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

Savage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 800 (14 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0340
Re:Selwyn Savage
APPLICANT

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

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:14 April 2020
Place:Melbourne

The Tribunal affirms the decision under review.
...[sgd].....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – multiple convictions – reckless conduct endanger life – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
14 April 2020
BACKGROUND

Mr Savage applied on 20 January 2020 for review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) dated 17 January 2020 refusing to revoke the mandatory cancellation of his Class TY Subclass 444 (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
Mr Savage’s visa was cancelled by a delegate of the Minister on 16 June 2017 under s 501(3A) of the Act. Mr Savage requested revocation of this decision on 19 June 2017.
Mr Savage is currently aged 40, being born in New Zealand in 1979. He arrived in Australia with his family in 1988, aged 9. Mr Savage is the father of a son, ‘JS’, aged 14. He has two brothers and two sisters, and his parents and another brother are deceased.
The hearing was held on 26 March 2020 with Mr Savage appearing by telephone from New Zealand, having voluntarily repatriated in February 2020. Prior to this he had been in immigration detention, and before his period of detention, Mr Savage served a term of imprisonment of three years and ten months following conviction on 5 May 2017 on a charge of reckless conduct endanger life and a charge of common law assault. This conviction led to the mandatory cancellation of his visa.
The Respondent lodged both G documents and Supplementary G documents, and a Statement of Facts, Issues and Contentions (SFIC). Mr Savage was unrepresented and did not file any material with the Tribunal subsequent to the Application in this matter. Mr Savage was informed in two Directions Hearings, dated 24 January 2020 and 27 February 2020, about the nature of the proceeding and the related requirements with respect to the lodging of material. Tribunal Directions in this matter were framed such as to allow for the lodging of material by him.
LEGISLATION
Under s 501(3A) of the Act the Minister must cancel a visa granted to a person if the person does not pass the character test because they have a substantial criminal record and are serving a sentence of imprisonment. A person does not pass the character test under s 501(6) on the basis of having a substantial criminal record, which, under s 501(7), includes when the person has been sentenced to a term of imprisonment of 12 months or more.
A mandatory cancellation decision under s 501(3A) of the Act may be revoked under s 501CA(4) if the Minister is satisfied that either the person passes the character test or there is another reason why the decision should be revoked.
Section 499(1) of the Act permits the Minister to give written directions about the performance of functions or the exercise of powers under the Act. Direction No. 79 (the Direction) dated 20 December 2018 was so issued. Decision makers must comply with the Direction pursuant to s 499(2A). The Direction sets out Objectives, General Guidance, Principles and considerations that are to be applied, including in relation to decisions under s 501CA not to revoke the mandatory cancellation of a visa (paragraph 6.1(4)).
Section 2 of the Direction establishes how the legislative discretion is to be exercised when taking into account specific considerations which are categorised as ‘primary’ and ‘other’. Both types of consideration may weigh either in favour of or against revocation of a mandatory cancellation (paragraph 8(3)); they may also weigh neutrally. Primary considerations should generally be given greater weight than other considerations (paragraph 8(4)). One or more primary considerations may outweigh other primary considerations (paragraph 8(5)).
The Direction has three Parts and Part C is applicable to decisions in respect of a request to revoke the mandatory cancellation of a non-citizen’s visa. Application of the considerations is to be informed by the principles set out in 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.
CONSIDERATIONS
Mr Savage’s offending led to a sentence of imprisonment of three years and ten months. I therefore find that he does not pass the character test because of the combined effects of ss 501(6)(a) and (7)(c) of the Act.
As Mr Savage does not pass the character test, it is necessary to address the considerations set out in Part C of the Direction in determining whether there is another reason why the mandatory cancellation of his visa should be revoked.
Primary considerations
Protection of the Australian community
This primary consideration requires decision makers to have regard to the principle that the Government is ‘committed to protecting the Australian community from harm as a result of criminal activity’ (paragraph 13.1(1)). Further, it is stated that remaining in Australia is a privilege conferred in the expectation that non-citizens ‘are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community’ (paragraph 13.1(1)). Specifically, I am required to give consideration to the nature and seriousness of Mr Savage’s conduct to date (paragraph 13.1(2)(a)) and the risk to the Australian community should he commit further offences, or engage in other serious conduct (paragraph 13.1(2)(b)).
Consideration of the nature and seriousness of Mr Savage’s conduct includes having regard to his criminal offending (paragraph 13.1.1(1)). In doing so I must have regard to factors that include:
a)    The principle that … violent … crimes are viewed very seriously;
b)    The principle that crimes of a violent nature against women … are viewed very seriously, regardless of the sentence imposed;
…
d)    Subject to subparagraph b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
…
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting the absence of a warning should not be considered to be in the non-citizen’s favour) …
The first three factors are engaged by Mr Savage’s principal offending which, as noted above, led to convictions for reckless conduct endanger life and common law assault. The remarks of the sentencing Judge (G3, Attachment B, pp 27–37) provide relevant evidence:
(a)Mr Savage was involved with his brother, Mr B Savage, and others in shooting episodes during the day in the streets of Corio and Norlane, said to be related to an evolving dispute within the drug trade in Geelong;
(b)Mr Savage was at times in the company of his brother who had a long arm rifle;
(c)Following incidents of gunshots exchanged between cars involving his brother, Mr Savage was involved in separate incidents in which he was the driver of a car from which gunshots were exchanged with another vehicle during a chase through the streets;
(d)After colliding with another unrelated vehicle, Mr Savage drove to a nearby Kentucky Fried Chicken establishment and:
… went to the car of [the assault victim], got in and in effect forced her to drive you away. She took you to a Shell service station in North Geelong; but reported what had happened to police soon after. [Mr Savage was] arrested in the toilets there …
The victim impact statement … describes the fear she felt and its aftermath. She suffers anxiety and depression, receiving treatment for this. As a single mother, she has become more fearful and more security conscious, particularly at night. Her children are similarly affected. They were not in her car when you offended. [She] has trouble sleeping. She states that the offence has had a big effect upon her daily activities.
(e)His Honour stated the perpetrators ‘showed contemptuous disregard for the safety, wellbeing and peace of the community’ and that:
A simple description emphatically states that this was particularly serious and dangerous offending, a bad example of this crime. It occurred in daylight hours and along residential streets. It also occurred in a quite sinister criminal context.
(f)It was said in the plea hearing of his brother, Mr B Savage, had thought his daughter had been threatened and kidnapped. His Honour remarked: ‘This was not the case. Such belief may in part explain what happened but is of little mitigation’;
(g)Taking into account that family relationships played a part in Mr Savage’s offending, His Honour stated that sentencing must reflect participating in and performing an important role in ‘extravagantly anti-social criminal behaviour’. Public protection was also an issue, being the need to deter others from such conduct in order to protect the community’s wellbeing; ‘There must be imprisonment of some considerable length’;
(h)His Honour noted a guilty plea was made, but not until committal (nearly 12 months after the offending), and also found genuine prospects for rehabilitation, as he considered there was no offending since Mr Savage was aged 19 or 20 (however this was on the basis of a record of offending that appears to have not taken into account parts of Mr Savage’s offending history);
(i)Mr Savage was sentenced to three years and eight months for the conduct endangering life and six months for the assault charge, with two months to be served cumulatively with the other sentence; and
(j)Without a guilty plea the sentence would have been six years.
I am satisfied that Mr Savage has engaged in serious criminal conduct, including a crime of assault against a woman. This is substantiated by the sentencing Judge’s remarks and I also take into account the fact that Mr Savage was not directly involved in the shooting incidents. At the hearing Mr Savage also gave evidence that the incident was related to concern about the possible kidnapping of his niece, Mr B Savage’s daughter. This explanation was not considered by the Judge to be credible and was of limited mitigating impact. At the hearing Mr Savage stated that the individual who was alleged to have threatened his niece was possibly implicated in the death of another of his brothers in prison, and that this information had come to him prior to the incident.
Mr Savage was of quite mature years when the offending took place and appears to have had little or no regard for public safety in the course of a very dangerous and reckless series of events. The sentence could have been significantly higher than what was in fact imposed, which I consider reflects the overall seriousness of the conduct.
The impact on the female victim is addressed in the sentencing remarks. At the hearing Mr Savage stated in evidence that he had been polite to the victim of the assault, and had thanked her on leaving her car. This is reflective of the circumstances to the extent that the victim’s statement to police (SG9, pp 227–228) records that Mr Savage said to her ‘please get me out of here, I’ve just been shot at’. Mr Savage then stated in evidence that he considered that the victim had ‘given him attitude’ by telling him she was not going to take him anywhere after he had sought her assistance. Again, this is reflected in her statement where it is recorded that she said to Mr Savage ‘Sorry I am not taking you anywhere’.
At the hearing Mr Savage appeared aggrieved at the fact that he had been charged at all over this incident. He described in evidence that he had been charged or threatened with a charge of kidnapping. Mr Savage stated that this was one of several charges which had subsequently been dropped by police during the investigation of the principal offending. Mr Savage also explained that it was only at the committal stage that the charges were reduced to those on which he was convicted. He stated in relation to this issue that he ‘could have the police up on perjury’ for their handling of the investigation. Mr Savage also stated that ‘the Aussies’, by which I understood him to be referring to other offenders in this incident, appeared to him to have been treated more leniently by being granted bail and probation.
Mr Savage denied at the hearing that he had been subject to a domestic violence order while resident in Queensland. He was asked to confirm, as apparently demonstrated by police records (SG8, p 171), that he had been served with such an order and said that this was not the case, stating that the police record was wrong. With respect to the circumstances he stated that ‘none of this happened’, and that at the time he was in an on-and-off relationship with the mother of his son. She was a methamphetamine user and his son was not attending school. Mr Savage admitted in evidence that he took it upon himself to remedy the situation by taking his son from his partner’s residence.
I accept that there is no direct evidence before me that unequivocally supports a finding that Mr Savage has committed a crime of violence against a woman. I accept that the assault in Geelong would have been frightening and extremely intimidating for the victim. I do consider it to be a serious offence against a woman which is an important relevant consideration given the wording of the principle in paragraph 6.3(3) of the Direction. The evidence with respect to Mr Savage’s possible history in his relationship with the mother of his child is somewhat equivocal.
As noted, the sentencing Judge appears not to have been aware of the extent of Mr Savage’s criminal history which is set out in a National Police Certificate (G3, Attachment A, pp 22–26). Consideration of this history addresses the factors relating to the frequency of offending, and trend of increasing seriousness, and its cumulative impact.
Mr Savage’s offending commenced in 1992 at the age of nearly 13, which was less than three years after his arrival in Australia. Over the subsequent four years, Mr Savage was charged with approximately a dozen offences including dishonesty offences (motor vehicle theft), unlicensed driving, and narcotics offences being the growing, possession and use of cannabis. A number of charges were dismissed or there was no conviction recorded. However, Mr Savage was convicted of a breach offence following a probation order and was subject to a youth supervision order.
Charges were brought in the Geelong Magistrates Court in 1997 on two occasions for dishonesty offences and firearms offences resulting in a community based order and, on the second occasion, detention in a youth training facility. A suspended sentence of imprisonment was imposed in late 1999 for unlicensed driving and motor vehicle theft.
Mr Savage’s offending continued between 2003 and 2011 in Queensland, with charges brought principally in the Beenleigh Magistrate’s Court and on one occasion the Brisbane Magistrate’s Court. This phase of offending appears not to have been before the sentencing Judge in relation to the principal offending.
Mr Savage was charged with property and drug offences in 2003 with no conviction recorded on two occasions and convicted on a third, with fines and imprisonment in default imposed in all instances. In 2004 he was placed on two years’ probation for a property offence and a suspended sentence of imprisonment was also activated. In the same year Mr Savage was found in breach of the probation order. In 2005 Mr Savage was found guilty of breaching an intensive correction order.
In 2008 and 2009 Mr Savage had no conviction recorded for several property offences and in 2009 was convicted of contravening a direction and in all instances was subject to fines. Later in 2009 Mr Savage was convicted of a range of drug offences for which he was fined and in 2010 he was convicted of breach of this order. In 2011 there were two convictions recorded for public nuisance offences.
I am satisfied that Mr Savage’s history of offending demonstrates a long and persistent history of criminal offending across two States. There is a period between August 2011 and May 2017 without conviction, and a shorter period between October 2005 and December 2008 between court appearances. However, Mr Savage’s adult offending spans nearly 20 years.

As noted above, there are numerous instances in which there was no conviction recorded or where sentences were suspended or probation granted. Nevertheless, the offending history also includes numerous breach offences. Further, Mr Savage’s offending commenced with relatively minor offences as a child and young adult but also included drug and firearm related offences even at this early stage. Thereafter, offending continued to include property, drug and driving offences, culminating in the principal offending which involved very dangerous and reckless conduct. I consider that this adequately demonstrates a trend of increasing seriousness, and that the cumulative impact of his offending is substantial and demonstrates a lack of respect for authority.
I note that the material before me indicates that a formal warning was issued to Mr Savage by letter dated 19 June 2007 (G3, attachment P, p 93) with respect to the implications of his history of offending. Departmental documents indicate that there is no evidence this warning was received (G2, p 6) and Mr Savage confirmed in his evidence at the hearing that he was not aware of having received the formal counselling letter. I am satisfied that Mr Savage did not receive this correspondence.
In considering the risk to the Australian community I must have regard, cumulatively, to:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence of the risk of the non-citizen re-offending … (paragraph 13.1.2(1)).
The risk to the Australian community in Mr Savage’s case has not been the subject of formal independent and professional evaluation, however, at the hearing the Respondent’s representative identified several sources of information concerning risk.
Mr Savage’s initial prison intake risk assessment records his risk level as ‘high’ (SG10, pp 395–397). I am not satisfied that this report should be understood as addressing offending risk as it is headed ‘Level of Service/Risk, Need, Responsivity’ and includes the observation that he presents as vulnerable in a custodial environment, and was a past victim of assault. However, I also note that the assessment makes the following observations: there are anger management deficits; there is a misconduct and behavioural report during the current incarceration; and, that there is engagement in denial and minimisation.
Mr Savage stated that in the Middleton unit of Loddon Prison he carried the lowest security rating for a deportee. He stated that his initial risk rating was due to his offending and not his behaviour. Mr Savage acknowledged that he had been assigned to ground duties which he enjoyed. I note Local Plan File Notes (SG10, p 378) record that Mr Savage was described in this role as ‘enthusiastic, diligent, and punctual’ by supervisors. I also note that Mr Savage is described as working well independently and in a group, respectful to officers and other work mates, and that he received a promotion, showing leadership skills and responsibility (SG10, p 307).
Mr Savage stated in evidence that he has completed ‘heaps’ of courses during his period in detention. He stated that he had completed a High Intensity Violence Intervention Program when not required to. I asked Mr Savage about how this came about and he responded that he did it to improve his standing with immigration authorities, and then added that he also completed the course ‘for myself’. I note that Mr Savage has been issued a Certificate of Achievement in a ‘Talking Change’ course, and in ‘Planning for a Good Life’ (SG10, pp 302–303). Other completed course were identified by Mr Savage in a submission to the Department dated 25 May 2019 (G3, Attachment N, pp 82–84), being: ‘Making Choices’; ’24 Hour Drug – Know the Score’; and, ‘Going Places’. He also states in this letter that he intends to resume full time care for his son and that all of this points to a high degree of protection for the Australian community and ‘substantially reduced risk of further reoffending’.
In a further, undated, written submission addressed to the Australian Border Force (G3, Attachment J, p 71), Mr Savage states that he hopes to be able to provide his son ‘with the same level of education as well as Australian morals and values’ with which he was raised. He states that he looks back on his behaviour with deep regret, is remorseful and ashamed. Mr Savage states that if returned to the Australian community he would prove himself a good role model, and hopes to prove himself as ‘a reformed, matured and contributing member of society’.
At the hearing Mr Savage stated in evidence that his offending as a child was the result of hanging around with the wrong people. He stated also that offending in Queensland took place after he moved there with his parents after ‘going off the rails’. He stated that this was the effect of an attack including attempted rape while he was in youth detention, and being bashed every day for six months. With respect to driving offences in Queensland, Mr Savage stated that at the time he did not have a driving license but stated that he regularly drove and did not understand the process of obtaining a license. This was, he stated, because he was ‘still a mess’ from his previous experiences in detention.
I consider that Mr Savage’s evidence overall in respect to his offending fails to demonstrate that he understands the gravity of his conduct to any real extent. As I have already noted, the sentencing Judge in respect of the principal offending was not apparently aware of Mr Savage’s offending in Queensland. Therefore, the rehabilitative prospects referred to in the sentencing remarks appear to be based on an unduly restricted picture.
Mr Savage himself clearly demonstrates an ongoing sense of grievance over his experience in the criminal justice system, which raises concerns for the extent of any rehabilitation to date. Of even greater concern is the attitude Mr Savage expressed in relation to the impact of his offending on the victim of the assault offence. I also take into account here Mr Savage’s history of breach offences. There is a distinct difference between Mr Savage’s written submissions and the content and presentation of his oral evidence at the hearing. I am not persuaded that his written submissions should be given greater weight than his direct, personal evidence.
Summary
As noted above, I am satisfied that Mr Savage engaged in serious criminal conduct that was reckless and put the wide public in serious danger. He willingly participated in a protracted series of events involving acts of violence by others and in the course of this put others at risk through his conduct as a driver. In this course of this he, through his conduct alone, drew a member of the public into the broader enterprise. I am also satisfied that Mr Savage has a long history of offending, which escalated dramatically with the principal offending. Much of his formal criminal record demonstrates a history of relatively light sentencing, but it also includes numerous breach offences and other serious offences including drugs and arms offences. Overall it evidences persistent disregard for the law and for any of the opportunities afforded to him through various sentencing options.
I consider Mr Savage, as noted, to have failed to have engaged thoughtfully with his offending. This is in spite of his written submissions about his rehabilitation, and his positive record in detention. His expression of resentment at his treatment in particular, signals that there is indeed a real possibility that he may offend in the future. Given his extensive criminal record, I am therefore satisfied that this risk is unacceptable.
Accordingly, and taking into account the principles in paragraph 6.3, I find that the consideration of the protection of the Australian community weighs strongly against revocation.
Best interests of minor children in Australia affected by the decision
A decision maker must take into account whether visa cancellation is in the best interests of a minor child. Where there are two or more relevant children, each should be considered individually, to the extent their interests may differ (paragraph 13.2(1) and (3) of the Direction). This consideration applies only to children who are or would be under 18 when the decision is expected to be made.
The following factors must be considered, where relevant (paragraph 13.2(4) of the Direction):
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has or will have a negative impact on the child;
(d)The likely effect that any separation for the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are three minor children relevant in Mr Savage’s case: his child JS; and his niece and nephew being children of his brother.
JS
Mr Savage gave evidence at the hearing that prior to his imprisonment he was a single parent with sole responsibility for the care and upbringing of his son. It was not clear from his evidence how long this was for or when it commenced, but he stated his son had been his main objective from around 2005. He stated that his son’s mother was currently in prison. Mr Savage stated he had not seen his son for two years, and has not spoken to him since February this year. Mr Savage stated he has had difficulty getting his SIM card to work and has had a lot of things to sort out in New Zealand.
Mr Savage stated that his son presently lives in Queensland and has been with his maternal grandmother, but Mr Savage understands that he does not like being there. Consequently, his son lives during the week with a friend. Mr Savage stated that his son was upset that he had left and wanted to come to New Zealand. When asked whether JS could complete his schooling in New Zealand, Mr Savage replied that he ‘didn’t want to think about that; as far as I am concerned I’m an Aussie’.
I asked Mr Savage if any formal or legal restrictions might exist to prevent JS from moving to New Zealand, Mr Savage stated that he did not want to take his son away from his mother, friends and school. Mr Savage was not able to confirm what the formal nature of care arrangements were with respect to his son, but stated that he understood ‘Child Services’ to have said that they believe his son needs to be with him. If returned to Australia, Mr Savage said he wanted to live with his son in Queensland. I have referred above to Mr Savage’s written submissions which also express his wishes and intentions with respect to his son.
I note that JS is presently aged 14 and will turn 15 in 2020. Mr Savage has been in custody or detention since May 2016 when his son was aged nearly twelve. I accept from the evidence that prior to this time Mr Savage played an important role in his son’s life and was for a period of time the sole carer. It was submitted on behalf of the Respondent that the Minster conceded that it is the best interests of JS that Mr Savage’s visa cancellation be revoked. I accept that position, and agree.
It was further contended for the Respondent, however, that only moderate weight should be given to this consideration. At the hearing this was put as ‘some weight’. This submission was made on the basis of the relatively limited direct contact between JS and his father over recent years, the fact that JS is approaching adulthood, the limited evidence as to the child’s own wishes, and the fact that he has had a somewhat disrupted life to date.
The evidence about the present care arrangements for JS and his state of mind is insubstantial and therefore unclear to some extent. Under the circumstances, and given the position of the child’s mother, which I accept on the evidence before me, there is much to be said for providing JS with the best parenting arrangements possible. However, I am satisfied that there are a range of possibilities open. These may well include contact in person with Mr Savage in New Zealand either on holiday, or possibly on a more permanent basis. I accept that travel restrictions arising from the present pandemic make this somewhat remote at the moment. Mr Savage has not had direct contact with JS for some time and they would be in a position to continue remote contact using phone and internet, albeit this may be for three years when JS turns eighteen.
On balance, I am satisfied that this consideration weighs moderately in favour of revocation.
Niece and nephew
Mr Savage stated that he had been very close to his brother when in Geelong and that this brother has two children presently aged nine and thirteen. He stated that in the past he would spend a couple of days a week with the family and play cricket with the children. Mr Savage described them as the main people he would spend time with when he was not with his own son. He considered that separation from his niece and nephew would have a big impact on them as they would be upset their uncle was not there.
I accept from Mr Savage’s oral evidence at the hearing that he has a close relationship with his brother and his brother’s family. However, there was nothing about his evidence that revealed that it was anything other than a fairly typical familial relationship. I consider that in relation to these minor children, this consideration only weighs neutrally in regard to revocation.
Summary
Having considered the interests of the different minor children separately, I consider that overall this consideration weighs moderately in favour of revocation.
Expectations of the Australian community
This consideration states that the community expects non-citizens to obey the law, and that it may be appropriate not to revoke mandatory cancellation: ‘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 …’. The nature of the character concerns or offences alone may be sufficient to make non-revocation appropriate and decision-makers must have due regard to the Governments views in this respect (paragraph 13.3(1) of the Direction).
I note the decision of the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCFCA 185 (FYBR) provides guidance on the application of this consideration. Following the majority judgments, I understand the consideration in paragraph 13.3 of the Direction to be a ‘deemed expectation’ and therefore I am not to undertake my own assessment of community expectations.
I have noted above the seriousness of Mr Savage’s offending, particularly with regard to the principal offending. I have also noted his long history of offending, also noting that the offending history includes instances of no conviction and suspended sentences. However, Mr Savage also has a history of breaching orders, and I also note that his evidence did not indicate that he accepted and understood the nature and impact of his criminal actions. This speaks to an ongoing risk of harm to the Australian community.
Reflecting on the Principles set out in paragraph 6.3 of the Direction, I consider it necessary to observe that Mr Savage does not appear to appreciate the importance of abiding by the law, nor to hold Australian law or institutions with an appropriate degree of respect.
Accordingly, I find this consideration weighs strongly against revoking the mandatory cancellation of Mr Savage’s visa.
Other considerations
The Direction establishes that certain ‘other considerations’ must be taken into account where relevant, but these are not exhaustive of the possible further relevant considerations (paragraph 14(1)).
International non-refoulement obligations
No issues of non-refoulement arise in Mr Savage’s case and accordingly this consideration weights neutrally.
Strength, nature and duration of ties
Reflecting the principles expressed at paragraph 6.3 of the Direction, under paragraph 14.2(1) I am required to have regard to factors including the length of time Mr Savage has lived in Australia and whether he arrived as a young child. I should give less weight to this consideration where offending began soon after arrival, and more weight to time given contributing positively to the Australian community. I am also required to consider the strength, duration and nature of family or social links to those with an indefinite right to remain in Australia (paragraph 14.2(2)).
Mr Savage arrived in Australia as a school-aged child. It was apparent from his evidence and from material lodged with the Tribunal that Mr Savage has lost both his parents in recent years, and he stated they are buried in Geelong. As noted above, Mr Savage stated that he is close with his brother who still lives in Geelong, and his brother’s family. The brother involved in the principal offending remains in immigration detention pending removal to New Zealand. He has another brother and sister in Queensland. I have no evidence before me as to the nature of the rights of his siblings to reside in Australia. Mr Savage is currently residing with a sister near Christchurch in New Zealand, and has recently reconnected with another sister living in that country.
Mr Savage stated in evidence that he had steady employment at a glass company for a number of years until the business closed. He obtained several trade qualifications with this business. Mr Savage had no other work history. His studies at school ended early. Mr Savage gave evidence that his brother in Geelong had promised to ‘set him up’, had offered him work, and he considered the family his main support network. Mr Savage also stated he had started a relationship while in immigration detention.
I am satisfied that the majority of Mr Savage’s family are in Australia, although I am not able to determine whether they meet the terms of the consideration by being citizens, permanent residents or have an indefinite right to remain. Against this is the consideration that Mr Savage has spent a relatively brief period of time contributing positively to Australia given both his early offending record and his limited work experience.
On balance, I find that this consideration weighs only slightly in favour of revocation.
Impact on Australian business interests
There was no material lodged and no evidence relied on in respect of this consideration and therefore it weighs neutrally.
Impact on victims
As noted above, one of the two charges in Mr Savage’s principal offending arose from an assault against a woman. I have addressed this issue above with respect to the consideration of the seriousness of crimes against women and I repeat here those considerations.

Mr Savage’s evidence as to the nature and circumstances of this offending demonstrates that he seems to have no conception of the impact of the assault. In particular, his characterisation of the victim’s behaviour during the offending shows that he has nearly complete disregard for the impact of the crime, and does not have the capacity to put himself in the position of the victim. Moreover, rather than merely minimising the offending, I consider that it is an attempt to deny the offending entirely, and — at the very least — to negate its impact.
Accordingly, I find that this consideration weighs strongly against revocation.
Extent of impediments if removed
The impediments to be considered under paragraph 14.5(1) of the Direction include the non-citizen’s age and health, whether substantial language or cultural barriers exist, and any social, medical and/or economic support available to the non-citizen. I note this other consideration incorporates benchmarks which are for the non-citizen to ‘establish themselves’ and maintain ‘basic living standards’ (in the context of what is generally available to other citizens of that country). I note that in this instance Mr Savage is already residing in New Zealand and has been in that country since 20 February 2020.
Mr Savage stated in his evidence that he had received assistance on his return to New Zealand and was receiving welfare benefits and support in relation to job seeking. He is currently exempt from work requirements due to certification of an anxiety condition. Mr Savage stated he had commenced the process of converting his truck license and considered that getting a job would be ‘no drama’.
As noted above, Mr Savage currently resides with a sister near Christchurch. In evidence Mr Savage stated that he was not aware of what part of New Zealand he grew up in, but, when prompted by a question from me, stated that is was near Christchurch.
I am satisfied that Mr Savage faces no serious impediments to establishing himself to the standard described in this consideration. I consider that despite Mr Savage’s limited education and work experience, he faces no greater impediment to maintaining basic living standards than he would in Australia. He is currently receiving support to do so.
I find this consideration weighs moderately against revocation.
CONCLUSION
Mr Savage was a man of quite mature years when the principal offending took place. He has experienced some disruption in his personal life and suffered personal losses while in detention. Mr Savage has limited education and a very short history of employment. However, his offending is extensive, has been of increasing severity, and includes an act of significantly reckless conduct. He has a history of breach offences and these, together with his own expressed sense of grievance about this principal offending, mean that it is difficult to have confidence that he fully understands the seriousness of his conduct. I say this taking into account his clearly expressed desire to care for his son.
I have found that the primary consideration of the best interests of minor children weighs moderately in favour of revocation. I have also found that the other primary considerations of protection of the Australian community and expectations of the Australian community both weigh strongly against revocation. Of the other considerations, strength, nature and duration of ties weighs slightly in favour of revocation, but that impact on victims weighs strongly against revocation, and extent of impediments if removed weighs moderately against revocation.
While the consideration of the best interests of Mr Savage’s child JS is an important one, I do not consider that this is sufficient in the context of the other primary considerations to outweigh them. On balance, the other considerations also weigh in favour of revocation. Accordingly, I am not satisfied that there is another reason why the mandatory cancellation of Mr Savage’s visa should be revoked.
DECISION
For the reasons I have given the decision of the Minister is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the written reasons for the decision herein of Dr Stewart Fenwick, Senior Member

....[sgd]....................................................................
Associate
Dated: 14 April 2020

Date of hearing: 26 March 2020

Applicant:

By telephone

Solicitors for the Respondent: Ms Kylie McInnes of Australian Government Solicitor

[2020] AATA 800

14 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	26 March 2020
Applicant:	By telephone
Solicitors for the Respondent:	Ms Kylie McInnes of Australian Government Solicitor