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

[2022] AATA 678

_{Seagg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 678 (7 April 2022)}

Division:GENERAL DIVISION

File Number:          2021/6157

Re:Samantha Seagg

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:7 April 2022

Place:Brisbane

The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Visa Applicant; Mr Craig Todd a Partner (Provisional) Class UF) visa.

.................[SGD].......................................................

Member R Maguire

Catchwords

VISA REFUSAL – refusal of sub-class 309 visa to applicant’s partner on character grounds – failure to disclose prior criminal record – where decision under review set aside and substituted – decision that the Tribunal does not exercise the discretion

Legislation

Criminal Code Act 1899 (Qld) 323(1)(A)
Migration Act 1958 (Cth) s 499(2A) s 501(1) s 501(6) s 501(7)

Cases

Boyd v Sandercock ex parte Sandercock [1990] Qd R 26
Dunasement v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
PQSM v Minister for Home Affairs [2019] FCA 1540
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501 CA.

REASONS FOR DECISION

Member R Maguire

7 April 2022

INTRODUCTION

1. The Applicant, Ms S Seagg (“the Review Applicant”), seeks review of the decision of a delegate of the Minister (“the Respondent”), dated 24 August 2021, made pursuant to section 501(1) of the Migration Act 1958 (Cth) (“the Act”), to refuse, on character grounds, the application of Mr Craig Todd (“the Visa Applicant”) for a Partner (Provisional) (Class UF) (“the Visa”).[1]

   [1]     Exhibit 1, Section 501G Documents T2 pages 7-32.

2. The Review Applicant and the Visa Applicant were notified of this decision on

   
   

   24 August 2021, and the present application was made to this Tribunal on

   
   

   2 September 2021.

3. The Hearing was held on 23, and 24 February 2022. The Visa Applicant appeared by video link and was represented by Ms Hunter, a solicitor from Hunter-Flood Lawyers. The Respondent was represented by Ms Ervin of Clayton Utz.

   BACKGROUND

4. The decision to refuse the Visa Applicant’s visa was based on his conviction on
   

   [2]     Exhibit 1, Section 501G Documents T2 page 12, [3-7]; page 33.

   4 December 2008 in the District Court of Queensland for an offence of Wounding and Similar Acts under section 323(1)(A) of the Queensland Criminal Code for which he was convicted and sentenced by Forde DCJ to 18 months imprisonment and the sentence was wholly suspended for a period of three years[2].

   LEGISLATIVE FRAMEWORK

5. Section 501(1) of the Act confers a discretionary power on the Minister to refuse to grant a visa if the person does not satisfy the Minister that they pass the “character test” as defined in section 501(6) of the Act:

   (6)       For the purposes of this section, a person does not pass the character test         if:

   (a)       the person has a substantial criminal record (as defined by subsection (7)); or….

6. Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to two or more terms of imprisonment with a total of those terms is 12 months or more: section 501(7)(d).

7. If a visa applicant fails the character test, the Tribunal must make a subsequent determination whether to exercise the discretion under section 501(1) of the Act to refuse the visa.[3] Such a determination must be made in compliance with the Direction issued by the Minister, namely Direction No. 90 – Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501 CA (“the Direction”)[4].

   [3]     PQSM v Minister for Home Affairs [2019] FCA 1540 [22] (Colvin J).

   [4] Section 499(2A) Migration Act 1958 (Cth).

   THE DIRECTION

8. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501 CA of the Act. Clause 5.1 of the Direction sets out several objectives, the first of which is to “… Regulate, in the national interest, the coming into, and presents in, Australia of noncitizens”. Clause 5.1(2) states:

   … Where the discretion to refuse to grant… a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

9. Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:

   The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

   (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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other

   
   

   non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

   (5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

10. Paragraph 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.

11. Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman[5] regarding a previous equivalent direction:

    … Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide the primary considerations are “normally” given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both “primary” and “other considerations”. In effect, it requires an enquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    [5]     Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23] (Colman J.)

12. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

13. Paragraph 8 of the Direction sets out the following primary considerations in making a decision under section 501(1), 501(2), or 501CA(4):

    (1)Protection of the Australian community from criminal or other serious conduct;

    (2)Whether the conduct engaged in constituted family violence;

    (3)The best interests of minor children in Australia; and

    (4) Expectations of the Australian community.

14. The other considerations which must be taken into account are provided in a
    non-exhaustive list in paragraph 9 of the Direction. These considerations are:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community, including:

    (i)Strength, nature and duration of ties to Australia; and

    (ii)Impact on Australian business interests.

15. Annexure A to the Direction provides further guidance regarding the assessment of whether a person passes the character test. If a visa applicant does not pass the character test, section 501(1) of the Act enables the visa to be refused, but does not compel such a course.

16. In Jagroop[6], the Court held that:

    [57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501…

    …

    [78] … Ultimately… Each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the section 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

    [6]     Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [57] and [78] (Kenny and Mortimer JJ).

17. The Tribunal now turns to a more detailed consideration of the Direction.

    Primary Consideration 1: Protection of the Australian Community

18. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

19. Paragraph 8.1(2) of the Direction requires consideration to be given to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    Nature and Seriousness of Conduct

20. Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types   of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending; and

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    Risk to the Australian Community

21. Paragraph 8.1.2(1) of the Direction requires that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision- makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future becomes lower as the seriousness of the potential increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

22. Paragraph 8.1.2(2) of the Direction requires that in considering the risk that maybe posed by the noncitizen to the Australian community, decision makers must have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending;

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Primary Consideration 2: Family Violence Committed by the Non-Citizen

23. Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

24. Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:

    (a)the non-citizen has been convicted of an offence, found guilty of an offence, or had  charges proven, howsoever described, that involve family violence; and/or

    (b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.

25. Paragraph 8.2(3) of the Direction requires that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

    (a)the frequency of the non-citizen’s conduct and/or whether there is any trend  of increasing seriousness;

    (b)the cumulative effect of repeated acts of family violence;

    (c)rehabilitation achieved at time of decision since the person’s last known act  of family violence, including:

    (i)the extent to which the person accepts responsibility for their family violence related conduct;

    (ii)the extent to which the noncitizen understands the impact of their behaviour on the abuse and witnesses of that abuse (particularly children);

    (iii)efforts to address factors which contributed to the conduct; and

    (d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the noncitizen engage in further acts of family violence.

    Primary Consideration 3: Best Interests of Minor Children in Australia

26. Paragraph 8.3(1) of the Direction requires decision-makers making a determination about whether a cancellation or refusal under section 501, or non-revocation under section
    501 CA is, or is not, in the best interests of the child affected by the decision.

27. Paragraph 8.3(2) of the Direction provides that this consideration applies only if the child is, or would be, under 18 years old at the time of the decision.

28. Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that the interests may differ.

29. Paragraph 8.3(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:

    (a)the nature and duration of the relationship between the child and the noncitizen. Less weight should 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 noncitizen 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 noncitizen’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 from the noncitizen would have on the child, taking into account the child’s or noncitizen’s ability to maintain contact in other ways;

    (e)whether there are other persons who already fulfilled 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 child has been, or is at risk of being, subject to, or exposed to family violence perpetrated by the noncitizen, or has been abused or neglected by the noncitizen in any way, either physically, sexually or mentally; and

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the noncitizen’s conduct.

    Primary Consideration 4: Expectations of The Australian Community

1. Paragraph 8.4 of the Direction details the expectations of the Australian community as follows:

   (1)The Australian community expects noncitizens to obey Australian laws while in Australia. Where a noncitizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, expects the government to not allow such a noncitizen to enter or remain in Australia.

   (2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

   (a)acts of family violence; or

   (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

   (c)commission of serious crimes against women, children, or other vulnerable members of the community such as the elderly or disabled; in this context “serious crimes” includes crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

   (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of the duties; or

   (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to war crimes, crimes against humanity and slavery; or

   (f)worker exploitation.

   (3)The above expectations of the Australian community apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.

   (4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

   Other Considerations

2. Paragraph 9(1) of the Direction requires decision-makers to take into account other considerations, including, but not limited to:

   (a)international non-refoulement obligations in accordance with paragraph 9.1;

   (b)extent of impediments if removed in accordance with paragraph 9.2;

   (c)impact on victims in accordance with paragraph 9.3; and

   (d)links to the Australian community reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.

3. The Tribunal now turns to a consideration of the evidence before the Tribunal.

   EVIDENCE BEFORE THE TRIBUNAL

   Documentary Evidence

4. The documentary evidence before the Tribunal and for which the Tribunal has had regard is particularised in the Exhibit Register which is Annexure A to these reasons.

5. The Tribunal has had regard for the National Police Certificate[7] which lists the Visa Applicant’s offending in Australia as follows:

   [7]     Exhibit 1, Section 501G Documents T2 page 33.

Court	Court Date	Offence	Court Result
Newcastle Local Court	23 December 2003	Behave in Offensive Manner In/Near Public Place/School	Fined $200.
Sutherland Local Court	18 August 2005	Drive on Road Etc While Licence Suspended	Fined $600. Licence disqualified for 16 months.
Sutherland Local Court	13 September 2007	Fraudulently Alters, Uses, Or Lends Driver Licence	Fined $250.
Sutherland Local Court	13 September 2007	Drive on Road Etc While Licence Suspended	Fined $1,000. Licence disqualified for two years.
Brisbane District Court	04 December 2008	Cc 323(1)(A) Wounding and Similar Acts	Imprisonment for 18 months. Sentence wholly suspended for a period of three years.
Yass Local Court	06 August 2013	Drive with Low Range Prescribed Concentration of Alcohol	Fined $300. Licence disqualified for three months.

1. The Tribunal has also had regard for the New Zealand Police Vetting Report and Conviction History Report[8] which lists his (the Visa Applicant’s) New Zealand offending as follows:

   [8]     Ibid pages 34-37.

Court	Result Date	Offence Date	Offence	Outcome	Sentence
Dunedin District Court	11 March 1999	04 December 1998	Theft Property (Under $500)	C & S[9]	35 hours Community Service/Reparation $649.75.
Dunedin District Court	12 April 1999	09 April 1999	Insulting Language	C & S	Fined $100
Dunedin District Court	17 November 1999	02 September 1999	Operated A Vehicle Carelessly	C & S	Fined $100/Ordered to attend a Defensive Driving Course.
Dunedin District Court	21 January 2000	26 December 1999	Possess Pipe or Utensil for Cannabis	C & S	35 hours Community Service/Order for Destruction.
Dunedin District Court	21 January 2000	26 December 1999	Possession of Cannabis	C & S	20 hours Community Service.
Dunedin District Court	18 February 2000	04 July 1999	Common Assault (Crimes Act) Other Wpn	C & S	Suspended Imprisonment – five months, suspended for one year, Supervision by Community Corrections – 1 year/Non-Residential Periodic Detention – six months.
Dunedin District Court	18 February 2000	04 July 1999	Common Assault (Crimes Act) Manually	C & S	Suspended Imprisonment – Nine months, Suspended for One year/supervision by Community Corrections – One year/Non-Residential Periodic Detention – Six months.
Dunedin District Court	19 October 2000	18 June 2000	Com Asslt (Domestic) Cr Act (Manually)	C & S	Imprisonment (Cumulative) – Three months/Denied Leave to Apply for Home Detention.
Dunedin District Court	19 October 2000	09 June 2000	Disorderly Behaviour S 4 S/Offences Act	C & D[10]	[No sentencing details recorded]
Dunedin District Court	19 October 2000	09 June 2000	Wilful Damage	C & S	Reparation – $512.00.
Dunedin District Court	10 August 2001	05 August 2001	Disorderly Behaviour S 4 S/Offences Act	C & D	[No sentencing details recorded]
Dunedin District Court	16 August 2001	12 August 2001	Disorderly Behaviour S 4 S/Offences Act	C & S	Fined $450.00.
Dunedin District Court	27 September 2001	22 September 2001	Drove While Licence Suspended or Revoked	C & S	Disqualification from Driving One Year.
Dunedin District Court	27 September 2001	22 September 2001	Breath Alcohol Level over 400 Mcgs/Litre of Breath Blood/Breath = 843	C & S	Disqualification from Driving One Year/Non-Residential Periodic Detention – Three months.
Dunedin District Court	27 September 2001	22 September 2001	Breath Alcohol Level over 400 Mcgs/Litre of Breath Blood/Breath = 1001	C & S	Disqualification from Driving One Year/Non-Residential Periodic Detention – Three months.

[9]     Convicted and Sentenced.

[10]    Convicted and Discharged.

1. Evidence before the Tribunal confirms that the Visa Applicant’s conviction in the Dunedin District Court on 19 October 2000 was erroneously recorded as being a domestic violence offence[11], when it was in fact a conviction for “common assault”. An extract from the Otago Daily Times newspaper reported the conviction and was provided by the New Zealand Police. The newspaper reported submissions made on behalf of the Visa Applicant, included the following[12]:

   The defendant now acknowledged serious alcohol and substance abuse problems and intended undertaking counselling and education programs in prison, counsel said.

   [11]    Exhibit 1, 501G Documents T2 pages 46-51.

   [12]    Ibid page 50.

2. The Tribunal has also had regard for the Notification of Refusal of application for a Special Category Visa (TY444)[13] dated 15 September 2019 on the ground that Visa Applicant was a behaviour concern non-citizen and hence failed to meet the criterion in section 32(2)(a)(ii) of the Act as he had been convicted of two or more crimes and sentenced to imprisonment for periods that added up to at least one year.

   [13]    Exhibit 1, 501G Documents T2 pages 57-58.

3. The Tribunal has also had regard for the Personal Circumstances Form (“PCF”)[14] dated

   
   

   18 May 2021 lodged in response to a Notice of Intention to Consider Refusal to Grant Visa under section 501(1) or section 501A(2)(a). In his PCF, the Visa Applicant described himself as a citizen of New Zealand born in 1981. He described his mother as a New Zealand citizen, but said his father became an Australian citizen in 2004.

   [14]    Ibid 59-72.

4. The Visa Applicant described himself as being in a de facto relationship which started on

   
   

   8 May 2018, and said that he was a co-tenant of a lease of residential property with his

   
   

   de facto partner. He listed his de facto partner’s daughter

   
   

   (Miss T Seagg (“T”), born in 2002 as an Australian citizen as a minor child although the child appears to be 19 years of age as at the date of the PCF. In terms of family details, he listed his father, stepmother, stepbrother and stepsister, as well as an uncle as being residents of Australia. He listed his mother, brother, stepfather, aunt, uncle, and grandparents as residents of New Zealand.

5. The Visa Applicant pointed to the fact that his last serious offence was committed in 2008, and that he had not committed another similar offence since then. He said that he was not currently listed on a Sex Offenders Register, was not currently subject to a Domestic Violence Order/Apprehended Violence Order or other court order and had no further charges pending against him. He disclosed no medical conditions, and no current medication.

6. The Tribunal has had regard to a 14-page submission[15] by M Legal dated 18 May 2021 which was submitted to the Department on the Visa Applicant’s behalf, and which addressed the considerations under the Direction.

   [15]    Exhibit 1, 501G Documents T2 pages 76-89.

   The nature and seriousness of the conduct (paragraph 8.1.1).

7. The submission referred to the Visa Applicant’s offending which commenced in New Zealand in 1999 when he was 18 years of age and continued until 2001. The submission said that the offences were connected to his troubled youth, and the result of his alcoholism and substance abuse that stemmed from an acrimonious family life which was shaded by domestic violence, his mother’s attempt to commit suicide, and a divorce all of which occurred during his formative years. The submission contended that an assault charge in the year 2000 for which he was sentenced to 9 months imprisonment, but served four months, arose in consequence of his intervention to aid a friend who was embroiled in an altercation with a group of men. This altercation resulted in the Visa Applicant being severely injured.

8. The submission went on to say that the 2000 offence along with the alcohol related incident in 2008 were the only crimes that involved some actual violence. It was submitted that there was no consistent pattern of violent behaviour because of the gap of eight years between offences, and in each instance, the Visa Applicant had been under the influence of alcohol and provoked by a violent act initiated by a third party. Neither of the offences was premeditated, and in each instance, he had made pleas of guilty showing a strong willingness to accept the consequences of his actions.

9. The submission cited the words of Forde DCJ to the effect that the 2008 offence was “… A special category” because it was unusual for the accused in cases like this to write a letter of apology to the complainant, plead guilty at an early stage, and pay compensation for the injuries he had caused.

10. It was further submitted that the Visa Applicant was not the same person that he had been in his early 20s. His last serious offence was at that time, 13 years ago, and this demonstrated that he had changed his life around in a positive way. It was submitted that his past crimes were revealing of a time when he was immature and coping with life as a young person without the emotional support or stability most children would receive. It was further submitted that the charges may have been linked to dominant emotions linked to his post traumatic experiences, which could be triggered by alcohol.

11. It was also submitted that the Visa Applicant’s proven track record of a clean criminal record for the previous 13 years strongly suggested that he was a low risk of reoffending.

12. It was further submitted: [16]

    7. At a time when Craig (sic) situation could not be more stressful (i.e., removed from Australia, had to leave his Australian partner and her daughter (T) behind, his house and belongings, and the place he called home for 19 years), he has shown resilience and self-control. When he was sent back to New Zealand, he was unable to access his money, had no place to sleep, could not even access welfare services and only had the summer clothes he had on to start a completely new life. Most individuals would crumble under this pressure, but Craig has shown a strength of character to that has overcome the challenges of being forced to reintegrate into a new community. Craig has now found temporary accommodation with his brother and is employed as a Truck Driver that helps him bring in consistent income.

    8. Craig has shown that he is willing to take responsibility for his actions and has consequently, attended rehabilitation programs such as Straight Thinking in 2001. He also attended a Traffic Offenders Intervention Program in 2013 and met with Ms J Arden (Ms Arden) for several counselling sessions in 2020 to work on his unresolved personal issues. Craig continues to actively work on himself (within his financial means) as he understands his interdependence is with alcohol need to be managed. Craig has now made better lifestyle choices, focused on work and is no longer the person who must excessively socially drinks (sic) anymore.

    [16]    Ibid at page 80, [7-8].

13. The submission expressed on the Visa Applicant’s part, his remorse at his failure to declare his past criminal history on his incoming passenger cards on seven different occasions when entering Australia between 2002 and until early 2008. It was submitted that there was a correlation between the last time he incorrectly answered his passenger card and his Brisbane offence of May 2008. After that time, his offending and misdemeanours lessened, a change, which could only be attributed to what he must have gone through in that year and the new perspective he gained overall.

14. The Visa Applicant’s border deceptions were attributed to his overwhelming desire to leave New Zealand and have a fresh start. Since 2008, he had “turned a corner”, and begun disclosing his criminal history which ultimately resulted in his detention and removal in 2019. It was submitted that his conscious effort to change his habits and behaviours would have been a huge leap, and demonstrated that he was unlikely to repeat his offences.

    Risk to the Australian community (paragraph 8.1.2.)

15. It was further submitted that the Visa Applicant had managed to remain in the Australian and New Zealand communities for what was then the last 13 years without causing any harm. A cumulative consideration of his offending indicated a person who had a troubled past, addictive habits, and low periods in his life that resulted in poor decisions. It was submitted that at his then age of 40, he was approaching his life differently and would have a better handle on how he should behave in most situations. Enclosed character references from colleagues, family and friends attested to a gentle and kind human being whom they believed had been punished enough.

16. Reference was made to the report of Ms Arden which expressed “no concerns” of the Visa Applicant posing a risk or burden to the Australian public and opined that recidivism was unlikely as he had demonstrated incredible progress and spent the last years rehabilitating himself.

17. It was further submitted that being removed from his home of 19 years, without being afforded the opportunity of even saying goodbye to loved ones would have enraged and taken a serious psychological toll on most people. It was further submitted that he had risen above these circumstances, to show a solid commitment to the Partner visa process, and this reaffirmed that he was far from being a risk to the Australian Community.

    The best interest of the minor children in Australia (paragraph 8.3).

18. The submission also disclosed the possibility that the Visa Applicant was the father of an Australian citizen child of a relationship which ended in 1999, and with whom he had no contact.

19. Reference was also made to the Visa Applicant’s de facto partner’s daughter (T) who, whilst not a minor, was still of an age where she needed guidance and support, and a father like figure in her life. She (T) had no relationship with her alcoholic biological father, and had turned to the Visa Applicant for parental support. They had remained in close contact whilst he had been in New Zealand.

20. Both T and her mother had been present at the airport when the Visa Applicant was taken away by customs, and it was submitted that her mother’s mental health had suffered in consequence in the years since that experience. It was in the interests of both T and her mother that the Visa Applicant be allowed to live in Australia so that her mother did not have to make the difficult decision to live in New Zealand, away from her daughter.

    Expectations of the Australian community (paragraph 8.4).

21. It was further submitted that the Visa Applicant had shown that he was able to rehabilitate and reform. It was submitted that what was at that time, eight years of not reoffending, was adequate time to show his ability to abide by laws and live in the community without being a risk of causing harm. It was submitted that having regard to all the circumstances the Australian community would be sympathetic towards the Visa Applicant, and would not see him as a threat and would be compassionate that he had endured mental health issues from youth and had rebuilt himself into a better person even after imprisonment and deportation.

    Other Considerations

    Impacts on the victims (paragraph 9.3).

22. It was submitted that no weight should be given to this consideration.

    The strength nature and duration of ties in Australia (paragraph 9.4.1)

23. It was submitted that the Visa Applicant had lived in Australia for 19 years prior to being removed was estranged from his birthplace and really at any familiar connections there with anyone other than his brother based in Auckland, and his mother based in Nelson, and to whom he hadn’t spoken for many years. It was submitted that he had lodged his tax returns, contributed to his rent for rental property and to the utilities costs. The Visa Applicant’s retired father had been an Australian citizen since 2004, and other than his wife, only had the Applicant as family in Australia.

24. It was submitted that the Visa Applicant’s relationship with his sponsor (the Review Applicant) had intensified and cemented since his removal in September 2019, a period including the pandemic related travel bans. Their plans to marry were being delayed by the visa application.

25. The Review Applicant wants to continue to live in Australia close to her daughter (T) who is her “entire support network”. It was submitted that significant weight should be given to the Review Applicant’s mental health if she cannot be with the Visa Applicant and the strain of having to be put in a position to choose between countries, were this to happen.

    Impact on Australian business interests (paragraph 9.4.2)

26. It was further submitted that the Visa Applicant had a job as a truck driver waiting for him in Australia.

1. The Tribunal has also had regard for reports and correspondence[17] from Mr B Kirker
   

   [17]    Exhibit 1, 501G Documents T2 pages 110 – 118.

   (“Mr Kirker”), Clinical Psychologist regarding the Visa Applicant. Mr Kirker reported that the Visa Applicant had a history of exposure to domestic violence from his father towards his mother, and had a generally difficult upbringing, involving physical abuse from his brother. He had ceased using cannabis in 2002, and reported no more than five drinks on social occasions. He was not medicated, and his last reported offence was a drink driving charge in 2013, which he described as minor and as “bad luck”.

2. Mr Kirker stated that the Visa Applicant had acknowledged providing false information on incoming passenger cards seven times in the period from October 2002 until March 2008. He had disclosed his convictions after a trip to Fiji in 2014, and was allowed to enter the country after an interview. At this time, he had also given permission for his criminal record to be obtained and expected all his criminal convictions to be known thereafter.

3. The Visa Applicant had explained his non-disclosures arose from concerns he might not be able to enter Australia if his convictions were known. He had reported being a different person after he stopped drinking spirits, and was less prone to aggression. His partner; had been present at the interview and stated that she had previously been in a partnership with an abusive alcoholic, and she would not tolerate that from him.

4. Mr Kirker assessed the Visa Applicant according to the Violence Risk Scale (“VRS”) of having a 5% or less rate of reconviction for a violent offence, and a 10% or less rate of recidivism for a non-violent offence. Mr Kirker’s summary and opinion was as follows[18]:

   [18]    Ibid pages 115 – 116.

   Mr Todd does not have a diagnosable condition as per the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.)

   In terms of his character, it seems that Mr Todd has become an individual who makes pragmatic decisions, rather than those based on personal values or principles, with his behaviour now linked to consequences. It appears that he has decided that there are more benefits with a law-abiding and pro-social life. He has sought to let go of past anger and

   
   

   re-develop relationships with family members, albeit the relationship with his brother was forced upon him by circumstance. However, Mr Todd has had limited treatment for his criminogenic needs and seems to lack some insight into the role his tendencies and attitudes have played on his behaviour, for instance in over-attribution of the role of alcohol, a disinhibiting agent, as a personality change factor. This hinders him being able to take complete intrinsic responsibility for his offending.

   Overall, and in line with the results over and objective measure of risk, it is the assessor’s (Mr Kirker’s) clinical judgement that Mr Todd is currently at a low risk of reoffending. There are indicated to be a number of protective factors at present including a stable relationship and employment, and a possible desire to develop a relationship with his son. Mr Todd’s risk rating would increase if there was a change in these dynamic factors and upon him again experiencing despair and/or thinking he no longer has anything to lose. Based on his offence patterns to date,

   
   

   Mr Todd would be at greatest risk of harming strangers, when under the influence of alcohol and feeling he was wronged. However, given the length of time without reconviction at his age, it is assessed that there is a low likelihood that would happen. Mr Todd’s risk to the community now appears to be low.

5. The Tribunal has also had regard for reports dated 4 April 2020 and 6 June 2020 from
   

   [19]    Exhibit 1, 501G Documents T2 pages 119-126.

   Ms Ardren[19], a Social Work Alcohol and Other Drug Specialist. In her first report, Ms Ardren recorded that the Visa Applicant had been receiving twice weekly counselling, in which he participated in an open and honest manner. He (displayed significant remorse when reflecting on the decisions he had made due to his past substance abuse. This was reflected throughout each session. He took full responsibility and displayed an “incredibly honest portrayal” of this history. Ms Arden said that in the context of his treatment, they had discovered an early diagnosis of Attention Hyperactive Deficit Disorder (ADHD) for which his alcoholic mother living in abject poverty with no child support was unable to afford medical treatment. Ms Arden said that clinical studies had confirmed there is a strong connection between ADHD and chemical addiction. Moreover, the National Alliance on Mental Illness pointed out that in a large majority of cases, the symptoms of ADHD appeared before substance use began, indicating that a high percentage of those with ADHD use drugs and alcohol as a way to cope with the symptoms of having this behavioural disorder.

6. Ms Ardren went on to record that the Visa Applicant’s parents were both alcoholics, and that he grew up in a domestically violent environment. He recalled many incidents of screaming, yelling, and physical violence on his mother including one particular incident when he observed her crying and screaming as a result of being punched in the face. Ms Ardren said this was one example of a young child’s experience that research today informed of the devastating impact this can have on the trajectory of a child’s life. The Visa Applicant’s parents separated when he was approximately six years old. His slightly older brother, who was also diagnosed with ADHD, (untreated) repeatedly bashed the Visa Applicant “for as long as he can remember”. He (the was beaten black and blue by his brother on a regular basis, and stated, “I lived in fear”. His elder brother was placed in a series of foster homes, and when the Visa Applicant was eight years old, the Visa Applicant was sent to live with a friend of his mother, as his mother had attempted suicide.

7. Ms Ardren said that in her opinion when children experience and are exposed to chronic Domestic Violence, substance abuse and removal from their home, this significant trauma also predisposes an individual to substance use and the associated crime that commonly coincides. Trauma, particularly experienced at a very young age commonly results in what is termed flight, fight or freeze maladaptive responses to perceived threats as a defence mechanism, and that this resulted in his offending in New Zealand.

8. Ms Ardren further reported that at the age of 21 years the Visa Applicant made a conscious decision to sever his involvement with “the wrong crowd” who were involved with illicit substances and illegal activity and moved to Australia to make a fresh start. Ms Arden stated that he had not used illicit substances in 17 years. However, he met with his former associates in Brisbane in 2008, and whilst drinking with them, the unlawful wounding incident occurred.

9. Ms Ardren opined that the Visa Applicant had made “every effort to rehabilitate himself”. His exclusion from Australia would significantly impact his partner and her daughter (T), for whom he has continued to provide significant financial support. Ms Arden further opined that the Visa Applicant has “gone above and beyond the general efforts clients with trauma histories” will go to when faced with adversity. Ms Arden had no concerns of the Visa Applicant posing a risk or burden on the Australian community and saw him as an asset.

10. In her second report[20], Ms Ardren commented on the significant impact, which the Visa Applicant’s sudden and unexpected exclusion from Australia had had on the Review Applicant’s overall health and well-being. Ms Arden said that the Review Applicant had been receiving weekly counselling sessions with her since 28 June 2020. Ms Arden stated that she currently had concerns for the ongoing mental, emotional, and physical well-being of the Review Applicant due to her presenting symptoms.

    [20]    Ibid page 125 – 126.

11. Ms Ardren said that the Review Applicant had difficulty sleeping, leaving the house, and was experiencing harrowing nightmares, and her friends and family had also expressed concerns for her well-being due to her avoiding leaving the house, fluctuations in weight, ongoing anxiety, loneliness, and her efforts to maintain her employment.

12. Ms Ardren said that the Review Applicant came from a very stable family and described the Visa Applicant as a wonderful partner, who was incredibly supportive, both emotionally and financially, not only to herself, but also to her daughter (T), and this reflected his hard work and dedication to his family.

13. Ms Ardren strongly supported the Visa Applicant’s return to Australia as soon as possible for the overall well-being of his family. Ms Arden reiterated her view regarding his prospect of recidivism, and said that restoration of this hard-working family would be of great benefit to all involved.

14. The Tribunal has had regard to the Visa Applicant’s statutory declarations dated
    

    [21]    Exhibit 1, 501G Documents T2 pages 415 – 419.

    [22]    Ibid pages 130 – 136.

    [23]    Exhibit 1, 501G Documents T2 pages 127 – 129.

    16 March 2020[21], 9 September 2020[22] and 19 May 2021[23].

    Visa Applicant’s first statutory declaration

15. In his first statutory declaration, the Visa Applicant described how he came to know the Review Applicant and the development of the relationship, and how he came to know her daughter (T) and parents, and she met his father and his partner, as well as his own mother and stepfather. He described how they have continued to be in regular contact since he was sent to New Zealand, and that she has visited him there numerous times.

16. The Visa Applicant attributed his offending to immaturity, and his difficulties finding employment. He described himself as a “somewhat lost teenager” who had turned to cannabis and alcohol regularly due to some poor choices of companions. He recounted how he had decided to take the risk and moved to Sydney to try to start a new life and make new friends and be a better person. He said he successfully gained employment the first day he started looking for a job, and has continuously held full-time employment during the whole 17 years that he lived in Australia. He said the move made to Australia helped to mature him. He has taken up fishing and regular gym visits and made a point of surrounding himself with positive people, and not drug abusing or alcohol abusing troublemakers.

    Visa Applicant’s second statutory declaration

17. In his second statutory declaration, the Visa Applicant declared that he had never done well at school and left halfway through year 12 in 1998 to find a job, but found it impossible to do so as he had no experience or qualifications. Additionally, he said that in 1999, he was seriously assaulted by five men. This resulted in four of his front teeth being kicked out by being repeatedly kicked in the face with steel capped boots. He said this left a lasting impression on him and had put him on his guard in social settings.

18. The Visa Applicant also described a difficult family life involving domestic violence, and having no one to turn to for advice. He described falling in with “the wrong crowd” most of whom had been in trouble with the law and been in prison. He recalled being angry at his father who had started to show some interest in him at 16 years of age, only to leave a year later for Australia with his wife with whom the Visa Applicant struggled to get along. He was equally angry with his mother who kicked him out of home for smoking cannabis, and his only option had been staying with his brother who had been traumatised by his childhood and ended up going back into prison for his third sentence in 1999, a few weeks after the Visa Applicant moved in with him. The Visa Applicant then lived with various friends and his Nanna until he himself was imprisoned. Whilst in prison, he reflected on his circumstances, and decided to change his life, lest he received a long path of living a reoffending lifestyle. He said:

    This was something I did not want. I cannot however tell you how difficult it is to shift your mindset and resist the urge of following the same pattern of behaviour. No one tells you how to do it on the road to changing is one of loneliness and pain.

    Once I left prison at the beginning of 2001, I got my old job back, save money and moved to Australia in 2002. I stopped using cannabis. I knew with regards to alcohol that this would be my weak point and something I had to seek treatment for on and off. I believe after 10 years, I have the knowledge and skills to be able to refrain from excessive drinking and putting myself in situations where my anger might be aroused due to being under the influence.

    I have a greater level of self-control than what I did when I was much younger. I can most certainly say I am a completely more relaxed and chilled out person who thinks a lot more deeply about situations that arise and how to deal with them. This may have been the result of attending a straight thinking course in Dunedin where I was surrounded by positive people around me who was willing to support me.

19. The Visa Applicant reviewed his offending which commenced in December 1998, shortly after he left school. He was 17 years old at the time. He committed 11 offences before he was 21, and nearly all of these involved either intoxication or cannabis. His offending appears to become less frequent after he turned 21. In 2003, he was charged with behaving in an offensive manner after urinating on a fence after leaving a hotel. In 2005, he was charged with driving whilst his license was suspended due to demerit points. In 2007, he produced a Queensland driver’s licence whilst driving in New South Wales and was a  holder of a suspended New South Wales driver’s licence and was charged with fraudulently using a driver’s licence, and driving whilst suspended.

20. The Visa Applicant recalled the circumstances which gave rise to his 2008 offence, saying that he flew from Sydney to meet with his former associates who were holidaying in Brisbane:

    I flew up there from Sydney for the weekend and while out at a bar and very intoxicated a man unknown to us out of nowhere started screaming at me and getting right up in my face threatening me. It was out of the blue and I had no idea why or what was going on. I continued to stand there, not even engaging him which was the wrong decision. I should have walked away and found a security guard, but suddenly he smashed his fist down on our table knocking everyone knocking everyone’s drink over, which I reacted to by punching him once. I was intoxicated at the time and everything happened so fast. As I had a drink in my hand, the man had been cut at the hairline of the forehead when he was punched.

    I was disappointed in myself after this incident and accepted I was in the wrong for the way I reacted. I wrote a letter of apology to the victim and paid for his stained clothing to be replaced. I also paid for the loss of wages he suffered due to taking time off work as he could not wear his hardhat due to the cut he had.

    After this incident when I returned to Sydney I immediately sought help for my alcohol use. I attended two alcohol anonymous meetings a week held at the river canoe club in Tempe. I also attended the Earlwood senior citizens centre for approximately 5 months, which resulted in the leader of this group becoming my sponsor. I also went out fishing a lot more which consumed nearly all my days off, as I would get up early in the morning for the day out on the water.

21. The Visa Applicant also described the circumstances which gave rise to his low range prescribed concentration of alcohol conviction in 2013:

    I was 31 years old and had been to my dad’s farm for the night to watch Australia v NZ in the rugby. The next day I was driving home and was pulled over for speeding 10 km an hour over the limit and after a breath test. I recorded a low PCA level at 0.54, which was a big surprise as I thought I hadn’t had that much to drink. I thought I had done the correct things by eating food and getting plenty of sleep and also having a big breakfast. After this I voluntarily attended a 6-week traffic offenders intervention program run by the NSW PCYC in Redfern, which was an incredible eye opener into the effects not only drink driving but road trauma causes, and I believe should be part of gaining your license. I have also purchased a personal handheld breathalyzer so I don’t make this judgement error again as being a professional truck driver driving is my livelihood for an income.

    What lessons have I learnt in terms of my tolerance to alcohol and how to drink responsibility (sic) now?

    Over the years, I have learnt I have a low tolerance to alcohol and generally don’t handle it as well as others. I need to slow the pace of consuming alcohol which I managed by drinking water between drinks as well as eating food, otherwise my body starts to feel cravings for more. With this understanding of the way my body reacts to alcohol I can quite easily limit myself to four or five beers and still be in control. I don’t drink spirits at all as there is a clear connection be in every offence. I committed that spirits affected me a lot more and turned me into a different person.

    What are the understandings you have now which will prevent you from

    
    

    re-offending?

    I understand that any re-offending will have a significant impact on my life as well as loved ones around me. Being travel, work opportunities or relationships with partners family and friends as well as the impact any offending would have on victims being mentally or physically.

    I have completely changed my life around, I no longer associate with other violent and antisocial people involved in criminal activities. It is just something I don’t want. I now surround myself with positive hard-working people. I have also dealt with my past

    
    

    excessive alcohol use as well as my childhood and teenage anger by now having built a strong relationship with my father over the last 10 years. Also, I understand why my mother was very hard on me given the situations she had gone through. I have let this go and let life’s too short to hold onto grudges and anger and to forgive as I’ve matured.

    My mindset now compared to my teenage years has changed, with regards to obeying laws and remaining a responsible person.

    My mindset is completely different now compared to my teenage years as I’ve matured and have more life experience. This helps to deal with situations more clearly and thoughtfully, when I was a teenager, I would act on impulse without any thought process of how the consequences of my actions affect myself and others. My maturity has enabled me to appreciate that breaking the law is not the best way forward. If a situation does arise, I now have the ability to take a minute to step back and make the appropriate decision on the best way to deal with the given situation.

    I have stayed in control of my drinking by not hanging around people to drink heavily and managing the daily stresses in my life. I take up activities that don’t involve alcohol which means regularly attending the gym as well is fishing out on my boat which I have found is great for mental health. I also used the move to Australia as a second chance at life and as motivation for me to not to reoffend and put myself back in a situation where work would be hard to gain due to criminal history.

    The key driver of my self-improvement and overcoming my personal hardships.

    I believe the key aspects in my self-improvement was the desire to become a better person and have a better quality of life. I really disliked prison life as you could imagine is extremely boring and could be scary at times with fear for your safety. It wasn’t a life I wanted to continue. I wanted opportunities, choices and options, and a good job that I enjoyed attending every day. Not something that I hated doing and had to attend because that’s the only option that was available because of a criminal past.

    Living in Australia gave me that escape from my negative past and surrounded me with people that were helpful and positive which in turn helped me become a more confident helpful and positive person.

    Overcoming my demons I believe is the result of dealing with my anger issue and letting go of my childhood and teenage difficulties. I accepted that although I didn’t have the best upbringing there is always someone out there worst (sic) off than myself and over the years I have tried to help people through their own issues when presented which not only helps remind me how far I have come myself. It is also is a good feeling when you know you have helped another person and possibly made a difference.

    The person I am now is very different from my teenage years. …[the Review Applicant)]… is well aware of these offences and she understands the radical changes I have been through. She accepts me as I am and understands I no longer hold on to the same anger issue I once did. She also can see that I handle conflict and challenging moments differently and far from the way I once did when I would be intoxicated and forced into an altercation with a stranger. Our relationship has only ever been a loving and caring one. It would devastate me if I hurt anyone, which I have never done nor could I do. …She understands me and see (sic) the potential in me, which is why I care for her deeply.”

    Visa Applicant’s third statutory declaration

1. In his third statutory declaration, the Visa Applicant declared that he did not realise the seriousness of his declarations on incoming passenger cards when he first came to Australia, and likened it to telling lies on a resume, as he was desperate to change the path his life was leading. He said he had gained ongoing full-time employment within two weeks of arrival, had grown in confidence and felt that he put his past behind him. During his 17 years in Australia, he had become friends with decent hard-working people. He described attending monthly drug and alcohol counselling sessions, and a three-month course named Straight Thinking, which over time, helped him change his way of thinking.

2. The Visa Applicant said that following his charge in Brisbane in 2008, he voluntarily attended AA (Alcoholic Anonymous) meetings once or twice a week for a period of three months. He confirmed that he had been in regular contact with Ms Ardren. He expressed a possibility that he has a biological child in Australia.

3. The Visa Applicant also declared that:

   This whole process of applying for the partner visa has been the hardest thing mentally I have ever had to go through, and believe if there was a chance I was ever going to re-offend in my life then it would have been on the first few months on re-entry back into Auckland New Zealand which I was completely unfamiliar with as a city, I was basically left at the airport with no money or clothes and completely stressed out lost and in shock until I could get into contact with the only person I knew in New Zealand which was my brother, my soul felt like it had been destroyed and I had my whole life taken from me but once my brother picked me up and we talked I quickly stepped out of it and sort of went into survival mode and immediately began working on exactly what I need to be doing, I borrowed $3000 from … my father’s partner so I could get started on sourcing work clothes food helping Samantha and T by paying my half the rent etc. as I felt I had let them down and there was no way I was letting them lose the roof over their heads because of my mistakes, I was prepared to go homeless to cover the rent before I would let that happen. My time back in New Zealand has been extremely difficult with adjusting back to the way of New Zealand life, I struggle to sleep most nights as I am constantly worried about the outcome of this process and the well-being of Samantha as she tells me she is lonely at night … I feel like I have really struggled to fit in and make new friends is working as a truck driver solo all day six days up to 60 hours a week doesn’t leave much time for meeting new people and socialising which is made even more hard as I rarely drink alcohol these days which seems to be the common thing that brings people together, being 40 years old most people my age are already consumed with their work lives and family etc. also.

   Since being back in New Zealand I have used the time to up skilled my truck licence to further my truck driving career which now I have no restrictions on the size of the truck I can drive so my employment opportunities have really opened up.

   My and Samantha’s relationship is as strong as ever especially given the circumstances we are in and I feel she is the one for me that I want to spend the rest of my life with, I would like to ask her to marry me but feel now is not the right time to ask under the given circumstances, I feel it wouldn’t be fair on her if a visa for me was denied that she would have to give up her life in Australia to be with me in New Zealand and not having the support of family and friends close by, we met each other and fell in love in Australia and that is where we want to continue our lives with family and friends close and resume building our future with goals to buying a house together.

   I understand I have made mistakes in my life, I was young and trouble back then and am truly feeling the consequences now and it hurts me so much that because of the things I did a long time ago is now affecting the innocent loved ones in my life now.

4. The Tribunal has also had regard for a letter[24] dated 7 November 2019 from the Visa Applicant to the New Zealand Prime Minister, in which he described his circumstances and said that whilst he did not have Australian citizenship, “I have paid taxes, built a home and family life as well as spent time in this community, long enough that I recognise myself as an Australian resident”. Attached to that letter was a chronology[25] in which the Visa Applicant described a circumstance in 2015 as follows:

   Returning from Fiji, I was stopped by customs after ticking ‘yes’ to criminal convictions on the boarding pass. Customs asked a few questions specifically about why I had indicated ‘no’ to this question on previous occasions. Customs took me to an interview room. The immigration officer left the room to run some checks and then returned, reassuring me that I would be fine to re-enter the country on future overseas trips.”

   [24]    Ibid pages 137 – 139.

   [25]    Exhibit 1, 501G T2 Documents page 140.

5. He also recorded his arrival in Auckland and events on 17 and
   20 September 2019 in the following manner:

   Arrived in Auckland, New Zealand with only luggage from my Bali trip, the holiday clothes on me and $2 Australian dollars. Called my estranged brother and he picked me up from the airport. Approached WINZ (Work and Income New Zealand) for an emergency grant of financial assistance for clothes and a bed. They tell me I cannot attend their offices without an appointment. I am asked to go to the Onehunga WINZ branch after a number of phone calls. I attend Onehunga WINZ and they tell me initially I need to make an appointment but I finally find someone who is willing to see me given my desperate predicament. I received $300 for clothes grant, $100 for food but I am told I cannot organise bedding on this day and must return on 20^th September.

   20 September 2019

   Told I can only receive $200 for a bed grant. My brother has lent me the money to make up the difference so I can get a bed because $200 is insufficient to purchase one. Apparently, I do not qualify for rental assistance because my Australian partner is employed and earning money. I have applied for a tax file number but I cannot get a NZ bank account yet to get paid into because I have no New Zealand paperwork such as bills etc. Current expenses I have at present is my NZ truck license ($600), personal loan in Australia ($7500), credit card bills ($1500), split rent with my partner ($815) and all other Australian bills ($595 – utility bills etc).

6. The Tribunal has also had regard for the statutory declarations[26] dated 10 March 2020, and 18 May 2021 by the Review Applicant, in which she described her relationship with the Visa Applicant, his relationship with her daughter (T), and their planned future together. She spoke of her struggles with financial and mental health issues, and said that the Visa Applicant was helping her to pay her rent as otherwise she would be homeless or having to stay with her elderly parents. She said she and her daughter (T) were traumatised by the episode with customs, and vouched for the Visa Applicant’s true character.

   [26]    Ibid pages 413-414; 147.

7. The Tribunal has also had regard for an email[27] dated 12 April 2021 from the Review Applicant to Visa Application Character Consideration Unit in which she described the personal, financial, and emotional toll that the Visa Applicant’s removal from Australia had had on her and her daughter (T).

   [27]    Exhibit 1, 501G Documents T2 page 148.

8. The Tribunal has also had regard for the statutory declarations[28] by the Review Applicant’s daughter (T), also an Australian citizen, dated 27 March 2020 and 18 May 2021. T explained how her mother had left T’s alcoholic father when she was two years of age, and had been single for a very long time. T chose to have nothing to do with her father due to his alcoholism. She painted a warm picture of how she came to know the Visa Applicant, and his involvement in her life. T described the three years she had known the Visa Applicant as the best of her life. He had made their lives more enjoyable and more financially stable. She described the Visa Applicant as being like a father figure and recounted the sad fact that she had no communication with her real father who is an alcoholic. T said the Visa Applicant had assisted her through the hardest years of schooling that she had undertaken and made her, and her mother’s lives enjoyable. She  described the Visa Applicant’s absence from Australia as “super difficult and tough on myself”, and said it had caused her an “immense amount of anxiety and stress”. T said if the Visa Applicant  could not return to Australia, they would have the anxious call on whether her mother would move to New Zealand which meant would mean she (T) would be on her own. T said that to have her family back together would mean the world to her.

   [28]    Ibid pages 158; 154.

9. The Tribunal has also had regard for the statutory declaration[29] of Mr D Honeysett
   

   [29]    Exhibit 1, 501G Documents T2 page 160.

   (“Mr Honeysett’), the Review Applicant’s father, dated 20 May 2021 in which he vouched for the Visa Applicant’s character, and his conduct towards his daughter and granddaughter (T), and how happy he Visa Applicant made them.

10. The Tribunal has also had regard for a letter[30] dated 11 May 2021 to the Department of Home Affairs from the Visa Applicant’s father Mr S J Todd (“Mr Todd”), an Australian citizen. Mr Todd said he had become very close to the Visa Applicant, and visited regularly, and remained in close telephone contact. Mr Todd said he missed his the Visa Applicant, and wanted him to be allowed to “come home where he belongs”.

    [30]    Ibid page 161.

11. The Tribunal has also had regard for the various references provided in support of the Visa Applicant[31] which, as would be expected described him in generally very positive terms as a reliable honest, trustworthy respectful, hard-working individual, and a conscientious employee.

    [31]    Ibid pages 163 –.174.

12. The Tribunal has also had regard for the Certificate of Completion[32] issued by the Police Citizens Youth Clubs, Traffic Offenders Intervention Program showing that the Visa Applicant had completed the Traffic of Offenders Intervention Program Sessions from
    

    [32]    Exhibit 1, 501G Documents T2 page 175.

    25 June 2013 to 30 July 2013.

13. The Tribunal has also had regard for the letter[33] dated 11 May 2021 from the New Zealand Department of Corrections confirming that he completed the Straight – Thinking Program in Dunedin in 2001.

    [33]    Ibid page 176.

14. The Tribunal has also had regard for the Visa Applicant’s Notice of Assessment[34] issued by the ATO for the period ending 30 June 2020, page 1 of a Residential Tenancy Agreement[35] showing the Visa Applicant and the Review Applicant as tenants, and the numerous pages of banking records[36] which show the Visa Applicant’s financial support for the Review Applicant.

    [34]    Exhibit 1, 501G Documents T2 pages 177 – 178.

    [35]    Ibid page 179.

    [36]    Exhibit 1, 501G Documents T2 pages 180 – 233.

15. The Tribunal has also had regard for the submission[37] prepared by M Legal Migration in support of the Visa Applicant’s Partner Visa Application and the various attachments.

    [37]    Ibid pages 234 – 255.

    Evidence at Hearing

16. In opening her client’s case, Ms Hunter said that it was in the evidence that the Visa Applicant had a terrible childhood, had undiagnosed ADHD, and had abused alcohol.
    Ms Hunter conceded that his wounding offence in 2008 was a very serious violent offence for which he blamed alcohol and his ADHD. Ms Hunter said that he had suffered a serious head trauma three months prior to that offence, and referred to Ms K North’s (“Ms North”) short report to the effect that the Visa Applicant probably had PTSD at the time of his offence. Ms Hunter submitted that all of the Visa Applicant’s offences except possibly for not disclosing on his incoming cards were alcohol related. Otherwise, he had had
    13 years of no violent offences, including two years and five months in New Zealand. Ms Hunter submitted that if ever there was a time that he would have re-offended it was in the difficult circumstances he faced on his return to New Zealand, which she (Ms Hunter) submitted was a “prime-time“ for re-offending. He had not re-offended, and was in full-time employment and continued to be in a relationship with the Review Applicant. He had good protective factors, was rehabilitated and remorseful.

17. Ms Hunter called the Review Applicant, who confirmed her statements of
    10 May 2020 and 18 May 2021, and said she had been in a relationship with the Visa Applicant for nearly three years. The witness said she was receiving counselling once a month for depression, and was on antidepressants. The Visa Applicant’s absence overseas had impacted her depression, and his return would be mentally emotionally and financially beneficial for her, and her daughter (T). The Visa Applicant’s absence had necessitated her moving to a place one and ½ hours’ drive each way from her work because she could not afford the rent of her former premises which were only 15 minutes’ drive from her work.

18. The witness said she had never seen the Visa Applicant violent, aggressive, or drinking excessively. His maximum alcohol consumption was about four or five beers, and he only drank on a weekend. The witness also stated that she had never seen the Visa Applicant take any illegal drugs, and that she would not be with him if he had. She said she was previously married to an alcoholic and would never expose herself and her daughter (T) to anything like that again.

19. The witness said that the Visa Applicant was a loving, caring, father figure for her daughter (T). She said if the Visa Applicant had to remain overseas, she would move to New Zealand to be with him and that would have a big impact on her life, because she is an only child, and her 75-year-old father has lymphoedema in his left leg in consequence of a tick bite, and she is his carer, taking him to doctor’s appointments as required, as her mother does not drive. Her father can’t walk on his left leg, and it needs to be constantly wrapped every day so that toxins can come out of his body.

20. The witness said her daughter (T) was her main concern, as T’s father is not in her life, and it would break her heart to leave her behind. The witness said she does not know anyone in New Zealand and would have to find a new job which would not pay as well as a present one. She (spoke positively of the Visa Applicant’s good character and personal attributes.

    Cross examination of the Review Applicant

21. In cross examination, the Review Applicant said that she had visited the Visa Applicant about five times in New Zealand prior to Covid. The Visa Applicant was close to her family and spoke to her dad once a week.

22. Under questioning from the Tribunal, the witness said that if the Visa Applicant returns to Australia he could arrange an internal transfer and continue to work with the company with whom he is presently employed. She also said that the Visa Applicant’s former employer had offered him his job back.

    Evidence of the Applicant’s mother Ms S J Keen.

23. The Visa Applicant’s mother Ms S J Keen gave evidence via telephone from New Zealand and confirmed the veracity of the statement at exhibit A2. She described her son as a sensitive person of good character. Ms Keen said that she had little physical contact with her son as he is at the top of the North Island and she is at the top of the South Island, and travel was difficult owing to Covid restrictions.

    Cross examination of Ms Keen

24. Under cross-examination Ms Keen said she spoke to her son regularly, sometimes a couple of times a day. She said his brother lived in the same area as he did, and that they are now close and very different from when they were children. Ms Keen had met the Review Applicant and had kept in contact with her over the Internet.

    Re-examination of Ms Keen

25. In re-examination, the witness confirmed that the Visa Applicant resides with his brother.

    Evidence of the Visa Applicant

26. The Visa Applicant gave evidence via video link and confirmed the veracity of the five statements[38] that he provided to the Department and the Tribunal. He was then referred to the police records regarding the assault committed on him at King’s Cross on 17 February 2008[39]. He had no recollection of what occurred during the assault[40] , but believed he had been knocked out. This was about three months before the wounding episode in Brisbane, and he had forgotten about it when he spoke to Ms North.

    [38]    Exhibit 1, 501G Documents T2 pages 127 – 129; 130 – 136; 415 - 419; 438; Hearing bundle page 453.    Transcript page 21, lines 5 – 34.

    [39]    Hearing Bundle page 445; Transcript page 21, lines 43 – 45.

    [40]    Transcript page 23, lines 5 – 28.

27. The Visa Applicant said he didn’t really drink anymore, maybe once every five or six weeks and might have two or three light beers with a 2.5% alcohol concentration, about half the strength of full strength beer.

28. The Visa Applicant said he was currently working 12 to 14 hour days, six days a week as a truck driver[41], and if allowed to return to Australia he would probably get a transfer with the company with which he was presently working.

    [41]    Ibid page 24, lines 20 – 47.

29. He planned it to buy a house for himself and the Review Applicant. He said he was no longer hanging around with his old mates who were a fairly bad influence on him, and only associated with positive people.

30. The Visa Applicant said he no longer drank to get drunk, and faced with a similar situation to that which he faced in 2008 he would walk away, and added that he does not put himself in that sort of situation anymore. He confirmed his last offence in New Zealand was in September 2001.

31. The Visa Applicant said if he was ever going to offend again in his life it would have been when he was returned to New Zealand because of the situation he was placed in. The following exchange occurred[42]:

    VISA APPLICANT: I was basically dropped off at the airport and I met with the police there and they didn’t know I was coming and I had no help at all. I had no money. All I had was my clothes, like some singlets and shorts, and that was it. So I think if I was to offend, do any offences then it would have been then for just for the basic need to survive.

    Ms HUNTER: It was difficult then. It was very difficult for you?

    VISA APPLICANT: … Yes.

    VISA APPLICANT: Yes?… Like my head was – I was in a lot of shock, anxiety, I just didn’t know what to happen, I just it was like – it was like a dream, like – and just like – I wasn’t even allowed to say goodbye to [the Review Applicant] or anything…

    [42]    Transcript page 26, line 39 – page 27, line 3.

32. The witness explained his non-offending upon his return to New Zealand by reason of the fact that he was a different person now, had grown up a lot and matured, and was not hanging around people that are bad influences[43]. He said he would definitely not re-offend if allowed to return to Australia.[44]

    [43]    Ibid page 27, lines 30-33.

    [44]    Ibid lines 45-46.

33. When it was put to him that he had not disclosed his prior offending on the majority of his incoming passenger cards, and only disclosed it on the last five in 2012, 2013, 2014 and 2019, he said he did not realise that it was quite a serious offence and agreed that he had been trying to “fly under the radar” initially. On the first three occasions after ticking the “yes” box he had been allowed into Australia.

34. The Visa Applicant expressed remorse for his past conduct and said that he had changed and was not going to commit any crimes and would like the chance to prove it[45].

    [45]    Transcript page 28, lines 45 – page 29, line 3.

    Cross examination of the Visa Applicant

35. Under cross examination, the Visa Applicant confirmed that he had not disclosed his convictions on his early entries into Australia because he did not want to be held back by those convictions, and at the time he did not realise the seriousness of his conduct.

1. In these circumstances, sub-paragraph (e) of paragraph 8.1.1(1) of the Direction is given neutral weight.

2. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

3. It is not disputed that this Visa Applicant gained initial and subsequent entry to Australia in consequence of not disclosing prior criminal offending, and this must weigh against him. However, to his credit following his conviction in 2008 he commenced owning up, and disclosing his prior record, and this lessens the weight which might otherwise be given to this consideration.

4. A consideration of sub-paragraph (f) of paragraph 8.1.1(1) of the Direction weighs moderately against refusal of the Visa Applicant’s visa.

5. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended, since being formally warned about the consequences of further offending, in terms of the non-citizen’s migration status.

6. There is no evidence before the Tribunal that this subparagraph is relevant in the present case.

7. In these circumstances, sub-paragraph (g) of paragraph 8.1.1(1) of the Direction is given neutral weight.

8. Having regard to the totality of the evidence to which the abovementioned sub‑paragraphs (a), (c), and (f) of paragraph 8.1.1(1) of the Direction are relevant, the Tribunal is of the view that the nature and seriousness of the Visa Applicant’s offending conduct can be readily characterised as moderately serious.

   Risk to the Australian community should the Applicant commit further offences, or engage in other serious conduct

9. Paragraph 8.1.2(1) of the Direction provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

10. Paragraph 8.1.2(2) of the Direction provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal, or other serious conduct

11. The assessment of the risk to the Australian community were the Visa Applicant to engage in further offending or other serious conduct, is properly informed by the nature of his offending and other serious conduct to date. This assessment is also informed by the provision in paragraph 8.1.2(1) of the Direction, which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would because if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.

12. Any repetition of similar conduct by this Visa Applicant could result individuals being subjected to assaults ranging from those which resulted in no injuries, to those which resulted in significant lacerations.

13. Such injuries could result in physical pain, scarring, and emotional injury, temporary incapacity to work, and financial loss.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

14. In assessing the likelihood of the Visa Applicant engaging in further criminal or other serious conduct, the Tribunal has had regard to his history, the various medical reports, and his past efforts at reforming himself.

15. In making its assessment of the likelihood of the Visa Applicant engaging in further criminal or other serious conduct, the Tribunal accepts the evidence of the Visa Applicant and the witnesses called on his behalf, together with the written expert evidence. The Visa Applicant said that he came to Australia with the intention of starting a new life, and although things did not progress perhaps as quickly as he might have hoped, they did nevertheless progress.

16. The evidence of Ms North is particularly persuasive, explaining the Visa Applicant’s troubled childhood and its medical and social consequences, and the Tribunal notes that the Visa Applicant’s personal development has been very much reflected in his conduct.

17. The Tribunal notes that the Visa Applicant has clearly served out the three-year suspended sentence imposed by Forde DCJ without any apparent incident, and this is entirely consistent with the very strong and unusual demonstration of remorse, which His Honour remarked upon.

18. The fact that the Visa Applicant has now passed some 14 years without committing any serious violent offence, particularly when faced with the harrowing experience of being suddenly separated from loved ones and returned to New Zealand after spending 17 years in Australia in the circumstances in which he found himself, says a great deal about his strength of character and the maturity and self-control he has achieved. Critically, he appears to have substantially addressed, and eliminated the root cause of much of his offending, namely alcohol. The Visa Applicant has very much turned a negative into a positive, upgrading his truck driving qualifications, maintaining full-time employment in a role where he is subject to regular random drug and alcohol tests in an environment where, (and it was not contended otherwise) there is zero legal blood alcohol tolerance for drivers of heavy vehicles. He has minimised his involvement with negative influences and sought to maximise his involvement with positive influences. It is now over 21 years since the Visa Applicant served actual time in prison, and it is very clear that he has every intention of not going back.

19. The Visa Applicant’s offending is characterised by a clear pattern of diminishing frequency and seriousness, and he has been incident free for over four years.

20. If permitted to return to Australia, the Visa Applicant has the very real prospect of continuing in his present role with his present employer and would continue to work long hours and be subject to random alcohol and drug tests. He has changed his lifestyle to minimise alcohol and adverse influences. He has the opportunity of resuming a stable family life in which he has demonstrated no abuse of alcohol, and no antisocial behaviour. He will have a strong support network which should serve to strengthen his resolve to obey the law.

21. The Tribunal accepts that the Visa Applicant’s 2013 drink driving can be fairly described as “bad luck” in the context of his evidence before the Tribunal and his contemporaneous statements to Police. The Tribunal also accepts that the precautions he took at the time gave an insight into his rehabilitation and his desire not to offend. The Visa Applicant has continued to demonstrate that rehabilitation, and his record since that time bears testament that he has substantially achieved it.

22. Having regard to the totality of the evidence, the Tribunal considers that there is a miniscule risk that this Visa Applicant will offend further or commit other serious conduct if released back into the community.

23. In reaching this conclusion, the Tribunal is mindful that the Visa Applicant is seeking a Partner visa, which would entitle him to permanent residency and provide a pathway to citizenship. The Tribunal is not satisfied that the risk of harm his future conduct is likely to cause is affected by the duration and purpose of his intended stay.

    CONCLUSION

    PRIMARY CONSIDERATION 1

24. Primary Consideration 1 weighs slightly, in favour of refusal of the Visa Applicant’s visa.

    Primary Consideration 2: Family Violence Paragraph 8.2

25. It was not submitted that this Primary Consideration is relevant in the present case, and accordingly it is given neutral weight.

    Primary Consideration 3: Best Interests of Minor Children in Australia

26. It was not submitted that this Primary Consideration is relevant in the present case, and accordingly it is given neutral weight.

    Primary Consideration 4: Expectations of The Australian Community

27. The Direction makes clear that it is not the function of the Tribunal to independently assess community expectations in this case, but to proceed on the basis of the Government’s views as articulated in the Direction.

28. The attribution of weight to this consideration as articulated in the Direction is a matter for the Tribunal[61]. However, deportation may have devastating consequences for people who have an indefinite right to remain in Australia, and in determining the weight to be given to this consideration the Tribunal is obliged to give real consideration to the human consequences that removal from Australia can bring about[62].

    [61]    FYBR v Minister for Home Affairs [2019] FCAFC 185.

    [62]    See the remarks of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. See also Dunasement v Minister for Immigration, Citizenship, Migrant Services       and Multicultural Affairs [2022] FCAFC 13 at [29],[58-60].

29. This Visa Applicant has lived in Australia for a period of 17 years (almost half of his life) from the age of 21, which represents a substantial portion of his life, during which time he has contributed to the Australian community. He has a strong history of employment and payment of taxes over this period. The Tribunal considers that the Australian community would afford him a higher level of tolerance than it would were this not the case. He has demonstrated successful rehabilitation, and there is a miniscule risk that he will re-offend. He has a clear path for ongoing continued employment in Australia. He is in a stable relationship with an Australian citizen (the Review Applicant), and has an Australian stepdaughter (T). He has continued to support them both financially and emotionally notwithstanding his prolonged period of absence from Australia. The Review Applicant’s, father; Mr Honeysett, is also an Australian citizen and suffers a serious leg injury in consequence of a tick bite and relies upon the Review Applicant for twice-weekly assistance in strapping his leg and travel to and from medical appointments. The Review Applicant is an only child and therefore has no siblings to step into this role should she relocate to New Zealand.

30. Should the Visa Applicant fail in this application, the Review Applicant will be faced with the dilemma of either abandoning her relationship with him, or moving to New Zealand, and the consequent anguish of leaving behind in Australia her only child (T), with whom she is understandably very close, as well as her ailing father and her mother. She would also be leaving behind a very stable work and social environment. This would have very serious adverse consequences for her parents, particularly her father (Mr Honeysett), and for T.

31. Until the Visa Applicant came into her mothers life, T lacked a father figure because her own biological father is an alcoholic, and she has little to no contact with him, and he gives her no support of any description. In contrast, T described a very strong and supportive relationship with the Visa Applicant, with whom she and her boyfriend had travelled to Bali. She described her relationship with the Visa Applicant as “amazing” and said it would be very difficult for her if he is not allowed back into Australia as he fulfils the role of a father figure, which she had always wanted to have. T said she did not know how she would cope if her mother moved to New Zealand and she would find things very difficult with no family around her.

32. In addition, the Visa Applicant’s own father, Mr S Todd is an Australian citizen residing in Australia, and he has reported becoming very close to the Visa Applicant since he moved to Australia, misses him, and wants him allowed back into Australia[63].

    [63]    Exhibit 1, Section 501G Documents T2, page 161.

33. The Visa Applicant’s offending amounts to serious conduct in breach of the Australian community’s expectation as articulated in paragraph 8.4(1) of the Direction, and the Tribunal accepts that as a norm the Australian community would on this basis, considered alone, expect that he would not be allowed to enter Australia. However, the Tribunal considers that in the totality of the circumstances of this case, the Visa Applicant would be   be afforded a higher level of tolerance by the Australian community than might otherwise apply.

34. Moreover, the Tribunal is required to have regard for the fact that the Visa Applicant’s deportation may have devastating consequences for the above-named people who have an indefinite right to remain in Australia, and in determining the weight to be given to this consideration the Tribunal is obliged to give real consideration to the human consequences that his removal from Australia can bring about[64].

    [64]    See the remarks of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. See also Dunasement v Minister for Immigration, Citizenship, Migrant Services       and Multicultural Affairs [2022] FCAFC 13 at [29],[58-60].

35. Mr Honeysett is a particularly ill man who receives very important physical care and no doubt emotional support from his only child, the Review Applicant. The ripple effect of the Visa Applicant’s deportation would have a very severe impact on him, and no doubt his wife also, were the Review Applicant to follow the Visa Applicant to New Zealand. The burden of this impact would most likely increase as they continue to age. T would also be severely impacted, as would the Review Applicant’s father. Were the Review Applicant to be unable to remain in Australia, an apparently happy family unit would cease to be, and there would no doubt be various associated hardships for her and her daughter (T). In addition, the Visa Applicant’s father would be deprived of the opportunity of retaining his resurrected relationship with his son.

    CONCLUSION

    Primary Consideration 4

36. The Tribunal considers that having regard to the totality of the evidence, and the case law which binds this Tribunal, the Tribunal finds that the expectations of the Australian community should carry only a slight weight in favour of refusal of the Visa Applicant’s visa.

    Other Considerations

37. It is necessary to ascertain what weight, if any is allocable to the Other Considerations listed at paragraph 9 of the Direction.

38. The Visa Applicant is offshore, and there is no evidence before the Tribunal so as to enliven consideration of paragraph 9(1)c). Therefore, no issues arise in respect of paragraph 9(1)(a)(b), or (c). Likewise, there is no evidence so as to enliven consideration of paragraph 9(1)(d)(ii), being impact on Australian business interests.

39. It remains therefore, to consider Paragraph 9(1)(d) strength, nature and duration of ties to Australia as detailed in paragraph 9.4.1.

40. The evidence discussed above does not require repetition, and shows that a refusal of the Visa Applicant’s visa application will have a very severe impact on all members of his immediate family.

41. In the light of the evidence before the Tribunal, the Tribunal finds that a consideration of paragraph 9.4.1(1) weighs very strongly in favour of granting the Visa Applicant’s Visa application.

    Paragraph 9.4.1(2)

42. It must be said that the Visa Applicant did commence offending soon after his arrival in Australia, however, his offending was for the most part, relatively minor. By the time he committed his most serious offence in Australia, he had been a resident for some six years. He continued to reside in Australia for a further 11 years after his most serious offence, and contributed positively to the community during this period.

43. The Visa Applicant has a very strong employment record and period of residency in Australia, having arrived as a young adult at the age of 21. He has now spent almost the entirety of his adult life in Australia, he has been fully employed, and enjoys good references from his former employers. He has made a significant contribution to the Australian community through his tax contributions and his commitments to the Australian workforce. He has continued to provide support to his partner and her daughter (T) during his absence from Australia.

44. The Tribunal finds that the Visa Applicant has very strong social, financial, and economic ties to Australia.

45. Overall, the Tribunal finds that a consideration of paragraph 9.4.1 of the Direction weighs very strongly in favour of granting his visa application.

    Paragraph 9.4.2 Impact on Australian Business

46. This Other Consideration is not relevant to the determination of the instant application.

    Findings: Other Considerations

47. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:

    (a)international non-refoulement obligations: not relevant;

    (b)extent of impediments if removed: not relevant;

    (c)impact on victims not relevant; and

    (d)links to the Australian community: weighs strongly in favour of the Visa Applicant.

    CONCLUSION

    Should the Tribunal exercise its power to refuse to grant the Visa Applicant’s visa?

48. Having regard to the Direction and to the totality of the evidence before the Tribunal, the Tribunal is of the view that this Tribunal should not exercise the power conferred by section 501(1) to refuse to grant the subject visa to the Visa Applicant.

49. In reaching this conclusion, the Tribunal has had regard to the considerations referred to in the Direction. It’s findings are as follows:

    ·Primary Consideration 1 weighs slightly against grant of the Visa Applicant’s visa.

    ·Primary Consideration 2 is not relevant;

    ·Primary Consideration 3 is not relevant;

    ·Primary Consideration 4 weighs slightly against grant of the Visa Applicant’s visa;

    ·the Tribunal has outlined the weight attributable to the Other Considerations and considers that the totality of the weight attributed to paragraph 9(1)d)(i) outweighs the weight it has allocated to the relevant Primary Considerations;

    ·a holistic view of the considerations in the direction therefore favours the grant of the visa sought by the Visa Applicant; and

    ·consequently, the Tribunal does not exercise the discretion to refuse to grant the Visa Applicant’s visa.

    DECISION

50. The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Visa Applicant; Mr Craig Todd a Partner (Provisional) Class UF) visa.

I certify that the preceding 239 (two hundred and thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.............[SGD]...........................................................

Associate

Dated: 7 April 2022

Date(s) of Hearing:	23 and 24 February 2022
Solicitors for the Applicant:	Ms Kim Hunter Hunter Flood Lawyers
Solicitors for the Respondent:	Kate Ervin Clayton UTZ Lawyers

ANNEXURE A – EXHIBIT REGISTER

Exhibit Number	Description of Exhibit	Date of Document	Party	Filing Date
1	Agreed Hearing Bundle (p 1 – 549)	R	16 FEB 2021
2	Report of Kris North ·     Briefing letter ·     Extract from police notes	Various	A	22 FEB 2022
3	Updated New Zealand Police Report	A	23 FEB 2022
4	Applicant’s email submissions regarding New Zealand’s COVID-19 travel restrictions	A	23 FEB 2022