RTTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1154

RTTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1154 (6 May 2020)
Division:GENERAL DIVISION
File Number: 2020/0944
Re:RTTW
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:6 May 2020
Place:Melbourne

The Tribunal decides to affirm the decision under review.
…[sgd]………………………………………….
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – applicant is a citizen of New Zealand and Samoa – applicant does not pass character test – Ministerial Direction No. 79 – whether another reason to revoke mandatory cancellation of visa – primary considerations – protection of the Australian community – violent offending – domestic violence offending – best interests of minor children – expectations of Australian community – other relevant considerations – impact on victims – strength, nature and duration of ties to Australia – extent of impediments if removed – other submissions relating to current public health emergency – the decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s, 33A
Migration Act 1958 (Cth), ss 36, 198, 499, 500, 501, 501CA
Parole Orders (Transfer) Act 1983 (Vic)
Cases
CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re: [2020] AATA 803
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor HCA Trans 56 (24 April 2020)
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Maxwell v The Queen [1996] HCA 46; 184 CLR 501
Medcalf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re: [2020] AATA 927
QBBP and Minister for Home Affairs, Re: [2019] AATA 3905
Secondary Materials
Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
Parole Manual, Adult Parole Board of Victoria (Fifth Edition), September 2018
REASONS FOR DECISION
Senior Member D. J. Morris
6 May 2020
BACKGROUND

The Tribunal has made an order in this matter under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant in this matter. He will be known by the anonym ‘RTTW’.
RTTW was born in 1988 in Samoa. He is a citizen of the Independent State of Samoa and also of New Zealand. He grew up in Samoa and in his late teens resettled with his mother and brother in New Zealand. In July 2006, RTTW migrated to Australia, and he has lived in this country since that time, apart from one brief absence of six weeks from December 2019 to early February 2010.
As a citizen of New Zealand, RTTW was eligible for the grant of a Class TY Subclass 44 Special Category (Temporary) visa, the most recent of which was granted to him on him re-entering Australia in February 2010. This is the visa that has been cancelled. The visa was cancelled on 9 November 2018 under section 501(3A) of the Migration Act 1958 (the Act) by reason of RTTW failing the character test on the basis that he has a ‘substantial criminal record’ under section 501(7)(c) of the Act. RTTW had been sentenced to a term of imprisonment of twelve months or more and was serving a full-time term of imprisonment.
Following the mandatory cancellation of the visa, RTTW was invited to make representations to the Department of Home Affairs (the Department) regarding whether there was another reason, under section 501CA(4)(b)(ii) of the Act, that the mandatory cancellation of the visa should be revoked. He did so, and on 11 February 2020 the delegate decided to refuse to revoke the mandatory cancellation. It is this decision that the Applicant has brought to the Tribunal for review.
The hearing was held in April 2020 by electronic means, as allowed for under section 33A of the AAT Act. RTTW appeared by videolink, as did his legal representatives, Mr John Maloney of counsel, instructed by Mr Dushan Nikolic of Carina Ford Immigration Lawyers. Mr Neil Cuthbert, of Clayton Utz, representing the Respondent, also appeared by videolink. The Tribunal was assisted by interpreters in the Samoan language, by telephone. Other witnesses also appeared by telephone.
The parties both submitted Statements of Facts, Issues and Contentions, and the Applicant submitted a Statement in Reply. These were taken into account by the Tribunal. A list of other documents admitted into evidence is at the end of these reasons.
The mandatory cancellation of the visa
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation, in this case, of section 501(6)(a) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory. Before the Tribunal (GD, p 94) was a note from a Department officer dated 9 November 2018 stating that the officer was advised that RTTW was serving a sentence of full-time imprisonment in a correctional facility in Victoria.
The Tribunal has two tasks to perform. First, there must be a finding about whether the Applicant fails the character test. If the Tribunal is satisfied that he passes the character test, then the decision may be revoked under section 501CA(4)(b)(i) of the Act. If RTTW fails the character test, the sole issue before the Tribunal then becomes whether there is another reason, under section 501CA(4)(b)(ii) why the original decision should be revoked.
In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
Evidence in relation to the character test
In the papers (GD, pp 25- 27) was a Criminal History Check from the Australian Criminal Intelligence Commission dated 21 September 2018. It records that in December 2016 RTTW was convicted before the County Court of Victoria of the offence of intentionally cause serious injury, for which he was sentenced to serve four years’ imprisonment. He was also convicted of two counts of the offence of intentionally cause injury for which he was sentenced to two years’ imprisonment one each count, with one year and seven months of that sentence to be served concurrently. The Judge stated that the total sentence to be served was five years. The non-parole period was set at three years.
Counsel for the Applicant in written submissions did not contest that RTTW’s sentence means he does not pass the character test.
Finding in relation to character test
The Tribunal finds, on the evidence before it, that RTTW does not pass the character test under section 501(3A)(a) on the basis of section 501(7)(c) of the Act, because I am satisfied that he has been sentenced to a term of imprisonment of more than twelve months, and was serving a sentence of full-time imprisonment at the time of the visa cancellation.
The remaining task for the Tribunal to determine is whether there is ‘another reason’ why the mandatory cancellation of RTTW’s visa should be revoked.
The Ministerial Direction – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
The Applicant’s offending history
The Criminal History Check records the following offences in relation to the Applicant. In June 2013, he appeared before Sunshine Magistrates’ Court and was convicted of the offences of unlawful assault and deal in property suspected to be proceeds of crime. He was fined a total of $1,500.
In March 2014, RTTW appeared before the same Court and was convicted of the following offences: use unregistered motor vehicle on highway (4 charges), fail to wear seatbelt in a moving vehicle, display number plates not assigned to vehicle, fail to answer bail (2 charges), criminal damage (intent to damage or destroy), fraudulent use of identifying number, fraudulently use of plate uniquely identifying vehicle (2 charges), learner driver driving vehicle without experienced driver (2 charges), drive without front ‘L’ plate displayed, drive without ‘L’ plates displayed, fail to ensure child 7-16 years suitably restrained (2 charges). For these charges, the Court imposed a Community Corrections Order (CCO) for twelve months and 250 hours of unpaid community service. He was further convicted of the offence of driving whilst disqualified (2 charges). His licence was cancelled and he was disqualified from driving for three months.
In February 2015, also at Sunshine Magistrates’ Court, RTTW was convicted of the offence of driving whilst disqualified, and he was sentenced to 28 days’ imprisonment, wholly suspended. His licence was further disqualified for 28 days. On that date, he was found to have breached the CCO imposed in March 2014, and a fresh CCO was imposed for 12 months, to perform 250 hours of unpaid community work. He was also convicted of the offence of criminal damage (intent to damage or destroy), and the offence of unlawful assault.
In December 2016, RTTW was before the County Court of Victoria and was convicted of the offence of robbery (3 counts). He was sentenced to 12 months’ imprisonment on each count, 11 months of each count to be served concurrently. He was also convicted of the offence of intentionally causing serious injury, and two counts of intentionally causing injury, as referred to above.
OPENING SUBMISSIONS OF APPLICANT
Mr Maloney referred to the fact that RTTW had a long history of supporting his family and has exhibited genuine remorse. He said the Applicant has completed courses in prison and has not consumed alcohol or used any other illicit substances whilst incarcerated. He said that RTTW will be supported by his family if released and allowed to remain in Australia. He referred to the fact that the Applicant has three young children in Australia and that they could not at this time return to New Zealand, and that all of them were close to their father.
Mr Maloney submitted that if the Tribunal affirms the decision, the Applicant would be required to complete his head sentence in prison and would be exposed to the risk of contracting the coronavirus disease (COVID-19) whilst in custody, that it was presently uncertain when he could be safely removed to New Zealand, and that he would in effect be in indefinite detention in Australia. Mr Maloney submitted that these factors, together with the restricted contact RTTW is able to have with family and friends owing to decisions by corrections authorities to suspend visits due to COVID-19, should be taken into account by the Tribunal.
ORAL EVIDENCE
The Applicant
RTTW gave evidence through an interpreter. He confirmed that he was born in a small town near Apia, Samoa, was raised by his mother, and had never had any relationship with his father. He said that he has one brother who is six years younger than him and resides in New South Wales. He said he had a happy upbringing, though missed the fact that he did not have a father-figure. RTTW finished school at the end of grade nine and started working helping an uncle in cabinetry work. He said he gave all the money he earned to his mother to assist her with household expenses.
When he was aged 15 he said that his mother won a ‘draw’ which enabled her to migrate to New Zealand, which she did with her two sons. He said when he was 18 his mother suggested he go to Australia to earn some income to support them, which he did. His maternal aunt lived in Australia, so he initially came to live with her and her family. Soon after, his mother and brother joined him. RTTW said that he had a succession of casual work but often worked full-time hours, and he continued to provide his earnings to his mother to help her.
In 2008, RTTW said that he met Ms XP. They commenced a romantic relationship, moved in together, and in June 2009 had their first child together, a daughter. They went on to have another daughter in December 2010 and then a son in December 2014. RTTW said that he also had an affair with another woman before he moved in with Ms XP, and she gave birth to their child, a girl, in 2009.
He said that conflict arose in his relationship with Ms XP because ‘I ran out of a job, and she wasn’t happy’. He said that on one occasion the woman with whom he had the affair rang him to discuss their daughter. Ms XP learned of the contact and he said this led to Ms XP letting down the tyres of his car, and to him ‘slapping’ her.
RTTW confirmed that he was convicted of two counts of unlawful assault against Ms XP and that he felt sorry and regretted what happened, and was disappointed in his actions.
The Applicant said that he talks to Ms XP on occasion, particularly in relation to matters affecting their three children. He confirmed that two of the children are currently being cared for by Ms XP’s mother and the youngest by her aunt. He said that the children were brought to see him in prison every week until visits were suspended owing to the COVID-19 pandemic.
In relation to the offending which led to the prison sentence he is serving, RTTW said that the two co-offenders were related to him, one being a nephew and one a cousin. He said at the time of the incidents, he was living with this cousin, Mr XS. The other co-offender, Mr XA, lived elsewhere. He agreed with Mr Maloney that he was drinking a lot at the time, but said he confined his drinking to the weekends.
In regard to the offending, the Applicant said that, looking back, ‘I don’t blame the alcohol but the problem that night was the people I was with.’ He said that during his time in prison he has reflected on the events that evening and felt very sorry, that it has affected his mother particularly, and that he has learned a lot in prison.
RTTW said he had formed a relationship with a prison pastor and had resumed attending regular services, as he had done when growing up in Samoa, but that those religious services in the prison had lately been suspended because of COVID-19.
RTTW said he had completed a number of courses in prison, including a drug and alcohol course, and had learned of the effects of misuse of alcohol on relationships, including his former relationship with Ms XP and with his mother and children. When asked whether he had seen alcohol being consumed in prison, RTTW said that he had not. He said that he had not touched alcohol in the four years he has been in custody and had pledged not to touch it again, when released.

RTTW said that there is ‘no one in New Zealand for [him]’ and that his mother is worried he might get into trouble if he is repatriated there, especially with the stress of his family and children being in Australia.
The Applicant said that his mother and brother both work in a food processing factory in the town where they live in New South Wales. He said that he had previously worked in a Melbourne factory of the same company and was keen to work there again. He said that if he is released and allowed to stay in Australia, he will ‘do courses’ in order to get full custody of his three children.
Under cross-examination, RTTW was taken to the sentencing remarks of the County Court in December 2016 (GD, pp 28- 46). The incidents began in the early hours of the morning near a nightclub. RTTW agreed in response to questions that he and his two co-offenders waited in a dark alley for the first victim (whom they did not know) to come past. Mr XS struck the first victim, who fell to the ground, and Mr XA then kicked him in the head. RTTW took the victim’s mobile phone and his wallet. They left the victim lying in the alley.
RTTW said that he remembers robbing the victim and that he was seriously injured, but told the Tribunal he did not hit this victim.
Shortly afterwards, RTTW and the co-offenders were driving along the road and saw two young men (who it turns out were brothers) walking along the street. They got out of the car and Mr XA struck one of the men, causing him to stumble. His brother then went to this victim’s aid. All three of them then punched the third victim and dragged him onto a nature strip. They then returned to the second victim, causing him to fall and kicked him in the ribs, and then robbed him. RTTW agreed in his evidence that he punched the second victim in the shoulder, and said he punched the victim in his head ‘when he was choking my cousin’.
Mr Cuthbert asked RTTW whether he was aware that this victim was concussed, which he said he was. RTTW said he was 28 at the time and knew what he was doing was wrong. He agreed that his two co-offenders, were both aged around 20 and 21. He said they were ‘leading me, I was drunk and didn’t think right’.
The Judge referred to the fact that, earlier on the night in question, the three were all drinking and RTTW had consumed more than ten premixed cans and some shots. RTTW agreed that he had a problem with drinking at this time, and that part of the reason for his drinking was his forced separation from Ms XP and his children due to the intervention of the Victorian Department of Health and Human Services (DHHS).
RTTW said that he had a good relationship with his own family before he went into prison but that it has improved; he said he never shared his problems with them before, and now does so. He said that if allowed to stay in Australia, he would try to avoid contact with Mr XS or Mr XA ‘because they led me into a lot of trouble’.
In respect of his relationship with Ms XP, he said they broke up about two and a half years ago, since he has been in prison, when she told him she has a new partner. He said that he first stopped living with Ms XP in 2014 when DHHS ‘evicted’ him, but that he was allowed to return. His youngest child was born in December 2015 and RTTW said that DHHS again told him he could not live in the house shortly afterwards, so he moved in with Mr XS.
RTTW said that in relation to one conviction for assaulting Ms XP, she had put a knife through his tyres and he ‘was angry and gave her a slap’. He said that Ms XP told the police he had thrown a stone at her, but he did not. He said he had not been drinking at the time.
RTTW said that on one occasion his son was crying, and would not stop. He and Ms XP took him to hospital. He said that staff of the hospital reported that they had beat their son and tried to blame him. He said: ‘there was no proof I gave my son a hiding. That’s the reason DHHS made me move out.’ He said he had never been violent towards any of his children, and loved them.
RTTW said that there was another occasion where he slapped Ms XP, which he said was when they were under financial pressure, which had led to an argument. He said that he had come home from his cousin’s house and heard Ms XP talking to someone, who he thought was another man, on the phone, ‘and that’s why I assaulted her’. He said the children were present on this occasion. RTTW said generally when he and Ms XP had arguments, the children were either asleep or staying with other relatives.
RTTW said that he wanted to take up the potential employment offer in New South Wales, but also wanted custody of his children, so he probably would, at least initially, come down to Victoria to see them at weekends.
In relation to his other daughter, not born of Ms XP, RTTW said that he had had no contact with her at all, and that her mother has since passed away. He said that on one occasion the girl’s grandmother came to see him in relation to an Australian passport application, but he did not know this child’s whereabouts.
In terms of his employment history, RTTW was referred to list of past jobs (GD, p 206) and agreed the longest he had held a job was around two years. He said that there was a variety of reasons for this – sometimes he was engaged casually, sometimes the jobs closed down and he also got a sore back. He said that he had never been sacked from any job, and had never lost any job through drinking. He said that he sent money to his children on occasion, and sometimes he would ask his mother or brother and they would transfer him some money. He agreed that he was ‘mostly not working’ in 2015, but said he sometimes has problems with his memory of things.
Mr XF, the Applicant’s brother
Mr XF gave evidence that, growing up without a father, his older brother had taken on that role to support him and his mother. Mr XF said RTTW had got out of school earlier and started work to help with family household costs. He said after they moved to New Zealand, the Applicant did the same, working as a cleaner in the town they lived in near Wellington.
Mr XF said he remembered when RTTW and Ms XP first met and commenced a relationship, and when he learned that Ms XP was pregnant with their first daughter.
Mr XF said that he lives in New South Wales with his own partner and four children. He said that prior to the COVID-19 lockdown he took his children to visit RTTW in prison when he had a day off, about every second or third week.
Mr XF said he was shocked to learn of the offending in 2016. He said he went to see his brother in prison when he found out and he was very distressed. He said his view was that the courses RTTW had done in prison had helped him a lot and that he is more mature and more open in talking about his problems.
Mr XF said that he had spoken to mental health providers in his town and they had advised him they could only do an assessment when the Applicant has a release date and can arrange a transfer. He said that he had spoken to his supervisor at the factory where he works, Mr XK, who was prepared to ‘give his brother a chance’ (of employment).
Mr XF said that the offending by the Applicant had shocked their mother and led to her admission for a short time to hospital, and that she would be further affected if RTTW was not allowed to stay in Australia.
Under cross-examination, Mr XF said that he was not aware of RTTW having any convictions before 2016, apart from fines and CCOs. He said he did not know that his brother had been convicted of assaulting Ms XP and never saw any fighting when he was in their company. He said that he was aware that DHHS had become involved, but not why.
In respect of the 2016 offending, Mr XF said his brother said he could not remember what he’d done. He said that his understanding was that RTTW did try to tell them to stop, but he didn’t think they listened.
Ms XC
Ms XC, the mother of Ms XP, gave evidence. She told the Tribunal that she was the guardian of two of the children of the Applicant and Ms XP. She said that, in relation to the oldest child, RTTW had been the primary care giver because Ms XP had to go out to work, and she was of the view that he had always been a good father.
She said prior to the COVID-19 lockdown, she and the children visited RTTW every second or third week in prison and had been doing so consistently for three years. She said she would support all of the children going to live with their father.
Ms XC said that, while in prison, RTTW had improved his English language skills, which had been a hamper on his employment options. She said, before he went to prison he had ended the relationship with Ms XP and was ‘bumming around’ and her view was that the courses he had done have better equipped him for release, and that he has significantly matured.
Under cross-examination, Ms XC said she was unaware of any offending before 2016, but she was aware of occasions when her daughter, Ms XP, had involved the police in their domestic disputation. She said she was not aware that RTTW had been convicted of assaulting Ms XP, but said that Ms XP ‘was not the easiest of people. She was expecting far too much from him.’
In regard to the 2016 incident, Ms XC said she had understood that there had been one assault and a wallet taken. She was not aware that one of the victims had surgery.
Ms XC said she had never witnessed RTTW being violent towards the children. She said that, subject to the requirements of child protection agencies, she would be supportive of the children, if they wanted, being in the care of their father permanently.
Mr XK
Mr XK gave evidence that he is a supervisor at a factory in New South Wales where both the Applicant’s mother and brother are also employed. He said that the business is flourishing and they are always looking for workers. Mr XK said that he was aware that RTTW had worked for a Melbourne factory owned by the same company and he was prepared to offer him employment, if he remained in Australia and moved to the town.
Mr XK said he also personally owned a barber shop and would be prepared to offer RTTW employment there and provide him some training.
Under cross-examination, Mr XK said he was aware of RTTW’s previous convictions and their nature and agreed it was a ‘bit of a gamble’ to offer him employment, but he was prepared to do so on the basis that his brother had told him that the Applicant had changed.
Ms XM, the Applicant’s mother
The Applicant’s mother also gave evidence through an interpreter. She said that when the Applicant was aged 9 he became ill and one side of his body became paralysed, but it slowly healed, and that he has, even today, had problems with recurring headaches. She said that was the only residual physical effect.
Ms XM said before the Applicant went into prison she resided in Victoria and often saw him with his children, and said he was very good with them. She said she was shocked to learn of the 2016 offending because she had never seen her son as someone who causes problems, and instead saw him as quiet and calm. She said she believed that drinking too much alcohol had caused his behaviour that night.
Ms XM said that before the COVID-19 lockdown, she had visited her son every two weeks. She said she was a member of a local church community and would like her son to become involved when he is released if he comes to live in the same town. Ms XM said that RTTW has a good and respectful relationship with her husband, his stepfather.
Ms XM said that she sees the Applicant’s three children every school holidays, and that they miss their father and can’t wait for him to come out. She said that if RTTW had to return to New Zealand, she would be able to visit him, but it would be difficult.
Under cross-examination, Ms XM said she was aware of a number of vehicle offences that RTTW had been convicted of, and for which he had received fines and Court orders. She said she was not aware of the two assaults RTTW was convicted on Ms XP.
Mr Jeffrey Cummins, expert witness
Mr Jeffrey Cummins, clinical and forensic psychologist, gave expert evidence. He confirmed that he had undertaken a clinical assessment of the Applicant, assisted by an interpreter, over two sessions, and had provided a report dated 21 April 2020, which was before the Tribunal (Exhibit A14)
Mr Cummins said that he had concluded that RTTW was suffering from a Major Depressive Disorder and an Alcohol Abuse Disorder at the time of his offending, and that currently he has a reactive depressive disorder because of uncertainty about his immigration situation.
Mr Cummins told the Tribunal that he administered a Historical Clinical Risk Management-20 (HCR-20) assessment and that in his opinion the risk of RTTW committing further offences of violence is a ‘low’ risk. He said that he had based this assessment on the time the Applicant has spent in custody, the very large number of course sessions he has attended, and the increase in his level of maturity and insight into his offending.
In terms of the Alcohol Abuse Disorder, Mr Cummins was of the view that this condition has ended and said that RTTW had indicted his intention to refrain from drinking alcohol on a long-term basis. Mr Cummins pressed the Applicant on this during the assessment, and RTTW said that in the event that he did resume drinking alcohol, he would ensure he did so only in moderation. Mr Cummins said RTTW acknowledged that he had a drinking problem.
Mr Cummins said that the Applicant is very close to his children and wants them to be a significant part of his life, and regarded their presence as an ongoing psychological support to him. Mr Cummins said he concluded that there was no need for further therapeutic intervention and that the current diagnosis he has made of depressive symptoms are reactive and related to the current legal and immigration circumstances.
Mr Cummins said that, in his view, RTTW had rehabilitated and his risk of re-offending is no greater than that of the majority of members of the adult male population.
Under cross-examination, Mr Cummins accepted that the Applicant’s pledge to refrain from drinking alcohol is just a goal, because he has not been tested outside of the custodial environment. In respect of the HCR-20, Mr Cummins said that tool relates only to violent offending, and his opinion of RTTW committing any offence is ‘the same as any male; that is, average.’ He said his view is that there is formally a ‘low’ risk of the Applicant re-offending in terms of non-violent offences.
Ms XP
Ms XP, the Applicant’s former partner, gave evidence. She said that RTTW was a loving father and that, because of his trouble with reading and writing, it had been harder for him to get a job than it had been for her. Consequently, after their oldest daughter was born, she went to work and RTTW was the primary carer.
In relation to their son born at the end of 2015, Ms XP said that soon after his birth there were accusations which led to RTTW moving out of the house and that limited the amount of contact he had with his son at that time.
In relation to the two assaults, Ms XP said ‘I’d call the police in the heat of the moment. It sounds so dramatic. I just wanted him out of my face. It wasn’t as bad as it sounds. I wasn’t lying, either.’
Ms XP said that RTTW was never angry or violent towards the children and, if he had been, she would not be giving evidence in these proceedings. She said that they still talk about matters relating to the children, but that she has ‘moved on.’
Under cross-examination, Ms XP said that she would often call the police to ask for RTTW to be removed when they argued. She stated: ‘It wasn’t always physical abuse.’ She said that RTTW would get frustrated with her and that part of the reason for that was the Applicant’s language problem, that is, his limited English. She said the children only witnessed the police calling on one occasion; on other occasions they had been with her mother or other family members.
Ms XP said that she wants the children to be with her, but also to be able to spend time with their father. Ms XP said that she would like the children to be back in her care and that she had undertaken a number of courses, but DHHS had so far declined to support the relevant arrangements for that to occur.
Ms XV
Ms XV gave evidence. She confirmed that she has care of RTTW and Ms XP’s son, and is the aunt of Ms XP.
Ms XV said she had seen RTTW with the older children over the years and her observation is that he is a good father. Ms XV said that she has been caring for the Applicant’s son for more than five years and that her understanding is that DHHS wants the child to be in her care until he turns 18, but that will be confirmed after a pending court case. She says that she has taken the child to see RTTW in prison around eight or nine times each year.
Ms XV said she was very supportive of RTTW having care of all three children in the future because she believes they should grow up with knowledge of Samoan culture, which she cannot provide.
In terms of RTTW’s offending, Ms XV said she believes he was wrongly convicted because of language barriers. She said she also does not accept his convictions for domestic violence assault; she was aware of them but said she was aware that her niece was strong-willed and would ‘ring the police, even if he hasn’t touched her.’ She said she would not support the children going into care of Ms XP.
CONSIDERATION – THE DIRECTION
Primary considerations
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct to date (paragraph 13.1.1)
This part of the Direction requires the Tribunal to take into account certain principles, including that violent and/or sexual crimes are to be viewed very seriously (paragraph 13.1.1(1)(a)), and that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b). The Direction also requires the Tribunal to take into account the sentences imposed by the courts for a crime or crimes (paragraph 13.1.1(1)(d)), the frequency of a person’s offending and whether there is any trend of increased seriousness (paragraph 13.1.1(1)(e)), and the cumulative effect of repeated offending (paragraph 13.1.1(1)(f)).
In this matter, the Tribunal places the Applicant’s offending into three distinct parts. The first part is the motor vehicle offending and stolen property offending which was generally dealt with by the Courts by way of fines, suspended sentences and CCOs. It is a matter of concern that RTTW breached CCOs and conditions of bail. But, on the whole, this offending was at the lower end of the scale.
In the second part are the two convictions of unlawful assault against his then partner. While the Tribunal may accept Ms XP’s own evidence that she had a propensity to call the police when she was frustrated by the Applicant, and takes account of evidence from her mother and aunt that she was not the easiest person to deal with, RTTW openly admitted to two occasions where he ‘slapped’ Ms XP, and that one of the interactions with the police occurred in front of two of the young children. Any violence against women is completely unacceptable, and especially in a domestic environment where young children are exposed to such violence.
The third distinct part is the offending in May 2016. This is very serious offending. RTTW and his two co-accused decided to drive to a nightclub with, as the Court noted, the specific intention of assaulting some person and taking their phone. This was premeditated action, regardless of whether consumption of alcohol was a factor. The sentencing remarks relate that the three positioned themselves in a dark alley and disguised their appearance with hoods. The first victim was struck and, then when he fell, kicked, rendering him unconscious.

The Judge described that shortly after the first victim’s friend could not locate him and enlisted security staff at the nightclub to help, the victim was found unconscious, lying in a pool of blood (GD, p 31). He was taken by ambulance to hospital. He suffered two nasal fractures, two jaw fractures and a fractured eye socket. He had surgery for the nasal and jaw fractures and a titanium plate and screws were inserted into his face. His injuries were not life-threatening but the Judge said they were likely to have caused severe pain. He reported experiencing trouble sleeping and eating afterwards, and in the longer term is at risk of chronic pain in the jaw, numbness and possible difficulties with breathing through his nose.
In terms of the second and third victims, assaulted only minutes after the first victim was left lying in the alley, one brother was pulled to the ground, ripping his clothes and then punched by all three co-offenders, and left unconscious. The second brother, who went to his aid, was punched, causing him to fall. The co-offenders continued to kick him in the ribs.
His Honour records that the second victim suffered bruised ribs, scratches on his arms, a sore knee and a tender jaw and face. The area under his arm was also bruised and painful. The third victim suffered ongoing dizziness and headaches, with swelling to the right side of his face, bruising under his eye, and was diagnosed with concussion.
The Judge noted that RTTW spent the cash from the first victim’s wallet on food and cigarettes and when apprehended by the police still had the first victim’s phone, and a phone owned by one of the brothers, the second and third victims.
One of RTTW’s co-offenders, Mr XA, when asked by the police whose idea it was to go out and assault random strangers, responded ‘Oh, it’s all of us’ idea.’ I note that His Honour refers to a report by Dr Cunningham, forensic psychologist, in relation to one of the co-accused, the youngest, Mr XS. Relevantly, the Judge said that this co-offender wrote to that psychologist that the main contributors were alcohol and his association with RTTW, who he suggested urged him to engage in the offence. The same psychologist also interviewed Mr XS’s mother who referred to RTTW as a ‘bad influence’.
It may be expected that three co-accused might, being separately interviewed, seek to shift levels of blame onto each other, but it is significant to me that Mr XA’s evidence was that it was a joint decision by all three to go out and assault members of the public, and that Mr XS’s mother was of the view that RTTW was a bad influence. The Tribunal was particularly disturbed by RTTW volunteering in his evidence that he decided to attack the second victim because he was ‘choking’ one of the other attackers. That is not supported at all by the summary of events set out by the sentencing Judge; there is no evidence of any of the three victims doing anything other than defending themselves or, in the case of the two brothers, one trying to protect the other brother.
I do not accept any of the evidence in these hearings that somehow RTTW had fallen into bad company and that was what led him into offending. He was older than the other two co-offenders, by several years, and they were people he had known throughout his life. He was also the only one of the three with a history of prior offending.
The Tribunal cannot look behind or impugn the conviction or the essential facts on which the Court based the conviction (see HZCP v Minister for Immigration and Border Protection [2018] FCA 1803). To the extent that RTTW attempted in his evidence to suggest that he did not strike the first victim, I am compelled to note that the Court found that this was joint enterprise offending and all three were convicted of the offences (to which I note each of them pleaded guilty) of serious assault and two counts of assault. The High Court of Australia has found that a plea of guilt means that the person making the plea accepts all the elements of the offence (Maxwell v The Queen [1996] HCA 46; 184 CLR 501.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Tribunal must assess the nature of harm to individuals or the Australian community should a non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further conduct of that kind, taking into account the evidence on the risk of re-offending.
Mr Cummins’ opinion was that RTTW had rehabilitated and that his risk of re-offending was ‘low’. He further opined that the risk of re-offending was no greater than the ‘majority of members of the male community’. With respect, I do not accept that conclusion.
The majority of members of the male community have not shown a disregard for the law. RTTW is in a category of persons who has been convicted of three serious offences of violence. He had previously been convicted of two assaults in a domestic context. He has a separate history of other offending. Taking into account that it appears he has been diligent in prison in attending many courses and in behaving well as a member of the prison community, the Tribunal cannot accept that, with this forensic background, his status, in terms of a risk of re-offending, is the same as any other member of the male community.
RTTW states that he decided soon after entering prison to give up drinking alcohol. He told the Tribunal that alcohol is not available in prison – at least he has not seen it. Mr Cummins agreed that his resolve to abstain from alcohol has not been tested. Accepting that this may be a genuine intention on the part of the Applicant, I note that when pressed by Mr Cummins on this particular pledge, RTTW said that he had learned in his alcohol education course about moderating his consumption, if he did resume drinking alcohol, to a level that would not substantially alter his behaviour.
I am concerned that the factors that may have contributed to RTTW’s admitted alcohol problem will again be present on his release. At that time he went to gaol he had separated from Ms XP (though there was some conflicting evidence about that in terms of their relationship, but he was certainly living apart from her), and had been told by the DHHS that he could not live with his children. He was not working, and he was in the company of his relatives. The only thing that has changed in that equation is that Ms XP has a new partner. It may be that RTTW would be living with his mother interstate, if he accepts that employment opportunity, which would provide a more protective environment against re-offending than living with a young male relative, as he was prior to the major offending. The lack of clarity about custody of the children in relation to their parents remains: RTTW said he would like to have custody and would ‘do courses’ if necessary. Ms XP said she would also like to have custody, but had so far been prevented from that.
While I may accept there is a low risk of violent re-offending, I conclude that a real risk of offending remains, with this relatively volatile backdrop, which has several moving parts which affect the robustness of protective factors. The risk may be reduced if RTTW was able to go to work interstate at the job offered by Mr XK, but that will then create a separate tension with his children in another State, let alone the conflicting wishes of their mother, as expressed in her oral evidence, in regard to custody.
The sentencing judge referred to RTTW reporting that he may have suffered a childhood stroke (GD, p 43). The Applicant was examined by a neuropsychologist in October 2016 and her report was before the Court. The Judge was of the view that RTTW was not ‘completely capable’ of empathy or an ordinary level of moral reasoning. He accepted that RTTW had some moderate and severe cognitive disabilities and also that there was no evidence of a frank psychotic disorder.
The Judge accepted that there are compromised mental processes and cognitive impairments which affect the Applicant’s behaviour and accepted that his moral culpability may be slightly reduced by this. The neuropsychologist’s report was not before the Tribunal, so the information in this regard is incomplete. I cannot make a specific finding about whether any cognitive deficits might contribute to the level of risk of re-offending, but I note that Mr Cummins said in his evidence that a person does not need to function in the average or above average intellectual range not to re-offend, an opinion with which I agree.
The Tribunal finds that this primary consideration, especially because of the seriousness of the offending against innocent members of the community, weighs against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal must make a determination about whether revocation is in the best interests of relevant children. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ.
The Tribunal has identified eight children for whom a specific determination should be made. RTTW also referred to a group of what he described as ‘other nieces and nephews’ living in Australia in his extended family, but did not particularise them or their ages, so in the absence of that information, the Tribunal is unable to make a determination about them.
The first children whose best interests should be considered are the Applicant’s children with Ms XP, his daughters currently aged 11 and 9, and his son aged 5. In respect of the two girls, the Tribunal received a large amount of evidence of RTTW’s closeness to them, particularly his oldest child. Ms XP explained that, owing to the fact it was easier for her to get work when their first child was born, RTTW formed a particularly strong bond with her. The Tribunal accepts the evidence, which was consistent from several witnesses, that even though he has been in prison now for some four years, he has had regular contact with his three children, slightly more with his daughters than his son.
However, there is also evidence that indicates, quite apart from the separation occasioned by his imprisonment, responsible agencies had determined it was not in the best interests of the children for them to reside with their father. The basis for that decision is not clear, and the Tribunal is left at a disadvantage because of that. Mr Cummins said that RTTW told him during his assessment that the children had been taken out of the care of their parents because it was alleged that he and Ms XP had physically assaulted their son. The Tribunal directly asked Mr Cummins whether his clinical notes shed any further light on that exchange, but he responded that they did not. This is a factor that the Direction requires me to take into account (paragraph 13.3.(4)(a)).
The Tribunal had in the papers handwritten statements from two of RTTW’s daughters indicating that they wanted their father to stay in Australia and they wanted to be with him. The Applicant and Ms XV both said that because of the age of RTTW’s son, the bond between them has not been as strong as it is with the older girls, but also that she has tried to improve that by taking RTTW’s son for regular visits to the prison.
I must weigh these statements from the children taking into account the ages of the children and the stated wishes of Ms XP that she wishes to regain custody of them, and has made efforts to do so, but that she was also happy to allow RTTW access to them.
It is also unclear whether the Applicant would, if his visa is restored, be able to complete his parole obligations interstate. The Tribunal notes that the Parole Orders (Transfer) Act1983 (Vic) makes provision for transfers of prisoners to other jurisdictions, at the discretion of the relevant State Minister, and that one of the factors that is taken into account is employment opportunities for a prisoner. The Tribunal accepts that this is a potential option for RTTW, especially if he were to secure employment in New South Wales.
Notwithstanding this lack of clarity, the Tribunal is satisfied to make a determination in relation to the three children of Ms XP and the Applicant that it is in their best interests that the mandatory cancellation of RTTW’s visa be revoked.
In relation to RTTW’s other daughter, aged 10, whose mother had since died, there was little information before the Tribunal. The Applicant’s mother said she had met the child and had some historical contact with the child’s maternal grandmother, but had lost that contact. She believed the child resided somewhere in Victoria, but that was the extent of her knowledge.
Given this, the Tribunal makes a determination that the best interests of this child cannot be ascertained.
Ms XF and his fiancée have four girls and a boy, aged 8, 4, 2, and 5 months. Mr XF said that all except the youngest had visited RTTW in prison. The Tribunal considers that, as Mr XF is RTTW’s only sibling and these are his only nieces and nephew, and they clearly have a relationship with their uncle, it would be in their best interests that RTTW remains in Australia, especially in the event that he went to live with his mother in New South Wales, in the town where they also live. However, the weight that this determination has is lightened in terms of the Direction because other persons perform parental roles in relation to these children.
Overall, the Tribunal finds that it would be in the best interests of all of the children for whom a determination has been made for the mandatory cancellation of the visa to be revoked, but that weight is not as strong as it would be if the child protection arrangements were not in place.
Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Federal Court considered this part of an earlier version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185. The wording in the earlier version of the Direction was relevantly the same.
In FYBR, the Court consisted of three judges. Two of them (Charlesworth and Stewart JJ) held in separate judgements that this part of the Direction expresses a ‘norm.’ Their Honours separately decided that it is not for a decision-maker to make his own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not presumptions or values that may be derived by some other subjective evaluative process.
Stewart J stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour later said (at [102]) that the character assessment, even viewed through the prism of community expectations, may not be decisively against an Applicant, and that is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.
Last month the High Court of Australia, considering an application for special leave to appeal this decision, refused special leave. In FYBR v Minister for Home Affairs & Anor HCA Trans 56 (24 April 2020) (Kiefel CJ and Keane J) Her Honour said, for the Court:
In our view, there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.
RTTW has not amassed a long list of offences, but his most recent offending has been very serious and, as the circumstances set out above illustrate, was both premeditated and wanton. There has been a rise in the level of seriousness.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be engaged in a particular case. RTTW is a citizen of New Zealand and told the Tribunal that he is also a citizen of Samoa.
The Tribunal finds there is no evidence that this consideration is engaged in this case, and so it weighs neutrally in this assessment.
Strength, nature and duration of ties (paragraph 14.2)
The Tribunal must have regard for how long a non-citizen has resided in Australia, including whether the person arrived as a young child, noting that less weight should be given to ties where the non-citizen began offending soon after arrival and more weight should be given to time the non-citizen has spent contributing positively to the community. The Tribunal must also consider family or social links, and the strength and nature of those, between the Applicant and any of his immediate family who are Australian citizens or permanent residents.
The Applicant’s mother and younger brother reside in Australia, as do his three children, and possibly a fourth child. He has other relatives here: he advises 15 uncles and aunts, 20 cousins, and 17 nieces and nephews. Some are Australian citizens, including the Applicant’s four children. Others, including his brother, are not. However, the Tribunal considers that although the category of visa they hold, as New Zealand citizens, does not provide permanent residency, it does bestow an indefinite right to reside, and so their interests should be considered here, where their details are known.
The Tribunal is satisfied that RTTW has a close relationship with his mother and brother, a cordial relationship with his former partner, and a good relationship with Ms XC and Ms XV, the mother and aunt, respectively, of his former partner. Such may be seen from their written statements and oral evidence.
The Tribunal is satisfied that although there are some relatives in New Zealand and Samoa, the majority of RTTW’s closer relatives now are settled in Australia, and although the extent of his relationship with them was not in evidence, it is accepted that some of his extended family would be affected if he were to be repatriated.
The Direction requires me to look at whether a non-citizen started offending soon after arriving in Australia. RTTW first arrived to settle here in 2006 and was before the Courts on the first occasion in June 2012, which is a relatively short period. The Direction also states that more weight should be given to time the person has contributed positively to the Australian community.

RTTW’s employment history in Australia could properly be described, without criticism, as sporadic, and he agreed he was effectively not working in the year before he committed the major offences. It may be accepted that his lack of English hampered his employment options, but I note the sentencing judge refers to a former employer at a firm RTTW was working at for most of 2016 describing him as a capable worker, and that she had offered him re-employment upon release (GD, p 199). Whether that offer remains open is unclear.
The Tribunal finds, because of the nature and number of family members in Australia, this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3)
This part of the Direction requires the Tribunal to consider the impact on Australian business interests if a particular non-citizen’s visa is cancelled, but that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project or important service in Australia.
There was no evidence before the Tribunal that this consideration is engaged, and so it weighs neutrally in this assessment.
Impact on victims (paragraph 14.4)
The way this part of the Direction is couched means that this consideration is only relevant where a victim of a non-citizen’s criminal offending is aware of a decision to cancel the person’s visa. In this matter, the Tribunal does have a written statement from one victim of the victim’s offending, Ms XP, and her oral evidence. She is strongly supportive of RTTW’s visa being restored because if he were repatriated, his contact with the children they share would be much more difficult.
The Tribunal finds that this consideration therefore weighs somewhat in favour of revoking the mandatory cancellation of the visa.
Extent of impediments if removed (paragraph 14.5)
The Direction sets out that the Tribunal must consider the extent of any impediments that a non-citizen may face if removed from Australia to his or her ‘home country’, in this case, New Zealand, in establishing him or herself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Tribunal notes that RTTW has dual citizenship, but as he would be repatriated to New Zealand in this case, it will concentrate on that.
The Direction provides that the Tribunal should take into account the person’s age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference.
There was no evidence that RTTW was not physically fit. Mr Cummins reported that in custody he had a full medical examination and was told he has a fatty liver and as a consequence he needs to exercise more, to which he has responded by exercising more in prison. There was some evidence that the Applicant may suffer from some cognitive deficits, stemming from the childhood illness referred to by his mother which led to his hospitalisation in Samoa. Possible cognitive effects were mentioned by the sentencing Judge and are referred to above.
It is accepted that separation from family would be emotional. Mr Cummins’ conclusion that RTTW is experiencing depressive symptoms related to his current immigration situation is accepted by the Tribunal, and in Mr Cummins’ view may be exacerbated if he is repatriated. It is also accepted that, while RTTW may have some relatives in New Zealand, others have since moved to Australia to live, so he may find initial difficulties in re-establishing himself there, given he has resided in Australia for just about all of his adult life.
It is also noted that, as a New Zealand citizen, the Applicant would have the same right of access to that country’s social security system, including income support, before he is able to obtain employment. Oral submissions relating to effects on the New Zealand economy of the current public health emergency are considered later in these reasons.
On balance, the Tribunal find that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Other relevant consideration
Mr Maloney submitted that the Tribunal should take into account the current public health emergency:
The Applicant submits that it is appropriate in this case for the Tribunal to take into consideration the hardship and risks to which the Applicant, and his loved ones, may be subject because of the ongoing COVID-19 pandemic. The Applicant has already been compelled by these proceedings to remain in prison to serve out the balance of his five-year head sentence, despite being eligible for parole. Were the Tribunal to affirm the Delegate’s decision, the likelihood is that the Applicant would remain in prison until his head sentence has been served, and would thereafter be transferred into immigration detention. It is presently uncertain when he could be safely removed to New Zealand. In effect, a decision not to revoke the mandatory cancellation may result in the Applicant’s indefinite detention in Australia. What is more, he would be detained in a confined environment (prison, and thereafter detention) where he would face an elected risk of contracting COVID-19.
The Corrections Victoria Prisoner Holding Indent (GD, p 184) indicates that RTTW’s non-parole period ended on 18 May 2019. During the hearing, the Tribunal remarked that it would appear, given there was evidence which was not contested that his conduct in prison has been satisfactory, that RTTW may have not been considered for parole because his visa has been cancelled.
The Tribunal is aware that the Adult Parole Board of Victoria adopts the view, in these circumstances, that a non-citizen prisoner will not be granted parole in case that person may then be transferred out of the State, and out of the jurisdiction of the Board in regard to their parole obligations.
Part 7.5 of the Parole Manual issued by the Board relevantly states:
In considering parole for a prisoner who is subject to deportation, the Board needs also to have regard to the following factors.
Whether the prisoner is seeking to overturn the cancellation of their visa or to challenge their removal from Australia. The Board will ordinarily avoid paroling such a prisoner until they have exhausted any such challenges. This is because if the Board were to parole such a prisoner, they would go into Federal immigration detention pending the resolution of their matter. While in Federal immigration detention an unlawful non-citizen is in practice unable to comply with the ordinary requirements of parole and may be moved to a facility outside Victoria and hence outside the Board’s jurisdiction.
[…]
The Tribunal was referred to two recent cases where the Tribunal has taken into account the obligations under section 198(2B) of the Act to remove an unlawful non-citizen whose visa has been cancelled ‘as soon as reasonably practicable’. The cases are Medcalf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 803 and CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 927. The Tribunal considers that these decisions are distinguishable from the present facts, because in those matters the applicants were in immigration detention, whereas RTTW is not.
Whatever the decision of the Tribunal in this case, the immediate disposition of RTTW is not within the Tribunal’s control; he remains at present within the control of the Victorian corrections authorities and, if eligible, then subject to the authority of the Adult Parole Board of Victoria. The Tribunal is aware that there are some arrangements between jurisdictions for returning New Zealand citizens to complete outstanding parole obligations in that country (see, for example, QBBP and Minister for Home Affairs [2019] AATA 3905, at [18]), but there was no information before me from parties on that possibility in RTTW’s case.
The Respondent did submit a New Zealand Department of Corrections document about supervision orders for recent arrivals, and it may be that RTTW’s circumstances would make him eligible for such an order. For that reason, the Tribunal is unsure whether he would be required to complete the head sentence, or would be allowed to proceed on parole under this arrangement.
While the Tribunal is sympathetic to the particular restrictions on RTTW imposed by the COVID-19 lockdown, especially in regard to suspending visitors to, and religious services in, prison, that is regrettably a circumstance that is not special to him, and applies at present to all prisoners, and the timeframe is not currently knowable. The Tribunal does not see that the provisions of section 198 of the Act are yet relevant.
Mr Maloney also made oral submissions that the current public health emergency may make finding housing and employment in New Zealand more difficult for the Applicant, because of the effect on that country’s economy. There was no evidence put before the Tribunal as to how this would be different for RTTW than any other New Zealand citizen, but the Tribunal accepts that with the majority of his family in Australia, his options, certainly in the short term, may be more limited.
The Tribunal finds that this other relevant consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.
SUMMARY AND CONCLUSION
In this matter the Tribunal has found that two of the primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh against the Applicant. The primary consideration relating to the best interests of minor children weighs somewhat in his favour but, for the reasons set out above, not in an undiluted way. Of the other considerations, two are not relevant, and three weigh in his favour. The other relevant consideration the Tribunal has identified also weighs slightly in his favour.
In this matter, the Tribunal has concluded that the weight of the two primary considerations which support the mandatory cancellation of the visa outweigh the other considerations that weigh in the Applicant’s favour. The offending was violent and unprovoked, and came after other assault offending in a domestic setting, and other general offending.
The Tribunal has found that there is a real risk of the Applicant re-offending. The uncertainty regarding the care of the children, into the future, also affects the weight that would normally attach to that consideration.
The Tribunal has weighed all the considerations, individually and cumulatively, and considered the particular circumstances of the case, as required by paragraph 6.1(2) of the Direction, the Tribunal finds that the discretionary power provided for in section 501CA(4)(b)(ii) of the Act is not enlivened, in this case. In other words, the Tribunal is not satisfied that there is not ‘another reason’ why the mandatory cancellation of the visa should be revoked. The consequence is that the Tribunal finds the decision under review not to revoke the mandatory cancellation of RTTW’s visa was the correct decision in law and the preferable decision where a discretionary power may be exercised.
DECISION
The Tribunal decides to affirm the decision under review.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

……[sgd]……………………………………………
Associate
Dated: 6 May 2020

Dates of hearing:

24, 27 and 28 April 2020

Advocate for the Applicant:

Mr John Maloney

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Carina Ford Immigration Lawyers

Mr Neil Cuthbert

Clayton Utz

List of Exhibits
A1 – Written statement of Applicant, dated 20 April 2020
A2 – Written statement of Ms XC, not dated
A3 – Written statement of Ms XM, not dated
A4 – Further written statement of Ms XM, received 4 April 2020
A5 – Written statement of Mr XF, not dated
A6 – Further written statement of Mr XF, dated 31 March 2020
A7 – Written statement of Mr XK, not dated
A8 – Further written statement of Mr XK, dated 15 April 2020
A9 – Written statement of Mr Myron Lui, dated 28 March 2020
A10 – Written statement of Mikaela Jeffery, dated 31 March 2020
A11 – Written statement of Ms XV, dated 21 April 2020
A12 – Written statement of Ms XP, dated 21 April 2020
A13 – Written statement of Pastor Fauena Leilua, dated 12 March 2020
A14 – Psychological report from Mr Jeffrey Cummins, dated 21 April 2020, together with his curriculum vitae and a letter of instruction of 9 April 2020 from the Applicant’s solicitors.
A15 – Commonwealth Department of Health information document ‘What you need to know about coronavirus (COVID-19)’.