Re Gage and Minister for Home Affairs - [2020] AATA 326

Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 326 (24 February 2020)
Division:GENERAL DIVISION
File Number: 2019/7961
Re:Gaston Gage
APPLICANT

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

DECISION
Tribunal:Member S Burford
Date:24 February 2020
Place:Perth

The Reviewable Decision, being the decision of the Respondent’s delegate dated
29 November 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
...........[sgd].............................................................
Member S Burford
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – grievous bodily harm – driving offences – Direction No. 79 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – impact on victims – extent of impediments if removed to New Zealand – Tribunal not satisfied there is another reason why the decision to cancel the Applicant’s visa should be revoked – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(6B), 500(6L), 501(3A), 501(6), 601(6)(a), 501(7)(c), 501CA, 501CA(4), 501G(1)
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
CZCV and Minister for Home Affairs [2019] AATA 91
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Multicultural Affairs vAli (2000) 106 FCR 313
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
QGMJ and Minister for Immigration and Border Protection [2017] AATA 1537
QSBL and Minister for Home Affairs [2018] AATA 2074
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Varley and Minister for Home Affairs [2019] AATA 376
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
ZTGP and Minister for Home Affairs [2018] AATA 3518

SECONDARY MATERIALS
Convention on the Rights of the Child
, opened for signature on 20 November 1989,

1577 UNTS 3 (entered into force 2 September 1990) – Article 9
International Covenant on Civil and Political Rights
, opened for signature on

16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Migration Regulations 1994 (Cth) – Reg 2.55(5)
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) – paras 6.1, 6.2, 6.3, 7, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.1, 14.2, 14.3, 14.4, 14.5, Part C
REASONS FOR DECISION
Member S Burford
24 February 2020

This is an application for review of a decision of a delegate of the Respondent not to revoke the mandatory cancellation of the Applicant’s visa (by operation of s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act)) pursuant to s 501CA(4) of the Migration Act.
BACKGROUND
The Applicant is a 31 year old citizen of New Zealand. He first arrived in Australia in 1993 with his family and began residing in Australia from 15 April 1999 on a Class TY Subclass 444 Special Category (Temporary) visa (the visa), when he was 10 years old.[1]
The Applicant has an ex-wife and two children who are resident in Australia. The Applicant’s ex-wife was also born in New Zealand and is now an Australian citizen.[2] His children were born in Australia and the Tribunal accepts that they are Australian citizens, for the purposes of this application.[3]
On 13 October 2017 the Applicant was convicted in the Perth District Court of Western Australia on one count of Grievous bodily harm and sentenced to a term of three years and three months’ imprisonment.[4]
On 20 November 2017 the Applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act (the cancellation decision).[5] The basis for the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, state or territory. The Applicant was advised that he could make representations to seek revocation of the cancellation decision.[6]
The Applicant requested revocation of the cancellation decision on 18 December 2017.[7] He made additional representations in support of his revocation request on

29 December 2017, 2 January 2020 and 4 January 2018.[8] He was invited to comment on further information regarding the possible revocation of his visa cancellation on

12 February 2019 and he responded on 8 March 2019.[9] He was invited again to comment on further information by letter dated 1 March 2019 and he responded on

12 March 2019.[10]
On 29 November 2019, a delegate of the Minister (the Delegate) decided not to revoke the cancellation of the Applicant’s visa.[11] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal). The Reviewable Decision was made under s 501CA(4) of the Migration Act.
The Applicant was notified of the Reviewable Decision by letter dated 2 December 2019, delivered to him by hand at Yongah Hill Immigration Detention Centre.[12] He signed to acknowledge receipt of the notification of the decision on 3 December 2019.[13] Accordingly, the Applicant was notified of the decision on 3 December 2019.[14] The Applicant lodged an application for review of the Reviewable Decision on

4 December 2019.[15]
The Applicant is in Yongah Hill Immigration Detention Centre and is in the migration zone. He therefore lodged his application for review within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the

Migration Act. The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to conduct a review.
Section 500(6L) of the Migration Act effectively provides that the 84 day period starts to run from the date the Applicant is notified of the Reviewable Decision in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period commenced on

3 December 2019 and the Tribunal must hand down a decision with respect to this application by no later than 25 February 2020.
THE ISSUE
It is not in dispute that the Applicant does not pass the character test (as defined in

s 501(6)(a) read with s 501(7)(c) of the Migration Act). Accordingly, the issue for consideration by the Tribunal is whether the Tribunal is satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked (see

s 501CA(4)(ii) of the Migration Act), having regard to the primary and other considerations in Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No. 79).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Migration Act provides that a person does not pass the character test if “the person has a substantial criminal record (as defined by subsection (7))”.
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; …
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
…
(Original emphasis.)
DIRECTION NO. 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 79 under s 499 of the Migration Act. The direction commenced operation on 28 February 2019, replacing the previous direction, Direction No. 65.[16]
Paragraph 6.1 of Direction No. 79 sets out the “Objectives” of the Migration Act, with

para 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A
non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in para 6.3 of Direction No. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No. 79, with regard to the specific circumstances of the case.[17] Specifically, para 13(2) of Direction No. 79 provides:
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(1) of Part C of Direction No. 79 lists the other considerations as follows:
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.
Paragraph 7(1)(b) of Direction No. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction No. 79 can be found in para 8 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 79 sets out considerations that are relevant in exercising the discretion in s 501CA(4) of the Migration Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 7 February 2020. The Applicant appeared in person and was self-represented. Mr Orchard, from Sparke Helmore Lawyers, appeared for the Respondent.
The Applicant gave oral evidence and was cross-examined. He called the following witnesses in support of his application:
·Marian Paul (the Applicant’s mother);
·Tutu Marsters (the Applicant’s aunt);
·Allison Marsters (the Applicant’s aunt);
·Monique Gaye Williamson (a friend of the Applicant);
·George Patrick Graham (the Applicant’s great-uncle);
·Timothy James Paltridge (the Applicant’s uncle).

All the witnesses gave evidence in person.
The Tribunal admitted a number of statements and other documents submitted by the Applicant, and the G-Documents and tender bundle submitted by the Respondent. A list of exhibits is at Annexure A to this decision.
IS THERE ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
Following the cancellation, the Applicant made representations to the Department seeking revocation. These were set out in the Applicant’s submissions in favour of his application for revocation of the decision.[18] The “other reasons” the Applicant submitted as a basis of the revocation of the cancellation decision were summarised by the delegate as follows:[19]
The best interests of his two minor children: One minor daughter, [details omitted], and one minor son, [details omitted], both Australian citizens.
Rehabilitation and mitigating circumstances of his offending: He is remorseful for his past behaviour, has taken positive steps to rehabilitate and will not reoffend, wants to set an example for his children and has the support of family, friends and professionals to help him reintegrate into society.
The strength, nature and duration of his ties to Australia: The strength of his bonds with his family in Australia which includes his mother, father, five brothers, one sister, seven uncles and aunts, two grandparents, 15 cousins, four nieces and nephews and numerous friends in Australia. His ties to the Maori community in Western Australia. His ties as a coach of juniors and as a past player in the touch rugby community in Western Australia.
The impediments to his return to New Zealand: He is concerned about being apart from his children; that in New Zealand he faces homelessness; financial hardship and no family support and is concerned that he may turn to illegal activities to survive.
(Original emphasis.)
Before the Tribunal, the Applicant’s written statement of facts, issues and contentions (Applicant’s SFIC) and oral submissions to the Tribunal outlined the Applicant’s central contentions as to the “other reason” why the cancellation should be revoked in similar terms to submissions made before the Department.
The Applicant submitted that the cancellation decision should be revoked because:
·The circumstances of the offending mitigate its seriousness including: his mental state at the time of the offending, the fact he was suffering a personal crisis [edited for publication] and further, at the time of the offending, he was drinking and under the influence of the drug ecstasy.
·He pled guilty to the offence which gave rise to the visa cancellation at the earliest opportunity.
·He has insight into his offending and has sought to engage in rehabilitation including of his own volition.
·He has an offer of employment, the support of his family and offers of support with rehabilitation which will provide protective factors against reoffending.
·The non-revocation of his visa cancellation would have a major negative impact on his children and it would be in the children’s best interests for the cancellation to be revoked. This principle is supported by international human rights treaties including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
·His former wife, the children’s mother, supports his request to remain in Australia despite being the victim of some of his prior offending.
·Given the length of time the Applicant has been in Australia and the support of his family in Australia, the Australian community would not feel the need to remove him.
·The Applicant has strong ties to the Australian community including extensive family members in Australia, prior employment in Australia and contribution to the community principally through touch rugby.
·The Applicant would suffer financial, emotional and psychological problems should he be removed from his children.
The Respondent submitted, in summary, that the protection of the Australian community and the expectations of the community weigh against the Applicant and outweigh other considerations including the best interests of the Applicant’s children which the Respondent submitted was “at best neutral” in balancing considerations.[20] The Respondent contended that the Applicant’s offending was “very serious”.[21] The serious nature of the Applicant’s offending and the lack of adequate independent evidence of successful rehabilitation mean that the risk of the Applicant reoffending in a similar manner is unacceptable.[22] Further, in light of the Applicant’s serious and violent offending, the Australian community would expect the Applicant’s visa to remain cancelled.[23]
These submissions will be dealt with in more detail below.
THE APPLICANT’S OFFENDING HISTORY
The Applicant’s offending history is set out in the National Police Certificate dated
1 March 2018.[24] The Applicant did not dispute the contents of the certificate and the Tribunal accepts it as accurate. The offence dates in the below table are taken from the Western Australia Police “History for Court – Criminal and Traffic” report dated
6 January 2020.[25] The Applicant did not dispute the contents of this document and the Tribunal accepts it as accurate.
Based on the National Police Certificate, the Applicant’s offending history is summarised as follows:

Court Court Date Offence Offence Date(s) Court Result

Perth Magistrates Court 25 Oct 2007 Disorderly behaviour in a public place 21 Oct 2007 Fine: $500

Joondalup Magistrates Court 14 May 2008 No driver’s licence (fines suspension) 9 May 2008 Fine: $250; mdl disqualified s 51: 3 months; mandatory - concurrent

Unlicensed vehicle (owner/driver) Fine: $200

False name (driver) Fine: $200

Drive vehicle contrary to compliance notice (drove) Fine: $600

Perth Magistrates Court 18 Jun 2008 Disorderly behaviour in public place 14 Jun 2008 Fine: $500

Midland Magistrates Court 21 Aug 2008 No authority to drive – disqualified/suspended 8 Jul 2008 Fine: $500; mdl disqualified: 9 months - cumulative

Perth Magistrates Court 30 Jun 2009 No authority to drive – disqualified/suspended 5 May 2009 Fine: $1000; mdl disqualified: 9 months - cumulative

Joondalup Magistrates Court 1 Oct 2010 Assault occasioning bodily harm 2 Apr 2010 Community based order: 12 months concurrent from 1 Oct 2010

Midland Magistrates Court 13 Jun 2011 Unlawfully assaulted with circumstances of aggravation.; criminal code (wa); 313(1)(a) 1 Jan 2011 Intensive supervision order: 12 months concurrent from 13 Jun 2011

Breach of community based order under s 62 sent ACT of 01-oct-2010 2 Apr 2010 Intensive supervision order: 12 months concurrent from 13 Jun 2011

Joondalup Magistrates Court 10 Feb 2012 Person who breaches conditional release order or community order without reasonable excuse 6 Sep 2011 Fine: $350

Breach of intensive supervision order s 69 sent ACT of 13 June 2011 1 Jan 2011 Fine: $750

Person who breaches conditional release order or community order without reasonable excuse 6 Sep 2011 Fine: $500

Breach of intensive supervision order s 69 sent ACT of 13 June 2011 2 Apr 2010 Fine: $1000

Midland Magistrates Court 20 November 2012 Possess a prohibited drug (methylamphetamine); misuse of drugs ACT (WA) 1981; 6(2) r 14 Oct 2012 Fine: $1000

Perth Magistrates Court 28 Oct 2014 Refuse name and address (driver) 12 Sep 2014 Fine: $300

No authority to drive – never held 27 Oct 2014 Fine: $200; mdl disqualified: 3 months - concurrent

No authority to drive (fines suspended) 12 Sep 2014 Fine: $300

Breach of bail granted undertaking; Bail Granted ACT (wa) 1982; 51(1) 2 Oct 2014 Fine: $200

Midland Magistrates Court 28 April 2015 No authority to drive - expired 14 Feb 2015 Fine: $350

Perth Magistrates Court 30 Jul 2015 Disorderly behaviour in public; criminal code (wa); 74a(2)(a) 31 May 2015 Fine: $500

Obstructing public officers; criminal code (wa); 172(2) Fine: $600

Perth Magistrates Court 15 Oct 2015 No authority to drive (never held) 9 Sep 2015 Fine: $500; mdl disqualified: 3 months - concurrent

Midland Magistrates Court 12 Apr 2017 No authority to drive (never held) 31 Dec 2016 Fine: $400

Provided false or misleading personal details Fine: $300

Used a mobile phone whilst driving a vehicle Fine: $400

Perth District Court of Western Australia 13 Oct 2017 Grievous bodily harm; criminal code (WA); 297 6 Apr 2016 Imprisonment: 3 years 3 months concurrent from 13 Oct 2017
Violence offences

The Applicant has a number of convictions for offences involving violence.
On 1 October 2010 the Applicant was convicted of Assault occasionally bodily harm. The conviction arose from an offence on 2 April 2010 when the Applicant was at a nightclub. The Applicant grabbed the victim from behind and took him outside of the nightclub. The victim yelled at the Applicant. The Applicant punched the victim and kicked the victim’s face before re-entering the club.[26] The Applicant pled guilty to this offence and was sentenced to a community based order for 12 months.
On 13 June 2011 the Applicant was convicted of Unlawfully assaulting with circumstances of aggravation. This conviction arose from an offence on 31 December 2010 where the Applicant verbally abused his then wife, spat on her face, pulled her hair and dragged her by the hair into the main bedroom.[27] The Applicant pled guilty to this offence and was sentenced to an intensive supervision order of 12 months.
With respect to the offence against his then wife, the Applicant claimed to be very drunk at the time and not to recall the events afterwards. However, there was evidence that he had submitted during the sentencing hearing for the Applicant’s later Grievous bodily harm conviction that the Applicant suggested the “the worst of it to his memory was perhaps grabbing her by her clothing”.[28] At the hearing before the Tribunal, the Applicant did not seek to deny the facts of the offence as outlined in the Statement of Material Facts.[29]
On 13 October 2017 the Applicant was convicted of Grievous bodily harm arising from an incident on 6 April 2016. The Applicant was at a nightclub and was bumped into a number of times by the victim. The Sentencing Judge, Stavrianou DCJ, described the circumstances of the offence as follows:[30]
..essentially it was a Wednesday, you were at this nightspot in Leederville. You were dancing and you were bumped into on a number of occasions by the other person the victim. That person walked away. Both you and the victim were under the influence of alcohol. You, in fact, told the police later that you’d consumed alcohol and also had had some prohibited drugs.
The victim and two of his friends were outside the club, they stood outside the front entrance in the car park area. You went up to them and a verbal argument began. You then struck the victim once to the jaw using your right fist. You used an uppercut motion. The victim fell backwards and regrettably struck the back of his head on the asphalt pavement. You then left the scene without providing any assistance…
The victim was taken to hospital after being put in the recovery position. Obviously the victim went by ambulance. As a result of the incident that person received a fractured skull, a fractured jaw and a subdural haematoma requiring medical attention.
The Applicant pled guilty to this offence and received a term of imprisonment of three years and three months. This is the offence which gave rise to the mandatory cancellation of the Applicant’s visa.
In sentencing the Applicant to a term of imprisonment of three years and three months, his Honour took account of the Applicant’s cooperation with police and guilty plea. His Honour noted that the victim’s injuries “were of such a nature as to endanger or be likely to endanger the life of the complainant.”[31] His Honour noted that it was a single act of violence on the Applicant’s part but although it was a single punch, it was “a hard punch”.[32] His Honour noted that the Applicant’s reaction and conduct outside the club “was out of all proportion to what had occurred earlier on during the evening”.[33] His Honour noted that a term of imprisonment was a last resort and considered a submission by the Applicant’s Counsel that he should suspend any term of imprisonment. Notwithstanding this, his Honour held that a term of three years and three months was appropriate. His Honour considered that it was not appropriate to suspend the sentence having regard to “the nature, gravity and extent of … [the Applicant’s] offending”.[34]
The Applicant submitted that there were mitigating factors. This included that:[35]
The applicant did not intend to cause the victim the injuries he sustained. The applicant struck the victim once, and did not attempt to carry on with the assault, [sic] the applicant left as soon as he hit the victim.
The Applicant submitted that the Sentencing Judge accepted that he had left the scene because he had “panicked” and that his full admissions and immediate signs of remorse show that he did not intend to inflict the injuries that the victim suffered.[36]
Further, the Applicant submitted that at the time of the offending he was under the influence of alcohol and illicit drugs. In addition he was not coping with a personal crisis in around 2013 [edited for publication].[37]
The Applicant was charged with the Grievous bodily harm offence when he was identified via a traffic stop on 31 December 2016. That stop resulted in charges, summarised below, which included no authority to drive and providing false or misleading personal details.
Disorderly behaviour and drug offences
The Applicant also has a number of convictions of disorderly conduct and one drug conviction.
The Applicant’s first offence was for Disorderly behaviour in a public place for which the Applicant was convicted on 25 October 2007. The offence arose from events on

21 October 2007 where the Applicant was observed by police fighting with another male in which he threw punches.[38] He pled guilty to this offence and was sentenced to a fine of $500.
On 18 June 2008 the Applicant was convicted of Disorderly behaviour in a public place in relation to events which occurred on 14 June 2008. On that occasion a friend of the Applicant was fighting with another male (the victim) when the Applicant intervened punching the victim to his head and body.[39] When the victim was on his knees, the Applicant kicked the victim’s head twice and the victim’s body once. The Applicant pled guilty to this offence and was sentenced to a fine of $500.
On 20 November 2012 the Applicant was convicted of Possess a prohibited drug relating to an offence on 14 October 2012 when the Applicant was found with 0.3 g of methamphetamine.[40] The Applicant pled guilty to this offence and was sentenced to a fine of a thousand dollars.
On 30 July 2015 the Applicant was convicted of the offences of Disorderly behaviour in a public place and Obstructing public officials in relation to events which occurred on

31 May 2015. In this instance the Applicant approached the police aggressively while they were attempting to make an arrest.[41] He verbally abused the police. The Applicant pled guilty to this offence. He was sentenced to fines of $500 and $600 respectively.
Driving offences
The Applicant has been convicted on a number of occasions of driving without authority, driving while suspended, providing false or misleading personal details, and other traffic related offences. These offences commenced in 2008 and continued until 2017. The Applicant acknowledged before the Tribunal that he knowingly and repeatedly drove without a licence as he had initially lost his licence while on his learner’s permit (and drove without an accompanying licenced driver). His evidence before the Tribunal was that he had never held a licence since losing his learner’s permit.
Breach of court orders and offences against police
The Applicant has also been convicted of breaching intensive supervision orders, breaching community-based orders without reasonable excuse and breaching bail. As noted above, he was also convicted of obstructing police on one occasion and of providing false details or refusing to provide a name or address to police on three occasions.
The circumstances and seriousness of the Applicant’s offending is considered further below.
The issues of going behind or impugning the convictions
The Applicant has acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
The Statement of Material Facts for the violence offences were put to the Applicant at the hearing by the Respondent. The Respondent invited the Applicant to challenge the content of the statements. However, the Applicant repeatedly stated that he plead guilty to the offences and as such had to accept that the statements reflected what had happened with respect to the offences. When challenged by the Respondent, the Applicant stated that he did not recall some of the offences occurring in the manner expressed in the Statements of Material Facts but in each instance he returned to his position that he accepted the facts as contained in the Statements as he had plead guilty to them. The one exception to this was with respect to the words used against police in the obstruct police incident which the Applicant denied were words he would use.[42]
The Respondent later submitted that it was not open to the Tribunal to “go behind” the facts of the offences. The Tribunal accepted that, on the authorities, this was the case with respect to the offence which gave rise to the exercise of power (the cancellation of the Applicant’s visa). The Respondent suggested that the implication of the authorities was broader and that because the Tribunal could consider all the offending in the exercise of its discretion to revoke the cancellation of the visa, all the offences were the basis of the exercise of the power.[43]
With respect the Tribunal does not accept this submission is a correct statement of the authorities.[44] In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803[45] (HZCP), Bromberg J provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction. According to the cases surveyed by His Honour, the Tribunal’s assessment of the circumstances of an applicant’s offending will be an important part of its consideration as to whether to exercise its discretion to revoke the mandatory cancellation of an applicant’s visa. As the discussion in HZCP demonstrates, the question of whether and to what degree the Tribunal can investigate the facts underlying the applicant’s convictions is an important one and has been the subject of detailed judicial consideration.[46]
In HZCP, Bromberg J’s detailed consideration of the authorities,[47] summarised the principles to be applied as follows (at [78]):
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.

His Honour’s judgment was considered and upheld on appeal to the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 where McKerracher J stated [at 77]:
As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a “heavy onus” on the Applicant where they seek to challenge the facts upon which those convictions are based.
Further, Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000)

106 FCR 313 (Ali) at [43] supported the proposition that the heavy onus an applicant faces in challenging the facts on which a conviction is based will be more easily met where the applicant pleads guilty to an offence. Her Honour limited those comments to a conviction and sentence upon which the power to deport is not based. Her Honour noted:
in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act[1] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted: see Spackman at 635. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
(Emphasis added.)
[1] Her Honour was considering an earlier version of the Act, however as s 200 was a precursor to s 501 her comments are equally applicable to the current application.
The Tribunal considers that it is bound by the principles espoused in the authorities and in particular by the decision of the Full Court of the Federal Court in HZCP.
In any event, as indicated to the Respondent at the hearing, the Tribunal was of the view that the issue did not arise in this case as the Applicant accepted the Statements of Material Facts and did not seek to go behind the convictions or the findings of fact on which they were based. In the Tribunal’s view he was entitled to do so notwithstanding he may not recall the events in precisely the same way. He adopted the position that it was not open to him to challenge the facts he had plead guilty to and it was open to him to do so. The Applicant was keen to impress on the Tribunal he took responsibility for those convictions fully by not challenging the facts of the offences. The Tribunal accepted that he was genuine in his attempt to take responsibility for those offences.
Accordingly, while the Tribunal has considered the broader question of the degree to which the Applicant is genuinely remorseful and has insight into his offending, in the context of the assessment of risk below, the Tribunal does not accept the Applicant sought to go behind the convictions by challenging the facts of them.
Accordingly the Tribunal finds the Applicant’s offending history is as detailed in the National Police Certificate. With only minor exceptions, the Applicant did not contest the Statements of Material Facts for those offences to the extent they were available and put to him at the hearing. Accordingly, the Tribunal finds that the facts of the offences are as outlined in the Statements of Material Facts. Further, the Applicant did not challenge the factual findings of the District Court in relation to the Grievous bodily harm offence. The Tribunal adopts those factual findings.
PRIMARY CONSIDERATIONS
Pursuant to para 13(2) of Direction No. 79, the following are primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of the Applicant’s visa:
(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.
First primary consideration: Protection of the Australian community (para 13(2)(a) of Direction No. 79)
Paragraph 13.1 of Direction No. 79 provides that:
(1)When considering 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 noncitizens 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…
(2)Decision-makers 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.
Nature and seriousness of the conduct (para 13.1(2)(a) of Direction No. 79)
Paragraph 13.1.1(1) of Direction No. 79 sets out the factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. In this regard, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
To his credit, the Applicant did not dispute that his offending was serious.[48]
Paragraph 13.1.1(1)(a) of Direction No. 79 states that “violent and/or sexual crimes are viewed very seriously”. Paragraph 13.1.1(1)(b) states that “crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed”. As noted above, the Applicant was convicted of one count of Grievous bodily harm, one count of Unlawful assault with circumstances of aggravation and one count of Assault occasioning bodily harm. Having regard to para 13.1.1(1)(a), these are violent crimes which are viewed very seriously. Further, in relation to the conviction for Unlawfully assaulted with circumstances of aggravation, the victim was the Applicant’s estranged wife. Having regard to para 13.1.1(1)(b), this was a violent crime against a woman and is to be viewed very seriously regardless of the sentence imposed.
Paragraph 6.3(3) of Direction No. 79 is also applicable to the Applicant’s offending, because it states that a non-citizen who has committed a “serious crime”, including violent crimes against women, should generally expect to forfeit the privilege of staying in Australia. In evidence before the Tribunal, the Applicant said he found it hard to believe he had been violent against his wife. While he said he did not recall the details of the offence ultimately he indicated he accepts the facts of the offence as put to him and accepts that his actions were serious. However, he notes that they remained in the relationship for three years after these events and they remain in contact. Additionally, there were no further incidents of violence recorded though there were breaches of court orders in the period following the Applicant’s conviction for the offence against his wife.
Paragraph 13.1.1(1)(c) of Direction No. 79 provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has a conviction for an offence against a government official in the performance of their duties, specifically obstructing public officers. According to the Statement of Material Facts, this included the Applicant directing verbal abuse at police officers who were apprehending a friend. While the Tribunal regards that offence on its own as at the lower end of seriousness, it does reflect negatively on the general assessment of the seriousness of the Applicant’s offenses and conduct.
Paragraph 13.1.1(1)(a) of Direction No. 79 does not limit the range of offences that may be considered serious. As can be seen from the above summary of the Applicant’s offending, he has a number of traffic related convictions including eight convictions for driving without authority or driving without a licence (the Applicant’s evidence was that he has never held an Australian driver’s licence). Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 noted the serious nature and adverse consequences of driving offences stating at [43]-[45]:
43.…There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle.
His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
44.I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expert in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
(Footnotes omitted.)
The comments of Senior Member Tavoularis above regarding unlicensed driving are applicable to the Applicant’s driving record. The Applicant’s record of repeat driving offences tends to indicate a disregard for legal authority and an inability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places the safety of members of the public at risk. As noted by Senior Member Tavoularis, there are a range of implications and potential risks associated with such offending including insurance implications. It is for these reasons, and for the persistent flouting of traffic laws across an extended period that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious.
Applying para 13.1.1(1)(d) of Direction No. 79, the Applicant received a term of three years’ and three months’ imprisonment for the Grievous bodily harm offence. The Sentencing Judge determined that a suspended sentence was not appropriate. While the Applicant was made eligible for parole which was subsequently granted, in the Tribunal’s view, this was a significant sentence which reflects the serious nature of the offence. This is reflected in the Sentencing Judges’ comments.
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness,[49] the Applicant’s first conviction, for disorderly behaviour, was in 2007. Following two disorderly behaviour offences both of which involved incidents of public violence, the Applicant was convicted of the Assault occasioning bodily harm offence in 2010 and the Assault with circumstances of aggravation offence in 2011. A further disorderly behaviour offence followed in 2015 and the Grievous bodily harm conviction was in 2017. Driving offences have been a persistent feature of his record since 2008. In the Tribunal’s view, the Applicant’s general offending was frequent and has continued regardless of the penalties imposed on him. Further, in the Tribunal’s view, there is a trend of increasing seriousness of the Applicant’s violent offending which contributes to the assessment of his offending as serious.
With respect to the cumulative effect of repeated offending,[50] the Applicant has a consistent history of offending since 2007 which would necessarily have burdened the resources of police, corrective services, and the courts.
There is no evidence that the Applicant has provided false or misleading information to the Department by not disclosing prior criminal offending, and so para 13.1.1(1)(g) of Direction No. 79 is not applicable. Further, para 13.1.1(1)(h) of Direction No. 79 is not applicable because the Applicant did not receive any prior warnings.
Paragraph 13.1.1(1)(i) of Direction No. 79 is also not applicable because the Applicant has not committed any crimes in prison or immigration detention. The Tribunal accepts on the evidence that the Applicant has been on good behaviour in prison and detention which is to his credit.
The Tribunal accepts the fact that the Applicant was suffering a personal crisis [edited for publication] and that this caused stress for the Applicant. However, the Applicant’s offending commenced in 2007 and included two serious violent offences committed in 2010 and 2011, with the later offence committed against his wife. Accordingly, it is not plausible, on the evidence before the Tribunal, that the Applicant’s personal crisis [edited for publication] contributed to the Applicant’s offending in those instances which occurred before he was made aware of it in 2015.
With respect to the Grievous bodily harm offence, and other offences subsequent to the Applicant’s personal situation [edited for publication], the Tribunal accepts that personal stressors, including [edited for publication], may have contributed to the Applicant’s offending. However, the Tribunal does not accept that they diminish the seriousness of the offending. Rather, the Tribunal considers these factors as relevant to the assessment of the Applicant’s risk of reoffending (below).
Having regard to all the circumstances of the Applicant’s conduct, the Tribunal considers that the nature and seriousness of the Applicant’s offending and conduct is serious and weighs strongly against exercising the discretion to revoke the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 13.1(2)(b) of Direction No. 79)
A decision-maker should also have regard to the following principle, described in para 13.1.2(1) of Direction No. 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[51]
The Applicant’s main contention with respect to this consideration is that he presents a low risk of reoffending and that, to the extent that he presents any risk, this is outweighed by other considerations including the best interests of his children. With respect to the risk to the Australian Community should the Applicant re-offend, the Applicant submitted that he presented a low risk of re-offending. In particular, the Applicant cited the following in support of the low risk he presents to the community:[52]
·his remorse over his conduct, particularly his violent offending, and his full admission of guilt;
·the realisation of the impact his offending has had on his family and in particular his children and his mother;
·the possibility he may be removed from Australia;
·the fact he did not intend to cause the injuries sustained by the victim of the Grievous bodily harm offence;
·insight into his offending gained through counselling sessions undertaken in prison and religious groups and courses;
·his relationship with his children and family which will provide a strong protective factor against reoffending;
·the fact he has come to terms with underlying issues which contributed to his offending including his personal situation [edited for publication];
·the fact he has an offer of stable employment on release;
·his acknowledgement that he needs to address his anger and reckless behaviour; and
·the fact the Applicant undertook courses and rehabilitation to address previous assessments that he was a high-risk of general re-offending.

The Respondent contended that if the Applicant were to reoffend it would clearly cause physical, psychological and financial harm to members of the Australian community. Given the nature of harm to the community which could be caused should the Applicant reoffend, any risk of similar conduct in the future is unacceptable.[53]
In particular, the Respondent contended that the Tribunal should have significant concerns in respect of the risk of re-offending having regard to the following:[54]
·A lack of independent evidence to demonstrate that the Applicant has been successfully rehabilitated including:
olimited evidence the Applicant has undertaken drug and alcohol counselling;
othe fact that the Applicant’s commitment to rehabilitation is untested in the community; and
othe fact that the support of his family and friends have not been protective factors in the past.
·Given that the Level of Service/Risk, Need, Responsivity (LS/RNR) and Violence Risk Scale-Screening Version (VRS-SV) assessments conducted in the context of the Applicant’s sentencing and imprisonment for the Grievous bodily harm offence which found that the Applicant was at a high risk for general offending and a moderate risk of violent offending, in the absence of any independent evidence of successful rehabilitation, the Applicant remains an unacceptable risk of further offending.
The Applicant has committed a serious violent offence which caused the victim significant injuries. These were outlined in the Sentencing Judge’s comments which are detailed above. His Honour further noted:[55]
The injuries, as appear from the medical evidence, were of such a nature as to endanger or be likely to endanger the life of the complainant.
Without medical treatment, the complainant’s life would have been endangered by enlargement of the haematoma and the brainstem compression… the injuries were of such a nature as to cause or be likely to be cause permanent injury to health without medical treatment, the potential for permanent injuries, including hemiplegia, visual defects and neuro cognitive deficits, existed.
The Sentencing Remarks also refer to the emotional, physical and financial impact of the offence on the victim.[56]
Were the Applicant to reoffend in a similar manner, in the Tribunal’s view there is a real risk of serious physical harm, even death, to a victim. There is also a significant risk of serious psychological and financial impact on a victim.
The Applicant has also committed a number of other violence related offences or offences which involved violence on the part of the Applicant. This included an assault offence against his then wife. The Applicant’s violent offending involved actual and threatened physical violence against victims including his former wife. The serious impacts of domestic violence on the community have been noted previously by the Tribunal.[57] In the Tribunal’s view, were the Applicant to reoffend in a similar manner in the future against his ex-wife or a future partner, the risk of harm to his family and the broader community is serious.
Similarly, general violent offending carries with it serious risks of physical harm for members of the community. It also carries the risk of psychological and financial harm associated with injury, treatment and recovery.
The Applicant was also convicted of breaching a number of orders made by the courts which were put in place to protect the victims of his violent offending and to ensure he engaged in appropriate rehabilitation. Such orders are an important tool in protecting the community. If the Applicant were to engage in such offending in the future there is a risk of harm to members of the community, the protection of which such orders serve. While the risk to the community presented by such behaviour is less significant than his violent conduct, the breach of protective court orders presents a risk to the order and security of the community which cannot be ignored.
As noted above, the Applicant has repeatedly offended against traffic laws including driving without a licence. Such offending risks serious injury to the community through motor vehicle accidents and impacts on insurance systems designed to protect victims of traffic accidents.
Further, the Applicant offended against public officers in the performance of their duties and while the Tribunal has found the circumstances of that offence to be at the low end of seriousness, offending against law enforcement officers and public officials presents a risk to public officials in the discharge of their duties and thus to the broader order and security of the community.
Based on the Applicant’s history of offending, the Tribunal finds that if the Applicant reoffends in a manner consistent with his past offending this would likely include significant harm to members of the community. Such harm could include potentially
life-threatening physical injury to victims, as well as the potentially significant psychological and financial impacts which victims may suffer as the result of such injuries. Further risks include those associated with unlicensed driving including injuries to road users and the impacts on the good order and safety of the community caused by breaching court orders and obstructing police.
Accordingly, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend is very serious.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community. [58]
In Stravrianou DCJ’s Sentencing Remarks, His Honour noted that it could not be submitted that the Applicant had prior good character. His Honour made reference to a pre-sentence report which was not before the Tribunal. His Honour noted that the report observed that:[59]
[the Applicant] accepted responsibility for your offending and notes that you were aware you’re most likely to receive a period of imprisonment for the current offence, and that demonstrates to me that you have insight, which is of considerable importance.
His Honour went on to note with respect to the report that:[60]
your previous compliance with community orders has been mixed but that you’ve not been the subject of an order since 2012.
His Honour also noted to the Applicant’s credit that he had pled guilty via the fast track system and had participated and cooperated with the police record of interview. While His Honour did not make any further reference to the Applicant’s risk of reoffending, he did note that the offence was a single act of violence.[61] Notwithstanding this, His Honour considered that the appropriate sentence was a custodial sentence of three years’ and three months’ imprisonment. As noted earlier, the Applicant was made eligible for, and was granted, parole. According to the Parole Order, parole was granted on 7 May 2019 and commenced on 29 May 2019 effective to 12 January 2021.[62]
The Parole Review Report dated 27 March 2019[63] indicates that the Applicant was assessed for departmental treatment intervention and was assessed to be eligible for the “General offending – medium intensity program” which he completed at Acacia prison on 5 February 2019.[64] The Parole Review Report contains the following Summary of Evidence for Program Allocation:[65]
Based on the current assessment [the Applicant] presents a high risk of general reoffending on the LS/RNR and a moderate risk of violent reoffending on the

VRS-SV. It is recommended that [the Applicant] complete the Medium Intensity Program to address his violent behaviour and substance use. [The Applciant] recognised his problem areas and expressed willingness to engage in treatment programs.
The Parole Review Report also indicates that the Applicant attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings during prison.[66] The evidence records that he voluntarily attended 12 AA meetings and 14 NA meetings while in prison.[67]
The Tribunal notes that the Treatment Assessment Report which records the outcomes of the program allocation assessment indicates that the high risk of general offending was based on recidivist criminal behaviour, unemployment, illicit substance abuse and poor consequential thinking.[68] This risk of violent offending risk factors include violent lifestyle, interpersonal aggression, poor emotional regulation and impulsivity.
Parole was granted on the basis that the Prisoner’s Review Board decided that the Applicant’s release would present an acceptable risk to the safety of the community due to:[69]
·successful completion of the Medium Intensity General Offending program with reported gains;
·participation in voluntary programmes demonstrating a motivation and willingness to address his offending behaviour;
·the salutary impact of this being his first term of imprisonment and first opportunity for parole supervision;
·his parole plan including suitable accommodation, employment and family support; and
·the conditions of parole which further reduce the risk of safety of the community.
These reasons were in line with the Parole Assessment report which also noted the Applicant’s good behaviour in prison and his immigration status.[70]
The additional requirements of the parole order included that the Applicant:[71]
·attend random drug testing as required;
·not consume alcohol;
·not enter licenced premises excluding cafes, restaurants and sporting venues and grocery stores but not purchase liquor;
·submit to random breath testing;
·comply with mental health treatment directed by a medical practitioner;
·attend programmes and counselling as directed; and
·engage and remain engaged in employment, training or job seeking.
The Tribunal notes that the Prisoner’s Review Board is required to make an assessment as to whether the person will be an unacceptable risk to the safety of the community if they are released on parole and subject to a period of parole supervision in the community.[72] If the Board regards a prisoner as being an unacceptable risk to the safety of the community, parole will be denied. The assessment of risk is for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner will be supervised by, and report regularly to a community corrections officer, who will monitor the prisoner’s compliance with the parole conditions imposed by the Board. The Tribunal observes that the Board’s decision to release the Applicant to parole would have been made after an assessment of his risk to the safety of the community and the extent to which monitoring and supervision to ensure compliance with the conditions of parole would reduce this risk. However, this does not mean that the Board formed the view that the Applicant was not a risk to the safety of the community, or that he was fully rehabilitated and would not re-offend in the future. The import of the order is that the Board was of the view that with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community. The Tribunal takes into account the granting of parole to the Applicant by the Board and the assessment that he did not pose an unacceptable risk to the safety of the community for a period of parole supervision and monitoring on specified terms. However, as was observed Senior Member Dr M Evans in Varley and Minister for Home Affairs (Migration) [2019] AATA 376 [at 110]:
The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
A record from the Department of Corrective Services Community Business Information System (the Corrective Services parole notes), which indicates what appear to be parole event details for the Applicant, records that a further LS/RNR Assessment was undertaken in April 2019[73] prior to the grant of parole. The comment recorded on that event was that “[the Applicant’s] profile indicates he presents with a medium risk of general reoffending”.[74] This suggests that the Applciant’s time in prison and his participation in the Medium Intensity Program lowered his assessed risk of general offending from “high” to “medium”. The Tribunal was unable to find in the material before it an updated assessment of the Applicant’s risk of violent offending which at the time of sentencing was medium.
While in prison the Applicant completed a Medium Intensity Program (from

12 September 2018 to 5 February 2019). According to the Applicant’s Program Completion Report, the aims of the program were:[75]
to gain a sound understanding of their general offending behaviour, recognise factors that contributed to their offending and develop a viable and manageable relapse prevention plan specific to their offending patterns and behaviour.
The report noted relevant factors of the Applicant’s personal history including violent physical discipline by his step-father. The report notes that prior to the Grievous bodily harm offence his relationship broke down and he was “not in contact with his children’”.[76] The report noted he had repaired his relationships since he was incarcerated.
The Report indicated the Applicant attended 53 out of 56 sessions of the program. The Tribunal notes that the Corrective Services Offender Notes[77] recorded that the Applicant was told in December 2018 that as he was absent for three sessions from the program, he may be removed if he did not attend all remaining sessions.[78] The report notes he claimed the absences were due to injury and external stressors. The report observes that the Applicant’s insight into his anger issues was “inconsistent, often justifying or minimising his use of violence”, inconsistencies which the report links to the Applicant’s inability to emotionally regulate.[79]
Regarding his substance use, which was identified as a factor in his offending, the report identified further ongoing intervention would be beneficial.[80] The report went on to state that the Applicant:[81]
showed emerging gains in ability to utilise adaptive coping skills to manage emotional regulation and interpersonal aggression … made shifts in substance use goals and violence supportive beliefs, however remains in the contemplative stage. He articulated a desire to remain abstinent from substances on release, however at times maintained views permissive of substance use to manage stressors.
The reported stated that the Applicant:
demonstrated insight into potential high-risk areas and recognised strategies to mitigate risks, however his ability to utilise these skills will be dependent on his emotional regulation.
As noted above, the material produced from the parole process suggests that the Applicant’s time in prison and his participation in the Medium Intensity Program lowered his assessed risk of general offending from “high” to “medium”. This is encouraging progress but leaves the Applicant presenting as a moderate or medium risk of general offending and with identified areas where further intervention may be needed, including substance use and emotional regulation.
Another issue which is highlighted by the report is the Applicant’s heavy reliance on his family as a pro-social network to reduce the risk of reoffending. This network includes his stepfather whom he plans to live with but who he identified during the program as a role model for expressing anger through aggression. Further, the Respondent submitted, and the Tribunal accepts, that this pro-social network was the same network available to, and supporting, the Applicant during his period of offending. His commitment to and support from his family and children was not sufficient to stop him offending in the past and there is a risk this network would not be an effective means of preventing him reoffending in the future, either because he fails to avail himself of that support or because elements of that network reinforce impulsivity and aggression as an acceptable and normalised response.
The Applicant had previously been assessed for participation in a domestic violence program in 2011.[82] In the Community-Domestic Violence Assessment Report it was noted that:
[The Applicant] could not identify any other factors (other than alcohol) to explain the violence and therefore, appears to be seeking to deflect responsibility for his own violent behaviour.[83]
The report noted that the Applicant had indicated a number of instances of types of violence including:
being verbally aggressive, grabbing his partner; twisting her arm, pulling her hair, pushing her to the ground, throwing food and objects, threatening to destroy her property and breaking down a door.
The report noted that Mr Gage did not take direct responsibility for the act of violence against his then wife. The report notes the conclusion that:
Mr Gage uses his drunkenness as an explanation or a form of deflection of responsibility for his own violent behaviour.
The Community-Domestic Violence Assessment Report further noted that Mr Gage’s previous offences, including traffic offences, “indicate an unwillingness to accede to legitimate authority, and or [sic] social norms of compliance with traffic and other laws intended to maintain public order, safety, decency and social cohesion”. The report noted a willingness and motivation to deal with issues that caused him to offend and formed the view that:[84]
It is anticipated that engaging in therapeutic interventions in relation to both Domestic Violence and Alcohol and other Drug Use, that [the Applicant] may well gain the insight and skills to meet his goals of gaining assistance to “Help [learn] how to deal with my emotions [and] how to react better to situations” and thereby reduce the chances or severity of offending behaviour in the future.
The Applicant was referred to a Relationships Australia Men’s Domestic Violence Program. He was scheduled to do 48 hours of the program but only attended for 24 hours (12 sessions). The Program Non-Completion Report indicates that he was referred to the program in January 2011.[85] His non-completion date was 15 August 2011. The report notes that the Applicant had initially displayed a good attitude and consistently participated well. However, following three absentees he was exited from the program. The report records that:[86]
Towards his exit from the program [the Applicant] started to talk about circumstances and issues in his relationships which alerted facilitators to the fact he was using entitlement and ownership as a form of power and control. This mind-set relates strongly to his use of violence in the [Assault in circumstances of aggravation] offence.
The report recommended that the Applicant complete a men’s domestic violence program or individual counselling in order to address issues of “entitlement and ownership”. There is no evidence before the Tribunal that the Applicant has completed a men’s domestic violence program. There is evidence he has undertaken some individual counselling sessions in prison. However, it does not appear from the records of these sessions that they were to address domestic violence concerns or “entitlement and ownership” and concerns were expressed in the reports of those two sessions regarding his motivation for seeking treatment.[87]
This unmet treatment need causes the Tribunal some concern that these issues may increase the risk of the Applicant reoffending against a domestic partner. Given that the Applicant has only one domestic violence related conviction with respect to his former partner, has been separated and divorced from her for some time and has her support to remain in Australia, the Tribunal regards the risk of the Applicant reoffending against her to be low. However, as the issues identified as causes of his use of violence in a domestic relationship appear to remain unaddressed, the Tribunal regards that there remains a risk that he will offend in a similar way against a domestic partner.

The evidence before the Tribunal indicates that the Applicant is from a strong Maori family and is familiar with New Zealand culture. There was evidence he had been taught his peoples culture and traditions, particularly by his grandmother. These issues are not likely to amount to substantial impediments to his return and resettlement.
He is relatively young and on the evidence before the Tribunal is generally in good physical health. There is also evidence he had a knee brace at some point which he did not wear in prison. However, no evidence regarding any medical issues concerning this or any other medical ailment was presented to the Tribunal. In any event there is no evidence that the Applicant would not have access to medical care of a standard available to New Zealand citizens or that health care in New Zealand would be unable to meet his treatment needs.
The Tribunal regards that the Applicant’s employment experience in Australia would assist him in obtaining employment in New Zealand noting that he has worked in a range of industries.
The Applicant’s mother and step-father have offered to provide housing and other support to the Applicant on his release from detention. The Tribunal accepts that this level of support would not be readily available to the Applicant in New Zealand and that he would suffer hardship as a result.
The principal hardship for the Applicant in returning to New Zealand will be the separation from his family. The Tribunal accepts that if he is removed from his family network the Applicant will suffer emotional and financial hardship and may be at a higher risk of reoffending.
On balance and having considered all the Applicant’s circumstances, the Tribunal considers that the Applicant will face some impediments in re-establishing himself if returned to New Zealand. The most significant impediment for the Applicant would be separation from his family. The Tribunal considers that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
CONCLUSION
Direction No. 79 provides some guidance as to how a decision-maker should apply the primary and other considerations, and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction No. 79.
In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant’s circumstances, including his history of offending and his attempts at rehabilitation. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has had particular regard to the fact the Applicant has been afforded opportunities in the past by the criminal justice system to change his behaviour. He has repeatedly failed to do so. The Tribunal has also had regard to the Applicant’s current demonstration of remorse and his stated commitment to rehabilitation. The Tribunal has considered the best interests of the relevant minor children and in particular the Applicant’s two children who would be significantly impacted by his removal from Australia. The Tribunal has also considered the expectations of the Australia community regarding the Applicant’s offending and whether he should continue to hold a visa. The Tribunal has also had regard to the other considerations, in particular the strength, nature and duration of the Applicant’s ties to Australia, which are considerable.
In relation to the first primary consideration, the Tribunal finds that:
·the nature and seriousness of the Applicant’s conduct weighs strongly against revoking the cancellation decision;[167]
·the risk to the Australian community should the Applicant commit further offences also weighs against revoking the cancellation decision;[168]
·Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community weighs against revoking the cancellation decision.[169]
The Tribunal finds that the best interests of the Applicant’s children weigh heavily in favour of revoking the cancellation decision. The best interests of the children of Ms Tutu Marsters and Ms Allison Marsters weigh moderately in favour of revoking the cancellation decision.[170]
With respect to the expectations of the Australian community, the Tribunal finds that this consideration weighs against revoking the cancellation decision.[171]
In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revoking the cancellation decision.[172] Considering the impact of non-revocation on a victim of the Applicant’s offending, the Tribunal finds that a decision not to revoke the cancellation of his visa would impact negatively on a victim of the Applicant’s offending and her family.[173] The Tribunal finds this consideration weighs in favour of revoking the cancellation decision with respect to this victim. The Tribunal finds that with respect to any other victims whose circumstances and views are not known the consideration is neutral.
The Tribunal has also found that there are impediments to the Applicant’s removal to New Zealand.[174] This factor weighs in favour of revoking the cancellation decision. However, as the impediments are not insurmountable, they do not weigh strongly in the balance of considerations.
The Tribunal has given consideration to the impact on Australian businesses and found that factor to be neutral in the Applicant’s circumstances. The issue of non-refoulement did not arise for consideration in submissions or on the information before the Tribunal.
The Tribunal has considered carefully the best interests of the Applicant’s children. The Tribunal accepts that the best interests of the children are that the cancellation be revoked. However, the Tribunal finds that this will only be the case if the Applicant ceases substance abuse and does not reoffend in a manner similar to his past history. By his own admission, the Applicant’s past actions have separated him from his children for significant periods and placed impediments on him providing day-to-day support for them. While the Tribunal weighs heavily the best interests of the children, it is the Applicant’s offending and in particular his repeated offending which has placed his children in this difficult position. Thankfully the children have the care and protection of their mother who is and has been their primary caregiver for some time, the love and support of a large family and community in Australia and the ability to return to New Zealand on an occasional or permanent basis should they chose to do so. Having weighed these considerations against the others mentioned above, the Tribunal places less weight on this primary consideration.
While the children’s interests are best served by the Applicant remaining in Australia, the Australian community is not best served by the Applicant remaining here. He has shown an unwillingness or inability to regulate his violent behaviour which escalated to the point where a victim was caused serious, life-threatening, injuries. Although remorseful, he has not sufficiently addressed the causes of his offending and did not have a clear plan for doing so. He has consistently failed to comply with the laws of Australia which are put in place for the protection and good order of the Australian community and has displayed in his offending a disregard for the importance and authority of those laws and the institutions which enforce them. This has made him an unacceptable risk to the community going forward. Having regard to all the circumstances of the Applicant’s case, the Tribunal is of the opinion that the primary obligations of the protection of the Australian community and the expectations of the Australian community outweigh the other considerations that weigh in favour of revoking the cancellation decision.
In summary, having regard to all of the relevant primary considerations and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Respondent’s delegate dated

29 November 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 251 (two hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

......[sgd]..................................................................
Associate
Dated: 24 February 2020

Date of hearing: 7 February 2020

Applicant: Self-represented

Counsel for the Respondent: Christopher Orchard

Solicitors for the Respondent: Sparke Helmore
ANNEXURE A – EXHIBIT LIST
·Applicant’s Statement of Facts, Issues and Contentions filed 30 January 2020 (Exhibit A1);
·Statement of the Applicant dated 27 January 2020 (Exhibit A2);
·Statement of Allison Josephine Marsters (undated) (Exhibit A3);
·Statement of Allison Josephine Ngakiri dated 20 December 2019 (Exhibit A4);
·Statement of Arphirak Paul (undated) (Exhibit A5);
·Statement of Briar Maraina Tuhoro-Gage dated 11 January 2020 (Exhibit A6):
·Statement of Richard Eynon dated 15 January 2020 (Exhibit A7);
·Statement of coach Keith Brady dated 10 December 2019 (Exhibit A8);
·Statement of Liam Oman–Salisbury (undated) (Exhibit A9);
·Statement of Manunui Timothy James Tito dated 9 December 2019 (Exhibit A10)
·Statement of Marian Paul dated 9 December 2019 (Exhibit A11);
·Statement of Maru Paul dated 23 December 2019 (Exhibit A12);
·Statement of Michael John Paul Purea (undated) (Exhibit A13);
·Statement of Michael Noel Freeman dated 9 January 2020 (Exhibit A14);
·Statement of Monique Gaye Williamson dated 27 December 2019 (Exhibit A15);
·Statement of George Patrick Graham (undated) (Exhibit A16);
·Statement of Sarah Jessica Gage (undated) (Exhibit A17);
·Statement of Sophie Te Paea Pile dated 9 December 2019 (Exhibit A18);
·Statement of Talia Maraina Tuhoro dated 10 January 2020 (Exhibit A19);
·Statement of Richard Nicholas Perry dated 10 January 2020 (Exhibit A20);
·Statement of Timothy James Paltridge (undated) (Exhibit A21);
·Statement of Tipene Galiki dated 9 January 2020 (Exhibit A22);
·Statement of Topia Morehu dated 9 December 2019 (Exhibit A23);
·Statement of Victor Terehutai Paul dated 19 December 2019 (Exhibit A24);
·Statement of Tutu Victoria Marsters dated 6 January 2020 (Exhibit A25);
·Certificate of Participation of Gaston Gage for Life Skills dated January 2020 (Exhibit A26);
·Certificate of Participation of Gaston Gage for Men’s Group dated January 2020 (Exhibit A27);
·Respondent’s Statement of Facts, Issues and Contentions dated 16 January 2020 (Exhibit R1);
·G Documents filed by the Respondent on 17 December 2019 (Exhibit R2); and
·Tender Bundle filed by the Respondent on 16 January 2020 (Exhibit R3).

ENDNOTES
[1] R2, G30, page 156.
[2] R2, G30, page 157.
[3] R2, G30, pages 158-159.
[4] R2, G7, page 44.
[5] R2, G3, pages 9-13; R2, G8, page 47.
[6] R2, G3, pages 10-11.
[7] R2, G14, pages 66-82.
[8] R2, G15-25.
[9] R2, G26-27.
[10] R2, G28-29.
[11] R2, G6, page 30.
[12] R2, G6, pages 27-43.
[13] R2, G 32, page 193.
[14] Migration Regulations1994 (Cth), Reg 2.55(5).
[15] R2, G2, pages 3-8.
[16] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).
[17] Para 13(1) of Direction No. 79.
[18] R2, G14, G27, G29.
[19] R2, G6, Page 32.
[20] R1, page 9.
[21] R1, pages 4-7.
[22] R1, pages 7-8.
[23] R1, pages 9-11.
[24] R2, G7, pages 44-46.
[25] R3, page 7-10.
[26] R3, page 34.
[27] The Statement of Material Facts contained conflicting dates for this event which the parties both submitted occurred on New Year’s Eve 2010. The statement refers to the event occurring on 31 December 2011 however this appears to be a typographical error.
[28] R3, page 75.
[29] R3, page 31.
[30] R2 G9, page 50.
[31] R2, G9, page 53.
[32] R2, G9, page 54.
[33] R2, G9, page 54.
[34] R2, G79, page 54-55.
[35] A1, page 6, para 43.
[36] A1, page 6, para 45-46.
[37] Transcript, page 29.
[38] R3, page 43.
[39] R3, page 38.
[40] R3, page 28.
[41] R3, pages 19-20.
[42] Transcript, page 20-21.
[43] Transcript, page 66-67.
[44] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [77]). See also the survey of Bromberg J HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 and consideration of the issues by this Tribunal in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 4424 (31 October 2019) and Toki and Minister for Home Affairs (Migration) [2019] AATA 742 (17 April 2019)
[45] Upheld on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
[46] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Ethnic Affairs v Gungor (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981); Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
[47] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
[48] A1, page 6, para 42.
[49] Para 13.1.1(1)(e) of Direction No. 79.
[50] Para 13.1.1(1)(f) of Direction No. 79.
[51] Nigro v Secretary to the Department of Justice (2013) 41 VR 359 cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444 [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124[42]-[43]. See also Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [56].
[52] A1, pages 6-10.
[53] R1, page 7, para 21.
[54] R1, pages 7-8.
[55] R2, G9, pages 53-54.
[56] R2, G9, page 52.
[57] See XFKR and Minister for Immigration and Border Protection [2017] AATA 2385; QGMJ and Minister for Immigration and Border Protection [2017] AATA 1537; QSBL and Minister for Home Affairs [2018] AATA 2074 at [59]; and ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99].
[58] Para 13.1.2(1)(b) of Direction No. 79.
[59] R2, G9, page 53.
[60] R2, G9, page 53.
[61] R2, G9, page 54.
[62] R3, page 217-218.
[63] R3, page 155.
[64] R3, page 159.
[65] R3, page 162.
[66] R3, page 159.
[67] R3, page 223.
[68] R3, page 193-196.
[69] R3, page 217.
[70] R3, pages 160-161.
[71] R3, page 218.
[72] The Sentence Administration Act 2003 (WA) at s 5B provides that the Board “must regard the safety of the community as the paramount consideration”.
[73] R3, page 222.
[74] R3, page 222.
[75] R3, page 131.
[76] R3, page 132.
[77] R3, pages 122-130.
[78] R3, page 122.
[79] R3, page 133.
[80] R3, pages 133-134.
[81] R3, page 135.
[82] R3, page 239-242.
[83] R3, page 239
[84] R3, page 242
[85] R3, page 237.
[86] R3, page 238,
[87] R2, G21 and G22.
[88] R2, G21 and G22.
[89] Transcript, pages 26-27.
[90] Transcript, page 38.
[91] A7; see also R2, G17, page 93.
[92] Transcript, page 59-60
[93] Transcript, pages53-55.
[94] R3, page 225.
[95] R2, G17, page 101.
[96] A25.
[97] A3.
[98] A11, para 13; A12, para 14.
[99] A19
[100] R2, G30, pages 157-159.
[101] Para 13.2(4)(a) of Direction No. 79.
[102] R3, page 132.
[103] A19
[104] Direction No. 79, para 13.2(4)(e).
[105] Direction No. 79, para 13.2(4)(c).
[106] Direction No. 79, para 13.2(4)(b).
[107] Direction No. 79, para 13.2(4)(d).
[108] Direction No. 79, para 13.2(4)(g).
[109] Direction No. 79, para 13.2(4)(h).
[110] Direction No. 79, para 13.2(4)(f).
[111] A6.
[112] A19.
[113] For example the statement of his mother at A11.
[114] Direction No. 79, para 13.2(4)(f).
[115] For example the statement of his mother at A11
[116] R2, P17, page 101.
[117] R2, P17, page 101.
[118] A17
[119] Direction No. 79, para 13.2(4)(b).
[120] Direction No. 79, para 13.2(4)(c).
[121] Direction No. 79, para 13.2(4)(d).
[122] Direction No. 79, paragraph 13.2(4)(e).
[123] Direction No. 79, para 13.2(4)(f).
[124] Direction No. 79, para 13.2(4)(g).
[125] Direction No. 79, para 13.2(4)(h).
[126] Direction No. 79, para 13.2(3).
[127] A4; Direction No. 79, para 13.2(4)(f).
[128] A25; R2, G17, page 97: Transcript, pages 45-48.
[129] Transcript, pages 47-48; A25.
[130] Direction No. 79, para 13.2(4)(a).
[131] Direction No. 79, para 13.2(4)(b).
[132] Direction No. 79, para 13.2(4)(c).
[133] Direction No. 79, para 13.2(4)(d).
[134] Direction No. 79, para 13.2(4)(e).
[135] Direction No. 79, paras 13.2(4)(g) and (h).
[136] Transcript, page 51; A3; see Statement of Aaron Marsters, R2, G17, page 103. The Tribunal notes Mr Marsters’ statement makes reference to his 11-year-old son but no other mention has been made to that child and the Tribunal has considered Mr Marsters’ family ties to the Applicant under the considerations of his ties to Australia and impediments to removal.
[137] Direction No. 79, para 13.2(3).
[138] Direction No. 79, para 13.2(4)(a).
[139] Direction No. 79, para 13.2(4)(f).
[140] A3; Transcript, pages 49-52.
[141] Transcript, page 51.
[142] A3.
[143] Transcript, page 50.
[144] Direction No. 79, para 13.2(4)(b).
[145] Direction No. 79, para 13.2(4)(c).
[146] Direction No. 79, para 13.2(4)(d).
[147] Direction No. 79, para 13.2(4)(e).
[148] Direction No. 79, paras 13.2(4)(g) and (h).
[149] A1, page 11.
[150] A1, page 11.
[151] While the case of FYBR (FC) concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court’s consideration of the issue of “community expectations” is directly applicable to paras 6, 8 and 13.3 of Direction No. 65 which are applicable to applications under Direction No. 79. Further, although the Justices in FYBR (FC) were considering the provisions with respect to visa refusal their comments are, in the Tribunal’s view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).

[152] Charlesworth J at [73]-[74]; Stewart J at [93] and [103]
[153] See Charlesworth J (at [74]), Stewart J (at [91]-[93]).
[154] See for example Direction No. 79 paras 13.1.1(1)(a), (b) and (c).
[155] A3-A25; R2, G17, pages 86-120.
[156] R2, G14, page 77.
[157] R1, page 11, para 38-39.
[158] A12.
[159] Including Perth Brother’s Touch Association, A15; R2, G17, page 105; Fremantle Rebels Touch Association, R2, G17, page 120.
[160] See for example R2, G17, pages 93, 113 and 116; A14.
[161] A7.
[162] A10.
[163] A14.
[164] Para 14.4(1) of Direction No. 79.
[165] R2, G14, page 80.
[166] R3, page 160.
[167] Paras 13.1 and 13.1.1 of Direction No. 79.
[168] Paras 13.1 and 13.1.2 of Direction No. 79.
[169] Paras 13.1, 13.1.1 and 13.1.2 of Direction No. 79.
[170] Para 13.2 of Direction No. 79.
[171] Para 13.3 of Direction No. 79.
[172] Para 14.2(1) of Direction No. 79.
[173] Para 14.4 of Direction No. 79.
[174] Para 14.5(1) of Direction No. 79.

Court	Court Date	Offence	Offence Date(s)	Court Result
Perth Magistrates Court	25 Oct 2007	Disorderly behaviour in a public place	21 Oct 2007	Fine: $500
Joondalup Magistrates Court	14 May 2008	No driver’s licence (fines suspension)	9 May 2008	Fine: $250; mdl disqualified s 51: 3 months; mandatory - concurrent
		Unlicensed vehicle (owner/driver)		Fine: $200
		False name (driver)		Fine: $200
		Drive vehicle contrary to compliance notice (drove)		Fine: $600
Perth Magistrates Court	18 Jun 2008	Disorderly behaviour in public place	14 Jun 2008	Fine: $500
Midland Magistrates Court	21 Aug 2008	No authority to drive – disqualified/suspended	8 Jul 2008	Fine: $500; mdl disqualified: 9 months - cumulative
Perth Magistrates Court	30 Jun 2009	No authority to drive – disqualified/suspended	5 May 2009	Fine: $1000; mdl disqualified: 9 months - cumulative
Joondalup Magistrates Court	1 Oct 2010	Assault occasioning bodily harm	2 Apr 2010	Community based order: 12 months concurrent from 1 Oct 2010
Midland Magistrates Court	13 Jun 2011	Unlawfully assaulted with circumstances of aggravation.; criminal code (wa); 313(1)(a)	1 Jan 2011	Intensive supervision order: 12 months concurrent from 13 Jun 2011
Midland Magistrates Court	13 Jun 2011	Breach of community based order under s 62 sent ACT of 01-oct-2010	2 Apr 2010	Intensive supervision order: 12 months concurrent from 13 Jun 2011
Joondalup Magistrates Court	10 Feb 2012	Person who breaches conditional release order or community order without reasonable excuse	6 Sep 2011	Fine: $350
		Breach of intensive supervision order s 69 sent ACT of 13 June 2011	1 Jan 2011	Fine: $750
		Person who breaches conditional release order or community order without reasonable excuse	6 Sep 2011	Fine: $500
		Breach of intensive supervision order s 69 sent ACT of 13 June 2011	2 Apr 2010	Fine: $1000
Midland Magistrates Court	20 November 2012	Possess a prohibited drug (methylamphetamine); misuse of drugs ACT (WA) 1981; 6(2) r	14 Oct 2012	Fine: $1000
Perth Magistrates Court	28 Oct 2014	Refuse name and address (driver)	12 Sep 2014	Fine: $300
		No authority to drive – never held	27 Oct 2014	Fine: $200; mdl disqualified: 3 months - concurrent
		No authority to drive (fines suspended)	12 Sep 2014	Fine: $300
		Breach of bail granted undertaking; Bail Granted ACT (wa) 1982; 51(1)	2 Oct 2014	Fine: $200
Midland Magistrates Court	28 April 2015	No authority to drive - expired	14 Feb 2015	Fine: $350
Perth Magistrates Court	30 Jul 2015	Disorderly behaviour in public; criminal code (wa); 74a(2)(a)	31 May 2015	Fine: $500
Perth Magistrates Court	30 Jul 2015	Obstructing public officers; criminal code (wa); 172(2)	31 May 2015	Fine: $600
Perth Magistrates Court	15 Oct 2015	No authority to drive (never held)	9 Sep 2015	Fine: $500; mdl disqualified: 3 months - concurrent
Midland Magistrates Court	12 Apr 2017	No authority to drive (never held)	31 Dec 2016	Fine: $400
		Provided false or misleading personal details		Fine: $300
		Used a mobile phone whilst driving a vehicle		Fine: $400
Perth District Court of Western Australia	13 Oct 2017	Grievous bodily harm; criminal code (WA); 297	6 Apr 2016	Imprisonment: 3 years 3 months concurrent from 13 Oct 2017

Date of hearing:	7 February 2020
Applicant:	Self-represented
Counsel for the Respondent:	Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore