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

RTTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4813 (23 December 2021)
Division:GENERAL DIVISION
File Number: 2020/0944
Re:RTTW
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:23 December 2021
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 February 2020 to not revoke the cancellation of the Applicant’s visa.
..........................[sgd]...........................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – remitted decision – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 316
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the non-citizen’s conduct to date
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The first report of Mr Cummins (Psychologist)
The second report of Mr Cummins
Summary of the grounds on which it is contended that the Applicant represents a low recidivist risk
Assessment of the clinical evidence
Conclusions about risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Alleged family violence incidents
20 August 2010
14 March 2011
3 July 2011
5 July 2011
6 December 2012
25 May 2014
22 February 2016
Assessment of the seriousness of the Applicant’s family violence
An additional item raised during the hearing
Conclusion: Primary Consideration 2
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Identification of relevant children
The Three Biological Children of Ms P
Consideration of factors
Child R
Consideration of factors
Children of the Applicant’s brother
Other possible relevant children
Conclusion
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
(a) Non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
DECISION
ANNEXURE A – LIST OF EXHIBITS
REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 December 2021

RTTW (“Applicant”) is a 33 year old citizen of New Zealand.[1] His Class TY Subclass 444 visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”) on 9 November 2018 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[2]
[1]T, 179.
[2]T, 117.
He made representations to have the mandatory cancellation revoked in accordance with s 501CA of the Act. A delegate of the Minister decided not to revoke the mandatory cancellation decision on 11 February 2020 (“the Reviewable Decision”).[3]
[3]T, 116.
The Applicant lodged an application to the Tribunal appealing the Reviewable Decision on 20 February 2020.[4] On 6 May 2020, this Tribunal (differently constituted) affirmed the Reviewable Decision. The Applicant applied to the Federal Court of Australia for a review of that decision. On 14 July 2020, the Federal Court of Australia quashed the 6 May 2020 Tribunal decision and remitted the matter back to the Tribunal for reconsideration.[5]
[4]T, 112.
[5]T, 75–76.
A hearing was held before me on 12 and 13 August; and 21 September 2021. Written evidence was described in an agreed Exhibit List which is attached to this decision and marked Annexure A.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa should be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[6]
[6](2018) 267 FCR 320, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[7] I will address each of these grounds in turn.
[7]Minister for Home Affairs v Buadromo (2018) 267 FCR 320 [21].
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been convicted of a number of offences and sentenced to significant terms of imprisonment for some of them. For present purposes, I am satisfied he does not pass the character test because of his 9 December 2016 conviction at the Melbourne County Court for intentionally causing a serious injury for which he received a sentence a custodial term of 4 years.[8]
[8]T, 133–135.
It follows that the Applicant cannot rely on s 501CA(4)(b)(i) of the Act to have the mandatory cancellation revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[9] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[10]
[9]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[10]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.[11]
[11]Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
(1) international non-refoulement obligations;
(2) extent of impediments if removed;
(3) impact on victims;
(4) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests[12]
[12]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than the Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection, Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [(now Direction 90)] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]
[13](2018) 74 AAR 545 [23].
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
The componentry of paragraph 8.1.1(1) captures the various types of offending committed by this Applicant. His offending includes violent conduct, be it in the realms of (a) “intentionally cause serious injury, intentionally cause injury, and robbery offences”, (b) unlawful assault offences, or (c) domestic violence incidents. The analysis of the nature of the Applicant’s offending will also require (1) an examination of the sentences imposed upon the Applicant for his offending, (2) the frequency of his offending and whether it betrays a trend of increasing seriousness, (3) whether a cumulative effect or effects can be discerned from the Applicant’s repeated offending and (4) whether he has re-offended since being formally warned about the consequences of further offending on his visa status to remain in this country.
The relevant components of paragraph 8.1.1(1) necessary to be addressed for the present analysis comprise the following:
a)    Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
…
c)    With the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    The cumulative effect or repeated offending;
…
g)    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 in the non-citizen’s favour).
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In its Statement of Facts, Issues and Contentions (“SFIC”), the Respondent has helpfully categorised the Applicant’s offending constituting violent conduct into three specific categories:
(a)Intentionally cause serious injury, intentionally cause injury and robbery offences;
(b)Unlawful assault offences; and
(c)Domestic violence incidents.
Turning first to conduct involving intentionally cause serious injury, intentionally cause injury and robbery offences, the Applicant has a number of convictions that result from two incidents occurring in the early hours of 15 May 2016. In essence, these convictions arose from unlawful conduct whereby the Applicant and his co-offenders wantonly attacked three members of the public. The offending saw the Applicant convicted on the following counts and sentenced to an aggregate term of five years’ imprisonment:
·One count of intentionally cause serious injury;
·Two counts of intentionally cause injury; and
·Three counts of robbery.

As mentioned, the totality of this offending encapsulated two incidents on the one day. Turning to the circumstances of the first incident, which occurred at 1:30am on 15 May 2016, the sentencing Judge made the following remarks in sentencing:[14]
“At some time after midnight on Sunday 15 May 2016, you all left the party in Mr [A]'s car, intending to go home. On the way home, you. You decided to drive to [redacted] nightclub. Mr [A] parked the vehicle in a car park not far from the nightclub, and at 1.22 am, you walked by the front door of the nightclub while [Mr B] remained at the car.
That evening, [the victim] had finished work late and attended [redacted] nightclub in [suburb redacted] with friends. … Sometime after 1.30 am, [the victim] left the nightclub to attend an ATM with a friend, [Mr V] …
As the pair walked down the alleyway, they noticed the three of you standing in the middle. All three of you had hoods drawn over your heads. [Mr V] warned [the victim] to be careful. Nothing was said as they passed you. After using the ATM, [Mr V] suggested taking the long route back due to your presence, but [the victim] said it was fine and he was not worried. As a result, while [Mr V] took the long route, [the victim] walked alone through the alleyway back to the nightclub.
Mr. [Applicant], you had positioned yourself on one side of the alley, while Mr. [A] and Mr. [C] were on the other. Each of you still had hoods drawn, and you were standing in the darkest part of the alley. As [the victim] approached, Mr. [A] said "This is the dude". [the victim] proceeded to walk past you. Without warning, Mr. [C], you struck [the victim] to the right side of his jaw with your fist. The force of the punch caused [the victim] to immediately fall. He looked up at you and apologised, as if he had somehow been at fault. While he was lying on the ground, you Mr. [A] then kicked [the victim] to the head. The force of the kick rendered [the victim] unconscious. You took [the victim]’s iPhone and his wallet containing identification and bank cards, $70 in cash and other personal details.
You fled to your car, leaving him lying in the alleyway…”[15]
[14]For clarity, I have replaced the co-offenders’ names sequentially as Mr A and Mr B. I have replaced the Applicant’s name as [Applicant]. I have replaced the victim’s name with [the victim]
[15]T, 137–138.
There can be no cavilling with the finding that the victim was seriously injured by this offending. The learned sentencing Judge noted the following in this regard:
“Shortly after this, staff found [the victim] in the middle of the alleyway lying face down in a pool of blood, and he was unconscious. He was taken to the front of the club, where he regained consciousness. He was bleeding from his nose and had a graze on his forehead. He was transported by ambulance to Sunshine Hospital. As a result of the offending he suffered two nasal fractures, two fractures to his jaw, and a fractured eye socket. He underwent surgery for the nasal and jaw fractures, and a titanium plate and screws were inserted in his face.
The injuries were not life-threatening, but likely to have caused severe pain. In the short term, he experienced difficulty sleeping and eating, and in the long term, is at risk of numbness and chronic pain in the jaw and possible difficulties breathing through his nose.
…
His injuries were serious, and surgery was required, which has involved the permanent placement of metal plates on his head. He experiences numbness in his bottom lip, and his jaw movement is limited and painful. Multiple teeth were chipped and his nose also required surgery. He lost work in order to recover. His social life and his personal sense of security and safety have been damaged.”[16]
[16]T, 139 and 143.
Less than an hour later, this incident had its sequel involving a separate attack on two other members of the public. The learned sentencing Judge described the equally appalling circumstances of this offending thus:[17]
“Earlier that evening, on 14 May, Mr. [Victim 1] and Mr. [Victim 2] had been out celebrating [Victim 1]’s 30th birthday. By about 12.30 am, [Victim 1] was highly intoxicated and being looked after by his brother at a venue in [suburb redacted]. They caught a taxi home at 1.50 am. As a result of [Victim 1] feeling unwell, the taxi stopped on [street redacted], and they continued walking home. At about 2.05 am, the three of you were driving on [street redacted], and observed the victims walking. You discussed stopping to rob them, having only minutes before assaulted Mr. [previous victim]. You pulled over about two metres ahead of them. You, Mr. [A], Mr. [Applicant] and Mr. [B] got out of the vehicle, and [B] drove away.
…
The two brothers turned to leave, and without warning, you, Mr. [A], struck [Victim 2] to the right side of his head with your first, causing him to stumble forward. [Victim 1] immediately jumped on Mr. [A] in defence of his brother. All three of you then pulled [Victim 1] to the ground, ripping his shirt in the process, and all three of you punched him and dragged him onto the nature strip.
[Victim 2] yelled out to distract you, and you, Mr. [A] and Mr. [Applicant] returned to him. Mr. [B] continued to hit [Victim 1] until he was unconscious. You, Mr. [A] and Mr. [Applicant] punched [Victim 2] about two or three times to his shoulder and head, causing him to lose his balance and fall. You continued punching him, and one of you then kicked him in the ribs. [Victim 2] curled into a ball to protect himself, and one of you took his phone from his pocket. You, Mr. [A] then said "What else have you got? Give it to me now, take it out of your pockets". [Victim 2] handed over his packet of cigarettes and lighter. You fled down a side street, returned to your car and parked nearby. [Victim 2] immediately ran to his brother, who was lying in the gutter unconscious.”[18]
[17]For clarity, I have replaced the co-offenders’ names sequentially as Mr A and Mr B. I have replaced the Applicant’s name as [Applicant]. I have replaced the victims’ names with [Victim 1] and [Victim 2].
[18]T, 139–140.
Again, the learned sentencing Judge described the impact of the offences on both victims thus:
“As a result of the offending, [Victim 1] suffered bruised ribs, scratches on his arms, a sore knee, and his jaw and face were very tender on one side. The area under his arm was also bruised and painful. [Victim 2] suffered ongoing dizziness and headaches. He had swelling to the right side of his face and bruising under his eye. He was diagnosed with concussion.
…
[Victim 2] also wrote a victim impact statement in which he described a sense of insecurity and anxiety as well as his increasing anger and his posttraumatic stress symptoms. He suffered vertigo due to the concussion, but more importantly perhaps he is hyper-vigilant and impatient with others.
[Victim 1] has also prepared a victim impact statement, and writes of his stress for which he has had to seek counselling to deal with social anxiety, especially at night. I take these statements into account.”[19]
[19]T, 140.
The circumstances of the two above incidents were put to the Applicant during cross-examination. With reference to the first incident, he agreed that it involved a random attack on an unsuspecting victim. He confirmed that his co-accused had somehow planned the attack and that he just went along with it.[20] In particular, he stated that he was the eldest of the three attackers, and that he “should have known better, but he was not in the right state of mind. He just went along with what they planned.”[21] In essence, the Applicant attributed his offending to being “too drunk to think straight.”[22] He was aware of the injuries sustained by the victim.[23] The Applicant also accepted that the consequences of his actions were “…extremely serious for this particular individual.”[24]
[20]See generally, Transcript, 34, lines 1–33.
[21]Ibid, lines 10–12.
[22]Ibid, line 33.
[23]Ibid, lines 39-43.
[24]Ibid, 34, lines 45–46; 35, line 1.
With reference to the second incident on the same evening, the Applicant agreed that within an hour or so of the first incident, he was part of an attack on another two victims.[25] He attributes the circumstances of the offending to him and his two co-offenders (i.e. his two younger cousins) being on their way home from their night out and, while on their way home, one of their number wanted to have a cigarette. According to the Applicant, the car in which they were travelling stopped and one of their number alighted from the car, asked the two people for a cigarette and, apparently, the melee started from that point onwards. The Applicant noted in his evidence in cross-examination that “the fight started off without him [the Applicant] but when he saw that he was attacking his friend, then he got out and joined in to help his friend.”[26] The Applicant sought to explain in his evidence that because it was put to him that he had become “scared after the first incident”[27] and that he simply panicked and wanted to run away from this second incident. As best as I understood the evidence leading up to commencement of the melee, it went something like this:
“INTERPRETER: He wanted to go home and that was the intention. Then his friends stopped to ask for a cigarette. He got out and then he got into a tussle with those two guys and because they were fighting, he saw his friend needed some help, that’s why he joined - he hopped out.
MR ZHANG: Sorry, Madam Interpreter, can you repeat the part from ‘his friend stopped, and he got into something with’ - - -
INTERPRETER: A tussle. Like a fight with. He went to ask a cigarette and then he had a fight with them. But there was two of them against his friend so that’s why hopped out to help him fight the other two.”[28]
[25]Ibid, 35, lines 3–6.
[26]Ibid, lines 40-41.
[27]Ibid, lines 43-44.
[28]Ibid, 36, lines 1–11.
He was questioned about a further component of this second attack, which involved the unlawful taking of the victim’s wallet or mobile telephone. The Applicant confirmed that he and his co-offenders “Took the phone”[29] off one of the victims. The Applicant was specifically challenged about the theme in his story that he was being led by others. This theme or explanation was unconvincing in circumstances where, (1) at the time of these attacks, he was 27-28 years of age and his co-accused (his younger cousins) were, respectively, aged 21 and 20 years of age and (2) the Applicant was the only person with a criminal history, as has been noted in the sentencing remarks. His explanation was less than satisfactory:
“MR ZHANG: The phone. You said earlier, Mr Applicant, that your co‑offenders were leading you and you were drunk. But your co-offenders - they’re your younger cousins. They were 21 and 20, and at that time you were 28, weren’t you?
INTERPRETER: Yes, he confirms the cousins were 20 and 21 and he was 27. And that he went along with them.
MR ZHANG: Well, you should be a lot more mature, should you not, given you’re a lot older than them?
INTERPRETER: He said the same thing that at the time he wasn’t thinking straight. He’s just following troublemakers, the kids, and he’s just following.
MR ZHANG: Why should the tribunal believe that in circumstances where you’re the only person with a prior criminal history according to the sentencing remarks?
INTERPRETER: He said that the same thing that the arguments with him and his wife led to his - led to all this and his convictions. That it was his problem. But in since being in prison he has learnt to listen(?) and rethink his behaviour and he looks forward to a better life with his family. Better behaviour.”[30]
[29]Ibid, line 15.
[30]Ibid, lines 17–39.
The above-described unlawful conduct does, to my mind, squarely engage the operative effect of paragraph 8.1.1(1)(a)(i) of the Direction in that these crimes are, without question, crimes of violence. As such, they can be considered to be “very serious”.[31] There is an unarguable premeditated element to the first offending and it would transpire that the motivation for the offending derived from the perpetrators (including the Applicant) feeling bored and otherwise forming the view to do “something stupid”. There is similarly an unarguable unprovoked and random nature to the second offending against members of the public not otherwise known to the Applicant and his co-offenders. The offending was committed at night and involved the robbery of personal property belonging to the victims.
[31]Paragraph 8.1.1(1)(a) of the Direction.
The second attack took place less than an hour after the first and involved similar indicia to the first offending episode inasmuch as the attacked parties were members of the public unknown to the Applicant and his co-offenders. Before the sentencing Judge there was an independent assessment of the schedule of injuries suffered by the three victims. One need look no further than the sentencing remarks to obtain a clear understanding of the nature of the injuries that were suffered. The Applicant’s attempted obfuscation for his role in the offending as being a largely unwilling but nevertheless co-opted participant in the offending must be rejected. He was with his two younger cousins, neither of whom had any previous offending history. Only the Applicant had such a history.
In terms of the seriousness of the offending, one need look no further than the relevant sentencing remarks where it was noted that “the gravity of the offending is one which is high…”; that it was perpetrated on:
“utterly vulnerable victims, unprovoked in any shape or form, random and severe, and enacted at night, in public places, in a group company on individuals, by the use of kicks, accompanied by theft of personal property as a secondary offence, premeditated and planned even if not longstanding in time, but agreed tacitly or explicitly.”[32]
[32]T, 144–145.
With particular reference to the commission of a second offence inside an hour after commission of the first, the sentencing Judge noted the following:
“And then within a short time after the first performance, repeated in a contumacious fashion, upon other victims. The maxim rightly says “delictum iteratum gravious est.” A crime that is repeated is most serious.”[33]
[33]Ibid, page 145.
In submissions contained in the material[34], the Applicant sought to refer to ameliorative factors, such as his early guilty plea for the offences arising from these two incidents, that such guilty plea was accepted to be accompanied by appropriate regret and remorse and that one of the causative factors behind his offending involved compromised mental processes and cognitive impairment. Despite this submission, the sentencing Court concluded that the Applicant’s moral culpability was only “slightly reduced” as a result of his claimed impairments. Reliance was also sought to be placed on his age at the time of the offending, together with a letter from his employer. Each of these ameliorative factors can be safely rejected as going nowhere near explaining the appalling and extremely dangerous nature of his offending on random members of the community, with absolutely no excuse to do so. The sentencing Judge reached a similar conclusion by imposing the significant head custodial term of five years’ imprisonment.
[34]A1, 3[12].
There can be no finding other than, particularly having regard to what the Applicant said in his oral evidence during cross-examination, that upon an application of paragraph 8.1.1(1)(a)(i), the Applicant’s crimes of violence must be found to be extremely serious.
On the 5 July 2011, the Applicant became involved in a domestic dispute with his de facto partner. The domestic difficulties apparently had their roots in the Applicant's recent loss of his job and consequential financial difficulty that was experienced. At that time, the Applicant and his de facto partner had a two-year-old daughter and a seven-month-old daughter. The couple was engaged in a verbal dispute in their home. During the dispute, the Applicant's de facto partner was holding the seven-month-old child. The relevant police record notes the following:
"The AFM [i.e the Applicant’s de facto partner] was sitting on the lounge holding her 7 month old daughter when the respondent lost his temper and punched the AFM in the side of the head 3 times. The AFM ran out of the house to call police and went to a family members place to be safe."[35]
[35]R2, 46.
This was not the end of the incident. Later that night, the de facto partner returned home and noticed that the Applicant was not there. The police record then goes on to note:
"The AFM (i.e the Applicant’s de-facto partner) returned home late that night and the respondent had left. On 04/07/11 the Respondent returned to the address and another verbal dispute developed. The respondent chased the AFM and grabbed the battery off her mobile phone so she could not phone police. The AFM found a spare battery and phoned police for help. Police have concerns for the safety of the AFM and her children and apply for a complaint warrant an [sic] her behalf."[36]
[36]R2, 46.
This offending falls squarely within the ambit of sub-paragraph (a)(i) of paragraph 8.1.1(1) of the Direction. It is clearly offending of a violent nature. Further, the offending also falls squarely within the ambit of sub-paragraph (a)(ii) of paragraph 8.1.1(1), because it is a crime of violence against a woman. Therefore, regardless of whatever sentence was imposed on the Applicant, this type of offending must be viewed as “very serious”.
Paragraph 8.1.1(1)(a) also contains the specific subparagraph numbered (iii). This sub-paragraph specifically provides that acts of family violence, regardless of whether a conviction for an offence or a sentence is imposed, may be found to be very serious. One of the difficulties with applying the Direction to specific family violence conduct or offences is the relatively unfettered nature of how paragraph 8.1.1(1)(a)(iii) is drafted. It allows a decision-maker to take into account “acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed”.
The material includes records produced by Victoria Police under summons. Those records contain reference to the Applicant’s involvement in the perpetration of family violence against his former partner (“Ms P”) on a number of recorded occasions between 2010 and 2016. I am mindful that the Applicant has been actually convicted of offences arising from this family violence conduct. Be that as it may, and although the terms of paragraph 8.1.1(1)(a)(iii) do, strictly speaking, allow application of this sub-paragraph towards an assessment of the nature and seriousness of the Applicant’s conduct, I am also mindful of the separate task imposed by paragraph 8.2 of the Direction. Read reasonably, the configuration of paragraph 8.2 of the Direction facilitates the taking into account of conduct amounting to family violence even in the absence of duly recorded convictions for that conduct.
Therefore, I am of the view that to take into account family violence-type conduct (especially where there are no conviction(s) recorded for it) for the purposes of both paragraphs 8.1.1(1)(a)(iii) and 8.2 of the Direction must surely amount to double-counting or, put another way, double-referencing. I will thus refrain from applying the componentry of paragraph 8.1.1(1)(a)(iii) in any assessment of the nature and seriousness of the Applicant’s conduct.
I will, however, make reference to that conduct for the purposes of applying and allocating any necessary weight to paragraph 8.2 of the Direction.
For the purposes of allocating weight to the applicable component of paragraph 8.1.1(1)(a), I am of the view (and I find) that the inherently violent nature of the Applicant’s criminal offending falling squarely within paragraphs 8.1.1(1)(a)(i) and (ii) militates very strongly in favour of a finding that the totality of the Applicant’s offending has been of a very serious nature.

Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
As best as I understood the material, none of the Applicant’s conduct attracts the operative effect of any of the abovementioned sub-paragraphs (i)–(iv), inclusive. Thus, sub-paragraph (b) is not relevant to determination of the instant application.
Sub-paragraph (c) compels an enquiry into the sentences imposed upon the Applicant by a court for his crimes. The wording of this sub-paragraph (c) precludes me from referring to the sentences the Applicant may have received for the commission of crimes of a violent nature against women or children.[37] I am also precluded from taking into account any sentences imposed for offending by the Applicant involving acts of family violence.[38] This Applicant does not have any sentences for offences arising from, or directly attributable to, family violence and, for reasons I have stated earlier (see [‎45]–[‎48], above), I will fulsomely deal with the Applicant’s family violence-type conduct as part of my discussion of paragraph 8.2 of the Direction.
[37]Direction, paragraph 8.1.1(1)(a)(ii).
[38]Direction, paragraph 8.1.1(1)(a)(iii).
For the sake of completeness, I note that this sub-paragraph (c) precludes me from having regard to any sentence(s) imposed upon the Applicant for offending captured by paragraph 8.1.1(b)(i) of the Direction. As best as I understood the material, the Applicant does not have convictions and sentences for the commission of any such crime or crimes.
What follows are respective tabulations of the Applicant’s offending resulting in (1) custodial sentences and (2) non-custodial sentences. For his offending resulting in the imposition of custodial time allowable under this sub-paragraph (c), these are the sentences that were imposed:

Offending resulting in custodial terms

Nature extent of custodial terms

Drive whilst disqualified

Sentenced on 18 February 2015

28 days’ imprisonment
Sentence wholly suspended

Criminal damage (intent damage/destroy)

Unlawful assault

Sentenced on 18 February 2015

28 days’ imprisonment
Sentence wholly suspended

Robbery (three charges)

Sentenced on 9 December 2016

12 months’ imprisonment on each count

Intentionally cause injury

Sentenced on 9 December 2016

Two years’ imprisonment

Intentionally cause injury

Sentenced on 9 December 2016

Two years’ imprisonment

Intentionally cause serious injury

Sentenced on 9 December 2016

Four years’ imprisonment

Total:

11 years and two months’ imprisonment

For his offending resulting in the imposition of non-custodial sentences, he has been dealt with as follows:

Offending resulting in non-custodial sentences

Nature extent of the sentence imposed

Deal property suspected property of crime

Sentenced on 13 June 2013

With conviction, fined $1000

Unlawful assault

Sentenced on 13 June 2013

With conviction, fined $500

Use unregistered motor vehicle – highway (four offences)

Use unregistered motor vehicle – highway (four offences)

Driver fail wear seatbelt – moving motor vehicle

Display NR Plates – NR not assigned to vehicle

Fail to answer bail (two offences)

Criminal damage (intent damage/destroy)

Fraud use identifying no. auth/req – RSA

Fraudulently use plate – uniquely ID vehicle (two offences)

Learner driver drive vehicle without experienced driver (two offences)

Drive without front “L” plate displayed

Drive without “L” plates displayed

Fail to ensure child suitably restrained – 7-16 yrs (two offences)

Sentenced on 20 March 2014

Convicted and a community correction order for 12 months

Unpaid Community Work - Perform 250 hours of community work

Drive whilst disqualified (two charges)

Sentenced on 20 March 2014

On each charge, convicted and a community correction order for 12 months.

Unpaid Community Work - Perform 250 hours of community work

Breach of sentence imposed on 20 March 2014

Sentenced on 18 February 2015

Breach of community correction order, order cancelled.

Convicted

Community correction order for 12 months.

Unpaid Community Work - Perform 250 hours of community work

Having regard to the exclusionary language of this sub-paragraph (c), I cannot take into account any sentences the Applicant may have received for violent offending against women or children, or acts of family violence. He does have convictions for violent offending, and they are indeed significant convictions. For his violent (and other) offending, a totality of the following sentences have been imposed:
·Unlawful assault – 28 days – sentenced on 18 February 2015
·Robbery (three charges) - 12 months on each count – sentenced on 9 December 2016
·Intentionally cause injury – two years - sentenced on 9 December 2016
·Intentionally cause injury – two years - sentenced on 9 December 2016
·Intentionally cause serious injury – four years - sentenced on 9 December 2016
Thus, the sentences relevant for the purposes of this sub-paragraph (c) total 11 years and one month of custodial time. The Applicant purports to raise a point about how to assess weight allocable to this sub-paragraph (c). The contention runs that the sentences should not be viewed all that seriously, because the sentences imposed are not all that severe in the context of the maximum sentences applicable to the relevant offences. Those maximum possible sentences comprise 20 years for each charge of intentionally causing serious injury, 15 years for each charge of robbery, and 10 years for each charge of intentionally causing injury.
With respect, such a contention is misplaced and must be rejected. First, while it can be accepted that the sentencing Courts did not impose the maximum available sentence on the Applicant with reference to each offence upon which he was convicted, the reality is that the imposition of a custodial term, especially on an Applicant without an overly lengthy offending history, and certainly not a history redolent of consistently committed and very violent offences, is usually regarded as the last resort in the sentencing hierarchy. As noted by this Tribunal in PNLB v Minister for Immigration and Border Protection:
“…Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.”[39]
[39][2018] AATA 162 [22].
Second, until the imposition of the very significant custodial terms at the sentencing episode of 9 December 2016, this Applicant had only received either (1) non-custodial sentences in the form of fines, community correction orders and/or a requirement to perform unpaid community work, and (2) the totality of custodial time imposed on him were two respective 28 day periods of imprisonment, which were ordered to be served concurrently and appears to have been wholly suspended. On any rational view, the Applicant’s earlier offending history, running from its commencement on 13 June 2013 until 18 February 2015, does not contain anything significant by way of custodial terms.
However, all of that dramatically changed at the sentencing episode on 9 December 2016. On that day, he received a cumulative period of 11 years of custodial time. Once again, on any rational view, that is an extraordinary leap in terms of the severity of sentences imposed on an offender who, in the preceding three and a half years of his offending history, had received two custodial terms of 28 days, each to be served concurrently with the other.
Consequently, this sub-paragraph (c) militates very strongly in favour of a finding that the totality of the Applicant’s criminal offending in this country has been of a very serious nature.
Sub-paragraph 8.1.1(1)(d) points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Turning first to the frequency of the Applicant’s offending, it can be noted that he has committed some 32 offences over an offending period spanning some three and a half years. He has therefore found himself before lawful authority for his offending on an average of something in the order of nine offences per year across his sentencing history.[40] During the three and a half years of his offending, there is no lull. He has convictions in each of 2013, 2014, 2015 and 2016.
[40]Note: with specific reference to the Applicant’s offending history (see G2, pages 25–27), there is a collection of offences for which he was convicted on 20 March 2014. For that offending, a sentence of “Convicted and a Community Correction Order for 12 months. Unpaid Community Work perform 250 hours of community work” was imposed. The entry on 18 February 2015 involves a breach of the sentence imposed on 20 March 2014. This is why precisely the same sentencing regime is imposed on 18 February 2015 as was imposed on 20 March 2014. I have therefore not double-counted the offences recorded in the Applicant’s criminal history on the date comprising 18 February 2015.
One way of analysing this issue about frequency is to look at the totality of custodial time imposed relative to the length of the offending history. His sentencing history runs from June 2013 to December 2016. In approximately three and a half years of an offending history, this Applicant has accumulated over 11 years of custodial time. Another way of analysing this issue is to look at the totality of custodial time imposed relative to the length of this Applicant’s time in the Australian community. He arrived in this country in mid-2006 and has only been absent for a period of less than two months traversing December 2009 to February 2010.[41] He was most recently removed from the Australian community in December 2016 and has been in either criminal custody or immigration detention since that time. Therefore, for the approximately 10 years he spent in the Australian community (i.e. mid-2006 to end of 2016) his offending has resulted in the imposition of over 11 years of custodial time. This virtually represents 100% of his time in the Australian community. There can be no other finding other than that the totality of this Applicant’s offending must be found to have been “frequent” for the purposes of this sub-paragraph (d).
[41]G, 179.
Second, I will address whether there is a discernible element of increasing seriousness in the offending. A logical way of determining this issue is to divide the Applicant’s offending history into two distinct parts. First, his offending history pre-the sentencing episode on 9 December 2016 and second, his offending history for which he was sentenced on 9 December 2016. The difference in the level of seriousness between the two periods is stark and undeniable.
The first part of his offending history, while involving the commission of some 26 offences, is relatively unremarkable. It predominantly involved the commission of motor vehicle offences and, to the extent there were convictions for offences against either (1) the person or (2) the property of others, that offending was sentenced by either fines, community corrections orders or, at worst, respective terms of imprisonment of 28 days, each to be served concurrently and wholly suspended. As mentioned earlier, the nature of the offending dramatically changes as a result of the Applicant’s convictions on 9 December 2016. That offending saw convictions for very serious offences that, quite conceivably, could have resulted in catastrophic outcomes for its three victims. This was very serious offending resulting in very serious injuries being occasioned upon the victims.
Therefore, there is a discernible and undeniable dramatic increase in the level of seriousness in the pattern of this Applicant’s offending. His offending history cannot be read in any other way. I have no difficulty in allocating a very strong level of weight to this sub-paragraph (d) in favour of a finding that the totality of the Applicant’s offending has been very serious.
Sub-paragraph 8.1.1(1)(e) concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. I will approach the weight allocable to this sub-paragraph (e) by reference to several grounds.
First, the Applicant’s offending history does, to my mind, betray a significantly demonstrable element of failing to appreciate and respect the rights of others to go about their business in the community on a safe and undisturbed basis. From the commencement of his criminal history, this Applicant had little or no compunction to impose himself on a given situation in physical terms. He has convictions for unlawful assault in June 2013, for unlawful assault in February 2015, for two counts of intentionally causing injury in December 2016 and for one count of intentionally causing serious injury in December 2016. I have earlier recounted the circumstances of his horrendous offending for which he was sentenced in December 2016. The circumstances of that offending are so serious that there is no requirement to venture into the circumstances of his respective convictions for unlawful assault in June 2013 and February 2015, respectively.
Second, he likewise has had no compunction in relieving people of their personal property are and in applying that property towards his own uses. The first entry in his criminal history dates from June 2013 and involves a conviction for “deal property suspected proceeds of crime”. There followed respective convictions in February 2015 for “criminal damage (intent damage/destroy” and, of course, his conviction on three counts of robbery in December 2016 committed in the course of the two very serious attacks on random victims on the evening of 14 –15 May 2016. To my mind, the circumstances surrounding the commission of the three robbery offences in May 2016 are more serious than the earlier two convictions for property related offending. This is because those robbery offences were committed as part of the horrendous matrix of offending committed on the evening of 14 – 15 May 2016.
Third, the Applicant does not appear to have experienced any kind of deterrent effect from the progressive regime of sentencing that has been imposed on him during the course of his 3 and a half year sentencing history. His first two convictions in June 2013 are punished by way of fines with respectively recorded convictions for each of the two offences. He is then dealt with in March 2014 for a suite of offences primarily committed in the realm of traffic/driving/motor vehicle – type offending. Respective community correction orders for a period of 12 months were imposed. They compelled the Applicant to complete 250 hours of unpaid community work. He did not receive anything by way of a custodial sentence until February 2015 when respective custodial terms of 28 days imprisonment were imposed. Even then, those sentences were wholly suspended for an operational period of nine months. Further, at the sentencing episode in February 2015, he was dealt with for breaching the above-mentioned community correction order that was imposed on him in March 2014. As I have outlined earlier, for breaching that community correction order, the sentencing Court compelled the applicant to do nothing more than what was required of him when that particular community correction order was imposed.
Therefore, for the first phase of the applicant’s offending (June 2013 to February 2015) he received the benefit of predominantly non—custodial terms. Even when custodial terms were imposed upon him, they were wholly suspended for defined operational periods. During this approximately two year first phase of his offending, the applicant took nothing from the benefit of a progressively imposed and predominantly non—custodial scheme for his offending. Instead, he proceeded to commit the very serious offences that saw him receive approximately 11 years of head custodial time by way of sentences. There can be no question that a cumulative effect of this applicant’s offending has been an abject failure to derive any benefit from, or take any notice of, earlier sentences that punished his offending on a predominantly non—custodial basis.
Fourth, an additional cumulative effect of his offending is able to be seen by the impression his offending has made on others who have dealt with him. When sentencing the applicant on 9 December 2016, the sentencing remarks of His Honour Judge Gucciardo of the Melbourne County Court noted the following about the Applicant’s offending committed on the evening of 14 – 15 May, 2016: “Acts of wanton violence like yours, particularly cowardly and unprovoked assaults, are far too frequent in the life of our community, and cause trauma and injury to those directly affected as victims, but also because consternation and fearful dismay to the community, which seeks redress from the Court. The community rightfully looks to the Court for clear denunciation of conduct in order to just leave punish such infringement of basic rights by re-tribute to sentences, which not only endeavour to protect the community, but deter others who may be like – minded.”[42]
[42]T, 146.
Thus, a further cumulative effect of the applicant’s offending is that it has caused the sentencing judge to denounce his conduct in harsh and strict terms. To my mind, the above – quoted observations of the learner had trial judge are significant because His Honour represents the community in the sentencing process. Whatever sentences were imposed on the applicant must, in the first instance, be in accordance with applicable sentencing principles but must also meet the community’s expectations of how this type of very serious offending ought to be punished. In this way, the views of the sentencing judge can be said to reflect the views of the community. It can therefore be safely found that a further cumulative effect of the applicant’s repeat offending is that its abhorrent nature has not only made an adverse impression on this decision-maker, it has had a similar effect on both the learner sentencing judge and the community His Honour represents.
Fifth, the applicant’s offending has not only challenged the personal and property rights of others and nor has it only challenged the views of at least one judicial sentencing officer, it has also challenged the authority represented by lawfully made orders and similar instruments designed to deal with or curb the Applicant’s propensity to commit offences. A cursory review of his criminal history will demonstrate that on 20 March 2014 he was dealt with, inter alia, on two counts of “failed to answer bail”. Similarly, on 18 February 2015 he was convicted of “contravene community correction order”. There are thus at least two instances in the Applicant’s criminal history wherein he has failed to observe the terms of a lawfully made document compelling him to do or refrain from doing something. His failure to meet the requirements of these two orders represents a further cumulative effect of his offending.

A grant of bail represents the conferral of a right to an accused person to remain in the community pending the outcome of a charge or charges proffered against them. In return, the recipient of bail is required to meet the terms of the relevant undertaking attached to it. A failure to answer bail represents both a breach of that duly provided undertaking and a refusal to respect the lawful authority pursuant to which the grant of bail was made. In a similar way, the imposition of a community correction order represents a belief in the mind of the judicial sentencing officer that the convicted person is better served by not being incarcerated and, instead, to be allowed to return to the community conditional upon the meeting of the requirements of that order. A failure to meet the terms of such an order demonstrates an unacceptable level of irresponsibility and, more fundamentally, it demonstrates a failure to understand and respect the lawful authority pursuant to which it was made.
Sixth, a further cumulative effect of the Applicant’s repeated offending involves a failure to understand and appreciate both the operational and administrative requirements in the ownership, management and control of a motor vehicle on Australian carriageways. I have earlier recounted the nature of his traffic offending. It suffices to say that his range of traffic offences has involved a failure to attend to the administrative requirements of owning and operating a vehicle such as ensuring the currency of its registration, displaying the correct number plates and wearing a seatbelt while driving the vehicle. His traffic offending also seems to encompass a degree of irresponsibility insofar as the safety of others within that motor vehicle are concerned. There are two convictions for failing to ensure that a child passenger was suitably restrained in a motor vehicle under the Applicant’s management and control. Perhaps more sinisterly, that there are also convictions for “fraudulently use plate – uniquely ID VEH (2 charges)” and “fraud use identifying No. Auth/Req RSA.”
While I will not embark on an analysis of the nature and type of the offences involving the stated elements of fraud, it suffices to say that the totality of this applicant’s traffic offending, while less serious than the balance of his offending history, nevertheless carry the cumulative effect of placing the Australian community at serious risk of harm while this Applicant is in control of a motor vehicle. In an earlier decision,[43] I have found that a theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself, significant. I have also found previously that laws relating to the ownership, management and control of motor vehicles on Australian carriageways go to the essential safety of the community.[44] The further cumulative effect of the Applicant’s offending represented by his traffic history does, to my mind, directly speak to the inherent seriousness of the totality of his offending history.
[43]Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 [45].
[44]Ibid.
Seventh, it is not unreasonable or unsafe to find that a further cumulative effect of this applicant’s offending can be found in the inordinate level of the community’s law enforcement, sentencing and medical resources it has consumed. His offending has necessitated a significant level of police resources in its detection and prosecution. It has occupied a significant amount of the court’s sentencing function and it has also, by virtue of the injuries sustained by at least three of its victims, consumed a not insignificant proportion of the community’s healthcare apparatus.
His offending was mostly committed on his own volition, in other words, by himself. The outlier in his offending pattern involves the horrendous offences he committed on the evening of 14 – 15 May 2016 in the company of his two much younger cousins. This offending and virtually all of the offending that preceded it was committed on a wanton, irresponsible and even reckless basis. This Applicant was not driven to do what he did by others. There was no compulsion on him to meet the demands of people higher up the chain of criminal conspiracy, for example. In those circumstances – that is, where the offending occurs as part of a larger criminal conspiracy, perhaps there could be said to be a requirement for a more intensive involvement by the police and/or the courts. But his history of committing offences is a selfish one flavoured, in its latter stages, by a propensity to offend on the basis of him having nothing better to do.
Therefore, this sub-paragraph (e) militates strongly in favour of a finding that the nature of the Applicant’s offending must be found to be very serious.
Paragraph 8.1.1(f) compels an inquiry into whether the Applicant has provided false or misleading to the department, including by not disclosing prior offending. As noted earlier, the Applicant has departed Australia on one occasion for a relatively brief period. That departure/arrival occurred at a time prior to him receiving any conviction for his offending. This sub-paragraph (f) is not relevant to the instant determination.
Paragraph 8.1.1(g) looks for any formal or other warnings communicated to the Applicant in writing, about the consequences of further offending in terms of his visa status to remain here. I have carefully looked through the material and cannot find any reference to any such document nor, as best as I understood the respective positions of the parties, is any such warning propounded. This sub-paragraph (g) is not relevant to the instant application.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs 8.1.1(1)(a), (c)–(e). I am of the view that the totality of the Applicant’s offending can be readily categorised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
I have found that the totality of the Applicant’s offending has been of a very serious nature. The Respondent contends that it ought to be characterised as “extremely serious”.[45] Whichever descriptor is used, the stark and unavoidable reality is that were this Applicant to again engage in similar criminal conduct – with particular reference to his offences of violence – the consequences would be very serious and, I am of the view that his conduct squarely engages the following words in paragraph 8.1.2(1) of the Direction: […] some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”[46]
[45]R1, 13[49].
[46]Direction, 8.1.2(1).
Were the Applicant to repeat his offences of violence for which he was sentenced in December 2016, the harm that would be occasioned to victims would cover the gambit of harm ranging from very serious physical and psychological injury, economic loss and, as rightly noted by the Respondent, would “[…] place the general public in fear of unprovoked random attacks.”[47] To my mind, the unacceptable nature of any repeat of such offending is to be found in (1) the obvious harm that would be occasioned to the individual victim(s) and (2) the reality that these offences were unprovoked on random members of the community going about their business and (3) the further reality that the offences were committed as a result of the Applicant and his co-offenders feeling bored and in need of finding something apparently exciting to do.
[47]R1, 13[50](a).
A similar finding can be made with regard to the Applicant’s conduct that I will, later in these reasons, categorise as family violence offending. The nature of harm that would be occasioned to victims of that offending, were it to be recommitted in a domestic context, is precisely the same type of harm I have referred to in the immediately preceding paragraph relating to any re-commission of the Applicant’s violent offences. Entering into a domestic relationship or liaison with someone does not confer a right to administer physical retribution or coercive control by one party over the other. The above-quoted portion of paragraph of 8.1.2(1) is again engaged such that the Applicant’s offending in the domestic violence realm has been of such a severity that any risk of its re-commission would be unacceptable.
I have found that the nature and seriousness of the Applicant’s offending in the realm of traffic/driving offences, although not necessarily at the same level of seriousness as his other unlawful conduct, has exposed the Australian community to a certain level of risk. Were he to recommit such offences, an identical level of risk can be safely found to be the end result. His has been an attitude of indifference and recklessness to the requirements of owning and driving a motor vehicle on Australian carriageways. While this aspect of his offending may not engage the threshold of “so serious that any risk that it may be repeated may be unacceptable” component in paragraph 8.1.2(1), it is conduct which, if repeated, will doubtless compel those dealing with this type of offending to remove his driving privileges for prolonged periods.
Were this Applicant to re-commit any of his past offences attributable to any one of the abovementioned categories in which it was committed, the impact on the Australian community could range from property damage to more substantial material and economic loss and, further, quite realistically to serious physical and/or psychological harm to a quite realistically catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Prior to making a finding about the Applicant’s level of recidivist risk, it is necessary to summarise the competing contentions respectively put by the parties.
The first report of Mr Cummins (Psychologist)
Mr Jeffrey Cummins is a consulting clinical and forensic psychologist with significant private practice experience (over 30 years) who practices in the Melbourne CBD. He has provided two written reports which appear in the material. The first of those is dated is dated 21 April 2020.[48] For the purposes of preparing this first report, Mr Cummins assessed the Applicant on 15 and 17 April 2020. He applied the HCR-20 assessment tool which contemplates recidivist results in the ranges of “low”, “moderate” and “high”. Mr Cummins’ assessment of the Applicant’s recidivist risk is recorded in this first report as “low”.
[48]T, 376–386.
This first report recorded the evolution of the Applicant’s pattern of offending and, in terms of recidivist risk that could be noted in April 2020, Mr Cummins thought the Applicant “displayed evidence of having learnt conflict resolution strategies and anger management strategies.”[49] He further opined that “immaturity played a very significant role in his offending”[50] for which the Applicant was sentenced in December 2016. Mr Cummins also thought that at April 2020 the Applicant had reached “an age appropriate level of maturity.”[51] He thought the Applicant’s psychopathology contained a capacity for him to “express victim empathy and [to speak] about victim empathy in a manner which indicated he had now developed insight into how his victims would have felt.”[52]
[49]T, 383[51].
[50]T, 384[55].
[51]T, 385[55].
[52]T, 385[61].
Under the heading “Opinion and Conclusions” Mr Cummins said this:
“In my opinion [the Applicant’s] comments at interview indicated he now regards himself as a rehabilitated person. […] In my opinion [the Applicant’s] current risk of committing a further offence of violence is Low, which confirms it is my opinion he does not require any further anger management counselling/treatment or psycho-education. In expressing this opinion I accept, without reservation, that his offending of 15/5/2016 was extreme in type and clearly warranted a jail sentence of significant duration. Simultaneously, though, it is my opinion he now presents as a rehabilitated person.”[53]
[53]T, 384[60].
The second report of Mr Cummins
The second report is dated 6 July 2021. It was prepared consequent upon the remittal of an earlier decision of this Tribunal. Mr Cummins regards this report as a “supplementary report”.[54] The re-assessment of the Applicant giving rise to this supplementary report was, due to COVID-19 restrictions, conducted via telephone on 24 June 2021. This particular assessment lasted for approximately 75 minutes.[55]
[54]A7, 2[9].
[55]A7, 2[7].
In terms of risk assessment, Mr Cummins applied two practice assessment tools. First, he applied the HCR-20 methodology and adopted an assessment of “low” recidivist risk.[56] Mr Cummins again noted the Applicant telling him that he had learnt conflict resolution strategies and anger management strategies in the course of participating in the Violence Intervention Program while in criminal custody.
[56]Note: this is the lowest risk category, the remaining categories comprise “low-moderate”, “moderate”, “moderate-high” and “high”.
Second, Mr Cummins assessed the Applicant for the presence of any ascertainable protective factors militative of a low recidivist risk. The methodology is known as SAPROF which stands for “Structured Assessment of Protective Factors for Violence Risk”. According to this supplementary report, the SAPROF
“…contains 17 protective factors organised into three scales including internal actors (intelligence, secure attachment in childhood, empathy, coping, self-control), motivational factors (work, leisure activities, financial management, motivation for treatment, attitudes towards authority, life goals, medication) and external factors (social network, intimate relationship, professional care, living circumstances, external control).”[57]
[57]A7, 4[24].
Mr Cummins assessed the Applicant’s level of protective factors for violent recidivist risk as “moderate-high and trending towards High”.[58]
[58]Note: the sequential protection levels in the SAPROF are “Low”, “low-moderate”, “moderate”, “moderate-high” and “high”.
Under the heading “Opinions and Conclusions” in this supplementary report, Mr Cummins thought the only discernible psychological difficulty the Applicant was experiencing complied: “[…] he was still feeling moderately-severely depressed and moderately anxious concerning his immigration situation.”[59] And further in this regard, Mr Cummins opined that the Applicant:
“[…] still reports symptoms indicative of a Major Depressive Disorder which is moderately severe in type and reflective of his concerns about being deported to New Zealand. In my opinion his current reported symptoms of depression are reflective of a reactive depressive disorder against a background where he was previously suffering from symptoms of a Major Depressive Disorder.”[60]
[59]A7, 5[26].
[60]A7, 5[31].
In terms of recidivist risk as at the time of writing his supplementary report, Mr Cummins said “I confirm at interview on 24/6/2021 I again assessed his risk for committing a further offence of violence as low. On this occasion, I also assessed his protective factors for violence risk as “Moderate-High and trending towards High.”[61]
[61]A7, 5[30].
Mr Cummins remained of the opinion that the Applicant’s “[…] current risk in terms of committing a criminal act or other serious conduct against a member of the Australian community is Low – with this violence risk rating being the lowest that a psychologist or psychiatrist in this country can assign.”[62] In the final analysis, Mr Cummins said “[…] I remain of the clinical opinion that [the Applicant] has changed his ways and that he is quite capable of living a law-abiding lifestyle and living a lifestyle in the absence of consuming alcohol.”[63]
[62]A7, 5[32].
[63]A7, 6[33].
Summary of the grounds on which it is contended that the Applicant represents a low recidivist risk
In a document titled “Submissions of the Applicant in Reply” tendered at the earlier hearing of this matter in this Tribunal,[64] the propounded contentions militative in favour of a low recidivist risk were stated thus:
[64]T, 372–375.
(a)for his most serious offending dealt with in December 2016, the Applicant entered early pleas of guilty to the numerous charges proffered against him;
(b)he is said to be remorseful and to recognise the seriousness of his offending;
(c)his time away from the community has led him to reflect on his behaviour and to develop an insight into both himself and the causative elements behind his past offending;
(d)the sentence imposed in December 2016 is said to have “in part” maximised his prospects of rehabilitation to facilitate a return to the community;
(e)he committed his most serious offences when young and immature;
(f)the custodial term imposed upon him was propounded as a “powerful catalyst” for him to become a law-abiding citizen;
(g)he has participated in rehabilitation programs while in criminal custody;
(h)he has not consumed alcohol during the time of his removal from the Australian community;
(i)religious faith and belief is now propounded as a means of him learning about “the right way” of conducting himself;
(j)the recidivist risk assessment in Mr Cummins’ first report from April 2020;
(k)Mr Cummins’ views expressed in that report that the Applicant does not require any further anger management counselling and that he presents as a rehabilitated person;
(l)the family support network around him in the event of a return to the Australian community;
(m)if returned to the Australian community he will live with or near his mother and/or brother;
(n)his three children[65] and his desire to play a proactive role in their lives is propounded as a powerful protective factor;
(o)his brother has organised an offer of employment for him upon return to the community;
(p)the Applicant has strong work history;
(q)the Applicant intends to engage in counselling if returned to the community.
[65]There is actually a fourth biological child attributable to this Applicant. I will make reference to that fourth child later in these reasons during my discussion of Primary Consideration 3.
Assessment of the clinical evidence

As I understood his mother’s evidence, she indicated that she could visit the Applicant once per year. In her oral evidence, she said this:
“MR ZHANG: In the event that Mr Applicant, your son, is returned to New Zealand will you be able to go and visit him in New Zealand?
INTERPRETER: I will go if – after I’m vaccinated.”[176]
[176]Transcript, 83, lines 30–33.
In its SFIC, the Respondent raises (to the best of my experience) a relatively novel argument in relation to this sub-paragraph (c) of paragraph 9.2(1) of the Direction. It is worth quoting the contention in full, replete with footnotes:
“[…] as the applicant has been sentenced to a term of imprisonment of more than one year and will be returning to New Zealand within 6 months of his release from immigration detention, he will likely be subject to a Returning Offenders Order upon return to New Zealand.[Footnote][177] The applicant will therefore be supervised by Community Corrections and may be provided with assistance in applying for welfare, seeking employment, arranging for accommodation and establishing social networks.[Footnote][178] The respondent contends that the applicant will experience fewer impediments as a result.”[179]
[177]Returning Offenders (Management and Information) Act 2015 (NZ) s 17.
[178]New Zealand Department of Corrections, Returning Offenders, accessed at 25[99(g)].

While relevant, I will not regard this submission as determinative of any weight allocable to this Other Consideration (b). However, it is, to my mind, informative on the specific issue of the extent of overall impediments that the Applicant will face if removed to New Zealand. I have found that the Applicant’s age and state of health do not constitute any significant impediments upon a return to New Zealand, likewise with regard to there being any substantial language or cultural barriers. I am of the view that viewing the evidence holistically, he will have adequate social, medical and/or economic support available to him in New Zealand to virtually the identical level as would be available to other citizens of that country. This Other Consideration (b) only marginally assists the Applicant. It is of moderate weight in favour of revocation of the mandatory cancellation of his visa.

(c) Impact on victims

Paragraph 9.3(1) states that decision-makers must consider the impact of a section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

The previously orthodox approach to any analysis of weight allocable to this Other Consideration (c) required an examination of the material to reveal whether it included any victim impact statements (or the like) from victims who would be adversely affected were the Applicant entitled to remain in Australia. In the absence of such evidence, my approach has been to render this Other Consideration of neutral weight in circumstances where the evidence does not disclose the views of those victims about any adverse impacts upon them. As best as I understood the material, we do not have any such evidence from the Applicant’s victims from either his very serious offending or less serious offending.

What we do have is evidence from Ms P telling us she is favourably disposed to the Applicant remaining here – despite the fact I have found that he has committed serious acts of family violence against her, some of which was also committed in the presence of their child/ren.

I am mindful of Kerr J’s comments in PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to this effect:

“[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.”[180]
[180][2021] FCA 1235.

As noted, I have found Ms P has been the victim of the Applicant’s family violence conduct. Despite that, she has indicated that she and their children would be adversely affected by the Applicant’s removal.[181] There is written evidence (before this Tribunal) and it is evident from the previous Tribunal’s decision that Ms P was “strongly supportive” of the Applicant’s visa being restored because if he were repatriated, his contact with the children they share would be more difficult.[182]

[181]A1, [58].

[182]T, 36.

In the final analysis I agree with the Respondent’s contention that while a certain level of weight can be allocated to Ms P’s views, such weight should be diminished in circumstances where the Applicant has violently offended against her. I am satisfied that:

·this approach of limiting the weight of Ms P’s evidence on this issue is possible because she is the victim of domestically violent conduct by the Applicant;[183]
·this is a case falling into Kerr J’s category of cases where the impact on victims of the Applicant’s conduct weighs in favour of visa restoration.
[183]See Werner and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 336 [68].

This Other Consideration (c) is of only marginal assistance to the Applicant. It is of moderate weight in favour of revocation of the mandatory cancellation of his visa.

(d) Links to the Australian community

Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.

There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.

(1) Strength, nature and duration of ties

With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.

1. Impact of non-revocation on the Applicant’s immediate family

The Applicant’s immediate family are his mother and his brother. Both of them gave evidence at the hearing. They also provided written statements. I will deal with each of the mother and brother in turn.

·The Applicant’s mother: written material
In her written material,[184] she speaks of having “[…] relied on him since he was in high school because I raised the boys on my own without any help from their father.” She speaks of a fatherly role taken on by the Applicant from “very early in his life”. She also says that prior to his incarceration the Applicant “[…] was a huge help for me and my youngest son […] [the Applicant’s brother]”. She also speaks of the Applicant’s brother helping her with her daily and recurring requirements and that the absence of the Applicant is putting additional strain on the Applicant’s brother’s time because the brother has to help the mother in circumstances where the Applicant used to do that sort of thing. She speaks of the Applicant being a “loving caring honest and respectful son within our family and our church community […]”. In terms of the Applicant’s most serious offending, she says “I was very shocked when my son [the Applicant] was involved in this offence. This was so out of character for the boy I know and raised.” The mother goes on to record that the Applicant is now only focussed on being the best possible father for his abovementioned three biological children (without reference to Child R). She also says he has been a good uncle to his brother’s children. She said that if the Applicant is returned to the community, he “[…] will come back to [town redacted] and live with his family. He hopes to raise the children here with the support of me and his brother.”
[184]See primarily, A4. See also T, 185. The quotations in this paragraph are from Exhibit A4.
·The Applicant’s mother: oral evidence
At the hearing, the Applicant’s mother was asked about the nature of her relationship with the Applicant and how his imprisonment has affected her. This is what she said:
“INTERPRETER: My relationship with my son is very close. We lived together in Samoa when he was growing up. After his school years he worked. He was my right hand in helping me. We left Samoa and travelled to New Zealand and then we arrived here in Australia on 4 July 2005. He was a hard-working man and he was doing the same thing from Samoa up until now. We were separated when he got married and had his own family and children but helping us and assisting us still remains.
MS FINNEGAN: How has the applicant’s imprisonment affected you?
INTERPRETER: I only have two children – sorry, I have only have two children and I’m now suffering or affected with diabetes.
MS FINNEGAN: The absence of RTTW from your life, is there anything further you want to say about that over the last five years?
INTERPRETER: I’m missing so much regarding finance because he was someone that supports me very much in what I need and also the family unity, like, being as a family, that’s another thing that I miss.”[185]
[185]Transcript, 80, lines 4–22.

She was also asked about how a return of the Applicant to New Zealand would affect her and her family. She said this:

“MS FINNEGAN: If the applicant is returned to New Zealand how will this affect you and your family?
INTERPRETER: It’s going to really affect me regarding his health because he’s got some health issues as well, like, having seizures at times so that’s going to be the most – the major concern for me is his health and wellbeing. I’ll be missing him that much. I know it’s going to be very hard because of being apart and not able to visit him or see him that often where I want to.”[186]
[186]Transcript, 81, lines 9–16.

·The Applicant’s brother: written evidence[187]
The Applicant’s brother works as a forklift driver at the same business where it is proposed that the Applicant will find employment if returned to the community. The brother, his wife and their three children have recently moved into the Mother’s house to take care of the Applicant’s mother due to her “ongoing health issues, related to her diabetes.”[188] The Applicant’s brother is aware of the nature of the Applicant’s offending and of the role alcohol has played in it. He proposes to assist the Applicant with sourcing counselling services and other support upon a return to the community. With specific reference to the extent of the impact of a removal of the Applicant to New Zealand upon him, the Applicant’s brother says this: “He communicates more with me and I feel that we have actually become closer.”[189] Later in his written statement he says that were the Applicant to be returned to New Zealand, “[…] he would not have the care and support of his family and friends here in Australia.” He adds, “[w]e would like him to be able to move to [town redacted] where he has mum and I, along with our family and friends, to support him to get back to some normality.”
·The Applicant’s brother: oral evidence
During the hearing, the Applicant’s brother was asked how he would be affected if the Applicant were to return to New Zealand. He responded with the following:
“MS FINNEGAN: How will it affect your family – how will it affect yourself and your mother if the applicant is returned to New Zealand and to never return? What impact will that have on you and your mother financially and emotionally?
WITNESS: There will be – it will be hard for us if he goes back to New Zealand. Like, because my mum has diabetes and blood sugar and that. It would be really hard because we don’t have him here and I’m facing my daughter’s health as well. So I pretty much cannot do everything at once.
MS FINNEGAN: So you’re shouldering most of the family responsibility at the moment?
WITNESS: Yes.”[190]
[187]See principally, A3. See also T, 304. The quotations in this paragraph are from Exhibit A3.
[188]A3, [3].
[189]A3, 2[12].
[190]Transcript, 135, lines 4–13.

As best as I understood the evidence of the Applicant’s mother and brother, any weight allocable to this specific question arising from this Other Consideration (d) is to be found in the misgivings they (and, of course, the Applicant) have about (1) the Applicant re-establishing himself in New Zealand and (2) the absence of the de-facto “father figure” they previously knew and apparently relied upon prior to the Applicant’s incarceration. It is plain that the Applicant’s brother and mother will be adversely impacted in the event of his removal. On this basis, the strength, nature and duration of the Applicant’s ties to his immediate family members comprising his mother and brother carries a certain, but not determinative, weight in favour of revocation.

2. Strength, nature and duration of “other ties” – length of residence

The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia and whether he came here as a young child. He arrived in Australia in July 2006 as an 18 year old. He was therefore not a “young child” when he first came here. Movement records indicate he has only been absent from Australia for something like 4–6 weeks since his arrival. He has therefore resided in Australia for over 15 years.

With reference to the first of the two tempering sub-elements necessary to be taken into account in the allocation of weight to this second component of paragraph 9.4.1, the Applicant’s earliest conviction dates from June 2013. This is some seven years after his arrival. It is therefore not safe to find that he began offending “soon after arriving in Australia”. On that basis, it is not possible to apply this first tempering element referred to in paragraph 9.4.2(2)(a)(i) against the Applicant.

Second, paragraph 9.4.2(a)(ii) requires an ascertaining of the extent to which the Applicant can be found to have positively contributed to the Australian community. The evidence indicates the Applicant has contributed to the Australian community in the form of employment, community sports, and religious involvement.

In terms of employment, the Applicant wrote:

“I confirm that since arriving in Australia I have been working hard across a number of jobs to support myself and my family. My employers have included a bakery in [location redacted], [business name redacted], [business name redacted], [business name redacted] and [business name redacted].”[191]
[191]T, 176.

The Applicant’s evidence about his employment history is consistent with what his other family members and certain referees said.

In terms of community sports, the Applicant played in a local rugby team for about two years. In terms of religious involvement, the Applicant has, from time to time, been an active member in his local church.

Under paragraph 9.4.1(2)(a)(ii), I give weight to the time that the Applicant has spent involved in these types of community endeavours.

I am therefore of the view that the length of time the Applicant has spent in Australia weighs carries a certain, but not determinative weight, in favour of restoring his visa.

3. Strength, nature and duration of “other ties” – family and other social links

I have identified the following individuals as people falling within this category. They comprise:

·Ms P: at first blush, it may sound somewhat unrealistic and lacking in credibility for someone such as Ms P who has been at the receiving end of the Applicant’s family violence conduct to be expressing a positive view in terms of the nature and extent of her ongoing ties to the Applicant. She did not give evidence at the instant hearing. However, we have her statement in the material to which I have alluded to earlier. In her written statement appearing in the material,[192] she refers to the Applicant as a “great father”. In terms of his removal, she says “I really don’t think he would be able to get any help in New Zealand – there will be no support at all. I would fully support [the Applicant] in the best ways possible to rebuild and give back to the community and be the best dad he could be.” As best as I understood Ms P’s position expressed in this statement, she thinks the primary impact of the Applicant’s possible removal will be upon the children. She does not necessarily say that she will personally be impacted. Although, she does say that she does support him coming back into the community. It is therefore safe to find that the Applicant’s relationship with her is a strong and durable one. It should also be noted that in a more recent statement, Ms P has said “I’ll always love and care for him being their father and leaving the country will make a big impact on the mental state of myself, children and [the Applicant] –– I can’t stress this enough”.[193] Ms P did not give oral evidence at the hearing before me.
[192]T, 190–191. Note: the quotes in this paragraph are from this document.
[193]T, 394–395.
·Ms P’s family (including Ms VK and Ms CK): earlier in these reasons, I made reference to the evidence of Ms VK and Ms CK who have assumed a parental role in relation to the Applicant’s three biological children (not including Child R). Ms CK is the carer for the two eldest of these three biological children. Her statement appears in the material. [194] It is apparent from her statement that Ms CK has known the Applicant for over 10 years. Her statement refers to the adverse impact on the children in the event of his removal. The primary orientation of her written evidence relates to the adverse impact on the children although she does say in general terms that “[…] it would be traumatising for [the Applicant] to be deported.” It is therefore safe to find that the Applicant’s relationship with her is a strong and durable one. Ms CK did not give oral evidence at the hearing before me.
[194]T, 186–187.
In Ms VK’s written statement appearing in the material,[195] it can be understood that she has known the Applicant for over 11 years. The youngest of the Applicant’s three biological children has been in Ms VK’s care for 5–6 years. She is aware of the Applicant’s offending yet regards him as “an amazing father” who “loves his children” Once again, the primary orientation of her statement seems to be that she is mainly concerned about adverse impacts on the children (i.e., of the Applicant’s removal to New Zealand) in the event of the Applicant’s removal. That said, it is not possible to seriously cavil with a finding that there is a measure of strength and durability in the Applicant’s relationship with her. It is therefore safe to find that the Applicant’s relationship with her is a strong and durable one. Ms VK did not give oral evidence at the hearing before me.
[195]T, 392–393.
·Pastor FL is the pastor of the Applicant’s local church in the abovementioned township where the Applicant’s mother and brother reside. In his written statement,[196] he refers to the Applicant coming from a “close-knit Samoan family”. He knows the family to the extent that he is in a position to refer to the “stress and heartache” that the Applicant’s family has been enduring due to the Applicant’s incarceration. He is aware of the Applicant’s offending and agrees “there is no excuse for what had happened […]”. He says the Applicant has “seen the error of his ways” and has “humbled himself and asked for forgiveness from the victim and God”. While not called to give oral evidence, it can be found that some measure of a strong and durable relationship in the realm of pastor-congregant relationship.
[196]T, 329.
·The Applicant’s sister-in-law provided both written and oral evidence. In her written statement,[197] she says she thinks the Applicant “[…] deserves a second chance in Australia […]”. She expresses a strong belief that if released back into the community, the Applicant will “be on the right path in life with employment and transport that will be waiting for him when he is to return home.” In her oral evidence at the hearing before me,[198] the Applicant’s sister-in-law spoke about the length of time she has known the Applicant and about the nature of their relationship. Overall, I will find that there is a level of strength and durability of the relationship between the Applicant and his sister-in-law.
[197]T, 367. The quotations in this paragraph are from this document.
[198]See Transcript, 140, lines 12–30.
·Mr ML is a cousin of the Applicant. His statement, dated 28 March 2020, appears in the material.[199] It is important to point out that this witness was not one of the co-accused in the very serious offending for which the Applicant was sentenced in December 2016. He has known the Applicant since 2007. He has positive things to say about the nature of the relationship between the Applicant and his abovementioned three biological children. When this cousin was having difficulties of his own, he says the Applicant “[…] took me into the comfort of his own home and allowed me to stay with him until [he] found [his] bearings.” Mr ML was not called to give oral evidence at the hearing. It is safe to find that there is a measure of strength and durability in the nature of the relationship between the Applicant and Mr ML.
·Mr TTT regards the Applicant as a “family member”. He has provided a written statement which is in the material.[200] He is aware of the Applicant’s offending. He thinks that with the assistance of his faith, the Applicant has “an excellent chance of succeeding and learning a crime-free life.” He also speaks of doing everything necessary to assist the Applicant “[…] to make a successful transition into the free world.” He was not called to give oral evidence. I will find that there is a measure of strength and durability in his relationship with the Applicant.
·I have earlier referred to Mr KF. He has provided two written statements. The first of those statements primarily deals with him assisting the Applicant to find and settle into employment upon a return to the community.[201] His second statement confirms he is aware of the Applicant’s convictions and repeats the efforts he is prepared to make to assist the Applicant’s employment prospects.[202] In his oral evidence, he was asked about how long he has known the Applicant and his family, and about the nature of the relationship with them:
“MS FINNEGAN: [Mr KF], can you tell the tribunal how long you have known RTTW and his family?
WITNESS: I’ve known them more than 30 years, the mum and the brother.
MS FINNEGAN: What is your relationship with them?
WITNESS: Just the mum and the brother work for me.
MS FINNEGAN: How will you help the applicant if he is released from detention?
WITNESS: They asked me if I can give him a job.”[203]
[199]T, 368. The quotations in this paragraph are from this statement.
[200]T, 369. Note: the quotations in this paragraph are from this document.
[201]T, 330.
[202]T, 348.
[203]Transcript, 74, lines 15–23

On the basis of the evidence from the abovementioned extended family and people with whom the Applicant has social links, I am of the view (and I find) that the strength, nature and duration of the Applicant's ties with those people carries a certain, but not determinative, weight in favour of revocation.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
There is no reference to this component of Other Consideration (d) in the SFIC filed on behalf of the Applicant. Neither party otherwise ventilated this component of Other Consideration (d) at the hearing. I am not satisfied that removal of the Applicant from Australia, despite his work history in Australia, would significantly compromise delivery of a major project or an important service in Australia. Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a certain, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a certain, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: of moderate weight in favour of revocation;
(c)impact on victims: of moderate weight in favour of revocation; and
(d)links to the Australian community: certain, but not determinative, level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a strong level of weight in favour of non-revocation;
·Primary Consideration 2 carries a strong level of weight in favour of non-revocation;
·Primary Consideration 3 weighs moderately in favour of revocation;
·Primary Consideration 4 weighs strongly in favour of non-revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b), (c) and (d), even when combined with the weight I have allocated to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa;
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 February 2020 to not revoke the cancellation of the Applicant’s visa.

317. I certify that the preceding 316 (three hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[sgd]......................................
Associate
Dated: 23 December 2021

Date(s) of hearing: 12 & 13 August, 21 September 2021

Advocate for the Applicant: Ms S Finnegan

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Advocate for the Respondent: Mr A Zhang

Solicitors for the Respondent: Clayton Utz
Annexure A – List of Exhibits

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

T1

Section 37 T-Documents (remittal bundle)
(T1–T20, paged 1–405)

-

16 April 2021

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1–13)

-

21 May 2021

A2

Submissions of the Applicant in Reply to the Respondent’s SFIC (paged 1–2)

25 June 2021

25 June 2021

A3

Statement of Applicant’s Brother (3 pages)

21 May 2021

21 May 2021

A4

Statement of Applicant’s Mother (2 pages)

21 May 2021

21 May 2021

A5

Statement of Applicant (unsigned)
(4 pages)

Undated

21 May 2021

A6

Supplementary submission from Applicant’s representative regarding the citizenship status of the Applicant’s children (2 pages)

4 May 2020

4 May 2020

A7

Psychologist Report by Mr Jeffrey Elwood Cummins (paged 1–6) attaching briefing letter (paged 1–5) (13 pages total)

5 July 2021

6 July 2021

A8

Applicant’s closing submissions
(paged 1-19)

-

27 August 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1–27)

21 June 2021

21 June 2021

R2

Bundle of Summonsed Material
(SM1–SM3, paged 1–175)

-

8 June 2021

R3

Tender Bundle (paged 1-61)

-

23 July 2021

R4

Respondent’s closing submissions (paged 1-19)

10 September 2021

10 September 2021

[2021] AATA 4813

23 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice

Offending resulting in custodial terms	Nature extent of custodial terms
Drive whilst disqualified Sentenced on 18 February 2015	28 days’ imprisonment Sentence wholly suspended
Criminal damage (intent damage/destroy) Unlawful assault Sentenced on 18 February 2015	28 days’ imprisonment Sentence wholly suspended
Robbery (three charges) Sentenced on 9 December 2016	12 months’ imprisonment on each count
Intentionally cause injury Sentenced on 9 December 2016	Two years’ imprisonment
Intentionally cause injury Sentenced on 9 December 2016	Two years’ imprisonment
Intentionally cause serious injury Sentenced on 9 December 2016	Four years’ imprisonment
Total:	11 years and two months’ imprisonment

Date(s) of hearing:	12 & 13 August, 21 September 2021
Advocate for the Applicant:	Ms S Finnegan
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Mr A Zhang
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents (remittal bundle) (T1–T20, paged 1–405)	-	16 April 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1–13)	-	21 May 2021
A2	Submissions of the Applicant in Reply to the Respondent’s SFIC (paged 1–2)	25 June 2021	25 June 2021
A3	Statement of Applicant’s Brother (3 pages)	21 May 2021	21 May 2021
A4	Statement of Applicant’s Mother (2 pages)	21 May 2021	21 May 2021
A5	Statement of Applicant (unsigned) (4 pages)	Undated	21 May 2021
A6	Supplementary submission from Applicant’s representative regarding the citizenship status of the Applicant’s children (2 pages)	4 May 2020	4 May 2020
A7	Psychologist Report by Mr Jeffrey Elwood Cummins (paged 1–6) attaching briefing letter (paged 1–5) (13 pages total)	5 July 2021	6 July 2021
A8	Applicant’s closing submissions (paged 1-19)	-	27 August 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1–27)	21 June 2021	21 June 2021
R2	Bundle of Summonsed Material (SM1–SM3, paged 1–175)	-	8 June 2021
R3	Tender Bundle (paged 1-61)	-	23 July 2021
R4	Respondent’s closing submissions (paged 1-19)	10 September 2021	10 September 2021