QFFD and Minister for Immigration and Border Protection (Migration)

QFFD and Minister for Immigration and Border Protection (Migration) [2017] AATA 2179 (8 November 2017)
Division:GENERAL DIVISION
File Number(s): 2017/4039
Re:QFFD
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:8 November 2017
Place:Sydney

The decision under review will be affirmed.
..................................[sgd]..................................
Bill Stefaniak AM RFD, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – primary and other considerations – prospect of rehabilitation – unacceptable risk of harm – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 500(1)(ba), 501CA(4), 501(3A), 501(6)
Secondary Materials
Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
8 November 2017

The Applicant sought a review of a decision of a delegate of the Respondent, the Minister, dated 6 July 2017, by application dated 12 July 2017 against a decision not to revoke under s 501CA(4) of the Migration Act 1958 (‘the Act’), a decision under s 501(3A) of the Act to cancel the applicant’s Class BF Transitional (Permanent) visa.
The application for review was made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the AAT for review of decisions of a delegate of the Minister under s 501CA(4), not to revoke a decision to cancel a visa. The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6) of the Act and, if he does not, whether there is another reason why the mandatory cancellation should be revoked. The relevant section is s 501CA(4)(b)(ii).
The Minister contends that the Applicant does not meet the character test and that the correct and preferable decision is not to revoke the mandatory cancellation of the applicant’s visa. Once a person is sentenced to more than 12 months’ imprisonment, he/she fails the character test. There is no doubt in this matter that the Applicant failed the character test for that reason.
background
The Applicant was born in Tonga on 11 April 1969. He is, and remains, a citizen of Tonga even though he is a permanent resident in Australia. He arrived in Australia on 7 August 1982 as a 13 year old. On 1 September 1994, he was granted a Class BF Transitional (Permanent) visa by operation of law under the Migration Reform (Transitional Provisions) Regulations. He has not departed Australia since that time.
The applicant has a number of convictions and it seems that the convictions and problems he was having in 2015 reactivated the question of whether his visa should be cancelled. He was sent a notification to that effect, and shortly thereafter on 20 May 2016, he was convicted of a further assault occasioning actual bodily harm where he was sentenced to nine months’ imprisonment. The police records indicate a substantial criminal record.
On 25 October 2016, the Respondent issued a notice to the Applicant that his visa had been mandatory cancelled under s 501(3A) of the Act and on 7 November 2016, the Applicant made representations seeking revocation of that mandatory cancellation. On 6 July 2017, the delegate decided under s 501CA (4) of the Act, not to revoke the mandatory cancellation and on 12 July 2017, the Applicant applied to this Tribunal for a review of the delegate’s decision.
Issues
The issue before the Tribunal is whether it should exercise the power in s 501CA (4) in favour of revoking the mandatory cancellation of the Applicant’s visa. In considering that, the Tribunal has to decide whether it is satisfied that, firstly, the applicant passes the character test as defined in s 501(6).Because of the Applicant’s record and the fact that he had been sentenced to four years’ imprisonment in 2005, he fails the character test. Secondly, the Tribunal has to ascertain if there is another reason why the cancellation decision should be revoked and that is the situation in this matter.
Mandatory cancellation of visas under s 501(3A) of the Act state that the decision maker, in this case this Tribunal, must cancel a visa that has been granted to a person if the decision maker is satisfied that, relevantly, firstly the person does not pass the character test by operation of s 501(6)(a) on the basis of s 501(7)(a) and the non-citizen is serving a sentence of imprisonment on a fulltime basis in a custodial institution for an offence against the law of the Commonwealth of Australia or Territory, pursuant to s 501(3A)(b). At the relevant time, that was the case in this particular matter.
The character test is defined by s 501(3A)(c) of the Act and a person will not pass that test if they have a substantial criminal record. That phrase is defined in s 501(7) and includes circumstances where a person has been sentenced to imprisonment for 12 months or more as is the case here. Pursuant to s 501(3)(a), the Minister must give the person concerned, a written notice which sets out the original decision and particulars of the relevant information, and which invites the person to make representations to the Minister in relation to the revocation of that original decision.
Pursuant to s 501CA(4), the Minister may revoke the original decision if representations have been made by the Applicant for review in accordance with that invitation in relation to the revocation of the cancellation. If the Minister is satisfied that, firstly, the person passes the character test or, there must be another reason why the original decision should be revoked.[1]
[1] s 501CA(4)(b)(ii)
A decision under s 501(CA)(4) of the Act involves an assessment and evaluation of the factors for and against revoking the cancellation. A determination under that subsection must be carried out in accordance with any written directions under the Act.[2] In considering a request for revocation of a mandatory cancellation, the decision maker must comply with Ministerial Direction No. 65, being “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501(CA)” made under s 499 of the Act (‘the Direction’). The Direction provides that the decision is to be approached within the framework of the principles in s 6.3 of the Direction.
[2] s 499(2A)
Being informed by the principles, a decision maker must take into account the primary considerations in Part C of the Direction in deciding whether to revoke a mandatory cancellation. Those primary considerations are:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community.
The decision maker must also take into account other considerations insofar as they are relevant. These include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed from Australia.
Occasionally, the other considerations can be so strong that they can amount to equal importance with the primary considerations. Unless that is the case, however, the primary considerations will otherwise outweigh the other considerations but the other considerations are certainly not unimportant.
The Applicant’s Criminal record
The Applicant’s criminal record is extensive and dates back to when he was a juvenile. The record is attached as Annexure A.[3]
[3] G-2, pp. 25-28
The Tribunal will now detail below some of the sentencing remarks made by relevant Magistrates and Judges.
Firstly, in the Local Court at Parramatta on Friday, 20 May 2016, His Honour Magistrate Still said, in relation to the applicant’s most recent offence:
Well, [the applicant] has a significant history of violence.
…
Reading his record appears to be almost all alcohol related including a high range drink drive. So he has got an assault in 1992, assault with a community service order in 1994, damage charge in 1995. An assault in 2003. That sentence was suspended. And he has got a significant violence offence of maliciously inflict grievous bodily harm. He got a four year sentence for that, 2004. Further assault in 2012 and a stalk in 2013 which is also a suspended sentence.
So, in my view a suspended sentence is inappropriate. He has certainly crossed the threshold. What he has done is he is drunk, which is not an excuse and it is not an explanation for his behaviour. He has entered the backyard and a private residence of a couple. And he has punched the male homeowner in the head and opened up his eyebrow. So then he has wandered off still drunk. He has kicked the fence. When he is eventually found, he is found with drugs on him and he is in such an inebriated state that he has then had a go at the doc and I think they say was still inebriated when he was discharged.
…he does get a discount because he accepts the findings. And the findings were made on his very first appearance. He saved everyone a lot of trouble including the victims coming to court. But you just simply cannot do this against a record of violence like his. I guess there is some remorse and contrition but he does not really remember what he has done.
His Honour then went on to sentence him for a term of imprisonment, as detailed in Annexure A.
In another matter dealt with on Monday, 12 May 2014, Magistrate Williams, in sentencing him to a 12 month suspended sentence of imprisonment stated:
You are currently on two section 9 bonds, the breach itself is not, in the scheme of things, the worst type of event but it is blatant saying ‘“I do not care, I am just going to go there.”
I next refer to some further matters, which were the subject of cross-examination and where ultimately, the applicant was sentenced to three months’ imprisonment, where the police report said:[4]
On Sunday the 2^nd of February 2014 the VIC was out with some friends in Newtown and returned home to…….at about 1.00 am. The VIC has fallen asleep in a bedroom which is located at the front of the premises. About 2.20 am she has woken by someone knocking on the front door. The VIC opened the door and saw the POI, [the applicant], standing in the doorway. She heard him say “Where the fuck were you”. The VIC felt immediate fear of the POI as she knows what he is capable of, and knows he has access to firearms. She was home alone at the time which is unusual as she normally has her children with her. Both the VIC and POI started walking into the house, and into the VIC’s bedroom.
Whilst in there, they have had a heated argument. The POI raised his voice and said, “You talk to me like shit. It is my fucking business, you are nothing but a slut.” He began to stand over the VIC while she was in bed. During this time, the VIC had been yelling at the top of her lungs in an attempt to raise the neighbours. She thought this would work as one of her bedroom windows was open. She was yelling “Get out. Just leave me alone.” However, the POI kept replying, “Yeah keep yelling and make a scene.” The POI kept repeating the words, “I’ll fucking smash you. You treat me like shit.” At this point in time, the VIC was crying as she was scared of what the POI was going to do to her. The VIC states she was intimidated by his yelling and threatened by the fact that he was standing over her. Soon, the POI walked out of the bedroom and down the corridor towards the back of the house. The VIC immediately got up and ran out the front door.
Luckily, her mother lives two houses down, and she called the police. Police attended the scene, searched the premises in an attempt to locate the POI. He was unable to be located. The VIC attended Marrickville Police Station a short time later to make a statement. She states she does not want charges to be laid, rather she wants an AVO to be applied for. Fears held by the victim: The victim is extremely fearful of the POI and what he may do when he is under the effects of alcohol. She is fearful that he is extremely controlling and fears that he may harm her in the future. She believes he may harm her and attempt to gain better access to their three children.
[4] Exhibit R2, G-2 pp. 53
As a result of this incident, a further AVO was granted as well.
The next matter the Tribunal will detail, is the most serious matter, which was the incident in 2004, which led to the four year sentence being imposed by Justice Ainslie-Wallace in 2005. Her Honour in this matter said:
The offender comes to be sentenced after being convicted by a jury of maliciously inflicting grievous bodily harm. The Crimes Act provides a maximum penalty for this offence of seven years imprisonment.
On 11 December 2004 the offender and two other friends were driving along Glebe Point Road towards Parramatta Road. Mr Sarkis had driven up to Glebe Point Road from a side street and after stopping at the intersection of the two streets, put the nose of his car into Glebe Point Road. The offender had the undoubted right of way and rather than allow Mr Sarkis to turn onto Glebe Point Road continued along, having to deviate slightly to get around Mr Sarkis’s car. Mr Sarkis pulled into Glebe Point Road behind the offender and they moved up the road in what was described as being relatively heavy traffic until they stopped at the traffic lights.
The offender is a man of thirty-six. He is well-built and worked part time as a furniture removalist, in addition to his work as a labourer. Mr Sarkis was aged about sixty, smaller and lighter than the offender.
Mr Sarkis got out of his car to remonstrate with the offender about the manner of his driving. The offender also got out of his car, as did two of his passengers, one of whom was six foot eight inches tall. They were all well built young men. There is no doubt, on the evidence that Mr Sarkis was angry. The offender and the young men each said the Mr Sarkis was shouting and said quite offensive things such as, “Go back to your own country you cockroach”. The witnesses said that the offender said to him, “Why don’t you learn to fucking drive”
I also accept from the evidence of the witnesses to this event, that Mr Sarkis pushed the offender in the chest. One witness described it as being quite a forceful push, although the evidence of the other witnesses was to the effect that the push had no discernible effect on the offender. The witnesses said that the offender pushed Mr Sarkis and I am satisfied on the evidence, that through this process, Mr Sarkis was moved back from the position where he first confronted the offender, which was near the middle of the backdoor of the offender’s car to a position behind the offender’s car.
The witnesses said that, without apparent warning, the offender delivered a heavy punch to Mr Sarkis’ face and Mr Sarkis dropped straight to the ground, making no apparent attempt to break his fall. The back of his head hit the asphalt and his skull was fractured. He died later that evening of head injuries.
The offender, after punching Mr Sarkis, got into his car with his friends and drove away. He said in his evidence on the trial that he saw Mr Sarkis go down to the ground before he left.
The offender was charged with manslaughter, and this offence was also charged in the alternative. The jury acquitted him of manslaughter. The offender raised self-defence. It was submitted, and I accept, that one can accept from the jury’s verdict that they were not satisfied that a reasonable person in the position of the accused would have realised that the punch to the face of Mr Sarkis exposed him to an appreciable risk of serious injury, hence the acquittal on the manslaughter charge. Clearly too, the guilty verdict indicates a rejection of self-defence.
In sentencing the offender it is necessary to bear firmly in mind that he is being sentenced not for the death of Mr Sarkis, nor should Mr Sarkis’s death be taken into account in determining the sentence on this offence.
The Crown submitted that in determining sentence the Court should take into account that although the evidence is clear that it was Mr Sarkis who instigated the altercation, and who got out of his car to remonstrate with the offender, the response of the offender was entirely out of proportion to the surrounding circumstances. The bystanders describe the blow as being sudden, heavy or forceful and delivered directly to the face of Mr Sarkis.
The defence argued that Mr Sarkis provoked the offender by using offensive words and actions. The offender gave evidence during the trial. He did not say he was outraged or offended or even moved by the words of Mr Sarkis. The court was asked to take a commonsense approach to how the offender saw the matter and infer that he was provoked. To the extent that this offence was not a random assault of a person minding his own business, I accept that to a degree, the conduct of Mr Sarkis played a role in the offender’s action. However, the response of the offender was, in my view, entirely out of proportion to the conduct of Mr Sarkis.
The offender has criminal convictions for assault commencing in 1986 in the Children’s Court. In 1987 he was convicted of robbery with a striking, for which he was sentenced to three years’ imprisonment with a non-parole period of two years. In 1993 he was placed on a good behaviour bond of two years for assault. In 1994 he was given one hundred hours of community service for assault occasioning actual bodily harm. In each of March, June and August 1995, he was convicted of breaching an apprehended violence order and received non-custodial sentences for those breaches.
On 24 November 2003, he was convicted of common assault and sentenced to a period of imprisonment of twelve months, that sentence being suspended on condition that he undergo drug and alcohol counselling. He was some two weeks out of that sentence when he assaulted Mr Sarkis.
The offender has been living with his partner, Ms Ryan, since 1995, and it was for an assault on her that he received his most recent sentence for assault. The breaches of apprehended domestic violence orders were not in relation to Ms Ryan. Ms Ryan said that he became violent when he drank. After he assaulted her in October 2003 and before he was sentenced in November 2003, he gave up drink and after sentence, participated in some alcohol awareness program through Probation and Parole. She said that she did not believe that he had been drinking at the time he assaulted Mr Sarkis.
The offender and Ms Ryan have two children who are aged two and nine. She said he was an involved father who helped to coach his son’s football team. She said that since he had been in prison she has found it difficult financially because she only works three days a week. The pre-sentence report noted that the offender had completed two community service orders in a satisfactory way, although he breached two apprehended domestic violence orders. The offender told the maker of the pre-sentence report that he began drinking when he was seventeen and over time, his consumption increased until it became a problem for him between the ages of twenty and thirty-five. He maintained in that interview that he was acting in self-defence in relation to Mr Sarkis, although he agreed that the blow he struck was forceful. The maker of the report said, “He claims that he regrets his actions and the impact on all those concerned.”
It was submitted for the offender that he had expressed remorse and contrition for his actions in his record of interview and in his evidence on the trial. At the trial he was asked, “How do you feel about the situation He said, “I feel terrible.” “You told the police in your record of interview that you wished it had never happened, is that the truth?” He said, “Yes.”
In his record of interview he said that he wished it had never happened. No doubt he does. In my view, if that can be seen as an expression of remorse, it is faint indeed. The offender gave no evidence on sentence. Those words are the extent of any expression of remorse and I do not regard them as acting in mitigation of the sentence.
It was said that although his previous offending had been attributed to drink, the offender was not drinking at the time of this offence. For him it was argued that his response to Mr Sarkis was unpredictable because the circumstances that presented themselves to him on that day were highly unusual, a one in a lifetime event. I do not agree that incidents such as these are rare.
It is to be understood that although Mr Sarkis instigated this offence and was the first to engage physically with the offender, it was always open to the offender to stay in his car and to ignore him. He chose to get out of the car and trade insults with Mr Sarkis.
The assault of Mr Sarkis was cowardly, violent and totally disproportionate to the situation as it developed. Given the relevant ages and sizes of the offender and Mr Sarkis, Mr Sarkis could have been easily ignored. I accept the evidence of witnesses that the blow was heavy and straight to the face. As a result of that punch Mr Sarkis suffered a severe fracture of his skull and damage to the underlying brain tissue. In my view, this injury is of a very high order of seriousness.
For the offender it was argued that this was just one punch. Counsel for the offender took the Court where victims had been struck many times and often while they were lying on the ground, the assault continued. Of course that an assault consisted of merely one punch is not the end to the consideration of subjective seriousness. One must look at the resulting injuries. I also take in to account the evidence of the witness that at the time the offender punched Mr Sarkis, Mr Sarkis had his arms at his side, albeit with his fists clenched.
Turning to section 21A, to the extent that the matters referred there have not otherwise been mentioned in these reasons, I could not find that the offender was a person of good character, nor that he is unlikely to re-offend. In fact, given the evidence that he apparently had not been drinking and yet acted to assault Mr Sarkis tends to point the other way, unless he learns to control himself.
The offender was taking into custody at the return of the jury’s verdict of guilty, 12 October 2005. He has been in custody referable to this matter, for three months before he was released to bail. I propose to take that three months into account by backdating this sentence by three months. The sentence will be expressed to commence on 12 July 2005.
In all of the circumstances, nothing short of a full time custodial sentence would adequately reflect the objective gravity, and the need for general and specific deterrence. Clearly, the offender needs to address his anger and his resort to physical violence. Some attempt has been made during his last sentence. I propose to alter the statutory ratio between the non-parole period and the head sentence to allow for a longer period of supervision to enable him to address this with the assistance of the Probation and Parole Service.
I am of the view that a head sentence of four years [is] appropriate to meet the objective gravity of the offence, with a non-parole period of two years and six months.
[the applicant] having been found guilty by the jury, you are convicted and sentenced to a period of imprisonment of four years, to commence on 12 July 2005 and to conclude on 11 July 2009. The non-parole period will expire on 11 January 2008, which is the earliest time in which he may be released for parole.

Another matter the Tribunal will now refer to are the comments made by the Court on 16 June 1987 relating to the offences of 11 January 1987 when the applicant was still a juvenile. His Honour in that instance stated:
[the applicant], you are charged that on 11 January 1987 at Waitara you did assault John David Whitney and you did rob him of certain property as set out in the committal for sentence papers and you did, at the time you so robbed him, strike him. As I said in the case of the “assault” in the case of the sentence of the Prisoner Alane [the applicant], the assault was unprovoked, cowardly and vicious resulting in quite severe injuries to the victim and a period of about eight days in Hospital. He suffered haemorrhages to his eyes, suspected broken nose, lacerated mouth, a dislocation or similar injury to the shoulder and damage to the spleen.
I bear in mind, in this case, that it is probable that both Zita and Enis were present also on that occasion and that is probably by no means all the work of you and Alane [the applicant]. The consideration is, of course, not considered in relation to sentences passed on either Zita or Enis but I give it some consideration in your case and I consider that it would be unrealistic to ignore it all together in sentencing you. You are now eighteen. You have been detained since 14 January 1987. Prior to last year, you do not appear to have been in trouble and it is put to me forcefully that it is in the long-term interest of the community you do not go to gaol.
I do bear in mind your youth and the good reports you have had in detention but I cannot set aside the seriousness of this offence. You were apparently just out of detention for other offences of a violent nature when this crime was perpetrated on Mr. Whitney. I have to consider the nature of the crime and the effect on persons you know, and associate with and the community at large, of a sentence involving any sort of recognizance or a community service sentence for so serious a matter.
If I believed that you were the instigator of this assault and had carried it out by yourself and Alane [the applicant], bearing in mind the seriousness of the attack on Mr. Whitney I would impose a much longer sentence. It is to my mind, a disgraceful matter that a person like Mr. Whitney cannot innocently walk upon the street at night without being set upon in such a violent and distressing way and I have sighted in his case only the apparent physical injuries. The psychological and nervous trauma that a person subjected to such an assault may sustain could remain with him for his life.
You are plainly guilty on your own admission of the offence and which you stand charged. As I say, it is undoubtedly a serious one. The maximum penalty set by the legislature for this crime is twenty years’ penal servitude. In the circumstances, and despite all that has been said on your behalf, I am of the view that I would be letting down the community if I did not sentence you to a term of imprisonment of some significance and, accordingly I sentence you to three years’ penal servitude from 14 January 1987 and I specify a non-probation period of two years dating from 14 January 1987.
The above are comments by learned Judges and Magistrates in relation to some of the more serious of the matters in the applicant’s record.
The applicant has been warned in relation to these various matters by the respondent department. As a result of the 1987 matters, he was sent a letter by the then Department of Immigration, Local Government and Ethnic Affairs Northern Region. The letter stated:
Dear [the applicant],
The letter is to confirm the oral warning administered to you today in relation to your conviction(s) for robbery with striking at the Penrith District Court on 16 June 1987, which rendered you liable to deportation from Australia pursuant to section 12 of the Migration Act 1958.
After careful consideration of your current circumstances it has been decided not to order your deportation at this time. However you are warned that the Minister and his delegate will be entitled to review this decision if you come to adverse notice in the future.
I enclose relevant extracts from the Migration Act on deportation liability and a copy of the Government’s Criminal Deportation Policy. I suggest that, in your own interest, you study those papers fully.
It appears that the letter was signed by the Regional Director, and on 8 January 1989, the applicant wrote back:
I acknowledge receipt of the original copy of this letter.
On 5 December 2007, as a result of the Department cancelling his visa, which was subsequently overturned after very detailed representations made by a firm of solicitors, , a Miriam Rush from the Department sent to Ms Anne O’Donoghue, Immigration Solutions, the principal solicitor of that firm, which had represented the applicant, a notice of a decision not to cancel a visa under s 501 of the Act. The letter stated:
On 5 September 2007, the Department of Immigration and Multicultural Affairs (now Immigration and Citizenship) notified your client that the visa which authorised his continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your client’s visa on character grounds at this time. Your client’s current visa will continue to provide him with permission to enter or remain in Australia. However, the delegate decided that a formal warning should be given to your client. Accordingly, please ensure that your client is made aware of the following:
Visa refusal or cancellation may be reconsidered if fresh information comes to notice or if your client incurs a liability on new grounds. Disregard of this warning will weigh heavily against your client if their case is reconsidered.
The decision maker has instructed that your client should be advised that “Mr [the applicant] is to be told this is his second warning about possible visa cancellation. He has a very violent history, one that has resulted in one death, and one that strongly suggests a need for change. Mr [the applicant]’s abuse of alcohol seems central to his behaviour and he must address this.”
…
Some Australian Government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important your client answers these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:
refusal of entry to Australia;
refusal of citizenship,
cancellation of your client’s visa,
removal from Australia; and
criminal prosecution.
Should you have any questions regarding the decision or this notice, you may write to me or telephone me
…
Please arrange for your client to acknowledge receipt of this letter by signing and returning the attached page in the enclosed envelope.
Yours sincerely,
Miriam Rush
National Character Cancellation Centre
Melbourne
5 December 2007
On 19 December 2007, the applicant signed the following letter:
I, [the applicant], acknowledge that I have received the notice of decision not to cancel visa under section 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the department at any time in the future and that, if this happens, my past conduct in previous relevant information can also be considered.
The applicant did not make any denial during the hearing that he was aware of those two warnings.
In relation to the last decision in 2005, it came about as a result of some very thorough representations made by Anne O’Donoghue, including a very detailed psychiatric assessment, which I note only took about an hour, but certainly was quoted verbatim. Also, the views of his partner, Ms Ryan, were very relevant there indicating that she very much needed him around for the children but also conceded, that she loved him still, especially when he was sober, when he could be a great husband and father despite her other concerns.
Ms Ryan’s comments were backed up by the fact that at that stage he appears to have not been drinking or taking drugs for over 12 months. There was a sincere hope that he had turned his behaviour around. He had done some courses and he had, effectively (and hopefully) woken up to himself at that point in time.
It is interesting, and perhaps quite understandable, because there has been AVOs in place since 2012, that Ms Ryan has not provided any evidence to this Tribunal. I simply make that point because we do not know what her attitude is now. She has not made any representations one way or the other in terms of this matter, however, his oldest children have, and that will be considered.
However, in 2007, a lot was made of the applicant having changed his behaviour. The applicant had anger management issues because the particular offence which lead to the death of Mr Sarkis, had occurred when apparently he had not been drinking or on drugs. Very strong representations were made, especially in relation to the fact that it would be impossible for Ms Ryan and the children to go back to Tonga because of the lack of any opportunities there. Moreover, the fact that, his oldest son, who was 11 at the time, really needed his father because he was starting to act out at school and his elder daughter, who was about four then, would not know her father and would forget him if he was sent back then. These factors, one can assume, must have weighed very heavily, on the delegate’s mind, when he/she came to the decision was made not to cancel his visa, despite what was, at that stage, a very bad criminal record.
Unfortunately, since then, the applicant has accumulated a very extensive record, a lot of it being for domestic violence but also for assaults on strangers.
EVIDENCE
The Tribunal heard evidence from the applicant and his two oldest children, a son and a daughter. His youngest daughter, who is only seven, did not give evidence. However, I found his two oldest children to be credible witnesses and, I must say, despite all the problems in this family, they are very much loving children of the applicant.
The statement written by his oldest son was agreed to by his older daughter. Also, there was an earlier statement dated 14 November 2016 and that was just by the applicant’s son. The statement stated the following:[5]
I am writing regarding my Dad … born ... He has received notice that his visa will be cancelled after he is released from prison. My dad has 3 children all Australian citizens, I am the eldest and have 2 younger sisters … 13 and …7. We all would be devastated if he is sent back to Tonga. When my Dad was out, I stayed with him every weekend. We have a good relationship.
I have anxiety and depression and this would just make me sadder and I don’t know what I would do or how I would manage. Please don’t take my Dad away from us.
My dad has issues with alcohol and drugs but is a good person. He has never hurt any of us.
I write this in support of him being allowed to stay in Australia where his children and most of his family are. We need him in our lives. I need a father.
Please don’t hesitate to contact me …
[5] Exhibit R1 (G2, pp. 72)
On 29 August 2017, his son prepared a joint statement for himself and his two sisters. It stated the following:
I am the son of [the applicant], who is currently awaiting an appeal on the cancellation of his permanent residency in Australia.
I am 20 years old and have always had my father in my life. I would be severely affected if he was to be deported back to Tonga. I have anxiety and depression and this would escalate my mental health issues. I have 2 younger sisters (8 and 14) who are always asking for their Dad, they would also be affected.
My Dad has issues of his own with being a drug user and having an addiction that has controlled his life for many years. A lot of the bad decisions he made was when he was using.
I truly believe that he is sorry and shows a great deal of remorse for his actions and would like to prove to be a good father to his children. He cannot be a Dad to us if he is deported to Tonga. My Dad is a good person with a good heart and I have seen this growing up with him. [The applicant] needs to be given the chance to stay in Australia with his 3 children who are all Australian Citizens. Not having a father could affect all our upbringing and wellbeing. We love our Dad despite his issues and mistakes he has made and would like for him to be given the opportunity to show his remorse and be a father to us.
His time in detention has shown him how much he misses his children and how much we miss and need him. He is trying to change and needs to be able to be near his children to do this.
As much as he has made mistakes, he was always a provider and always held a job. He worked hard to support us in our education and necessities. We all had catholic school education and my Dad worked to pay for this, knowing he wanted us to have a better future than he did.
He grew up and was affected by childhood trauma and that impacted on his life. He realises this now and knows he needs to deal with this to be a better man and has been working on himself.
I ask the minister to please let my father stay in Australia and to be a Dad to his 3 children.
His son gave evidence before the Tribunal. His son has been employed as a construction labourer with the City Metro for about a year. He sees his father every week. For the last five years, despite domestic violence orders, he has still managed to see his dad. He said he had never gone longer than about two and a half weeks without seeing him, sometimes he might see him every two or three days, and he would see him at his brother’s house. The applicant’s son would often stay the night there. He lives with his grandmother and his mother who lived two doors apart from each other.
He said the applicant did not drink alcohol all the time but that alcohol would affect him badly. He would drink alcohol when something went wrong. He was fine when he was not on alcohol. He said that when the applicant was on drugs, he often did not notice it but the problem there was the money because the applicant would use up a lot of his wages to pay for the drugs. In 2012, after his father’s situation deteriorated due to him being quite depressed about a number of things, his son did not see him for a few months. He then saw him at a boarding house which was only a few blocks away from where the applicant’s son lived.
He would see his mother and father fight at home. He stated “He was a quiet and humble man when he was not on drugs.” He was also asked, “If your dad was sent to Tonga, would you go and see him?” He replied, “Yes, I would just need to get the money together.”
In cross-examination, the applicant’s son was asked about trying to stop his father in 2012 from abusing Ms Ryan and, he agreed that what was said in the police report was accurate. He did not recall the incident with the towel however he did recall his father telling him not to get involved at that time. He could not recall any other incidents of domestic violence in the home and certainly could not recall the one, which would have occurred when he was seven when it was related to him during cross examination.
He said he may have witnessed breaches of domestic violence orders but he did not witness any assaults. He indicated that his father needed to do more courses.
I must say that the applicant’s son struck me as a fine young man, who obviously, although not long out of school, has a good work record. He said he was always going to be the son of his father, and that the event his father went to Tonga, he would go and visit his father, when he could.
The applicant’s elder daughter, who is now 14, and in year 9 at school, also gave evidence at the hearing. She said in terms of domestic violence in the home, she remembered the arguments. She hated the arguments and when they occurred, she would walk to her granny’s place, which was only two doors away. Since 2012 she would see her dad walk past. She would see him at his brother’s place. She would go there to see her cousins there on random occasions and would see her father that way.
She also used to have contact with him, via phone, prior to him going to prison. She is not sure how the phones would work if he was sent to Tonga and money would obviously be a real problem in terms of her visiting him there.
She wanted to see him more and she stated he was always good to her.
Again, I was impressed with her evidence and the fact that, despite not seeing her father nearly as much as her older brother, she still certainly had a great deal of time for him.
The applicant also gave evidence. I certainly got the impression from his evidence that he certainly cares very much for his children. He said he wanted to be around for such events in their lives such as walking his daughter down the aisle and giving her away when she is married.
The applicant gave evidence that he was a construction worker. He left Hornsby High school in Year 9, He admitted he got into trouble and spent time in the boys’ home at Mount Penang. He has had a number of jobs, specifically jobs at an abattoir which closed, then at printers for five or six years. The applicant then went to Sydney to live with his parents because it was easy to get work. He had a job “piling “in the construction industry for some 15 years, which his father-in-law got for him. He was good at sport when he was young, playing inside centre in Rugby.
He had been with his partner, Ms Ryan, for some 17 years and there are three children; between them. The eldest son, 21, the elder daughter, 13 and the youngest daughter being 7. All of them live with her. He stated that on many occasions in the past, he used alcohol and drugs. This had started when he was 16 in Hornsby. He said it was hard for him to socialise and he was violent when he drank. Then, when the applicant was 18 or 19, he got into drugs, including marijuana, heroin and ice. He would also combine alcohol with drugs.
The last time the applicant took drugs was just prior to going to prison. He stated he had gone to drug and alcohol counselling.
When he had separated from his wife in 2012, because of his drugs and alcohol, his situation deteriorated. He then lived in a boarding house and after that at a friend’s place for a couple of years. The people who resided in that house were also taking drugs. He then moved in with his brother.
When he broke up with his partner and left his job, he had been working on and off doing agency work since 2012 as a casual. He said he could not recall the 2016 incident because he was on drugs and alcohol at the time.
The applicant was asked why he had returned to drugs after being off drugs for quite some time. He said he could not handle the breakup in 2012 and so he returned to drugs and alcohol to” numb the pain.”
He indicated his older brother, who is 47, had been deported to Tonga as well. He did not have a job there but he did keep in contact by phone with him. He has a sister, who has children, and she lives in Darwin. He has a 46 year old brother, who has a wife and children, but was not working in Sydney.
His mother and father were old and his mother had had a stroke. The applicant would do some shopping for them and check with his parents on occasions. He would see them on Christmas and Mother’s and Father’s Day.
Because of the AVOs against him, he had not seen a lot of his two girls since 2012 but he agreed he would see his son nearly every week. He would also ring his son frequently. He would talk to his girls on the phone but could not see them because of the AVO.

He said he had done some courses in detention including courses relating to substance abuse, addiction, and violence and anger management , the latter being a two week course.
He was taken through a number of documents in cross-examination. He admitted the various offences that he had been charged with and convicted of. He did not know the man he assaulted on the street in 1987 when he was a young man and who had spent eight days in hospital.as a result of the assault. He said he was sent to Mount Penang rather than an adult prison, so he could get counselling. He had done counselling and had anger management treatment, and had engaged in drug and alcohol courses.
He was taken through all of the various offences including some of the other incidents that were detailed in police reports in the G-documents which were put to him in cross-examination.
Some of the offences mentioned earlier, for example, the destroying property offence in 2004, where the applicant ripped a phone did not lead to charges as the victim wanted no further action. This was because the victim, namely Ms Ryan, did not think she could financially support the children without the support of the applicant.
He accepted the facts in relation to the death, in 2005, of Mr Sarkis.
He said he was on a drug program at the time. He was certainly not taking any alcohol or drugs. He said he punched the man in the heat of the moment. He indicated earlier that he decided to stop drinking, one year prior to that incident. He then did not drink in jail, after being jailed for two and a half years for the killing of Mr Sarkis.
Unfortunately, he took up alcohol again sometime after release from jail and especially when his situation deteriorated in relation to the separation.
He had done a course more recently about how to be a better person. He acknowledged the formal warnings. He said had certainly made a lot of threats to his ex-partner. For example, in August 2012 he threatened to kill her, blow up the car and damage the car. He agreed he contravened those AVO’s and DVOs. Some of contraventions were for him simply entering her house when he was drunk. He certainly agreed he entered the house and swore at her. In relation to those breaches, he said he initially went there to apologise.
He agreed that he was impulsive and that these offences had a disregard for the law. He agreed also that by contravening the AVOs, assaulting people and destroying property, would cause a fear for Ms Ryan. Some of the offences simply were because he was drunk and he was close to home, and he had been found there at home, and there had been nothing more threatening than that At other times, he agreed he had abused her and threatened her, as he did, for example in February 2014.
He said he was close to the brother he lived with and his brothers’ children, who are about 20. He regularly saw those other children, and is particular closely to one of them. He was, indeed, staying with his brother for some considerable period of time until l recently.
He was concerned if he was sent back to Tonga that they would not have any drug and alcohol programs available for him to do. There is very little work in Tonga and his brother, who currently resides in Tonga, was not working. He simply would not get the medical help that he needed to get.
He indicated that he wanted to be in Australia and be part of his children’s lives specifically for being there for significant events in their lives, which simply could not happen if he was sent back to Tonga.
The respondent submitted, that the applicant, on a number of occasions, had very good intentions, but he simply could not maintain those good intentions despite doing courses in 1987, 2003, 2005, 2016 and 2017.
The respondent also submitted that the Tribunal should have less regard than it normally might, to the influence on the two minor children, because of the limited contact the applicant had had with them over the last five years, and also that he was not a particularly good role model.
The respondent stressed the violent nature of the offences over many years. The escalating nature in some instances, and the fact that he had an oral warning in 1989, confirmed in writing, a formal written warning in 2007, and the 2015 notice of intention to cancel his visa, that he received prior to committing the May 2016 offences, which effectively should be taken as a third warning.
The applicant reiterated his desire to stay in Australia to be a father and the significant problems he would face should he be deported to Tonga.
Consideration
The Tribunal shall now deal with the criteria it must consider the law in relation to this matter.
The relevant part in Ministerial Direction No. 65 is to be found in Part C.[6] Part C says, paragraph 13:
The primary considerations – Revocation requests
Under section 501(3)(a) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of the law, and the fact the non-citizen is serving a sentence of imprisonment on a full-time basis.
[6] G-2, pp. 101-107.
This is certainly the situation here. In Re Harrison v Minister for Immigration and Citizenship (2009) 106 ALD at 666, states:
An applicant fails the character test if they have 12 months or more of imprisonment.
This applicant fails the character test by reason of his conviction and a sentence of four years’ imprisonment. That meets the statutory definition of substantial criminal record.
The determinative issue in this matter is whether there is another reason why the cancellation should be revoked. The primary considerations will need to be considered.
The protection of the Australian community
When considering the protection of the Australian community, a decision-maker has 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. Remaining in Australia is a privilege that Australia confers on its non-citizens, and the expectation that they are, and have been, law abiding with respect, and will respect important institutions, will not cause or threaten harm to individuals or the community.
Mandatory cancellation without notice of certain non-citizens is consistent with this principle, by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. The Tribunal should have regard to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community, should the non-citizen commit further offences.
The nature and seriousness of the conduct
The Tribunal has to have regard to the fact that without limiting the range of offences that may be considered serious, violent, or sexual crimes are viewed very seriously, and crimes committed against vulnerable members of the community (such as minors, elderly) or government representatives or officials, due to positions they hold or in the performance of their duties, are serious.
The Tribunal has to look at:
·the sentence imposed by the court;
·the frequency of the person’s offending and whether there is a trend of increasing seriousness;
·the cumulative effect of repeat offending;
·whether the non-citizen has provided false or misleading information, including not disclosing criminal offending;
·whether the non-citizen has reoffended since being given formal warning, or since otherwise being made aware in writing about the consequences of further offending in terms of their migration status, noting that the absence of a warning should not be considered to be in the non-citizen’s favour;
·where the non-citizen is in Australia, that the crime was committed while the person was in immigration detention. This does not apply here, but the other factors do.
There are a number of crimes here of a serious violent nature. Indeed, a man died as a result of a one-punch to the head, which was totally unexpected, unnecessary and disproportionate in the circumstances, as a result of a road rage incident, albeit one initiated by Mr Sarkis, the victim.
One would have thought that that alone should have indicated to the applicant that it was crucially important that he really had to change his ways. He came very, very close to being deported on that occasion, and would have been, but for representations by his counsel, his partner, a good psychiatric report, and the fact that his two oldest children were then only 11 and four.
As a result, he managed to stay in Australia, and the Minister’s decision, through his delegate, was that those factors should outweigh the very serious nature of that offence and, indeed, his substantial record for prior offending.
On that occasion, he had already been orally warned, which he had acknowledged in writing. As a result of that conduct, he was again warned.
One could also say that despite Mr Sarkis’ aggressive behaviour, he was elderly and therefore vulnerable. There are also some offences in relation to resist arrest. However, these are of a more minor nature. What concerns the Tribunal is the serious offence in 2005. The tribunal is also greatly troubled by his conduct since involving further breaches of the domestic violence orders from 2012 onwards and the unprovoked assault when he was under the influence of alcohol and drugs in 2016, when he invaded a stranger’s home, and then assaulted the person who came to see what was happening, by punching him in the head, and splitting his eyebrow.
The applicant then caused some property damage before wandering off. When apprehended, it appears he was quite violent and difficult with the doctor and the police officers who were taking him away, all of which he cannot remember afterwards.
The applicant has a significant history of violence dating back to 1987. On that score, one would have to say the nature and seriousness of his conduct are very much against him.
Furthermore, the fact that prior to the last offences in May 2016 he was given his third warning that the Department was again considering cancelling his visa and despite that, he committed those offences, which indicates to the Tribunal, a total disregard for the law. Clearly that criterion is against him.
The risk to the Australian community
There is another criteria, at clause 13.1.2, being the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal has to consider whether he represents an unacceptable risk of harm to individuals, groups or institutions, and to the Tribunal must have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
I have to have regard to cumulatively the nature of harm to individuals of the Australian community should the applicant engage in further criminal or serious conduct; and the likelihood of him engaging in further criminal or other serious conduct, taking into account the available information and the evidence on the risk of the non-citizen reoffending.
The likelihood of reoffending
In terms of the actual victims harmed by the applicant over the years, apart from his partner, I do not think any other victims may be identified. The victims appear to have been random people who have just crossed his path, and he has assaulted them. In the past, there are no victims that one would say the applicant had it in for, except perhaps his partner.
However, in terms of assessing the risk, there is a significant risk if he reoffended, that people would be hurt. It is possible, because a person has already died, that it could be very serious, (although Mr Sarkis did fall over as a result of a punch and hit his head on the concrete, and that killed him). However, the risk of serious injury exists, should the applicant reoffend.
Despite a number of attempts to engage in courses and protestations that he will improve if given yet another chance, he has been given a number of further chances in the past and he has, unfortunately, failed on every occasion The applicant was given a chance in 2007, and sadly, he continued to reoffend with breaches of domestic violence and culminating in a vicious assault on a man in his home, for no reason.
When his situation deteriorated, he returned to using drugs and alcohol, despite attempts to get off it, and indeed he has been off it for a not insignificant period in the past. The Tribunal cannot have any confidence that he is not going to revert to alcohol and drugs if something went wrong in the future.
There is a significant risk to the Australian community, and I do not think the Tribunal can have any great confidence that he will not reoffend. All the evidence points the other way. The evidence is not in his favour.
The best interests of minor children
The Tribunal must make a determination about whether revocation is or is not in the best interests of the child. It applies only if the child is under 18 at the time that the decision is made. If there are two or more children, the best interests of each child must be considered. The Tribunal must look at various factors, the relationship, and if it is a non-parental relationship, less importance is given to that factor.
The Tribunal has to look at whether the applicant is going to play a positive parenting role, observe his conduct, and the effect that any separation would have on the child, whether there are other persons who could fulfil his role, any known views of the child and whether there is any abuse of the child.
The two children under 18 are his two daughters. The evidence given by his elder daughter is quite clear. Despite the problems within the home, the father has never really done anything to his daughter, apart from perhaps, his bad behaviour towards her mother. He has not assaulted her or caused her any great grief. The Tribunal accepts the respondent’s argument that at least seeing those domestic violence incidents would have a bad effect on the child. But despite that, it is clear that his elder daughter has a great regard for her father, wants to see more of him, and certainly does not want him deported.
We do not know the views of the youngest daughter as she is too young to give them. However, the letter written by his son lists his sisters’ names also. He indicated in evidence as did the applicant’s elder daughter that the three of them all agreed with it. I have no reason to disbelieve the two children who gave evidence in relation to that and I would think equally, his youngest daughter, as a seven year old, would be shattered if her father was sent back to Tonga, and would rather him here despite the problems.
To all intents and purposes, having heard the applicant’s son, who admittedly is over 18, but during a lot of these incidents were under 18, clearly the children would appear to have a good regard for their father despite the problems, and love him very much and want him to stay. I would certainly think in the circumstances, the best interests of the minor children affected by the decision would quite strongly fall on the side of him staying in Australia, were it not to be outweighed by the other considerations. It is strongly in his favour, while the other two main determinations, are strongly against him.
The expectations of the Australian community
The Australian community expects non-citizens to obey its laws, and where a non-citizen has breached or where there is an unacceptable risk they will breach its trust, and where they have been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the visa.
Non-revocation may be appropriate simply because the nature of the character of the offences are such that the Australian community would expect that person should not hold a visa. The Tribunal has to have due regard to the government’s views in this respect.
In terms of the expectations of the Australian community, the Australian community generally is a pretty tolerate community.
The Australian community accepts that people will make mistakes. They are prepared, especially if someone is open and upfront about it, to accept maybe one, or possibly even two, transgressions. Where the transgressions are of a violent nature, the Australian community will have less regard to the individual, and err on the side of revocation of a visa, and want that person deported from the country.
In this instance, because of the amount and violent nature of the offences, and the fact that the applicant has been warned on multiple occasions yet continued to commit offences. Despite all common sense, logic, attempts by him to do various courses, and take advice and assistance that might have stopped him behaving in such a way, he continued to reoffend and the Australian community would say enough is enough.
I think the Australian community, whilst being very fair, would not be prepared to put up with further criminal or serious conduct. The Australian community might have been on a knife’s edge in relation to the offence in 2005 where the delegate just came down in favour of allowing the applicant to stay. If there might have been any residual tolerance in 2007, it would have evaporated as a result of the offences from 2012 to 2016.
The attitude of the Australian community would not be in favour of revoking the visa cancellation. The applicant has not learnt his lesson and therefore, it would be preferable for the Australian community to see him deported back to Tonga.
Other considerations
The Tribunal has to look at other considerations, and paragraph 14 of the Direction states:
In deciding whether to revoke a mandatory cancellation of a visa, other considerations must be taken into account where relevant.
The considerations include, but are not limited to:
·International non-refoulement obligations;
·Nature, strength and duration of ties;
·The impact on Australian business interests;
·The impact on victims; and
·The extent of impediments if removed.
International non-refoulement obligations
These are not relevant here as there are none.
Nature, Strength and duration of ties
The applicant came to Australia at the age of 13. He has worked. He has gone to school here. He has spent all his time in Australia. He has never been back to Tonga. He had never been out of the country. He has a good work ethic. He has worked hard, and, apart from the last few years when it seems to have been casual employment, he has been a good provider, despite the various other issues, the violence and problems in his family life as a result of his drug, alcohol, and behavioural and anger management problems. He has certainly been a good provider and one could say that the strength, nature and duration of ties are significant, and that is in his favour.
The impact on Australian business interests
This factor is not something that is relevant in this case.
Impact on victims
As previously indicated, one victim is dead. Another victim – a long time ago, in 1987 – spent eight days in hospital. The most recent event in 2016 would have been quite traumatic for the victim. However, there are no indications that, in terms of any of the victims, they or their families are under any threat from this man. These offences are simply one-off vicious offences. The impact on victims and their families is not something that is relevant in terms of this particular offence. The only potential impact would be on any future victim, and that has been previously considered above.
The extent of impediments if removed

This factor would be significant. However, it is not as bad as if the applicant was going to be deported to a country that is impoverished or one that is wracked by civil war or tribal divisions. Nevertheless, there are some significant impediments.
First and foremost, Tonga is not a rich country. The applicant has a brother there, which is an advantage, but his brother is not working. Despite the fact that the applicant is a good, hard worker, there is no guarantee that he would actually be able to get a job or full time employment in Tonga.
Tonga does not have the same social security and health system as Australia. It is not as if he would be sent back to, for New Zealand, which is very similar to Australia in all respects. There would certainly be impediments if he were removed.
Also, as we know, removal at this stage is permanent. The applicant cannot come back for weddings and other family events. For that to occur there would need to be a change in the legislation. However, at this stage, there is no provision for that.
The only positive for the applicant is the applicant’s son’s desire to go and visit him in Tonga, and no doubt he would take his sisters as well. Also, they can all keep in contact by phone, email, social media and other means.
We simply do not know if Ms Ryan wants any contact at all with the applicant and maybe the AVO indicates her silence in this matter however it may indicate that she does not.
The applicant has other family in Australia, namely, a brother and a sister and, nieces and nephews. They may wish to visit him. It may be difficult, given the age of his parents, for that to occur. However, at least there exists the opportunity for family to visit, and especially his children.
It is not as if the applicant is going to completely be without his family. He already has had the opportunity to be around his two oldest children, and to see them grow, in his son’s case, into a fine young man, and to see his elder daughter, progressing as well as she has. In terms of the other considerations, he certainly satisfies (b) and (e), and that is that there are strong ties to Australia, and certainly impediments, if he goes back to Tonga.
Taking all things into consideration, I regard the primary considerations as being paramount here, those being the protection of the Australian community, the best interests of the children, and the expectations of the Australian community.
For the reasons given, the protection of the Australian community and the expectations of the Australian community necessitate that in this case, because of the serious nature of the various offences committed over three decades, and the continued nature of the serious assaults, that there can be only one decision that this Tribunal can make and that is that the decision of the delegate of the Minister is correct, and his visa does have to be cancelled.
DECISION
Accordingly, the decision under review is affirmed.

I certify that the preceding 125 (one hundred and twenty -five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

..................................[sgd]...................................
Associate
Dated: 8 November 2017

Dates of hearing: 4-6 September 2017; 25 September 2017

Applicant: In person

Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers

ANNEXURE A

[2017] AATA 2179

8 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Dates of hearing:	4-6 September 2017; 25 September 2017
Applicant:	In person
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers