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

[2020] AATA 1639

Puata and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1639 (4 June 2020)

Division:GENERAL DIVISION

File Number:          2020/1634

Re:Khan Te Pou Rahiri Puata

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:4 June 2020

Place:Brisbane

The decision under review is affirmed.

........................[sgd]................................
Member R. Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

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

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Rebecca Bellamy

4 June 2020

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 33 year old citizen of New Zealand. He has lived in Australia on and off since December 1999. He has not left Australia since November 2011. The most recent visa granted to him was a Class TY Subclass 444 Special Category visa (“the visa”)[1]. 

   [1] Exhibit G1, G-Documents, G2, pages 94 and 95.

2. In December 2016, the Applicant was convicted of aggravated break and enter with intent knowing person there and sentenced to imprisonment for two years and 11 months imprisonment.[2]

   [2] Exhibit G1, G-Documents, G2, pages 23 to 26.

3. This led to the Respondent deciding to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act in August 2018 on the basis that he did not pass the character test.[3] In September 2018, the Applicant made representations as to why the decision should be revoked.[4] On 12 March 2020, the Respondent decided not to revoke its decision and the Applicant was notified on that date.[5]

   [3] Exhibit G1, G-Documents, G16, page 290.

   [4] Exhibit G1, G-Documents, G2, page 12.

   [5] Exhibit G1, G-Documents, G2, page 8 to 10.

4. The Applicant lodged an application with this Tribunal on 18 March 2020 seeking a review of the Respondent’s decision (“decision under review”) not to revoke the earlier decision.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [6] Exhibit G1, G-Documents, G2, pages 8 and 9.

5. The hearing of this application proceeded on 21 May 2020. The Applicant gave evidence by video link. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY

6. The Applicant moved to Australia in December 1999 when he was 13 years old. In December 2002 he moved back to New Zealand, before returning to Australia in May 2004. He again moved back to New Zealand in September 2010 and returned to Australia in November 2011 at the age of 25.[7]    

   [7] Exhibit G1, G-Documents, G2, pages 94 and 95.

7. The Applicant commenced using marijuana when he was about 16 years old and methamphetamine when he was around 19 years old.[8]

   [8] Transcript, page 27, lines 19 and 20.

8. The Applicant has two daughters, Child A and Child B, born to the same mother. He has a son, Child C, born to Ms C, and a third daughter, Child D, born to a third woman. He is not in a relationship with any of the mothers of his children.    

9. I have before me a document entitled “Check Results Report”[9] which contains the Applicant’s traffic and criminal history. I also have some Police Facts Sheets[10], the sentencing remarks of a New South Wales District Court Judge[11], and some SERCO documents entitled “Client Incident Report”[12].

   [9] Exhibit G1, G-Documents, G2, pages 23 to 26.

   [10] Exhibit R2.

   [11] Exhibit G1, G-Documents, G2, pages 31 to 46.

   [12] Exhibit G1, G-Documents, G2, page 74.

10. The Applicant was convicted of his first traffic offence in September 2006. On six occasions between 2006 and 2015 he drove a vehicle while unlicensed or disqualified.

11. The Applicant was convicted of his first criminal offence in September 2009. He committed some 28 offences between 2009 and 2019. The majority of the offences relate to violence, stalking, intimidation or indecency against women. There are also some dishonesty offences, breaches of bail, drug offences, possession of an offensive weapon, affray and reckless wounding in company.

12. In 2009 the Applicant committed the following domestic violence offences:

    ·contravention prohibition/restriction in AVO (Domestic); and

    ·use of a carriage service to menace/harass/offend.

13. According to the police fact sheet[13], the Applicant had been in a relationship with the victim, Ms C, for approximately a year. He was subject to an Apprehended Violence Order (“AVO”) prohibiting him from, among other things, harassing threatening or intimidating her. On 22 October 2009 Ms C was at home with her mother when the phone rang. The accused told Ms C he was at the Parramatta Bridge intending to kill himself. Ms C tried to persuade him not to. The Applicant then expressed objection to the name that Ms C had chosen for their son. The Applicant said “Stop being a sick bitch, you want to be a sick bitch; I will slit your throat, you and your family.” The Applicant threatened to kill Ms C and her family in similar wording around seven more times. He also said he would bring a van load of his mates and they would all come and kill the victim and her family. The Applicant then said he would not do that and he was sorry and did not mean the threats. Ms C said “Yes you did, you don’t say that to someone if you do not mean it.” The Applicant became agitated and screamed and shouted into the phone while also swearing at Ms C. He again threatened to kill her and her family numerous times. Ms C disconnected the call. The Applicant called the victim several more times and left two voicemail messages. In the messages he called Ms C a “sick bitch” and said “answer the phone cunt”.

    [13] Exhibit R2, pages 1 to 4.

14. The Applicant was convicted of these offences and sentenced to a 12 month good behaviour bond.

15. In 2013 the Applicant committed the following domestic violence offences:

    ·common assault (DV); and

    ·stalk/intimidate intend fear physical etc harm (domestic);

    for which he was sentenced to imprisonment for seven months, fully suspended. I do not have the details of this offending before me. 

16. In 2014 the Applicant committed the following domestic violence offences:

    ·assault occasioning actual bodily harm (DV);

    ·destroy or damage property (DV); and

    ·contravene prohibition/restriction in AVO (Domestic).

17. According to the police fact sheet[14], in relation to the 2014 offences the Applicant had been in an on-off relationship with the victim, Ms T, for two years. In May 2013 and AVO was issued that included a prohibition on, among other things, the Applicant assaulting, harassing, threatening, intimidating or stalking the victim. On 13 April 2014, the Applicant and the victim were arguing and the victim said that she was leaving. The Applicant grabbed the victim’s hair and pulled her along some stairs causing her to scrape her arms along the ground. The Applicant then kicked her twice in her back and punched her face. The victim retreated to another area of the residence and the Applicant yelled abuse at her and other household members. He then damaged and destroyed property in the residence. When police arrived they observed grazes to the victim’s arms and her leg, and saw numerous destroyed items including a coffee table, washing machine, vacuum cleaner and chairs. The Applicant refused to participate in a recorded interview. He was convicted and sentenced to probation for 18 months.

    [14] Exhibit R2, pages 14 to 17.

18. Between June and October/November 2014 the Applicant was in a relationship with Ms M.[15] He went on to commit offences against her which are discussed below.

    [15] Exhibit G1, G-Documents, G2, page 32.

19. On 20 March 2015 the Applicant committed an act of indecency with person 16 years or over. According to the police facts sheet[16], the accused and the victim were each seated on a train in a carriage that was otherwise empty. The victim did not know the Applicant. The Applicant looked towards the victim, put his right hand down the front of his pants and moved his hand around rubbing his penis. The victim looked out of the train window and felt scared as there were no other people in the carriage. As the train slowed down approaching a station, the victim walked to the exit doors. The accused stood next to the victim and pointed towards her breast with his right finger while looking at her breast region. He then said “Sorry”. Police later apprehended the Applicant who admitted he was on the train with the victim. He said he had scratched himself in the crotch area for about 10 seconds because he had ticks from place where he was living but that his hand was on top of his shorts and not underneath. In October 2015 the Applicant was sentenced to imprisonment for seven months for this offence with a four month non-parole period.

    [16] Exhibit R2, pages 44 and 45.

20. On 24 March 2015 the Applicant committed stalk/intimidate intend fear physical etc harm (domestic). According to a police fact sheet[17], the victim, of the stalking offence, Ms C, (who had briefly been in a relationship with the Applicant in 2009) had resumed her relationship with him in January 2015. However, she again ended the relationship when the Applicant became aggressive towards her.

    [17] Exhibit R2, pages 48 to 50.

21. On 24 March 2015, Ms C walked Child C to school with her daughter (not the Applicant’s child) who she was pushing in a pram. On her way home, the Applicant approached her from the opposite side of the road, moved his face within close proximity of hers and said “I told you, I can get to you anywhere”. Ms C started to walk away, and the Applicant grabbed the pram forcing her to stop. Ms C said “What do you want?” To which the Applicant replied “I want to see my son”. Ms C said “That’s not going to happen, because of how you talk to me and I am not going to have my son around that”. The Applicant continued to hold the pram, preventing Ms C from walking away. The Applicant then said to her “Don’t make me fucking attack you in front of all these people”. Ms C became extremely fearful that the Applicant was going to assault her. The Applicant said “I will fucking kill your dad, slit your mum’s throat and I will skin your brother’s face. I have nothing to lose anyway, my son is my life and I live for him”. Ms C began to walk away and the Applicant followed her, saying “If I don’t see my son soon you are all going to die and it will be your fault”. The Applicant followed Ms C home. He remained outside the back door from approximately 10 minutes, only leaving when the victim picked up her phone to call the police. Police subsequently apprehended the Applicant who refused to participate in a recorded interview.

22. The Applicant was sentenced to 3 months imprisonment for this offence. He was “called up” for the previous offences against Ms T and re-sentenced for those, along with the indecency offence (on the train), to seven months imprisonment.   

23. Between 19 and 27 July 2015, the Applicant made some 41 phone calls to Ms M (who had ended her relationship with the Applicant in October/November 2014). On 28 July 2015 the Applicant tried to break into her home. He was taken into custody in relation to this offence.[18]

    [18] Exhibit G1, G-Documents, G2, page 44 – discussion of how many days spent in pre-sentence custody; Transcript, page 35, lines 29 to 31.

24. In 2016, the Applicant was convicted of stalk/intimidate intend fear physical etc harm (domestic) and was sentenced to three months imprisonment in relation to the 41 phone calls.

25. In 2016, the Applicant was also convicted of affray and possession of an offensive weapon/instrument while in detention.[19] For the affray he was sentenced to eight months imprisonment and for the weapon offences he was sentenced to six months imprisonment. The Applicant said he was not using drugs when he committed these offences.[20]

    [19] It appears that “detention” was prison as opposed to immigration detention.

    [20] Transcript, page 27, lines 30 to 38.

26. In December 2016 the Applicant was convicted in the New South Wales District Court of stalk/intimidate intend fear physical etc harm (domestic) and aggravated break and enter with intent while knowing person there in relation to his attempt to break into Ms M’s home on 28 July 2015. The learned Judge’s sentencing remarks included the following[21]:

    [21] Exhibit G1, G-Documents, G2, pages 32 to 37.

    “In about June 2014 [name redacted], the victim, formed a relationship with the offender. They remained in a domestic relationship for a period of about five months before separating in late October early November. Following that break up the victim and her three children lived at [address] with [her new partner] and the three children...

    At about 8am on 28 July 2015 [the victim] was getting her children ready for school when she heard a loud bang at the door. She recognised the offender’s voice saying “[name redacted] open the door”. The offender continued to repeatedly bang on the front door which was made of wooden construction and had a number of small deadlocks on the inside. There was a peephole and [the victim] could observe the offender through this. [She] took her three children to a bedroom in the unit and contacted police. [Her partner] armed himself with a knife and held the front door shut from within. [The victim] returned to assist [her partner] hold the front door shut as the actions of the offender were causing the front door to partially open. The offender kept kicking the wooden front door with his feet…The offender seemed to leave or at least the kicking stopped for a short period and started again. The Agreed Facts note that he said words to the effect of “Fucking open the door, if you don’t open the door I’ll open it myself”. The offender also said he would get a sledgehammer and break the door and he was going to come back.

    [The victim] feared the offender was going to gain entry and assault both her and [her partner] and she went onto the balcony on the southern side of the unit. At about 8:20am she was still on the balcony when the police arrived outside the building. The police could hear the offender screaming and yelling from upstairs. As they arrived he made his way downstairs saying “You dog cunts”. The sergeant then drew his electronic control device and demanded the offender get on the ground. The offender complied and was taken into custody.

    As well as those agreed facts there was tendered in the sentence hearing Exhibit 2 which is a DVD taken by the victim on her phone. The DVD was played to the Court and it was agreed that during the course of the attempt to enter the premises the offender can be heard yelling and saying words including “Open the door [name redacted], I’m warning you” and “You think the fucking door is going to save you, you dumb cunt” and “I know you’re in there”.

    The offender’s criminal history is a tab 4. There are numerous driving offences and some drug-related offences. There are a number of violence and domestic violence offences. In 2009 there is an assault on police officer for which the offender was fined. In the same year there was a contravene AVO for which the offender was placed on a s 9 bond. In April 2013 there was a common assault and stalk intimidate, domestic, for which the offender received seven months imprisonment suspended on entering into a s 12 bond. In April 2014 there was an assault occasioning actual bodily harm together with a destroyed property and contravene domestic AVO for which the offender was placed on a s 9 bond for 18 months. The offender was called up on that bond and sentenced to 7 months imprisonment and released subject to supervision after three months.

    In March 2015 there was a committed act of indecency with a person under (sic) 16 years of age and the offender was sentenced to 7 months with a non-parole period of four months being released on supervision. On 24 March 2015 there was a further stalk intimidate domestic with a sentence of three months. Between 19 July 2015 and 27 July 2015 there was a stalk intimidate charge relating to the making of some 41 phone calls and messages to the victim in this matter. The offender was sentenced to 3 months in the local Court for this offence…

    After the events for which the offender is being sentenced today there are further offences including possess an offensive weapon in a place of detention which resulted in six months imprisonment between 18 October 2016 up until 17 April 2017. An affray which resulted in a sentence of eight months for the same period. The custodial history which is at tab 5 contains details of further offences in custody including two intimidation is, one disobeyed direction and one assault on 20 July 2016.

    …

    At tab six there is a victim impact statement from the victim…She notes that since that day she has not been able to feel completely safe in her own home and has suffered from panic attacks and paranoia. If someone knocks at the door it sends a chill down her spine, she becomes frightened and the events of the 28^th come back to haunt her. Her children were in the house and according to the statement heard what was said and the police sirens. Her eldest child is six years old was old enough to comprehend what was happening and for some weeks after the attack he would point out people and ask “Mum is that him over there?” She notes that although she was not physically harmed on the day the emotional and psychological harm will forever be in her mind and she is haunted by the thought of being on the street with the offender.

    …

    The offender’s father was called and gave evidence. He impressed as a dignified, hard-working man who attempted to get help for his son’s [methamphetamine] addiction by organising a medical assessment but nothing productive came of that. Understandably he has had difficulty communicating with his son for some years prior to these offences because of his son’s drug addiction. He stated he could not communicate with his son and that although there were some events such as birthdays which the offender was able to engage productively with his family they basically lost contact. He did not know exactly where his son was living prior to his periods of incarceration. He stated that his son would lie to him so there was no real point in talking to him and he had to limit contacts to protect his other children… Mr Puata senior said he had spoken to his son whilst he is in custody and he thinks his imprisonment has been good for him. The two have been able to have the best conversations they have had in many years, although contact is limited to 6 minutes at a time by telephone. He discussed treatment with his son but they have been no definite plans.

    The father is willing to have his son come and live with him on his release and will be able to find work as a labourer in the meat processing place where he works. He will not tolerate drug use in his home and I accept that he would be likely to cooperate with supervision authority should his son reside with him on his release.”

1. The learned sentencing Judge found that the Applicant had meant to intimidate any persons who were inside the house, and that the threat of physical violence should the door not hold could have been inferred by the people inside the house. Her Honour noted that the Applicant had said that he had committed the offences because he was using drugs and was stressed about not knowing whether the baby the victim was carrying was his, and he felt betrayed and wanted to confront her about it.

2. The Applicant was sentenced to imprisonment for two years and 11 months to commence from 18 April 2017.

3. When asked about this offending in the Tribunal, the Applicant said “Well, I was upset. She’s supposed to be like my partner and she’s at some other guy’s house. Like anybody’s going to be upset don’t you think?”[22]

   [22] Transcript, page 24, lines 33 to 35.

4. The Applicant had said in his application to the Tribunal:

   “I was in a relationship with [Ms M]. I was told that she was pregnant with my baby I heard that she was living with another man. I found out where the person lived and I went over to where she was staying to confront her about the situation. I really wanted to know what was going on, not knowing who the father of the baby was. I got angry and started kicking at the door. I didn’t release that the kids were inside the house. So I angrily kick at the door but never got inside the house. I had other charges, and at the time had no family support. Because they didn’t really want much to do with me because I was on the drugs and drinking a lot. Smoking marajana and ice as well as drinking. I was at a very low time in my life and I wasn’t thinking properly. I actually come from a good family, and was acting way out of character. I lost my Job and had no family support. I made a very bad mistake, and made a few bad decisions and at the time which landed me in Jail.”[23]

   [errors in original]

   [23] Exhibit G1, G-Documents, G1, page 4.

5. I note that having previously been in a relationship with Ms M, the Applicant must have known she had young children. Further, he committed the offence at around 8am. I am satisfied that the Applicant knew that it was likely that Ms M’s children were awake and inside the house when he committed the offence.  

6. In August 2018, the Applicant’s visa was cancelled, and he requested revocation of that decision in September 2018. His revocation request included the following statements about his offending:

   “I am a family man. I had a lot of family support before I was arrested. But before I was arrested I was in a bad way. I lost my girlfriend, my kids, my job, and my family. I went through a dark time and I turned to drugs and starting abusing them taking ice, pot, drinking alcohole, and was heading in a downward direction. I pushed my family away and wasn’t taking responsibility for my actions. So when I lost everything I lost my familys support because of what I was doing. I stopped working and was going no-where fast. Before coming to jail, I had nowhere to stay I was staying at a pub. Wasn’t paying my rent, because I was spending my money on drugs. My family couldn’t really help me, because I wasn’t even looking after myself. So I don’t blame them…”[24]

   [Errors in original]

   [24] Exhibit G1, G-Documents, G2, page 71.

7. The Applicant has been involved in some incidents while in immigration detention. On 8 December 2019 the Applicant punched another detainee twice with a closed fist. The detainee told detention staff that the Applicant had previously asked him for drugs and he had said that he does not do drugs.[25] The Applicant said that the detainee had been “cheeky” towards him. He told the Tribunal that he had not asked the detainee for drugs and that the detainee was in fact a friend of his.[26]

   [25] Exhibit R2, page 80.

   [26] Transcript, page 30, lines 4 to 29.

8. On 5 January 2020 the Applicant approached another detainee and said “I’m going to beat you ass” while raising his fist. The detainee retreated and the Applicant kept advancing with his fist raised.[27] The Applicant’s explanation for this was:

   “Because they put me in maximum security places I’ve learned to defend myself when it comes to certain situations… Like when they try and embarrass me in front of people. Like we respect each other in jail, so when that is being put on (indistinct) like, you know, you’ve got to stand up for yourself…I was upset with what he done towards me. So, you know, we’re men we fight sometimes.…I thought the bloke was trying to make a mockery of me and insult my intelligence.”[28]

   [27] Exhibit G1, G-Documents, G2, page 79.

   [28] Transcript, page 29.

9. The Applicant agreed with the suggestion that he thought the detainee’s behaviour might have made him look weak or exposed him to violence in some way.[29]

   [29] Transcript, page 29 lines 25 to 28.

10. On 21 January 2020 the Applicants struck another detainee in the head approximately three times with an open palm. The Applicant’s explanation for this was that the other detainee was “getting smart” and “being cheeky” and that he lost his temper with him.[30]

    [30] Transcript, page 28, lines 37 to 42.

11. In the hearing, the Applicant was asked about if there was a particular reason he started using marijuana and drinking, to which he responded:

    “Well, I pretty much was fighting with my family over here, and I went off and sort of went on my own sort of thing. Got my own place and that, and just – being away from the family, I just went into self-destruct mode, and started hanging around the wrong crew of people, and hot myself into a bit of trouble.”[31]

    [31] Transcript, page 12, line 45 to page 13, line 5. 

12. The Applicant was asked what his family life was like before that time and he responded “Well, I started using drugs, and they didn’t want nothing to do with me.”[32] He was asked if there was a particular thing that caused him to start using drugs in the first place, to which he replied:

    “Just the whole breakup with my partner, and not being able to see my kids, it just – I was just out the gate, like…”[33]

    [32] Transcript, page 13, lines 7 to 11.

    [33] Transcript, page 13, lines 13 to 17.

13. The Applicant has a father and an adult sister in Australia who both live in Sydney. He claims that if he is returned to the community he will be able to live with his father and his father will get him a job. The Applicant’s father did not provide a statement of give evidence before the Tribunal, however he did give evidence in the New South Wales District Court when the Applicant was sentenced for his attack on Ms M. His evidence was that he would support the Applicant upon his release from prison. The Applicant’s father has three minor children who are the Applicant’s step-siblings and who reside with the Applicant’s father on weekends.[34] The Applicant claims he has a positive relationship with his adult sister.[35] She has three children, two of whom were born after the Applicant was imprisoned and the oldest of which is seven or eight years old.[36] The Applicant claims to get along with her partner.[37] The Applicant claims that his mother lives in New Zealand and is not happy with him because he used drugs last time he was in New Zealand.[38]

    [34] Transcript, page 14, lines 10 to 27; page 15, lines 1 to 6.

    [35] Transcript, page 17, line 31 to page 18, line 6. 

    [36] Transcript, page 18, lines 10 to 47.

    [37] Transcript, lines 12 to 18.

    [38] Transcript, page 39, lines 15 to 20.

    LEGISLATIVE FRAMEWORK

14. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    (4)       The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

15. The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[39]

    “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[40]

    [39] [2018] FCAFC 151.

    [40] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

16. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

17. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[41] I will address each of these grounds in turn.

    [41] Ibid.

    Does the Applicant Pass the Character Test?

18. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

19. The Applicant was sentenced to two years and eleven months imprisonment. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[42] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [42] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 8.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

20. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

21. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

22. Paragraph 7(1) of the Direction provides that:

    (1)  Informed by the principles in paragraph 6.3 above, a decision maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[43]

    [43] The Direction, sub-paragraph 7(1)(b).

23. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

24. Part C provides for the decision-maker to take into account “Primary Considerations”[44] and “Other considerations”.[45] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

    [44] The Direction, paragraph 13.

    [45] The Direction, paragraph 14.

25. The Other Considerations are set out in paragraph 14.(1) of the Direction (contained in Part C) and they are:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

26. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[46]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[47]

    [46] [2018] FCA 594.

    [47] Ibid, [23].

27. The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:

    (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;

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

28. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

29. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

    (1)the nature and seriousness of the non-citizen’s conduct to date; and

    (2)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

30. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (f)The cumulative effect of repeated offending;

    (g)…

    (h)…

    (i)…

31. The bulk of the Applicant’s offences are offences against women that involve violence, property damage or threats and intimidation, and sometimes a combination of those.

32. In 2009 the Applicant made threats over the telephone to Ms C that he would kill her and her family. Four years later, he again threatened to kill her. That time, he did it in person and he took hold of the pram that her infant daughter was in to prevent her from getting away from him. He then followed her home.

33. The Applicant dragged another ex-partner, Ms T, along stairs and punched and kicked her before smashing up her home.

34. The Applicant harassed Ms M with numerous phone calls and he then attempted to break her door down while yelling obscenities and threats. I am satisfied that he knew it was likely that her children were inside the house. Ms M’s children were, in fact, inside the house and heard the attack and police sirens.

35. The act of indecency the Applicant committed was of a sexual nature, involving disgusting gestures that frightened the victim. Members of the community should be able to use public transport without encountering this sort of behaviour.

36. Offences such as these undoubtedly have an adverse psychological impact on victims. In the case of Ms M, the victim impact statement that was before the New South Wales District Court included that - since the Applicant’s attempts to break into her home she has not felt completely safe in her home, has suffered from panic attacks and paranoia, is haunted by the thought of being on the street with the offender, and if somebody knocks at her door it sends a chill down her spine and she becomes frightened. She added that her eldest child, a six-year-old, was old enough to comprehend what happened and for weeks after the attack would point out people and say “Mum I can see him over there”. She would reassure him that the Applicant was in jail and could no longer hurt them.[48]

    [48] Exhibit G1, G-Documents, G7, page 225.

1. The Applicant committed offences against four different women including three current or ex partners and one stranger who had the misfortune to be alone in a train carriage with him. He committed some of the offences in contravention of AVOs and other court-based obligations to be of good behaviour.

2. Further, the Applicant has been convicted of other violent offences including assaulting a police officer (2009), affray (2016) and reckless wounding in company (2019). He was also found in possession of a weapon in custody (2016) which may or may not be linked to the affray. He has threatened and assaulted other detainees while in immigration detention and although he has not been charged or convicted of offences arising from this conduct, it is serious conduct. The Applicant is a serial violent offender who has terrorised women and frightened at least one child (Ms M’s son).

3. The Applicant was initially given the benefit of non-custodial penalties for his offending. That is consistent with imprisonment being a measure of last resort. However, the Applicant continued to offend, and in doing so he breached community based orders. He was given the benefit of a fully suspended sentence and he breached that. Ultimately, he was sentenced to substantial periods of imprisonment – six months, seven months, eight months and two years and 11 months – and required to serve substantial portions of those. The sentence of nearly three years, in particular, reflects the seriousness of this offending. Indeed, the learned sentencing Judge said “I find this is a serious offence even though the offender was not successful in entering the premises. The event would have been terrifying to those inside.”[49]

   [49] Exhibit G1, G-Documents, G2, page 41.

4. The Applicant has committed some seven traffic offences and some 28 criminal offences since 2009.  His repeated offending has caused, at the very least, fear, physical injury, psychological harm, and damage to property. Significant police and criminal justice resources have been expended on him. There is a discernible increase in the seriousness of the Applicant’s offending. The two most serious offences occurred in 2014 when he attacked Ms T and destroyed her property, and in 2015 when he committed the attack on Ms M’s home. Since the attack on Ms M’s home he has been incarcerated.        

5. I do not consider factors (g), (h) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.

6. Taking into account the rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, the Applicant’s offending cannot be characterised as anything other than very serious. 

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

7. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

   ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

   The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct

8. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

9. The nature of the harm were the Applicant to engage in further violent conduct of the kind he has previously engaged in predominantly includes physical injury and psychological harm, especially to women who are, or have been, in a relationship with him. It also includes damage to the homes of women who have been in a relationship with the Applicant. This, in totality, is serious harm.      

   The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct

10. In his revocation request the Applicant said:

    “Before being arrested in coming to jail I was in a bad way. I had no family support because I was using drugs such as ice, pot and drinking alcohol, I’ve been in jail now for last 4 years and have been off drugs since Ive been in and now that my family has seen the change in me, they are now willing to support me. I have a place to stay in a job waiting for me if I get the chance to stay in Australia…”[50]

    “… my family needs me and I have learnt my lesson, and I owe it to my family and myself to do the right thing.”[51]

    [Errors in original]

    [50] Exhibit G1, G-Documents, G2, page 66.

    [51] Ibid.

11. He also said:

    “Since coming to jail, has been a real wake-up call. Since being in jail has… turned my life around. I no longer use any drugs and have been straight for the last 4 years, and because I’ve been off the drugs, I’ve got back my familys support, and now they are ready to support me, if I was to get the opportunity to stay in Australia. I have now got somewhere that I can stay, and a job. My father is willing to let me stay with him, if I get a chance to stay, and if I was able to stay in Australia, my father has a job for me to go to, and I have my family’s full support. I never had my family’s support before, but since being in jail they have seen the change in me, and are willing to back me all the way. My kids need me, and my family needs me. I have little brothers and sisters that all need me. I wish that I never done what I done to be in this position, but there‘s nothing that I can do to take back what I’ve done. I have truly learnt my lesson. Everyone makes mistakes in their life, no one is perfect, but my family deserves better than this, and if I was given a second chance there is no way that I would stuff that up. Because I have my familys support now. I love my family and would do anything to help my family… ”[52]

    [Errors in original]

    [52] Exhibit G1, G-Documents, G2, pages 71 and 72.

12. In his application to the Tribunal he referred to a supportive partner however in the hearing he confirmed that he is no longer in a relationship with that person.[53]

    [53] Transcript, page 19, lines 23 to 25.

13. The family support that the Applicant referred to appears to be limited to his father’s support and possibly the support of his adult sister. His step-siblings are only children, and he his mother lives in New Zealand. He gave evidence that he had previously been estranged from his family because of drug use. He conceded that if he used drugs again it was likely that his father would ask him to leave his home.[54] The Applicant therefore needs to resolve his issues with drugs in order to maintain his father’s support.

    [54] Transcript, page 37, lines 28 to 31.

14. When the Applicant was sentenced for the attack on Ms M, the learned sentencing Judge referred to a rehabilitation treatment plan that had been formulated for the Applicant, but had not yet been started, and evidence from the Applicant’s father that there had been some change in the Applicant as he was able to talk to his son which he had not been able to do for some time.[55] The Applicant has not undergone any drug rehabilitation courses while incarcerated. He said that he was unable to undertake courses in prison because he was moved from jail to jail and because he was going to be deported.[56] He said he would try to get some counselling if he was released to the community.[57]

    [55] Exhibit G1, G-Documents, G2, pages 35, 36, 39 and 40.

    [56] Exhibit G1, G-Documents, G1, page 6.

    [57] Transcript, page 20, lines 36 to 38.

15. While the Applicant claimed to have been off drugs since his incarceration, in the hearing, under cross-examination, he conceded that he had used drugs while in prison[58] and he said the last time he had used drugs was “last year” and about a year ago.[59] Given the report that in late 2019 while in immigration detention the Applicant asked another detainee for drugs (and which the Applicant denies),  I am not convinced that he has been drug-free for a year. Even if he has, his ability to continue to abstain from drugs if he were returned to the wider community – being a much less regulated environment – has not been tested.

    [58] Transcript, page 26, lines 7 to 14.

    [59] Transcript, page 26, lines 8 to 40; page 27, line 5.

16. This does not appear to be a clear-cut case where drug use led the Applicant to offend. Rather, the Applicant gave evidence to the effect that his drug use led him to be estranged from his family and that relationship problems lead him to use drugs. For example, he told the Tribunal:

    “Well, pretty much, like, leading up to the offences, I was away from my family, and I didn’t really have any family support. So I was pretty much left to my devices. And that’s when I self-destructed and went down the wrong track, and hung around the wrong people, and got on drugs. And my family didn’t really want much to do with me at that time.[60]

    I went off the rails again…Just relationship breakdowns. I split up with my partner.”[61]

    [60] Transcript, page 21, lines 7 to 11.

    [61] Transcript, page 22, lines 5 and 14.

17. When the Respondent’s lawyer put to the Applicant that his offending against Ms M was not out of character he responded:

    “Yes, I acted in an angry way. Like I don’t usually handle things like that but I would say that’s out of character, yes”.[62]

    [62] Transcript, page 24, lines 36 to 40.

18. The Respondent’s lawyer then listed the domestic violence offences that the Applicant had been convicted of and asked “So in light of all those offences do you maintain that the offence that occurred on 28 July 2015 was actually out of character?”, to which the Applicant replied:

    “Yes, well, when I get fucked over by my partners I get upset, like it hurts me, and I get a reaction”[63]

    [63] Transcript, page 25, lines 27 to 32

19. The Applicant was then asked “Yes, so it’s actually consistent with your character to engage in violence and intimidation?” to which he responded:

    “Well, if you have a look at it nobody’s actually been hurt. I swear and carry on but it’s just out of anger like. Of course, like when you’ve been fucked over so many times by a woman I keep reacting…These are all people that have hurt me, like emotionally, like in relationships. And like I’m a pretty loyal guy so I expect the same back and when I don’t get that I get upset and I lose my temper and then - sometimes I’ve been in a bad way and then overreacted. So, yes, I say it’s out of character because I’m not myself. Myself like I grew up around a Christian family, my mum taught me better than that and on all these occasions she actually told me this and has been upset with me that I reacted in that way.”[64]

    [64] Transcript, page 25, line 33 to page 26, line 2.

20. The Applicant was then asked “You accept that you have a pattern of behaviour of reacting in this way when something goes wrong in the relationship or when you’re angry about something that’s occurred with a woman?” to which he responded “Yes”.[65]

    [65] Transcript, page 26, lines 4 to 6.

21. It is concerning that the Applicant initially sought to justify his offending. I note that he also sought to justify his threatening, violent behaviour while in immigration detention.

22. The Applicant’s violence issues are evidently unresolved. Further, despite saying that he will seek counselling if he is returned to the community, I am not confident that he will seek anger management treatment as he does not seem to appreciate that he needs it.

23. The Applicant identified as a Catholic and said he used to attend a Catholic Church in Sydney before he was imprisoned. He attends Church in immigration detention and is part of a community of Christians there. He intends to attend Church if he is returned to the community. Involvement in a Church and a Church community could act as a protective factor and assist any rehabilitative efforts the Applicant makes. However, the extent to which it could assist is a matter of speculation and the Applicant’s rehabilitation in relation to his drug use, violence and attitude towards women is, at best, in its infant stages.

24. Another matter that concerns me is that the Applicant has breached court orders and bail undertakings, assaulted a police officer, committed offences while in prison and immigration detention and driven multiple times unlicensed or disqualified. This indicates a lack of respect for lawful authority. 

25. There is no independent or expert evidence before me regarding the risk that the applicant will re-offend.

26. While I accept that the Applicant does not wish to be deported or imprisoned again, and he knows he has to obey the law to avoid those outcomes, I am not satisfied that he has sufficient insight into his offending or sufficient respect for lawful authority to abstain from drugs and obey the law if he is returned to the wider community. 

27. I consider that there is a high risk that the Applicant will re-offend if he is returned to the wider community.

    Conclusion: Primary Consideration A

28. Primary Consideration A weighs heavily in favour of non-revocation.

    PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

29. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

30. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·the nature and duration of the relationship between the child and the person;

    ·the extent to which the person is likely to play a positive parental role in relation to the child;

    ·the likely effect that any separation from the person would have on the child;

    ·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·whether there are any other people who fill parental roles with the child; and

    ·any known wishes of the child.

31. The Applicant has four biological children to three different mothers. In his application to the Tribunal the Applicant said “To be honest I haven’t had much to do with my kids. But have always been a family man and a happy person.”[66] He further said his children need him in their lives, and that they ask for him all the time.[67] The Applicant did not give details of why he believed the children needed him and asked about him all the time, and there is no evidence from the children or their mothers (or anyone else) in support of these assertions.

    [66] Exhibit G1, G-Documents, G1, page 4.

    [67] Exhibit G1, G-Documents, G1, page 5.

32. Child A is 11 years old and Child B is eight years old.[68] They have always lived with their mother. They currently live in Brisbane with her.[69] The Applicant speaks to them around once a month.[70] The last time he saw them in person was when he lived with them and their mother for around a month. He had left New Zealand (in November 2011) to help their mother care for them but he and their mother did not get along so he left Brisbane and moved to New South Wales.[71] Child B was born in October 2011[72] so could not have any memory of living with, or spending time with, the Applicant.

    [68] Exhibit G1, G-Documents, G2, page 63.

    [69] Transcript, page 37, lines 33 to 38.

    [70] Transcript, page 37, lines 46 to 47.

    [71] Transcript, page 38, lines 8 to 18.

    [72] Exhibit G1, G-Documents, G2, page 63.

33. There is no evidence that the children’s current separation from the Applicant has adversely affected them, what impact his deportation could have on them, or what their wishes about that, if any, are.

34. The Applicant intends to live in Sydney if he is returned to the community. He has had very little involvement in their lives and his relationship with them is limited to phone calls around once a month. He could continue to contact them in this way from New Zealand. Living in Sydney, the Applicant would have limited ability to have a physical presence in their lives or to play much of a parental role. The children’s mother has been fulfilling the parental role and there is no reason to think she will not continue to do that.

35. There is, in theory, some potential for the Applicant to make a positive contribution to the lives of these children if he remains in Australia. On that basis, I find that revocation of the reviewable decision is in their best interests, however I give it limited weight.

36. Child C is 11 years old.[73] In his request for revocation of the cancellation of his visa, the Applicant said that if he were released he would arrange to see Child C. The Applicant said in his application to the Tribunal that that Child C lives in New Zealand[74] however in the hearing he said he has lost contact with Child’s C’s mother (Ms C) and does not know where Child C lives.[75] It is not surprising that the Applicant has lost contact with Child C’s mother as she is a victim of the Applicant’s offending. The Applicant’s involvement in Child C’s life appears to have been limited to visits and a period in 2015 when Ms C and the Applicant briefly reconciled. The potential for him to play any kind of role in Child C’s life if he is returned to the Australian community seems extremely limited by the fact that, to the best of the Applicant’s knowledge, Child C is living in New Zealand, the Applicant has lost contact with Child C’s mother, and there is a history of domestic violence between the Applicant and Ms C. 

    [73] Exhibit G1, G-Documents, G2, page 63.

    [74] Exhibit G1, G-Documents, G1, page 4.

    [75] Transcript, page 38, lines 20 to 22.

37. Further, unless the Applicant successfully addresses his domestic violence issues, his ability to play a positive parental role to Child C will also be limited.  Ms C has been fulfilling the parental role to Child C and there is no reason to think she will not continue to do that. There is very limited potential for the Applicant to play a positive parental role in Child C’s life if he remains in Australia and I allocate limited weight in favour of revocation of the reviewable decision on that basis.

38. Child D lives with her mother in Sydney.[76] For the duration of Child D’s life the Applicant has been incarcerated.[77] He has never met Child D. He does not know her date of birth but thinks she is five years old. He said has a good relationship with Child D’s mother and he speaks with Child D three times per week.[78] However, he did not know which school Child D attended and was unable to provide any information about her except that she was trying to get into a netball team.[79] I find that the Applicant greatly exaggerated his contact with Child D, although I am prepared to accept that he does have some contact with her and her mother consents to this. If the Applicant is removed to New Zealand he can continue to communicate with Child D as he does now. The Applicant would like to be involved in Child D’s life however there is no evidence before me about Child D’s mother’s views about that or Child D’s views. Child D’s mother currently fulfils the parental role in relation to her and there is no reason to think she will not continue to do so.

    [76] Transcript, page 9, lines 9 to 11.

    [77] Transcript, page 7, line 21.

    [78] Transcript, page 8, line 24 to page 9 line 2.

    [79] Transcript, page 38, line 29 to page 39, line 14.

1. As Child D lives in Sydney, she is only five years old, and her mother is currently allowing contact between her and the Applicant, there appears to be greater potential for the Applicant to play a positive role in her life while she is a minor. I am satisfied that it is in Child’s D’s best interests for the reviewable decision to be revoked and I allocate this Primary Consideration a little more weight in relation to Child D than in relation to the other children of the Applicant.

2. The Applicant gave evidence that he has three young stepsiblings who are eight, 12 and 13 years old respectively. They live with their mother during the week and with the Applicant’s father on weekends. 

3. The Applicant told the Tribunal that he used to spend weekends with his father and step-siblings, taking them to the markets and helping his father look after them. The Applicant said he did that up until he was taken into custody.[80] However, when it was put to him that his father had given evidence in court that he had lost contact with the Applicant prior to his offending, the Applicant’s evidence about when he last spent time with his young step-siblings became confusing and inconsistent. The Applicant eventually conceded that he had lost contact with his father around mid-2014[81]. I am satisfied that the Applicant has not spent time with his three young step-siblings since mid-2014 at the latest. There is no evidence that the Applicant currently has any contact with these children, although I am prepared to accept that they might from time to time as the Applicant gave evidence that he has some communication with his father. There is no evidence that the Applicant has ever played a parental role, or is likely to ever play a parental role, with respect to any of the children as their mother and father already fulfil those roles.

   [80] Transcript, page 35, lines 6 to 23.

   [81] Transcript, page 37, lines 15 and 16.

4. The Applicant contended that his father needed his help to look after these children[82] and the Applicant wishes to do that. There is no independent evidence that the Applicant’s father needs or wants his help to look after the children. There is no evidence that the Applicant’s separation from these children has had any adverse impact on any of them. Their views about the Applicant being removed to New Zealand are not known.

   [82] Exhibit G1, G-Documents, G2, page 65.

5. There is some potential for the Applicant to be a positive influence in their lives in the capacity of a non-parental relative. If he is removed to New Zealand, he will not be able to be physically present in their lives, however he will be able to use electronic communication to maintain relationships with them. The best interests of these minor children weighs slightly in favour of revocation of the reviewable decision.

6. The Applicant has an adult sister living in Sydney who has three children, two of whom were born after he was incarcerated. He said he would like to have a relationship with them. He did not claim that any of these children are minor children whose best interests would be served by revocation of the reviewable decision, and he provided no details about his relationship, if any, with these children or of their parents’ attitude to him being involved in their lives in the future. There is not enough evidence before me to allocate determinative weight to this Primary Consideration in relation to the best interests of these children.

   Conclusion: Primary Consideration B

7. I am satisfied that it would be in the best interests of the Applicant’s four children and three step-siblings for the reviewable decision to be revoked. Applying the relevant factors contained in paragraph 13.2(4) of the Direction, I find Primary Consideration B carries moderate weight.

   PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

8. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the two Government’s views in this respect and any overarching principles in the Direction.

9. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[83]

   [83] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

10. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

    Analysis – Allocation of Weight to this Primary Consideration C

11. In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

    ·the Applicant first moved to Australia when he was 13 years old and he has lived here continuously since he was 25 years old;

    ·he committed his first traffic offence at around the age of 20 and his first criminal offence at around the age of 23;

    ·he has committed numerous domestic violence offences against women, along with an indecency offence against a woman, an assault against the police, offences while in prison, and he has continued to engage in threatening and violent behaviour while in immigration detention;

    ·his offending, over-all, is serious in nature;

    ·intervention by the police and the courts has failed, on previous occasions, to deter him from offending, indicating a lack of respect for the laws that govern the community that he wishes to re-enter;

    ·there is a high risk that if he is returned to the wider Australian community he will re-offend, and such re-offending will pose a risk of serious harm to individuals and the community; 

    ·he has had periods of employment and in that way he has made a modest positive contribution to the Australian Community;

    ·he has four biological children and some relatives in Australia who he might never see again if he is removed to New Zealand; and

    ·his absence from Australia will presumably adversely impact his father and adult sister who may have hopes that he will return to the wider Australian community and be able to participate in their family’s lives as a law-abiding, drug free son/brother.

    Conclusion: Primary Consideration C

12. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the decision under review.

    OTHER CONSIDERATIONS

13. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

    (a) International non-refoulement obligations

14. The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.

    (b) Strength, nature and duration of ties

15. On account of the Applicant’s youth when he first came to Australia to live, and the fact that he did not commence offending soon after arriving in Australia, he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a)(i) of the Direction.

16. The Applicant has been employed on and off since 2002. This matters add a measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.

17. With respect to paragraph 14.2(1)(b), the Applicant has four children in Australia although he has had very little involvement in their lives. His father, sister and step-siblings live here. He has relatives on his father’s side of the family. He told the Tribunal “I sort of mostly grew up in Australia, so I’ve grown up with my dad’s side of the family”.[84]

    [84] Transcript, page 11, lines 31 and 32.

18. In his revocation request the Applicant said:

    “All my family are here in Australia, so this is like my home. Australia is like a home to me, I grew up here I went to school here, all my mates and family are here, and I have nothing in New Zealand…”[85]

    [85] Exhibit G1, G-Documents, G2, page 72.

19. The Applicant has family, including his mother, in New Zealand.[86] He first came to New Zealand when he was 13 years old. Accordingly, I see his claims that he grew up in Australia, that all his family are in Australia and that he has nothing in New Zealand to be exaggerations.

    [86] Transcript, page 10, lines 14 to 30.

20. The Applicant spent some of his school age years in Australia, he has been employed here and he used to attend a church in Sydney. I am satisfied that the Applicant has significant familial and social ties to the Australian community. 

21. If the Applicant is returned to New Zealand it will, as I have acknowledged above, limit his ability to contribute in a positive way to the lives of his four children and his three step-siblings. Further, it will presumably sadden his father and adult sister.

22. Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.

    (c) Impact on Australian business interests

23. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.

    (d) Impact on victims

24. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon members of the Australian community including, inter alia, the Applicant’s victim(s). In December 2016, some 18 months after the Applicant tried to kick Ms M’s door in, Ms M said she was haunted by the thought of being on the street with the Applicant. Accordingly, it is reasonable to infer that it would benefit Ms M if the Applicant were deported as it would eliminate the risk that she would encounter him in Australia. That may be the case with the Applicant’s other victims in Australia although there is no evidence from them before the Tribunal. The impact on Ms M warrants some weight in favour of non-revocation. 

    (e) Extent of impediments if removed

25. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:

    (f)the non-citizen’s age and health;

    (g)whether there are any substantial language or cultural barriers; and

    (h)any social, medical and/or economic support available to that non-citizen in that country.

26. In his revocation request, the Applicant said “I have no one to live with, and nowhere to stay or work. To support myself because all my family are here.” and “I don’t know anyone back in New Zealand and I don’t want to associated (sic) with criminals.”[87]

    [87] Exhibit G1, G-Documents, G2, pages 68 and 69.

27. The Applicant’s mother lives in New Zealand and he has relatives there on her side of the family.[88] He told the Tribunal “I pretty much burnt all my bridges with my family” in New Zealand.[89] He said his mother was not very happy with him because he took drugs. However, the Applicant’s mother visited him in prison when she was in Australia for other reasons[90] and he speaks with her on the phone occasionally[91]. Despite this, he told the Tribunal that he could not expect any support from her if he were to return to New Zealand.[92] Given the Applicant’s mother visited him in prison and in occasional contact with him, I do not accept the Applicant’s contention that she would not provide any support to him in New Zealand. However, I do accept that her support would likely be conditional upon him abstaining from drugs and behaving appropriately, so her capacity to provide support is limited.   

    [88] Transcript, page 10, lines 14 to 33.

    [89] Transcript, page 11, lines 6 to 7; page 39, lines 15 to 20. 

    [90] Transcript, page 39, lines 30 to 38.

    [91] Transcript, page 11, lines 13 to 23.

    [92] Transcript, page 39, lines 39 to 40.

28. The Applicant has worked in Australia as a labourer, and he has done scaffolding work, meatpacking and some packing work for Coca-Cola[93]. During one of the periods when the Applicant was living in New Zealand, he was employed doing “farm fencing”.[94] Therefore, he has some ability to obtain employment in New Zealand.

    [93] Transcript, page 40, lines 9 to 15.

    [94] Transcript, page 40, lines 6 to 7.

29. The Applicant is in his thirties and he does not claim to have any medical problems, although he is in need of rehabilitation services if he wishes to abstain from drugs and offending.  It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia.

30. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand which is culturally and linguistically similar to Australia and which is where the Applicant grew up and spent some of his adult years.

31. It is likely that the Applicant will face some difficulty in re-establishing himself in New Zealand as he does not have much of an existing social or support network there - the extent to which his mother may be willing to assist him is probably limited - and he will have to secure accommodation and a source of income. However, any such difficulty would be short-term only and would not prevent him from successfully re-settling there.[95]

    [95] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.

32. Accordingly, I am of the view that this Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.

    Findings: Other Considerations

33. The application of the Other Considerations in the present matter can be summarised as follows:

    (i)International non-refoulement obligations: not relevant;

    (j)strength nature and duration of ties: weighs moderately in favour of revocation;

    (k)impact on Australian business interests: not relevant;

    (l)impact on victims: some weight in favour of non-revocation; and

    (m)extent of impediments if removed: weighs slightly in favour of revocation.

    CONCLUSION

    Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?

34. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration A weighs heavily in favour of non-revocation;

    ·Primary Consideration B weighs moderately in favour of revocation;

    Primary Consideration C weighs heavily in favour of non-revocation; and

    ·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

35. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

36. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

37. The decision under review is affirmed.

    
    

I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 4 June 2020

Date of hearing:	21 May 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms N Johnson

ANNEXURE A - EXHIBIT REGISTER

File No      2020/1634

Between     Khan Te Pou Rahiri PUATA

AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Heard on    Thursday, 21 May 2020

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (Page 1–347)	-	1 APR 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (Page 1-14)	18 MAY 2020	20 MAY 2020
R2	Tender Bundle (Page 1-59)	-	20 MAY 2020