 2013. He had lived with his mother when released from prison in 2017.
The Applicant accepted his long criminal history as an adult in Australia, along with his juvenile criminal history and his traffic record. He accepted that he had driven without a license and said that he did not have a current driver’s licence.
The Applicant accepted that he had a problem with anger management going back to the time that he was young. He said that he had experienced problems controlling his temper and aggression throughout his long criminal history, and that he had failed to heed warnings or to seek proper help. He also said that he had used the drug ice almost every day. He also admitted to selling drugs and when questioned as to whether he realised the harm he was causing to the community by selling drugs such as ice and OxyContin, the Applicant said that he did not realise it at the time, but since he had been in detention he had come to understand “the bigger picture”. He said that he had tried to deal with his anger and also to deal with his drug issues by enrolling himself in various rehabilitation courses. He intended to undertake further coursework and counselling if he were released into the community.
He accepted that some of his offences involved domestic violence. He also accepted that some of his offending, in particular the incident at CB’s home in 2014, had taken place when his young daughter was present. He accepted that he had committed multiple breaches of domestic violence orders put in place to protect CB, and that he had both physically assaulted her, damaged her property and that his behaviour was “cowardly, humiliating and intentionally degrading”. The Applicant said that he had apologised to CB about nine months ago when she broke up with her former partner and contacted the Applicant. He said that he and CB have spoken on a regular basis, having conversations almost every day. He said that CB reached out to him, rather than him reaching out to her.
The Applicant said that prior to CB reaching out to him, he had not spoken to her for seven years and that he had not seen his and CB’s daughter since she was four years old.
The Applicant accepted that he had been given a second chance by the Department when his visa cancellation was revoked in 2017, but that after being released from immigration detention he had immediately started to reoffend, despite being sent for rehabilitation. He was subsequently convicted for a range of offences.
The Applicant accepted that he had been charged with various offences whilst in detention. He accepted that he had behaved inappropriately but also outlined some of the factors which he said had contributed to his behaviour.
In response to questions as to when and why he had started to use drugs, the Applicant said that he had started using drugs after his father’s death in 2008. Having witnessed the violent death of his father, the Applicant said that he took drugs because he “wanted to feel numb”. He had started using marijuana, gone on to use ecstasy and had used ice from the age of 20 years old. His use became more regular over time and from the age of 21 to 26 he was using drugs every day, apart from when he was in prison.
The Applicant had made some limited attempts at rehabilitation whilst in detention and said that he had written to various rehabilitation organisations in relation to programs to assist him if he were to be released back into the community. The Applicant also believed that moving from Hervey Bay to Gladstone would be of assistance to him as he would be away from his former friends and associates from the period when he was using drugs. The Applicant thought that he would be able to care for his mother and also attend rehabilitation and drug and alcohol courses.
When questioned about his dependent children, he said that they were all his biological children even though in some instances he was not listed as the father on their birth certificates. In respect of his son JP, he said that JP mother had confirmed that he was the father. He had not seen JP for nine years and he was cared for by his mother. He said he had not made much effort to be a father figure for JP.
The Applicant’s daughter, TB, was now 10 years old. Her mother is CB. The Applicant said that he had last had contact with TB when she was four years old. She is now about 10 years old and he has only recently re-established contact with TB after her mother had reached out to him. He speaks to TB almost every day. TB has a medical condition, and he is trying to support her. The Applicant said he believed that TB would be “shattered” if he could not see her.
The Applicant’s son, NE, was born after the Applicant was sent to prison, as was his daughter, JM. NE lives with his mother and the Applicant has not met NE at all. The Applicant has seen his daughter JM, who was born in 2018, on two or three occasions whilst he was in detention at Yongah Hill Detention Centre. He also now commenced speaking to JM on a regular basis. The Applicant said that although he has not provided regular financial assistance to JM and NE, he did provide 14 000 AUD to help their mothers to set up and take care of the children.
If released into the community, the Applicant said that he would not live with any of the children, but he proposes to try and see them regularly and to maintain regular contact with them. The Applicant’s mother would also like to see the children.
The Applicant expressed remorse that he had not “been part of his kids’ lives” as they were growing up due to his drug and alcohol use. He was committed to looking after the children to the extent that he could and wanted to be part of their lives if released into the community.
The Applicant said that he understood that he would not be given another chance if he were to be released and begin reoffending. He said however, that he felt many things were different now that would prevent this, including having completed rehabilitation courses, having his children back in his life, and relocating to Gladstone. The Applicant also mentioned that his mother was terminally ill. He said that although drugs were regularly available within the detention centre, he had not touched them in his time there.
Mr Matt Visser
Mr Visser affirmed the contents of his report dated 18 September 2021.[9] He outlined his qualifications for the Tribunal as a clinical psychologist and said that he had conducted a telephone consultation with the Applicant. He confirmed that he had also read the documents noted on page one of his report, namely:
[9] Exhibit A22.
·Statement of Facts, Issues and Contentions of previous AAT case, dated 2 August 2019;
·Queensland TAFE Unofficial Academic History, dated 27 August 2019;
·Queensland Court Outcomes, dated 28 August 2019;
·Minister’s Statement of Facts, dated 13 September 2019;
·Personal Circumstances form, dated 25 September 2019;
·Previous AAT Decision, dated 15 October 2019;
·Mental Health Risk Assessment forms, dated between 13 May 2020 and 15 May 2020;
·Psychological Support Program Management Plan, dated between 14 May 2020 and 19 May 2020;
·Clinical Handover Summary reports, dated between 8 August 2018 and 22 September 2020;
·Information on attended courses, certificates etc, various dates between 26 October 2018 and 17 June 2021;
·K-10 Assessments, dated between 28 March 2018 and 7 July 2021;
·IHMS Internal and external Referral Forms, dated between 6 March 2017 and 29 June 2021;
·Mental Health Assessments, dated between 28 July 2017 and 7 July 2021;
·Clinical Records, dated between 15 March 2017 and 4 August 2021;
·Fitness to travel records, dated between 25 March 2017 and 17 November 2020;
·Induction Mental Health assessments, undated;
·Health Induction Assessments, undated;
·Letter of Instructions from Applicant’s representative, dated 1 September 2021; and
·Expert Witness Code of Conduct, Court Procedures Rules 2006.

Mr Visser’s diagnosis of the Applicant was summarised on pages 2 and 3 of his report and included possible Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), and Post-traumatic Stress Disorder (PTSD). When questioned by Counsel for the Respondent, Mr Visser said the diagnosis of ASD and ADHD was more likely than not, but was not conclusive. His diagnosis of PTSD was certain.
It was noted that the Applicant had attempted to commit suicide after witnessing the violent death of his father and that the Applicant had started using addictive substances after this traumatic incident.
In Mr Visser’s assessment, the Applicant was seen as being at a moderate to high risk of reoffending. Mr Visser was of the opinion that, although the Applicant’s criminal history might indicate a higher risk of re-offending, it was not the only relevant factor. In particular, most of the Applicant’s offences have been committed whilst he was under the influence of drugs and or alcohol. This included his domestic violence offences.
In Mr Visser’s opinion, the Applicant’s drug-use was the strongest factor in the Applicant’s criminal history. Mr Visser said he had taken into account the Applicant’s pattern of aggression when making his risk analysis.
Mr Visser emphasised that the most important factor for the Applicant post-release was that he continued to abstain from using drugs or alcohol, and that he received ongoing treatment for his PTSD. The Applicant’s chance of rehabilitation was enhanced by his commitment to remaining substance free – he had been substance free whilst in detention, and for periods while living with his mother, and remaining committed to his rehabilitation.
When questioned further as to why living with his mother would be a stabilising factor for the Applicant when he had previously committed offences as a young man in similar circumstances, Mr Visser said it was a question of degree.
Mr Visser said that the Applicant would be at a very high risk of returning to drug use if he were returned to live in the United Kingdom. This would destabilise the Applicant and greatly increase the risk of recidivism. Mr Visser said he did not know what support services might be available to the Applicant if he were removed from Australia to the UK. The Applicant had lived in Australia from the age of five months old, and familiarity and access to services was part of his existing support network in Australia. It was also noted that Mr Pavey did not appear to have a support network of family in the UK.
Mr Visser did not see the Applicant’s rehabilitation prospects as being determined by previous failures to succeed. He felt that relocation to Gladstone would be a positive factor as the Applicant would be removed from his old associates. Engagement with his children would also be a positive factor for the Applicant. Mr Visser did, however, accept that the Applicant’s previous domestic violence and drug use had not been in the best interests of his children, who had witnessed some of his offending behaviours.
CB
CB affirmed her statement of 5 September 2021.
When cross-examined by Counsel for the Respondent, CB said that she had first met the Applicant in 2009 and that they had started an intimate relationship from the end of 2009. She said that they had “got together” when she found that she was pregnant. They had remained in the relationship “on and off” for five or six years.
CB said that the Applicant’s threats against her occurred at the end of their relationship and when the Applicant was under the influence of drugs and alcohol. She confirmed that there was physical violence between them that occurred at the end of the relationship. CB confirmed that her daughter, TB, was asleep in the home at the time of the violent incident in 2014, which took place after the Applicant broke into her home.
CB said that she had ended her relationship with the Applicant as it was toxic and not healthy for either party. She said that for a long period after the relationship ended, she had no contact or relationship with the Applicant because of her new partner. She only recommenced contact with the Applicant in March 2021, after she had separated from her then partner. She had been the one who contacted the Applicant and said that they usually communicate via Facebook and by telephone.
CB said that their daughter, TB, had been wanting to meet the Applicant for some time, and that she felt the relationship with her father was a very positive one for TB. They were in regular contact using Facebook and the telephone. She said that TB’s spirits lifted after the Applicant came into her life again. TB was wanting her father to come to a dance concert with her. CB noted that TB had a number of health issues and that she needed the Applicant’s support at the moment. CB thought that TB needed to be able to hug her dad and to have him there for her. CB thought it would be very detrimental to TB if the Applicant were not able to continue living in Australia.
CB also said that she had seen big changes in the Applicant. She said he was now both older and wiser. The Applicant had apologised to her for his previous behaviour, and she believed that he was genuinely remorseful.
Mrs Angela Pavey
Mrs Pavey, the Applicant’s mother, confirmed her statutory declaration of 19 September 2021. She said that she wants the Applicant to come and take care of her and in particular, to help her do the things that she is unable to do by herself, including mowing the lawn, vacuuming and moving objects around the house. She felt that he could care for her on a regular basis while still having time to attend to his rehabilitation.
When questioned as to whether her daughters could look after her, Mrs Pavey said that her daughters lived elsewhere, or in the case of her daughter Emma, was about to move out. She did see her daughters regularly. Mrs Pavey felt that the Applicant was the only one of her children who would be able to provide the care that she needed.
Mrs Pavey said she had not had much interaction with her grandchildren TB, JP, JM, and NE. She had met TB a few times but had not seen her recently. She had seen JM once and had seen pictures of NE as a “little boy”.
Mrs Pavey said that the Applicant had lived with her until he moved out shortly after his father died. After this, he had moved in and out with her up until the time he went to prison in 2018.
Mrs Pavey was aware of the Applicant’s substance abuse after his father was killed and said that he had used drugs to deal with the trauma. She was aware of the Applicant’s offending and said that it had all commenced after his father’s death.
DISCUSSION
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
Nature and seriousness of the Applicant’s conduct to date
There is no doubt that the Applicant’s offending is serious. Relevantly, it has been ongoing over a long period of time – at least half of his life. Much of his offending involved crimes of violence, including domestic violence. He has also been convicted of numerous drug offences, which must be taken seriously because of the harm caused to the Australian community. I also note the Applicant long history of driving offences, which further demonstrate the Applicant’s disregard for the law and for the safety of others.
It is also of concern that in relation to the domestic violence incident in 2014, the Applicant’s child was asleep in the house at the time. It would appear from the evidence that the Applicant went to his then partner’s house with the deliberate intent to cause damage to both the premises and his partner.
The Applicant has also shown a complete lack of respect for the police and for authority more generally, as illustrated by the incidents which have occurred whilst the Applicant has been in detention.
The Applicant has been sentenced to a number of significant terms of imprisonment. His behaviour also appears to have become increasingly serious, moving from relatively minor drug offences to serious crimes involving drugs and violence. He has failed to heed previous warnings and opportunities, in particular, the opportunity he was given when the Department revoked the cancellation of his Visa following his representations in 2017. There is no evidence of any serious attempt from the Applicant at any time during the last 10 to 12 years to change his behaviour, although I note his evidence at the hearing that he is now trying to change and is committed to rehabilitation. Limited weight can be placed on those good intentions, however, in light of his record of repeat offending.
As a whole, the Applicant’s history of offending over a long period of time is very serious. This is particularly so because it involves violence, offences against women, offences against those in law enforcement, and a reckless disregard for the welfare of the community in dealing with a variety of very dangerous and harmful drugs.
Risk to the Australian community should the non-citizen re-offending commit further offences or engage in other serious conduct
At the hearing, the Applicant gave evidence, which I accept, that he commenced using drugs after he witnessed the violent death of his father. He said that he started to use drugs so that he could feel “numb”. The Applicant does not seem to have received any significant counselling or other intervention which may have assisted him at that time.
The Applicant has now been properly diagnosed with PTSD, which according to the evidence of Mr Visser, can still be treated. This was caused by the Applicant witnessing the violent death of his father. The fact that the Applicant’s condition was untreated for so long, in my opinion, provides further explanation of the circumstances and factors that led to the Applicant’s drug use and related offences. There is also the possibility that he suffers from ASD and ADHD, although Mr Visser was unable to give a definite diagnosis in relation to these conditions.
In his evidence, Mr Visser assessed the Applicant as being at a moderate to high risk of re-offending. I note that Mr Visser’s assessment of the Applicant was conducted by telephone and for a limited period of time. The Applicant’s lengthy history of reoffending was seen by Mr Visser as a risk factor in rehabilitation. He said that the longer an individual had been offending, the greater the risk of recidivism.
The fact that the Applicant has not taken advantage of previous opportunities to rehabilitate himself that were offered by the magistrates and judges before whom he appeared for sentencing is of concern. This concern must be compounded by the fact that the Applicant failed to reform after being given another opportunity by the Department, following the revocation of the cancellation of his Visa in 2017, and after representations by the Applicant that he was committed to reform.
The Applicant has shown an ongoing lack of self-control in relation to the incidents involving staff at the detention centre. Despite his explanation and claims of having been treated unfairly, the Applicant at the very least should have been able to control his temper and refrain from being aggressive and abusive to staff.
I accept the Applicant’s evidence that he has refrained from the use of drugs and alcohol whilst he has been in detention. This is a positive sign for the Applicant and may indicate a determination to turn his life around. However, the circumstances of the Applicant, whilst in controlled environment, are very different to being in the community and the Applicant will require a great deal of determination, self-control and professional assistance if he is to be free of his drug and alcohol dependence whilst out in the community.
I accept that the Applicant will benefit from a number of protective factors, including a move to Gladstone, living with his mother, the support of his family, and the opportunity to connect with his children.
Overall, I find that there is a moderate to high risk that the Applicant will reoffend, with consequent harm to the Australian community, particularly if he were to resume dealing in illicit drugs.
I consider this consideration to weigh heavily against revocation of the delegate’s decision.
Primary Consideration B: Whether the conduct engaged in constituted family violence
The Applicant has been convicted of serious domestic violence offences. Such offences must be treated with the utmost seriousness. They usually involve an imbalance of power between the victim and the perpetrator, and when carried out in front of children, have serious long-term consequences.
The Applicant has committed a number of domestic violence offences against CB, the most serious occurring in June 2014 at CB’s residence, where he became aggressive, damaged property, and repeatedly assaulted CB whilst their young daughter was asleep in the house.[10]
[10] Exhibit R2, 423-424.
I accept CB’s evidence that the assaults were committed whilst the Applicant was under the effects of drugs and alcohol, but this does not excuse his behaviour, nor the fact that he deliberately contravened a domestic violence order designed to protect CB.
There were other domestic violence incidents perpetrated by the Applicant, although not as serious as the 2014 incident. All of them, however, were traumatic for CB. In 2012, the Applicant was charged and convicted for contravening a domestic violence order when he contacted CB by text message and threatened to assault CB, “smash up” her property, and abduct their daughter.[11]
[11] Exhibit R2, 400.
All of the Applicant’s offences in relation to domestic violence are set out fully in Annexure A to these reasons.
I give this consideration heavy weight against revocation of the delegate’s decision.
Primary Consideration C: The best interests of minor children in Australia
The Applicant has four minor children:
·JP born in 2010;
·TB born in 2011;
·NE born in 2017; and
·JM born in 2018.
Despite the fact that the Applicant does not appear on the birth certificates of the children as the father, the Applicant confirmed at hearing that he is in fact the father of all four children listed above.
The Applicant’s relationship with the children has been minimal, although I accept that he has reached out to the children and attempted to develop a relationship with them since he has been in detention. The mothers of all of the children have expressed a hope that the Applicant will be able to form a positive relationship with the children in the future.
It would appear from the evidence of both the Applicant and CB that he has developed a close relationship with TB since he has been in detention and that he is in very regular contact with her. The last time he saw TB was when she was four years old. I accept CB’s evidence that TB wants her father to be a part of her life, and that she really is looking forward to sharing events and spending time with him when he is out of detention. I also note that TB has health concerns, which make the ongoing support of her father more important to her.
In relation to his other children, the Applicant’s relationship with them ranges from virtually non-existent in the case of NE and JM, to very limited in relation to JP.
The Applicant has made no regular financial contribution to the upbringing of the children and they have relied upon their mothers for ongoing financial and parenting support. I accept the Applicant’s evidence that he sold his possessions around the time that NE and JM were born, and gave the money to the mothers of NE and JM to assist them in setting up after the birth of the children.
I accept that the Applicant does want to play a positive role in the lives of the children going forward. However, a number of factors including geographical separation, financial constraints, the fact that the Applicant will need to care for his mother, and the fact the Applicant will need to spend time on his own rehabilitation means that there will only be a limited opportunity for the Applicant to spend meaningful time with the children.
Despite the limitations relating to the Applicant’s interaction with the children in the past, and likely constraints in the future, it is clearly in the best interests of the children to have a meaningful and ongoing relationship with their father. I accept that the Applicant will try to build his relationship each of the children, and that they should also have the opportunity to meet their grandmother and other members of their extended family.
In this regard, I note the report of Mr Visser dated 18 September 2021 at pages 3-4, which provides as follows:
“research into child development has highlighted a number of issues resulting from absent fathers, such as lower school completion, poorer social-emotional adjustment, and lower mental health as adults (McLanahan, Tach & Schneider, 2013). While there is little to no research on forced deportation in an Australian context, a recent study looking at deportation of fathers between the US and Mexico suggested it can create “short and long-term adverse mental health outcomes [for children].” (Odeja, Magana, Burgos & Vargas-Ojeda, 2020)”
Clearly, it would not be in the best interests of the Applicant’s children if they were to witness any future domestic violence, or see the Applicant if he were under the influence of drugs or alcohol.
In all of the circumstances, I give this consideration moderate to heavy weight in favour of revocation of the delegate’s decision.
Primary Consideration D: Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian Community as contemplated by this consideration. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs,[12] where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
[12] [2019] FCAFC 185.
It is likely that the Australian Community, on the basis of the Applicant’s criminal history, his drug offences, and his domestic violence offences, have a reasonable expectation that the Applicant’s visa would be cancelled. However, it is also reasonable that the Australian Community would expect consideration be taken of the fact that the Applicant has lived nearly all of his life in Australia, and that he experienced significant trauma at a young age, which almost certainly left him to suffer from PTSD which was never treated.
In all of the circumstances of this case, including the Applicant’s diagnosis of PTSD and his lengthy history of offending, I give this consideration moderate to heavy weight against revocation of the delegate’s decision.
Other Considerations
Extent of impediments if removed
The Applicant has lived in Australia since he was five months old. The only previous trip he has made to the UK was to see his elderly grandparents. I accept his evidence that he does not have any close relatives in the UK, and that he would not have any support network in that country.
I also accept the evidence of Mr Visser that if the Applicant were returned to the UK, he would be at much greater risk of relapsing into drug abuse and alcoholism.
On the positive side, there are no language or cultural barriers to the Applicant returning to the UK, although it would clearly take some time for him to re-establish himself in that country. The Applicant is likely to be able to find employment and would likely have access to health services, including mental health services, which are the equivalent to those available in Australia.
It is of concern that the Applicant may face delay in accessing proper medical treatment, but none of the issues he faces are insurmountable. He would also clearly miss his children. The fact that he could not care for his mother is, in my view, an impediment to his removal to the UK, even though it may be possible for his sisters in Australia to care for his mother in his absence.

On the basis of the evidence given to the Tribunal, especially the fact that the Applicant has little familiarity with the UK and has lived most of his life in Australia, his family are based in Australia, and he is unlikely to have a support network in that country, I give this consideration heavy weight in favour of revocation.
Links to the Australian community
Strength, nature and duration of ties to the Australian Community
As outlined above, the Applicant has lived in Australia since the age of five months old. This is the only country he is familiar with and all of his friends and close family reside in Australia.
If the Applicant were to be released into the community, it is likely that he would be the primary carer for his mother who suffers from a range of chronic illnesses. The evidence was that he would assist her with household chores and general living arrangements. Mrs Pavey herself stated that her daughters would be unable to provide this support and that she does require regular daily care.
The Applicant lived with his mother for much of his life and although the evidence is very limited, it would appear that there is a close bond between them. Although, it does remain of some concern that the Applicant undertook much of his early offending whilst he was living with his mother.
The Respondent drew the Tribunal’s attention to the fact that the Applicant has spent a long period of time in prison and in detention, and that his mother appeared to be able to cope without him. However, Mrs Pavey was clear in her evidence that although her daughters had been able to assist her in the past, their circumstances had changed, and they were no longer able to provide the same level of care.
I have read the statements of support for the Applicant from his friends and family which were filed with the Tribunal by his representative. However, I am unable to give serious weight to those statements because there is no evidence of any strong or ongoing relationship between the Applicant and any of those persons.
In circumstances where the only home the Applicant has ever known is Australia, all of his family is in this country, he has access to appropriate medical supports, and he is likely to be the primary carer for his elderly mother if released, I give this consideration heavy weight in favour of revocation.
DECISION
The decision in this matter is not an easy one. On the one hand, the Applicant has a very serious criminal history, a history of family and domestic violence, and could be seen to have betrayed the trust of the Australian Community. He will have to devote significant effort to his rehabilitation.
On the other hand, the Applicant arrived in Australia as a very young child, and has no history of serious offending prior to him witnessing the violent death of his father, which clearly led to him suffering from PTSD which was not treated. It is perhaps understandable that after the incident, the Applicant wanted to feel “numb” and that he took drugs to achieve this effect. This then led to further offending, including domestic violence, and what might generally be described as a disregard for authority.
The Applicant also has a number of minor children in Australia and is attempting to be part of their lives. He has strong ties to the Australian Community, and it is likely that his elderly mother would suffer if he were to be deported. The expert evidence of Mr Visser also suggests that if the Applicant were deported to the UK, he would be much more likely to fall back into drug use and his rehabilitation prospects would be significantly diminished.
Overall, I am of the opinion that on balance, the totality of the evidence and the considerations outlined in Direction 90 weigh slightly in favour of the Applicant being given another opportunity. He is well aware that this is likely to be his last chance.
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate, dated 9 July 2019, to refuse to revoke the Mandatory Visa Cancellation Decision, dated 12 July 2018, is set aside. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...........................[SGD].............................................
Associate
Dated: 13 January 2022

Dates of hearing: 15,16 November 2021

Date final submissions received: 16 November 2021

Solicitors for the Applicant: M Lewis, Crossover Law Group

Solicitors for the Respondent: C Burke, Sparke Helmore Lawyers
ANNEXURE A

Establishment/Date

Offence

Order/Comment

Hervey Bay Magistrates Court

09/07/2009

Trespass – Entering or remaining yard or place for business (on 21/06/2009)

No conviction recorded

Fined: $150.00

Hervey Bay Magistrates Court

07/10/2010

Receiving tainted property (on a date unknown between 05/07/2020 and 17/07/2010)

Possess tainted property (on 17/07/2010)

On all charges

No conviction recorded

Fined $600.00

Time to pay: 28 days

Hervey Bay Magistrates Court

09/11/2011

Contravene direction or requirement (on 8/10/2014)

On all charges with traffic matters

Conviction recorded

Fined: $1,500.00

Time to pay: 28 days

Hervey Bay Magistrates Court

07/06/2012

Assault or obstruct police officer (on 19/05/2012)

Conviction recorded

Fined: $500.00

Time to pay: 28 days

Possessing dangerous drugs (on 09/05/2012)

Possess utensils or pipes etc that had been used (on 09/05/2012)

Contravene direction or requirement (on 12/10/2011)

Possess property suspected of having been used in connection with the commission of a drug offence (on 09/05/2012)

On all charges

Conviction recorded

Fined: $900.00

Time to pay: 28 days

Hervey Bay Magistrates Court

12/07/2012

Wilful damage (on 23/06/2012)

Commit public nuisance (on 24/06/2012)

Wilful damage (on 16/06/2012)

On all charges

Conviction recorded

Probation

Period: 9 months

Compensation: $822.00

Time to pay: 28 days

Contravene direction or requirement (on 26/05/2012)

Conviction recorded

Fined: $150.00

Time to pay: 28 days

Hervey Bay Magistrates Court

10/01/2013

Contravention of domestic violence order (on 10/11/2012)

Conviction recorded

Fined: $500.00

Time to pay: 28 days

Hervey Bay Magistrates Court

07/02/2013

Contravene direction or requirement (on 30/12/2012)

Conviction recorded

Fined: $200.00

Time to pay: 28 days

Hervey Bay Magistrates Court

01/05/2014

Stealing (on 31/01/2014)

Unlawful possession of weapons (on 16/02/2014)

Possess shortened firearms (on 16/02/2014)

Possess utensils or pipes etc that had been used (on 16/02/2014)

On all charges

Conviction recorded

Fined: $1,000.00

Time to pay: 28 days

Richlands Magistrates Court

24/06/2014

Contravention of domestic violence order (on 11/04/2014)

Conviction recorded

Fined: $700.00

Time to pay: 28 days

Offence in relation to unauthorised and prohibited explosives (on 02/06/2014)

Conviction recorded

Fined: $100.00

Time to pay: 28 days

Hervey Bay Magistrates Court

16/10/2014

Possessing/acquiring restricted items (on 28/08/2014)

Conviction recorded

Fined: $650.00

In default imprisonment: 7 days

Time to pay: 28 days

Hervey Bay Magistrates Court

12/01/2015

Contravention of domestic violence order (on 16/06/2014)

Conviction recorded

Sentenced

Imprisonment: 6 months

Concurrent

Parole release date: 12/01/2015

Wilful damage (on 26/10/2014)

Stealing (on 19/11/2014)

On all charges

Conviction recorded

Sentenced

Imprisonment: 4 months

Concurrent

Parole release date: 12/01/2015

Wilful damage (on 16/06/2014)

109. Possess tainted property (on 20/11/2014)

Possessing dangerous drugs (on 20/11/2014)

On all charges

Conviction recorded

Sentenced

Imprisonment: 3 months

Concurrent

110. Parole release date: 12/01/2015

Assaults occasioning bodily harm (on 16/06/2014)

Conviction recorded

Sentenced

Imprisonment: 12 months

Concurrent

Parole release date: 12/01/2015

Hervey Bay District Court

16/11/2016

Supplying Schedule 1 dangerous drugs (4 charges on 10/07, 16/07, 18/07, 20/07/2016)

Supplying Schedule 2 dangerous drugs (3 charges on 16/07, 18/07, 20/07/2016)

Supplying dangerous drugs (on 18/07/2016)

On all charges

Conviction recorded

Sentenced

Imprisonment: 18 months

To be suspended for: 3 years

After serving: 4 months

Possessing dangerous drugs (3 charges on 20/07/2016)

Possessing anything used in the commission of crime defined in Part 2 (on 20/07/2016)

Possess utensils or pipes etc that had been used (on 20/07/2016)

Offence in relation to unauthorised and prohibited explosives (on 20/07/2016)

On all charges

Conviction recorded

Sentenced

Unlawful possession of controlled drug (on 20/07/2016)

Conviction recorded

Not further punished

Hervey Bay District Court

07/06/2018

Supplying Schedule 2 dangerous drugs (5 charges on 02/12, 03/12, 04/12, 05/12/2017)

Supplying dangerous drugs – Schedule 1 and 2 (on 02/12/2017)

On all charges

Conviction recorded

Sentenced

Imprisonment: 6 months

Breach of suspended sentence imposed on 16/11/2016 (Re: Supplying Schedule 1 Dangerous Drugs x 4, Supplying Schedule 2 Dangerous Drugs x 3, Suppling Dangerous Drugs)

Breach (ES) Proven

Balance of suspended sentence invoked

On all charges

Conviction recorded

Sentenced

Imprisonment: 14 months

All terms of imprisonment to be served concurrently

Parole release date: 07/08/2018

Hervey Bay Magistrates Court

21/06/2018

Receiving tainted property (between 06/11/2017 and 08/12/2017)

Receiving tainted property firearm/ammunition (between 28/11/2017 and 07/12/2017)

Receiving tainted property (between 13/11/2017 and 07/12/2017)

On all charges

Conviction recorded

Sentenced

Imprisonment: 6 months

To be suspended for: 2 years

Concurrent

Breach of bail condition (between 22/08/2017 and 07/10/2017)

Receiving tainted property (on or about 03/08/2017)

Uttering (on 06/08/2017)

Fraud – Dishonestly obtains property from another (between 28/11/2017 and 07/12/2017)

Possess utensils or pipes etc that had been used (on 06/12/2017)

On all charges

Conviction recorded

Sentenced

Imprisonment: 7 days

To be suspended for: 2 years

Concurrent

Possessing dangerous drugs (on 06/12/2017)

Possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4 (on 20/06/2017)

Possessing dangerous drugs (on 20/06/2017)

Possessing dangerous drugs (on 20/06/2017)

Possess property suspected of having been acquired for the purpose of committing a drug offence (on 20/06/2017)

Unlawful possession of weapons category D/H/R weapon (on 20/06/2017)

Unlawful possession of weapons category A, B or M (on 06/12/2017)

Possessing dangerous drugs (on 06/12/2017)

On all charges

Conviction recorded

Sentenced

Imprisonment: 3 months

To be suspended for: 2 years

Concurrent

Failure to appear in accordance with undertaking (on 09/10/2017)

Conviction recorded

Not further punished

Brisbane Magistrates Court

15/04/2019

Common assault (on 24/10/2018)

Suspended sentence extended

Period: 12 months

(Re: Breach of order imposed on 21/06/2018)

Conviction recorded

Sentenced

Imprisonment: 3 months

To be suspended for: 6 months

Concurrent

Common assault (on 24/10/2018)

Conviction recorded

Sentenced

Imprisonment: 4 months

To be suspended for: 6 months

Concurrent

On all charges

Suspended sentence extended

Period: 12 months

(Re: Breach of order imposed on 21/06/2018)

[2021] AATA 4978

24 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Dates of hearing:	15,16 November 2021
Date final submissions received:	16 November 2021
Solicitors for the Applicant:	M Lewis, Crossover Law Group
Solicitors for the Respondent:	C Burke, Sparke Helmore Lawyers