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

QBTP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3125 (17 August 2020)
Division:GENERAL DIVISION
File Number: 2020/3240
Re:QBTP
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:17 August 2020
Date of written reasons: 25 August 2020
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review, being the decision of a delegate of the Respondent dated 26 May 2020, and in substitution, decides to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.......[sgd].................................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – domestic violence assault and serious driving offences – offending after administrative warning – where low risk of reoffending – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to return – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
25 August 2020

The applicant is a citizen of New Zealand, born in May 1990. On 15 July 2000, he entered Australia as a ten year old. His mother, an Australian citizen, sent him to Australia to live with his uncle, to escape the family violence to which he had been exposed. At age seven, his aunt was murdered in his presence. His mother left New Zealand sometime later to live in Australia.
Since that first entry in July 2000, he has visited New Zealand on four occasions, for relatively short periods: in 2001 (8 days); 2001-2002 (41 days); 2004-2005 (23 days); and in 2008-2009 (4 months and 20 days). In the past twenty years, he has spent approximately seven months in New Zealand. On each occasion he was granted a Class TY Subclass 444 Special Category (Temporary) visa,[1] including on his last return on 4 May 2009.[2]
[1] Movement Details: G7, pp 90-91.
[2] G8, 92.
THE FIRST MANDATORY CANCELLATION OF 10 JULY 2017
On 8 May 2017, the applicant was convicted in the Local Court of New South Wales, Campbelltown, of destroy or damage property (DV); two counts of common assault (DV); and assault occasioning actual bodily harm (DV). He was sentenced to an aggregate term of 12 months imprisonment.[3] He was released on parole on 21 July 2017.[4] I refer to this as the 2017 offending.
[3] G8, p 93.
[4] G4, p 65; G5, p 85.
The offending in question was directed at the applicant’s former partner and the mother of two of his children. The abbreviation ‘DV’ refers to domestic violence.
Under paragraph 501(3A)(a)(i) of the Migration Act 1958 (Cth) (the Act), the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a ‘substantial criminal record’ as defined under paragraph 501(7)(c) of the Act.
On 10 July 2017, the applicant’s visa was mandatorily cancelled, and on 21 July 2017, when he was released on parole, he was removed to Villawood Detention Centre.[5]
[5] G6, 86.
When a visa is mandatorily cancelled pursuant to subsection 501(3A), the Minister must invite the person to make representations to the Minister about revoking the cancellation decision.[6] The Minister must revoke the original decision if representations have been made in accordance with the invitation and the Minister is satisfied that the person passes the character test, or there is ‘another reason’ why the original decision should be revoked: see subsection 501CA(4).
[6] Migration Act 1958 (Cth) s 501CA(3)(a)(b).
On 26 July 2017, the applicant requested revocation of the cancellation decision.[7]
[7] G25, p 151.
On 7 October 2017, the applicant was transferred to Christmas Island.[8]
[8] Client Incident Report: see Respondent’s Supplementary Tender Bundle, p 1.
On 10 November 2017, the District Court affirmed the 2017 convictions, the applicant having failed to appear.[9] He was noted to be in detention on Christmas Island at this time.[10]
[9] G4, p 65; G23, p 147.
[10] Respondent’s Supplementary Tender Bundle, p 1.
By letter dated 19 June 2018, the Department of Home Affairs advised the applicant that the mandatory cancellation was revoked and accordingly, he held a visa which authorised his continued stay in Australia. He was released on 19 June 2018, after 333 days in immigration detention.[11]
[11] Respondent’s Supplementary Tender Bundle, p 1.
Over the next few months, the applicant came into contact with the police in Campbelltown on several occasions, as recorded in the NSW Computerised Operational Policing System (COPS).[12] On four occasions, the car in which he was travelling as a passenger was stopped and searched, but nothing that implicated the applicant was found.[13] On two occasions the police arrested someone in the car. On one occasion, the applicant was searched as a pedestrian and nothing was found.[14] On that occasion, the notes record that when he saw the police, he appeared very nervous and began to shake.
THE SECOND MANDATORY CANCELLATION OF 6 MAY 2019
[12] Respondent’s Tender Bundle, p 15.
[13] Respondent’s Tender Bundle, pp 16-21 - 19 July 2018, 21 September 2018, 3 November 2018, 13 November 2018.
[14] 17 December 2018.
The present proceedings
On 6 May 2019, the applicant’s visa was mandatorily cancelled.[15]
[15] G8, p 92.
On 26 May 2020, a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation. On 28 May 2020, the applicant applied for review of the delegate’s decision, thus engaging the jurisdiction of the Tribunal to review the decision made on 26 May 2020.
According to the Detention Incident Report filed by the Respondent, the applicant was detained in immigration detention from 5 October 2019, after the completion of the sentences imposed on 10 July 2019.[16] As of the date of this decision (17 August 2020), he has been in immigration detention for a total of 316 days. As noted above, he spent 333 days in detention following the previous cancellation; therefore, he has spent a total of 649 days in immigration detention.
[16] Respondent’s Supplementary Tender Bundle, p 1.
I note that his visa was mandatorily cancelled by reference to the 2017 convictions, not the 2019 offences.[17] The letter of 6 May 2019 refers explicitly to the 2017 convictions and notes that:
The information based on which the decision maker was satisfied that you do not pass the character test is the National Criminal History Check, released on 1 May 2019.[18]
[17] G8, p 92.
[18] G8, p 92.
The Criminal History Check before the Tribunal has a run date of 23 January 2020. The record referred to was not before the Tribunal.
The jurisdiction of the Tribunal is founded on the cancellation based on the 2017 offences.
ISSUE
It is not in dispute that the applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more.
The sole issue before the Tribunal is therefore whether there is another reason why the original decision should be revoked.
THE HEARING
The matter was heard on 3 and 4 August 2020.
The Respondent filed a Statement of Facts, Issues and Contentions dated 22 July 2020, to which was appended the Conviction Summary included in Appendix A.
The following persons gave evidence at hearing:
(a)The applicant;
(b)Ms JB – applicant’s mother;
(c)Mr MK– applicant’s uncle;
(d)Ms PG – applicant’s partner; and
(e)Mr BT – applicant’s friend and future employer.
DIRECTION NO. 79
A determination under subsection 501CA(4) must be carried out in accordance with any written directions given under subsection 499(1) of the Act. The Minister has given such written directions, which commenced on 28 February 2019. The Tribunal is bound to comply with the terms of Direction No. 79, by reason of subsection 499(2A) of the Act.
Part C of the Direction governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b).
Paragraph 13(2) sets out the ‘primary considerations’ to be taken into account as follows:
(1) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 sets out the ‘other considerations’ to be taken into account where relevant, and states:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
PART A – PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1 (PC1): PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 13.1(1) provides that when considering the protection of the Australian community:
…decision-makers should 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 ...
Under paragraph 13.1(2) I should also 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.
The nature and seriousness of the Applicant’s conduct
The applicant has a detailed criminal record. He has convictions for domestic violence offences, driving offences, drug offences, stealing/larceny, and resisting arrest.
His driving record includes a number of offences since he started driving in 2009.[19] He has received four terms of imprisonment for driving related offences: 18 months for a police pursuit;[20] six months for driving while disqualified (twice);[21] and three months for driving while alcohol affected.[22] In all, he has received 33 months of imprisonment for driving offences alone. On 2 June 2017, he was declared a habitual traffic offender.[23]
[19] Respondent’s Tender Bundle, pp 3-7.
[20] 29 May 2015: Respondent’s Tender Bundle , p 4.
[21] 10 July 2019; sentence confirmed on 16 December 2019: Respondent’s Tender Bundle, p 3; 8 May 2017: Respondent’s Tender Bundle, p 4.
[22] 27 April 2014: Respondent’s Tender Bundle, p 4.
[23] Respondent’s Tender Bundle, p 13.
Apart from the most recent offending, he has convictions for assault and damaging property in a domestic context, for which he was sentenced to 12 months imprisonment (6 months non-parole), and convictions for minor drug possession, larceny, and entering a dwelling with intent. He also has a recent possession offence, committed in March 2019.
A stand out feature of this case is that the applicant received an administrative warning as to the consequences for his immigration status if further offending was to occur. The warning was contained in a letter dated 19 June 2018.[24] The letter states quite explicitly:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you. [emphasis in original]
[24] G6, p 86.
I approach this case on the footing that the fact that such a prior warning was given is not fatal to the present application; although the fact of reoffending after being formally warned in writing of the consequences of further offending is a factor to be considered in weighing the nature and seriousness of the conduct in question: see paragraph 13.1.1(1)(h) of Direction No. 79.
His offending has progressed at a fairly steady rate over the past ten years, interrupted by periods of time he spent in prison or immigration detention. However, it would not be correct to say that there is a trend of increasing seriousness.
Under paragraph 13.1.2 of Direction No. 79, the Tribunal is required to consider the nature of the harm to individuals or the community should the applicant engage in further acts of offending; and the likelihood of the risk of further offending.
Given the nature of past offences, which include domestic violence assaults and property damage, stealing and housebreaking, driving at high speed, resistance to the police and driving while disqualified, there can be no doubt that these activities would be very damaging to the community were they to recur.
As to the likelihood of reoffending, I note that the 2019 offences occurred after the applicant had repeatedly stated that he would not re-offend in his Request for Revocation of a Mandatory Visa Cancellation form signed on 22 July 2017.[25] At that point he had two children who were cared for by his mother, Ms JB. He said,
I’m and [sic] everyday dad that has made mistakes. But has realised the full extent of my actions. Please give me a chance to show how I have changed. I won’t disapoint [sic].[26]
I will not reoffend due to the fact I do not want to be sent away from my children and family for they are all I have.[27]
I will not reoffend as my family is all I have. When I offended I was suffering from high levels of depression which led me to drugs…Please give me one chance. That’s all I ask. My children already don’t live with their Mum. Please take into consideration I’m basically all that is left. One chance please.
[25] G25, p 151.
[26] G25, p 162.
[27] G25, p 164.
The fact that the applicant has committed further offences after being formally warned is a significant factor in this case. With respect to offences committed after the warning, there are three offences to be considered.
Offences committed on 10 December 2018: H134807001
On 10 December 2018, a car in which the applicant was a passenger was stopped and searched, and stolen goods were found. Housebreaking equipment was also found in the car. The applicant was arrested, and given police bail.[28] On 17 December 2018, bail conditions were imposed by Campbelltown Court, including a curfew from 8pm to 5am.[29]
[28] Respondent’s Tender Bundle, pp 30-33.
[29] Respondent’s Tender Bundle, p 29.
The police facts asserts that the applicant, in company with two others, gained access to a deserted rural property surrounded by bushland and entered the cellar and removed bottles of alcohol valued at around $1,500.
Offences committed on 1 January 2019: H69530612
On 1 January 2019, the applicant was a passenger in a car driven by a woman when the police approach on foot. He was apprehended for minor possession of cannabis, and minor possession of MDMA; and for resisting or hindering police. The minor possession offences related to 1.43 grams of cannabis leaf and a single “Lyrica” tablet. The resist or hinder police offence was said to have occurred when the police approached the vehicle and identified themselves, the applicant then cried out “go, go, go” to the driver of the car, who turned the car on and reversed it into the direction of the police, narrowly missing them.
Both sets of offences were dealt with by the Campbelltown Local Court on 7 March 2019.[30]
[30] Respondent’s Tender Bundle, p 98-99.
Offences committed on 25 January 2019 and 6 February 2019: H72095582
On 25 January 2019, the applicant was charged with nine vehicle related offences relating to the use of a motor cycle: including driving while disqualified (2^nd offence), not wearing a helmet; using an unregistered and uninsured motor vehicle, and driving in a manner dangerous to the public. On 6 February 2019, he was arrested at his home for these offences, when he was charged with resisting police.[31]
[31] G4, at 55.
These charges were dealt with by the Campbelltown Local Court on 10 July 2019 in a contested hearing. [32] The applicant was represented by a solicitor. The dangerous driving charge was dismissed.[33] For the other offences he received fines of $1,500, six months imprisonment for driving whilst disqualified, and three months for resisting the police. The sentences were due to expire on 5 October 2019. By July 2019, the applicant’s visa had been mandatorily cancelled. The learned Magistrate commented:
I will leave it to the Immigration authorities, but at the end of this fixed period which will be in October, if that is what they have done you may very well be deported at that stage.[34]
[32] G4, p 35.
[33] G4, p 61.
[34] G4, p 62.
Court proceedings (001 and 612)
On 7 March 2019, the applicant was sentenced for the offences which occurred on 10 December 2018 and 1 January 2019. The court imposed the following sentences in relation to each offence:
(a)Steal property from a dwelling house; sentenced to 12 months imprisonment with a non-parole period of 6 months;[35]
(b)Possession of housebreaking implements: 6 months imprisonment;
(c)H69530612: Resisting a police officer in the execution of duties; sentenced to 12 months imprisonment with a non-parole period of 6 months;[36]
(d)Other offences dealt with under section 10A:
(i)Fail to appear;
(ii)Possession of cannabis;
(iii)Possession of MDMA;
[35] G4, p 64.
[36] G4, p 63; G23, p 147.
The magistrate described the resist offence as ‘shocking’ and ‘as one of the worst looking resists’, and commented:
Any time where one uses a vehicle, that is potentially deadly. So that is problematic is you try and catch a police office in the window.[37]
[37] G4, p 63.
In reflecting on the Magistrate’s description, I note that according to the police evidence, the applicant was a passenger in the vehicle and was not driving. The police facts assert:
When police were only metres from the vehicle they identified themselves before the accused [the applicant] turned and yelled … “Go, go, go”… the driver then turned the car on and reversed it in the direction of police narrowly missing them. During this time police have directed the driver to stop through the open drivers window. …whilst [the vehicle] was being reversed into them police managed to open the drivers door of the vehicle and take out the keys preventing it from travelling any further. During this time the accused [the applicant] was still seated in the front passenger seat continued to yell “Go, go, go” while using the hood of his jacket to cover his face from view.
It is highly probable that the applicant was trying to conceal his identity given that he was breaking curfew. He said that he was going to hospital because of a rash on his head but the police disputed this claim. It is also not unlikely that his actions in calling out were a result of panic because he was in possession of some cannabis and a tablet. The police evidence is that they clearly identified themselves. The applicant told the Tribunal that he did not see the police until the last moment, and even though it is not clear from the material whether the police were uniformed or not, this is hard to believe.

In assessing the gravity of this offence, it is necessary to take account of the evidentiary basis of the conviction (which proceeded on the basis that while the applicant was not driving, his yelling to the driver amounted to a resist), as well as the magistrate’s observation that this was indeed a most serious form of resistance.
I also note that on 5 June 2019, the Campbelltown District Court reduced the 12 month imprisonment sentence imposed for the resist offence to three months. Unfortunately, the Tribunal has not been provided with a transcript of proceedings before the District Court on 5 June 2019. Appeals were raised in respect of each of the 001 and 612 offences dealt with by the Local Court on 7 March 2019, but it appears that only the resist police was varied.[38]
[38] Respondent’s Tender Bundle, p 101-103; G3, pp 29-30.
Since receiving the warning, he has been sentenced to multiple prison sentences, indeed, a total of 30 months of imprisonment for the following offences: possess housebreaking implements (6 months); steal property in a dwelling house (12 months, 6 months non-parole); drive a motor vehicle during disqualification period (6 months); resist a police officer (3 months); and second resist police (3 months).
Given that the applicant has reoffended after receiving stern warnings and lenient sentences, especially in the spring days of his offending, I assess the risk of him engaging in further criminal acts as relatively high. The nature of the past offending would, if repeated, present a serious danger to the community.
Conclusion on PC1
My conclusion on PC1 is that it weighs heavily against the applicant and in favour of non-revocation of the mandatory cancellation.
PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The applicant has three minor children in Australia. When his visa was previously cancelled, he had two children.
The applicant also has a large number of relatives, including minor nephews and nieces in Australia and although these relationships are not insignificant, it cannot be said that these children would be adversely affected by a deportation decision. The applicant has not been a big part of their lives.
The primary weight of this consideration turns on his three biological children – the two children from his former partner, and his infant daughter from his new partner, Ms PG.
The oldest two children live with their mother, the victim of the domestic violence offences. The applicant has not seen them for some time, due to the strained relationship between him and his former partner.
I note that at the time of the first cancellation decision, which led to his first detention in immigration detention, the two children stayed with his mother Ms JB, who provided day to day care. The children were in her full-time care from November 2015 until December 2018.[39] It is apparent that Ms JB knows the children well and has looked after them for many years.
[39] Transcript, 3 August 2020, p 69.
Ms JB said that one of the children had been sexually assaulted while in the care of their mother, and that this had led to an intervention by child protection, and she was asked to look after the children.[40] She said that she had sent the children home to their mother for a visit but they had not returned. She was concerned for their wellbeing. She said that the children were not in a safe and secure environment. The children might be exposed to drugs and violence at their mother’s home. She said she would resort to court proceedings if necessary, to secure the safety of the children. She had obtained some financial help from the applicant.
[40] Transcript, 3 August 2020, p 70.
The Tribunal does not have sufficient evidence to form a clear view as to the children’s circumstances. It is clear that neither the applicant nor his mother has a working relationship with his former partner. This makes it very difficult for the two children.
The applicant also has a young daughter with his current partner, Ms PG. Ms PG impressed me as a caring and responsible person. She has supported the applicant in prison and detention and said that if he remained in Australia, she would want to live with him and raise the child together. Ms PG was asked:
Are you aware that his visa has previously been cancelled?---Yes.
So, bearing in mind – I don’t mean to sound harsh, but bearing in mind all of those factors, a long criminal history, a history of drug taking, a history of assault against a partner and a history of a previous visa cancellation, you still hold no concerns about [the applicant] parenting your child?---No, I don’t.
And why is that?---That’s not the person that I know.
And when was the last time – sorry, what is the manner of contact that you have now with [the applicant]?---We speak on the phone all the time, we are regularly in contact, for our daughter, phone calls all the time. If there were visits I would be there like I was before.
And if he is released from immigration detention will you or will you not live with him?---Will I live with him?
Yes?---Yes.
So why the change? You’ve never lived with him before?---He is the father of
Sorry?---I’ve spent a lot of time with him outside. I stayed with him, we weren’t officially living together. He – I know he has taken steps to better his life. I speak to him every day and I know that he has changed.
Can you inform the tribunal what the steps are that he has taken to better his life?---I know that he has been speaking to a drug and alcohol counsellor. He has found employment if he were to be released.[41]
[41] Transcript, 3 August 20202, p 81.
Her belief that he would have employment if released was supported by the evidence of Mr BT, who gave evidence to the Tribunal that there was a job waiting for him.[42]
[42] Transcript, 4 August 2020, p 98.
Ms PG was asked about relocating to New Zealand if the applicant were deported. She said:
If you have never lived together would you, if he was returned to New Zealand, go and live in New Zealand with him?---I don’t believe that I could financially or emotionally afford to be able to uproot my and now my daughter’s life to do that. I just don’t see it.
Do you have any concerns about his ability to parent – [the applicant’s] ability to parent?---No.[43]
[43] Transcript, 3 August 20202, p 79.
The evidence before the Tribunal does not support a finding that the applicant is an unworthy father. He has, within his means, provided financial support to the mother of his child. This is money withdrawn from his superannuation.
I find that this primary consideration weighs strongly in favour of the applicant.
PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of Direction No. 79 provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that it is for the Tribunal as decision-maker to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation. The High Court declined to grant special leave to appeal from the majority decision.[44]
[44] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
In assessing the weight to be assigned to PC3, the individual circumstances of the applicant are necessarily ‘front and centre’ in this decision-making process. However, this process must be conducted within the context of the principles contained within paragraph 6.3. These are stated to be of ‘critical importance’ in furthering the Government’s objective of protecting the Australian community from harm as a result of criminal activity: paragraph 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: paragraph 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: paragraph 6.3(3). Another principle is that in some circumstances, the criminal offending and the harm that would be caused if repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa: paragraph 6.3(4).
I find that this primary consideration weighs strongly against the applicant.
PART B – OTHER CONSIDERATIONS (OC)
OC1: International non-refoulement obligations:
The country to which the applicant will be returned is New Zealand. Non-refoulement issues do not arise for consideration in this case.
OC2: Strength, nature and duration of ties;
The applicant is thirty years of age and has been in Australia since he was a ten year old boy. He has three children all under ten years of age and all born in Australia. He has a strong network of support in Australia, including his mother, his uncle, his sisters and his current partner. He also has a current job offer. In his 2017 revocation request, he identified some 31 uncles, aunts and cousins in Australia.[45] His mother, his uncle, his partner and his children are all Australian citizens.[46]
[45] G25, p 163.
[46] Transcript, 3 August 2020, p 69.
The evidence shows that his current partner, the mother of his youngest child wishes to resume a relationship with the applicant if he gets his visa back.
I find that the strength of his ties to Australia support revocation of the mandatory cancellation.
OC3: Impact on Australian business interests;
There is no material before the Tribunal pointing to any impact in the relevant sense upon Australian business interests.
OC4: Impact on victims;
There is no evidence before the Tribunal of the impact of a decision not to revoke on the applicant’s victims.
OC5: The extent of impediments the applicant may face if returned to New Zealand
As noted at the outset, his early life in New Zealand was marred by extreme family violence. This included the brutal killing of his aunt in his presence. The applicant’s mother stated that the applicant was traumatised as a child and had intensive counselling for three years. His mother was also the victim of domestic violence, which he witnessed.
The applicant has lived in Australia for most of his life and has not lived in New Zealand since he was a ten year old boy. Decision-makers are required to have regard to the length of time that the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child.
I am also required to consider whether the applicant began offending soon after arriving in Australia. He arrived in July 2000 and his first offence was committed in 2010. It cannot be said that this was offending ‘soon’ after arrival.
There is evidence before the Tribunal that the applicant has a serious drug problem which he contends was the source of much of his offending. I am satisfied that the applicant does not have a social support system in New Zealand and would be socially isolated and at some risk of harm.
The Tribunal was told that he had visited New Zealand and stayed there for a number of months visiting relatives of his first partner, but he does not have an ongoing relationship with those people.
On the other hand, New Zealand is a modern country with a first rate social welfare system.
The extent and nature of his ties weighs significantly in favour of revocation of the mandatory cancellation.
WEIGHING THE FACTORS
The Tribunal is required to make the correct and preferable administrative decision, guided by directions given by the Australian Government. There is no formula that determines the outcome in a closely balanced case.
Under Direction No. 79, there are primary considerations and other considerations, and generally the former should be given more weight than the latter. In this case, two of the primary considerations press upon the Tribunal: the protection of the Australian community, and the expectations of the Australian community. Each weighs heavily against the applicant.
There are aspects of his offending which are very serious. I refer specifically to the high-speed car chase in 2014; the domestic violence offences in 2017; the stealing in 2018; and the two resist police offences committed in 2019. Some of these offences occurred after the previous cancellation of his visa, which was mercifully waived by the Minister’s delegate. He was given a second chance.
His previous offending is not excluded from consideration because a previous decision to cancel his visa was revoked. The present question is whether the entire record is sufficiently serious to outweigh other considerations in his favour.
I accept that two of the other considerations, OC2 (the strength nature and duration of ties), and OC5 (the extent of impediments the applicant may face if returned to New Zealand) favour revocation. I accept that he will suffer hardship in adjusting to a new life in New Zealand. He will also lose the companionship of his current partner and the possibility of raising their child together. There will be hardship for his immediate family, especially for his mother and his current partner. Very great hardship measured in loss and pain.
Nevertheless, the case ultimately turns on the best interests of the minor children in Australia affected by the Tribunal’s decision. It is a weighty matter to deny his three children the possibility of a relationship of substance with their father.
Under Direction No. 79, the best interests of minor children in Australia affected by the decision is a primary consideration. It may by itself outweigh the other primary considerations.
In the absence of evidence that a parent is abusive or neglectful, and where there is a positive and viable relationship between the parents, and a commitment to raise the child or children together, this is a potent factor. It may not always be a decisive shield against deportation, but it will always be at the forefront of one’s deliberations. This is not in any way to detract from single parent relationships, which may in many cases be preferable for a child, especially where there is evidence of domestic abuse and violence. Equally so, where a parent is so damaged by drugs that they have no capacity to act as a positive role model. Bluntly, the child may be better off without that parent.
Behind much of the applicant’s offending, stands his weakness for recreational drugs and alcohol, which has contributed in no small measure to his present predicament. He admitted as much in these proceedings.
It seems to the Tribunal that his new partner is sincere in her fondness for and desire to be with the applicant. She presents as a capable and mature young mother. She has some support from her own mother, although she would prefer to have the applicant in Australia to assist her raising their child. She is not able to detach herself from all that she knows, including the support of her own mother, to migrate to New Zealand to be with the applicant. One can hardly fault her in this. Their relationship is barely two years old and they have never lived together.
Having considered all relevant considerations, the Tribunal is required to choose. In some cases, where the offending is particularly serious, involving violence or high-level sexual abuse or domestic abuse, the choice is clear. Where the offending amounts, for the most part, to low level but persistent offending devoid of violence, the choice is less clear. Should the applicant be given a third chance to redeem himself in the eyes of his children, his partner, mother and of course, the wider Australian community? Some in the community might say that this is far too generous, and that he does not deserve it by reason of his behaviour and broken promises in the past.
I am mindful of the useful comments of Stewart J in FYBR v Minister for Home Affairs [2019] FCAFC 185, when discussing community expectations stated at [103]:
The community expectations… speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
The lonely task of the decision-maker must now be fulfilled. Sometimes deportation is the correct and preferable decision, for the safety of the community and to meet community expectations. In applying community expectations, deterrence is also a relevant consideration. In failing to heed the previous warning, the applicant is very close to the line.
But where a person came to Australia as a child, has been here for most of his or her life, and has a broad extended family including his own Australian born children, the decision to deport to a country to which the person is connected only by birth, is a very serious matter. The Tribunal needs to be very positively satisfied that it is the correct and preferable decision, taking all relevant considerations into account.
In this case, there is a very significant new factor since the last visa cancellation. The applicant has an infant daughter and a potential relationship with the child’s mother. To allow the applicant to stay would be to give the child a chance to know and be raised by her father.
In the present case, after anxious reflection, and weighing all the relevant considerations, I am persuaded that the correct and preferable decision is to allow the applicant to remain in Australia. There is evidence to support a finding that despite his drug taking and his social waywardness, the applicant has the potential to be a good father and a supportive partner. He has the capacity to work and a job lined up. In order to be a good father, he will need to gain control of his drug use, control his actions generally, and avoid conflict with anybody, especially the police. In other words, he needs to grow up. Some never do. But he is well known to the police in his local area. If he hangs around with the same crowd and breaches conditions of parole or bail, he is likely to come to their attention again. He has a very strong motivation now, especially given his years in prison and detention, to ensure that he keeps on the straight and narrow. He has spent a total of 649 wasted days in immigration detention, in addition to the time spent in prison, due to his own actions. He understands better than most how the system works. If he fails again, he might reasonably expect to go straight to gaol and then to the airport.

I therefore decide to set aside the decision under review, being the decision of a delegate of the Respondent dated 26 May 2020, and in substitution, revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.......[sgd].................................................................
Associate
Dated: 25 August 2020

Dates of hearing: 3 and 4 August 2020

Applicant: Self-represented

Solicitors for the Respondent: Ms Hervee Dejean, Australian Government Solicitor

[2020] AATA 3125

17 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice

Dates of hearing:	3 and 4 August 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Hervee Dejean, Australian Government Solicitor