Perese and Minister for Immigration and Border Protection (Migration)

Perese and Minister for Immigration and Border Protection (Migration) [2017] AATA 1135 (24 July 2017)
Division:GENERAL DIVISION
File Number: 2017/2891
Re:Roy Perese
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:24 July 2017
Place:Sydney

The decision under review is affirmed.
..........................[sgd]..............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – special category visa – term of imprisonment of 12 months or more – applicant does not pass the character test - whether there is another reason why the decision should be revoked – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501(3A), 501CA
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
24 July 2017
The decision under review

Mr Perese, the applicant, is seeking the revocation of the mandatory cancellation of a Subclass 444 (Special Category) visa (the visa). The visa was cancelled on 16 November 2016 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) as a result of Mr Perese’s conviction and sentence of imprisonment for ‘reckless grievous bodily harm’ on 29 September 2016. He was initially sentenced to a term of imprisonment of 16 months, with a 12 month non-parole period. On appeal on 3 November 2016, the sentence was reduced to a term of imprisonment of 14 months with a six month non-parole period.
Mr Perese submitted a request for revocation of the mandatory cancellation of the visa on 17 November 2016. On 4 May 2017 a delegate of the respondent decided not to revoke the mandatory cancellation decision. Mr Perese filed his application for review of that decision in the Tribunal on 11 May 2017.
Background
The following matters are not contentious.
Mr Perese is a New Zealand citizen. He was born in September 1963 and first came to Australia in June 1985. He has travelled out of Australia 28 times since he arrived. He most recently arrived in Australia on 18 April 2016.
Issues
Subsection 501CA(4) of the Act provides that the Minister may revoke a decision under s 501(3A) 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.
Mr Perese acknowledges that he does not pass the character test because of the operation of s 501(3A)(b). That is because he has a substantial criminal record as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more.
The Tribunal therefore must determine whether there is 'another reason why the decision should be revoked' in accordance with s 501CA(4)(b)(ii) of the Act. If satisfied that there is another reason, the Tribunal must revoke the cancellation. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: see Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, at [38].
In exercising the discretion under s 501CA(4) the Tribunal must follow the direction given by the Minister under s 499 of the Act, Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under S501CA (Direction 65). Part C of Direction 65 is relevant in this case, where the Tribunal has to determine whether to exercise the discretion to revoke the mandatory cancellation of Mr Perese’s visa.
There are three primary considerations to be taken into consideration when deciding whether to revoke a mandatory cancellation of a visa: see Direction 65 at para13(2)
(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.
Other considerations must also be taken into account where relevant: see Direction 65, at para 14(1). The 'other considerations' include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Direction 65 sets out detailed guidance in relation to each consideration, as well as setting out objectives of the Direction, general guidance for decision-makers, principles that provide a framework within which decision-makers should approach their task of deciding, relevantly, whether to exercise the discretion to revoke the mandatory cancellation, and how to exercise the discretion.
Primary considerations
Protection of the Australian community
Direction 65, at para 13.1, requires the Tribunal to:
1… 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community
and
2… give consideration to:
(a)The nature and seriousness of the non-citizen's conduct to date;
and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Direction 65 sets out further factors to consider in respect of each of the nature and seriousness of the conduct and the risk of the non-citizen committing further offences or other serious conduct.
Mr Perese has a lengthy criminal history in Australia which is set out in the National Police Certificate. He was convicted of his first offence on 24 March 1986, only nine months after he first arrived in Australia. The offence was “Drive middle range prescribed concentration of alcohol (PCA)”. Since then, he has had numerous driving related offences, including various PCA offences, drive unlicensed, use unregistered vehicle, drive while disqualified, use uninsured motor vehicle, and drive vehicle recklessly/furiously or speed/manner dangerous. He has also been convicted of offences of common assault, assault officer in execution of duty, and resist officer in execution of duty. His first conviction for common assault was in February 1995.
He committed his most recent offence, “reckless grievous bodily harm”, at about 12:00am on 12 December 2015. That is the offence which resulted in the mandatory cancellation of his visa. It is also Mr Perese’s most serious offence.
The ‘Facts in the matter’ document signed by Mr Perese in August 2016 state the following in reference to the offence committed on 12 December 2015:
·He and his female partner attended a tavern from about 8:30pm on 11 December 2015. According to his partner, Mr Perese consumed about four to five bottles of full strength beer and two vodka-based alcoholic pre-mixed bottled drinks until about 11:00pm. Mr Perese saw the victim with a female he knew and assumed that they were in a relationship. Later, he warned the victim that the female was bad news, to stay away from her, and not to tell her what he had said.
·A short time later, the female approached Mr Perese and said that the victim had told her what Mr Perese had said. CCTV footage within the tavern shows that at about 12:00am on 12 December 2015, Mr Perese approached the victim from behind and put his left arm around the victim’s head in a headlock. Mr Perese appeared to yell something at the victim and was seen pointing his right finger at the victim’s face. Mr Perese punched the victim to the right side of his face with two clenched fists in quick succession, impacting on the face of the victim twice in the same location. The victim went limp, Mr Perese released him, and the victim fell to the floor.
·Mr Perese and his partner left the tavern immediately afterwards. He told his partner that he had done and that the victim had annoyed him by telling the female what he had said. Mr Perese said that he had hit the victim lightly and he had just gone down and they had to leave quickly as the police would arrive soon.
·The police were called by one of the witnesses. They saw the victim semi-conscious, bleeding from his right ear and vomiting and he was conveyed to hospital.
·Mr Perese and his partner walked to their nearby home and then attended the nearby police station after his partner convinced Mr Perese to turn himself in. Mr Perese made “full admissions to punching the victim in the face”. During the electronic record interview, Mr Perese said that he “punched the victim once only and it was not a solid punch” and did not mean to “do that do [sic] him” and wished it had not occurred. He estimated that he had consumed four or five beers.
·The victim suffered an extensive fracture of the skull behind the right ear and bleeding to the brain. He suffered memory and hearing loss and tinnitus. An audiologist considered that the injuries were moderate to moderately severe. A neurologist assessed the victim twice. On the second occasion, the neurologist found that the contusions had completely resolved and the victim had clinically recovered well. Further, he considered that the injury was minor with a good prognosis for recovery with short to medium term disability anticipated.
In written evidence, Mr Perese explained that the female had destroyed the life of a friend of his and that she and “her ice riddled brother” came to his house when he was working interstate, threatened his daughter, and then smashed walls and windows in the back room of his house. He described the female as “a trigger”. He told the Tribunal that the night of the incident, she had just got out of rehabilitation. Mr Perese also said that he had not punched the victim hard and that he suffered no damage to his hand.
Mr Perese provided written and oral evidence about the circumstances of some of his other offences. On 15 July 2004, he was convicted of common assault. He said that offence arose from disciplining his then teenage son. He said that he had been drinking and admitted hitting his son. He was sentenced to 8 months imprisonment, which was suspended. The offence was called up on 26 November 2004. The Tribunal finds that he was imprisoned from 25 November 2004 until 24 May 2005 for that offence. The Tribunal finds that it was called up on 26 November 2004 following the commission of offences discussed in the next paragraph, which it finds occurred on 25 November 2004 when he was taken into custody.
Mr Perese appeared at court on 13 January 2005 on four charges: Not give particulars to other driver; Drive vehicle recklessly/furiously or speed/manner dangerous; Drive while disqualified from holding a licence; and Common assault. He told the Tribunal the following. He intentionally drove into the back of a car that was not turning right. He was angry and intoxicated. He had problems with his son at the time and saw him on the road. The driver got out of the car and Mr Perese pushed him. They exchanged words. Mr Perese pushed the other man on the shoulder, but not hard. The man was not injured and they got into their cars and drove off. The police came to his home. Mr Perese wrote that the incident occurred “after a couple of beers at lunch time”.
He was sentenced to 12 months’ imprisonment with a non-parole period of 6 months for the “Drive while disqualified offence”, 8 months’ imprisonment with a non-parole period of 6 months for the “Drive vehicle recklessly offence”, and six months imprisonment for the “common assault”. The imprisonment was to commence on 25 May 2005, that is, at the end of his previous sentence.
Consequently, Mr Perese was in prison from 25 November 2004 until 24 November 2005.
Mr Perese wrote that 2004 was a very stressful time for personal and business reasons. Based on his oral and written evidence, the Tribunal finds that his relationship with the mother of three of his four children was under pressure from around 2000 or 2001. He was running a business and chasing debtors. The mother of his children returned to New Zealand with the children for a while and then returned to Australia. Their youngest son was born in 2003. Mr Perese said during the hearing that he guessed that the mother of his children had left him in 2000 or 2001 because of domestic violence. He admitted during the hearing that he had hit her, “probably just a back hander”. He admitted assaulting her in a pub, probably after their youngest son was born. No charges arose from either of those incidents. He was also indulging in drugs socially around that period. The relationship finally broke up when he went to prison at the end of 2004. He claims to be on good terms with her. She wrote a letter “in the interest” of their youngest son, supporting Mr Perese’s application for revocation of the mandatory cancellation of his visa.
The Tribunal notes that in 2003 Mr Perese was convicted of offences of “fail to submit report as to company’s affairs” and “fail submit books & records”, which supports his evidence about the stress he was under in relation to his business before then.
On 6 March 2008 Mr Perese appeared at court on two offences of “Assault officer in execution of duty”, one offence “Resist officer in execution of duty” and one offence of “resist or hinder police officer in the execution of duty”. In respect of each offence, he was sentenced to a six month suspended sentence on entering a bond for six months “to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation”.
Mr Perese told the Tribunal the following about the incident giving rise to those offences. Both he and his son were drunk. He had been drinking from 10 am until about 6 pm. He “touched shoulders” with the police officer when he went to help his son who was being held on the ground by police. He said that “he got off” the charges and went home. He did not recall attending drug and alcohol rehabilitation.
He told the Tribunal the following about the incident giving rise to the convictions for “drive while disqualified” and “common assault” in May 2012, for which he was sentenced to eight months imprisonment with a non-parole period of 6 months. It was lunchtime. He was moderately drunk, having consumed two beers. He wanted to go to the toilet. He was tailgating someone. He caught up with the other vehicle and forced it to the side of the road by veering in front of it. He assaulted the driver through the window of the vehicle. Mr Perese returned to his vehicle and drove off. He attended courses about alcohol in prison. He felt that he had a purpose, to get his licence back, which he did. He wanted to work.
Mr Perese does not remember the circumstances of other “common assault” charges listed in his criminal record for which he did not do time: “… the minor ones that only the police charged me with were like a blur on my memory, alcohol was likely involved so I regret those days & hope to prevent the people I care for from taking that road if they should stumble”.
Mr Perese acknowledged that he had driven to work regularly, although his licence was disqualified.
Mr Perese’s evidence was that the 1986 PCA offence was not “foreseen” and was unintentional. He said that he and his then partner got a lift from a couple. First, the male refused to be breathalysed when pulled over by police and was taken away. His partner then drove, was pulled over by the police, breath-tested and failed the test, and then Mr Perese took over and the same thing happened to him. A cousin had told Mr Perese to use his name for his licence if he was pulled over but Mr Perese did not know his cousin had fines owing, “which led to my overnight stay and 8 days hard labour at Silverwater in 1987”.
In relation to the 1987 PCA offence, Mr Perese wrote the following. He was with a friend. They “enjoyed a couple roadies for the journey home”. About ten minutes into their journey, his friend crossed the median twice and Mr Perese asked him to stop and he drove. After about 100 metres he encountered a “booze bus”.
Mr Perese gave the following evidence about the 1990 PCA and “drive unlicensed” offences. He had asked a cousin to be the designated driver for the night but he drank too, and so Mr Perese drove. “After a few I was angry & young, so I did the stupid & drove, as stupid does”. He was unable to recall why he failed to appear and was so charged with that offence at that time.
He gave the following explanation for the “Breach Community Service Order” offence dealt with in February 1995. He was working for a firm that required employees to be involved in a building course. He was inundated with assignments as well as working full-time. The magistrate accepted his explanation and released him from the order.
The Tribunal notes that magistrate made an order under the former s 558 of the Crimes Act 1900 (NSW), which required Mr Perese to enter a good behaviour bond for 12 months on his own recognisance of $500.
The nature of Mr Perese’s offending is serious. He has committed nine violent offences since 1995 which the Tribunal views very seriously. He has committed offences against police officers in the performance of their duties in 1999 and 2008. He has served terms of imprisonment in relation to offences arising from two separate incidents in 2004, one incident in 2012 and one incident in 2015. He was sentenced to imprisonment for six months which was suspended on entering a bond for six months in relation to the 2008 offences of “assault officer in execution of duty”, “resist officer in execution of duty and “resist or hinder police officer in the execution of duty”.
Mr Perese’s violent offences have increased in seriousness as the years have gone on. The most recent offence was the most serious, based on the sentence imposed. The Tribunal accepts that Mr Perese generally committed violent offences when he had consumed alcohol. In 2016, Mr Perese was diagnosed by his psychologist as suffering from alcohol use disorder “as had been the case since age 15”. The opinion of his psychologist was that at the time of the 2015 offence Mr Perese was adversely affected by alcohol use disorder which was a substantial contributing factor to the offence.
He has committed many driving offences since 1986, including many committed while under the influence of alcohol, although he was not always charged with an alcohol related offence, for example in 2005. The last driving offence was “drive while disqualified from holding a licence” in 2012. Until then, Mr Perese had shown complete disregard for the driving laws he breached, in particular the requirements not to drink alcohol and drive, to hold a licence and register a vehicle. His explanations for his driving offences set out above only reinforce the Tribunal finding that his judgment was poor or non-existent, particularly when he has been consuming alcohol. His PCA offences and dangerous driving offences are serious given the danger he poses to other road users. The Tribunal accepts that he currently holds a five year licence.

Mr Perese was formally warned in writing about the consequence of further offending in terms of his immigration status by letters dated 1 May 2008 and 17 April 2013. He did not return the acknowledgement letter. He accepted that he had received the notifications but during his oral evidence seemed not to have considered the notifications to be important. He did not think that he had done anything wrong in 2008. The Tribunal notes that after the 2008 notification he was convicted of a violent offence in 2012, and after being notified in 2013, he committed a violent offence next in 2015. Driving offences continued until 2012. The Tribunal finds that Mr Perese only thought he had done something “wrong” if he was imprisoned, and paid little attention to other forms of punishment, including suspended prison sentences.
The Tribunal agrees with the delegate that the Australian community has borne a significant cost when Mr Perese’s offending is considered cumulatively. Those costs include the cost of community resources including courts, law enforcement and the corrective services system, and costs associated with the psychological and physical harm caused to victims.
Clearly, if Mr Perese engages in further criminal conduct, individuals may suffer serious harm such as his 2015 victim did, including permanent impairment.
What is the likelihood that Mr Perese will engage in further criminal conduct? His partner represented him before the Tribunal. She argued that he is not going to reoffend. She pointed to his abstaining from alcohol, attending meetings of Alcoholics Anonymous (AA), consulting a psychologist while he was on bail from 12 December 2015 until 29 September 2016, and re-engaging with the church of his youth which bans alcohol, from about February 2016. He stated in his Request for Revocation of the mandatory cancellation of his visa that he was attending AA every Monday and would continue to do so. He was in prison at that time. It is not clear on the evidence whether he continues to attend AA meetings while in migration detention.
On evidence before it, the Tribunal finds that this is the first time that Mr Perese has undertaken steps to change his behaviour as outlined in the previous paragraph. The respondent is not correct in asserting that Mr Perese’s ability to “stick to measures that will address his alcohol use and restrain his aggression are as yet untested in the community”. He was on bail for nine months before being imprisoned in September 2016, although subject to bail conditions with the sanction that he could have been imprisoned if he had breached them. Further, the Tribunal infers that he was well aware that his conduct during the nine months he was on bail would be taken into account if he were convicted, when he was sentenced. The evidence does not show that he was conscious of the potential cancellation of his visa at that time, although a prison record dated 25 October 2016 noted that he was worried that he may be deported.
Mr Perese’s clinical psychologist treated him from 18 December 2015 until at least 27 September 2016 when he prepared his report. The psychologist reported that there had “been 2 minor occasions of drinking in the period of 9 months since I first saw him, but overall he has made a dramatic improvement”. That is, before 11 December 2015 he had been drinking heavily and regularly but had stopped. The Tribunal accepts that Mr Perese has not consumed alcohol while he was in prison or since being in migration detention, where it is not available. As of the date of this decision, he has therefore abstained from alcohol, apart from two minor occasions which he talked about at the hearing, since 18 December 2015, more than 18 months. A medical report dated 26 September 2016 from All Saints Medical Centre supports a finding that Mr Perese had abstained from consuming alcohol in 2016 and his liver function test showed improvement.
Mr Perese’s clinical psychologist also expressed the opinion that:
When Mr Perese is sober he acts in a moderate, restrained and reasonable manner. However, when he is intoxicated he is inclined to act in an impulsive, aggressive, and ill-considered manner. Under these circumstances, when he is intoxicated, there is a significant risk of offending.
The psychologist advised Mr Perese to continue to abstain completely on a permanent basis. Mr Perese has undertaken anger management courses while in prison in 2016 and 2012. There was evidence in support of Mr Perese having altered his life from his partner, two of his adult children, an employer, a Bishop of his church, a prison chaplain, and other relatives and friends.
The Tribunal has taken into account the evidence of Mr Perese’s traumatic childhood included in the psychologist’s report and in correspondence from one of his sisters.
Mr Perese has had good intentions in the past. In response to the question in the Request for Revocation form, dated 17 November 2016, asking why he had reoffended after receiving a warning about his immigration status, Mr Perese wrote:
My last incarceration in 2012 was meant to be just that. I had plans for myself to follow which I made good on like keeping my license which I have, working in mining also achieved, marrying (his partner) almost happened on November 5. A later date is on the cards.
Mr Perese has accepted that he was in the wrong in relation to some of his offences, however the Tribunal does not accept that Mr Perese has insight into how violent he can be. His lack of insight is demonstrated by the following:
·His claim that he had not punched his 2015 victim hard, apparently because he had not suffered any damage to his own hand;
·His claim that he was “disciplining” his son in 2004;
·His claim that in the other 2004 incident, he “pushed the other man on the shoulder, but not hard”;
The sentences imposed for those offences, and what he did during the 2015 offence and the consequential injuries and permanent impairment suffered by the victim, are not consistent with those claims.
In making those findings, the Tribunal has taken into account the psychologist’s opinion in his report of 27 September 2016 that, at the time of 2015 offence, Mr Perese suffered from mild neurocognitive disorder, or alcohol induced brain damage which impairs his short term memory, impulse control and ability to make complex judgments. It is not clear from the psychologist’s report whether that condition would improve if Mr Perese abstained from consuming alcohol. However, Mr Perese’s claims about his conduct set out above have been made after a substantial period of abstaining from alcohol, although the Tribunal infers that alcohol has not been available to Mr Perese while he was in prison or in immigration detention. He has not been involved in any significant adverse incident in either institution.
The Tribunal considers that there is a risk that Mr Perese will not abstain from alcohol once he is released into the community and if he does become intoxicated, there is a significant risk of his reoffending, as his psychiatrist wrote. In making those findings, the Tribunal has taken into account that Mr Perese would be on parole until 29 November 2017 and he would be conscious that further offending would result in his returning to gaol, and secondly, his concern about being deported would motivate him not to reoffend.
Taking into account the above matters, the Tribunal finds that the protection of the Australian community weighs in favour of non-revocation of the cancellation of Mr Perese’s visa.
Best interests of minor children
Mr Perese’s youngest son is 14 years old (the child) and resides in New Zealand with his mother. Mr Perese visited the child in April 2016 and recently has been speaking to him about twice a week. The child’s mother and the child signed a letter dated 7 June 2017 supporting revocation of the cancellation of the visa. Mr Perese, his partner and other witnesses put forward a similar argument. The argument that it is in the best interests of the child in relation to this child can be summarised as follows:
·The child has another three years’ of high school study to attain university entrance qualifications;
·At this time, he “has no idea what the future holds for him”, as the joint letter from him and his mother states;
·There is a high chance he may want to return to Australia to study or work;
·He is an Australian citizen and has a right to do so;
·He should have the support and advice of his father and his siblings in Australia, whom he loves and misses, if he returns to Australia;
·That would be beneficial to the child in the event anything happened to his mother.
From the evidence, the Tribunal infers that another argument in support of revocation being in the best interests of the child is that his father has better employment prospects in Australia than in New Zealand and would be better able to support the child financially if in Australia. The Tribunal accepts that Mr Perese has provided financial support for the child in the past but the evidence is not clear that he has provided financial support while in prison or immigration detention when he has not been working.
From Mr Perese’s document headed “Relationship with Children” dated 8 December 2016, the Tribunal finds that the child and his mother moved back to New Zealand when the child was no more than 12 years old, at least two years ago. That is consistent with the mother’s comment in the letter she wrote that when she returned, he was “far too young to stay in Australia without me”. The Tribunal finds the argument about what the child may do in the future is speculative. For the next three years, until he is 17 it is probable that he will attend school in New Zealand. After that, the child may decide to study or work in New Zealand. He will be 18 years old in four years’ time.
The alternative view is that it would be in the child’s best interests that his father return to New Zealand where he could be more involved in the child’s upbringing during at least the next three years. Mr Perese’s partner asserted that he would be living six hours away from the child if he returned to New Zealand. There was no evidence about where he would live or why. The claim that Mr Perese has better employment prospects in Australia than in New Zealand is based on the length of time he has been working here. Given his history of employment in construction, the Tribunal does not accept that his employment prospects would be significantly less in New Zealand.
On balance, the Tribunal finds that non-revocation of the cancellation of the visa is in the best interests of the child.
The Tribunal gives little weight to the assertion that it would be in the best interests of other minor children to whom Mr Perese is related that the visa cancellation decision be revoked. The evidence does not demonstrate that he plays a parental role in relation to other minor children or that he is played a significant role in the lives of any such minor children.
Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while in Australia. Mr Perese has not met that expectation on numerous occasions over 30 years. He has breached this trust. He has been convicted of the offences referred to earlier in this decision.
The case put on behalf of Mr Perese is that the expectations of the Australian community are reflected in the letters, statements and statutory declarations submitted on his behalf by members of the Australian community. Further, it was submitted that the Australian community does not look at his past transgressions “because they do not consider them as serious”, but looks at his present deeds. The submission referred specifically to comments made about Mr Perese’s kindness, honesty, generosity, strength, morality and wisdom. The submission also referred to his contribution to the Australian community for the larger part of the time he has spent here through his work, family and education.
The Tribunal accepts that those who provided evidence in support of Mr Perese have the opinions about him they state. However, the Tribunal does not accept that each one knows the details of his lengthy criminal history, including the nature of his offences, and in particular the details of the most recent and most serious 2015 offence, or the sentences imposed, including terms of imprisonment which reflect the seriousness of the relevant offences. The Tribunal must consider that history, as well as the evidence provided in support of Mr Perese.
Mr Perese has been a cost to the Australian community in terms of resources expended in the criminal justice system, including the correctional facilities, over a period of 30 years and will be again if he offends.
The Tribunal accepts that the Australian community expects to be protected from the risk of further violent conduct by the applicant despite the steps he has taken to rehabilitate himself since December 2015. He has had many chances to take those steps before but has not done so successfully. He was warned in 2008 and 2013 that further offending may impact adversely on his migration status. His most serious offence is the most recent offence. In that respect, the Tribunal notes the comments Deputy Chief Magistrate Mottley made in sentencing Mr Perese on 29 September 2016 for “recklessly inflicting grievous bodily harm”:
Alcohol fuelled offences of violence, gratuitous acts of violence with little or no provocation, are matters where the court should be sending a very clear message to the community that this is the type of conduct that will not be condoned by the community or the courts.
The expectations of the Australian community weigh in favour of non-revocation of the visa cancellation.
Other considerations
Strength, nature and duration of ties
Mr Perese has lived and worked in Australia for more than 30 years. However, his offending began soon after he arrived and continued for 30 years, which requires less weight being given to this consideration. Mr Perese has four children. His three younger children were born in Australia. The two adult children who live in Sydney are citizens of New Zealand. Mr Perese’s oldest son is 29 years old and his daughter is about 24 years old. His youngest 14 year old son is an Australian citizen and lives in New Zealand with his mother.
The Tribunal accepts that it is likely that non-revocation of the applicant’s visa will cause significant disruption and emotional upset to Mr Perese’s partner of more than ten years, who is an Australian citizen. She described her family circumstances, how Mr Perese had assisted her, and the difficulties she would experience if he returned to New Zealand. They have resided together for eight years, been engaged for five years and planned to marry on 5 November 2016, which did not eventuate due to his incarceration. Her devotion to and support of Mr Perese is reflected in the detailed oral and written submissions and letters, she has provided in support of revocation of the cancellation decision.
His adult son and daughter who live in Sydney had been living with him before he went to prison in 2015. The Tribunal finds on the evidence that both lived with both their parents as children, returned with their mother to New Zealand for a time in about 2001 with their younger brother, and after Mr Perese was imprisoned in 2004 when their mother and he separated, lived with her and her new partner for some years thereafter but maintained contact with him after his release. They both maintain that he is a changed man since the 2015 offence.
The Tribunal gives little weight to the claim that non-revocation of Mr Perese’s visa may also impact adversely on their financial circumstances, because his partner, and his adult son and daughter who live in Sydney are currently working. Further, the evidence is that they were supporting him financially after he was imprisoned.
The Tribunal notes that the mother of Mr Perese’s oldest daughter was not the mother of his three other children. His oldest daughter has a law degree and lives in Perth. She is a New Zealand citizen. In a letter to Mr Perese, she wrote that she had a “shaky” father daughter relationship, although she expressed her love and thanks to him. It is clear from that letter that Mr Perese was never part of her daily life. The year the letter was written is not clear on the copy before the Tribunal. It appears as “200”. The Tribunal infers from the content of the letter that it was written some years ago, when she turned 21. Mr Perese described their relationship as estranged.
Mr Perese has friends who are Australian citizens, and other relatives in Australia, including a brother, an aunt, and a niece who lives in Melbourne.
The strength, nature and duration of ties with Australia weigh in favour of revoking the visa cancellation decision.
Extent of impediments if removed to New Zealand
The Tribunal accepts that, given that Mr Perese has lived and worked in Australia for the last 30 years, having left New Zealand when he was about 22 years old as an adult, he may face some difficulties re-establishing himself in New Zealand.
He has returned to New Zealand almost annually since arriving in Australia. His parents reside in Western Samoa. He has a brother and two sisters living in New Zealand.
Mr Perese wrote that he is taking medications for a heart murmur, high blood pressure, reflux, gout, high cholesterol, had a left knee replacement in 2011 and will have to have his other knee replaced.
Mr Perese’s skills, qualifications and experience in the construction industry may assist him to obtain employment in New Zealand. However, the Tribunal accepts that he may encounter some difficulties in gaining employment because of his age and health conditions, although he was working casually until his incarceration in 2016.
The Tribunal finds that Mr Perese will have no language or cultural difficulties upon returning to New Zealand. New Zealand has comparable standards of health care, education and social welfare standards to those in Australia. He is a New Zealand citizen with access to those services any New Zealand citizen would have. He has family support and prospects of employment.
This consideration weighs in favour of revocation of the visa cancellation decision.
CONCLUSION
Taking into account all the above considerations, the Tribunal finds that this is a case where the primary considerations should be given greater weight than the secondary considerations. The primary considerations weigh in favour of non-revocation of the cancellation of Mr Perese’s visa and outweigh the secondary considerations. The Tribunal finds that there is not another reason why the visa cancellation decision should be revoked.
The reviewable decision is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

............................[sgd]............................................
Associate
Dated: 24 July 2017

Date(s) of hearing: 6 July 2017

Advocate for the Applicant: Ms L Young

Solicitors for the Respondent: Mr W Sharpe, Minter Ellison

[2017] AATA 1135

24 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	6 July 2017
Advocate for the Applicant:	Ms L Young
Solicitors for the Respondent:	Mr W Sharpe, Minter Ellison