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

Selwyn and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4413 (16 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/8503
Re:Mr Mikaira Selwyn
APPLICANT

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

Decision
Tribunal:Senior Member K Raif
Date:16 December 2022
Place:Sydney

The Tribunal affirms the decision not to revoke the cancelation of a Class TY Special Category visa held by the Applicant.
....................................[SGD]....................................
Senior Member K Raif
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class TY Special Category (Subclass 444) visa – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – expectations of the Australian community – family violence – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Raif
16 December 2022

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancellation of a Class TY Special Category (Subclass 444) visa held by the Applicant.
The Applicant is a national of New Zealand, born in May 1999. He spent a month in Australia between December 2000 and January 2001, a month between May and June 2006 and three months between September 2018 and December 2018.[1] His most recent arrival in Australia was in January 2019 when he was granted the Class TY visa.[2]
[1] G14, p 70.
[2] G15, p 71.
In December 2021 the Applicant was convicted of the offences described below and was sentenced to 16 months imprisonment.[3] In January 2022 the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because it was determined that the Applicant had a substantial criminal record.[4] The Applicant was invited to make, and made representations about the revocation of the decision to cancel his visa in January 2022. On 4 October 2022 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation decision.[5] The Applicant is seeking review of that decision.
[3] G7, p 39.
[4] G10, p 46.
[5] G3, pp 9-26.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the Applicant’s visa should be affirmed.
Relevant Law
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Minister, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(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)) …
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 15 April 2021 the Minister issued Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) under section 499 of the Act. Direction 90 is binding on the Tribunal in performing its functions, or exercising powers under section 501 of the Act.
Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 90 states that:
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.
The primary considerations which are set out in clause 8 of Part 2 of Direction 90 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 90:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations.
In this case, it is not in dispute that the Applicant has made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a)does the Applicant pass the character test, as defined by section 501 and, if not,
(b)is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Information before the Tribunal indicates that in December 2021 the Applicant was convicted of the following offences:
·Intentionally choke etc person without consent (DV)
·Assault occasioning actual bodily harm (7 counts)
·Contravene prohibition / restriction in AVO (Domestic)[6]
[6] G6, pp 37-38.
The applicant was sentenced to 16 months imprisonment. The applicant was also convicted of ‘knowingly make false / misleading statement’ with no penalty recorded.[7]
[7] G4, p 28.
The Tribunal finds that the Applicant has been sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the applicant has a substantial criminal record, he does not pass the character test (and the Applicant concedes that he does not pass the character test). The requirements of subparagraph 501CA(4)(b)(i) are not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
In his evidence to the Tribunal the Applicant states, essentially, that the correct and preferable decision is to exercise the discretion in his favour and, in particular, that the primary consideration of the best interests of a minor child and other considerations of his ties to the community and impediment of removal, outweigh other considerations.
The Respondent submits that the Applicant does not pass the character test and that the discretion should not be exercised in favour of the revocation.
The Tribunal’s considerations are set out below with regard to Direction 90.
Primary considerations
Protection of the Australian Community
Sub-clause 8.1 of Direction 90 provides in part as follows:
Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind 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….
(2)Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Direction provides that offences involving violence against women constitute serious conduct. In this case, the offending was against the Applicant’s former partner.
In considering the nature of the offending, the Tribunal has had regard to the police reports that are before the Tribunal, that outline the circumstances leading to the convictions.[8]
[8] Respondent’s Tender Bundle, R1, pp 10-23.
With respect to the events occurring on 12 August 2020, it is stated that the Applicant and the victim were in their home when the victim planned to go out with friends. When she told the Applicant, he became verbally aggressive and controlling and told her that he did not want her to go out. He forced the victim to sit down on the bed and when she attempted to stand, he pushed her using his open hands to strike her around the shoulder area. The Applicant then straddled the victim and used his hands to grab her shoulders. It is stated that the Applicant used a fist to punch the victim in the eye, causing her immediate pain.
It is stated that another incident occurred on 12 October 2020. The Applicant is stated to have taken the victim’s phone and accessed her Instagram account. He saw that she was following other males and became aggressive. The Applicant raised his voice and questioned her. When the victim attempted to take the phone and dial 000, the Applicant grabbed the phone out of her hands, pushed the victim onto the bed, straddled her and used his hands to hold her down. He refused to let her leave, then bit the victim’s cheek. The victim yelled “get off me” repeatedly but the Applicant used his palm to cover her mouth to stop her from talking. When another person knocked on the door, the Applicant told the victim to “shut up” before speaking to that person. When he re-entered, he locked the door and did not let the victim leave the room. It is recorded that the Applicant pulled the victim backward, causing her shirt to rip, then used his palms to push her into the corner of the room and used his forearm to forcefully lean onto her chest. It is recorded that the Applicant used the plastic box where the accused was packing her belongings and brought it forcefully down onto his head, causing cuts to his face, stating that he would make it look like ‘she did it to him’. It is stated that the Applicant used his hands to grab the victim’s arms, then he pushed her onto the bed and straddled her. She attempted to sit up multiple times but he repeatedly pushed her back down. When the victim tried to leave the room, the Applicant blocked her way with his legs. He went away after the police arrived.
Another incident occurred on 4 January 2021. It is stated that when the Applicant and the victim were in their room, the Applicant took her phone to go through her Instagram messages and refused to give it back. When the victim tried to leave, the Applicant used his fist to punch the victim on her arm. He told her he did not want her to leave and that he would get scissors to cut her hair, so that she could not leave. The Applicant obtained a pair of scissors and raised these to the head of the victim. As she tried to push him away, the scissors cut the victim of the side of her abdomen, resulting in a laceration. As the victim tried to leave, the Applicant grabbed her forearm and forced her towards the floor before he straddled her and sat on her for about 10 to 15 minutes. The Applicant repeatedly stated that he loved the victim and did not want her to leave him.
Another incident occurred on 24 January 2021. It is stated that the Applicant went through the victim’s Instagram messages with another male. The Applicant started to get aggressive about it, causing her fear. The victim ran to the bathroom and tried to lock the door but the Applicant pushed the door, causing it to hit the victim in the arm. The Applicant pushed the victim into the shower area, pinned her against the wall and called her derogatory names. The Applicant bit the victim’s upper lip and her palm, causing bleeding and bruising. The Applicant punched the victim with a closed fist on her upper arm, causing pain. He continued to verbally abuse the victim for about an hour before locking her in the bedroom.
Another incident is described as occurring on 20 March 2021. The victim asked the Applicant to move out and when she attempted to pack his belongings, the Applicant is stated to have pushed the victim into the bed and using his palms, struck her on the chest. He got on top of the victim and bit her lip. The victim attempted to leave but the Applicant stopped her and straddled her. Using a fist, he punched her in the eye. When she attempted to escape, the Applicant held the victim pinned against the wall for about ten minutes. The Applicant is reported to have spit on the victim’s face and bit her.
Another incident is described as occurring on 18 April 2021. The Applicant grabbed the victim’s phone to check her Instagram messages. The Applicant is reported to have used his hand to slap the victim’s thigh. As the victim tried to get away, he grabbed her and pulled her back into the unit.
An incident is reported to have occurred on 17 May 2021. The Applicant demanded to see the victim’s phone and Instagram messages and saw a message which made him angry. The Applicant positioned himself on top of the victim, pinning her to the mattress, and used his forearm to apply pressure on her chest and shoulder. As the victim went into the bathroom, the Applicant pushed her back against the wall of the shower, causing her to hit the back of her head against the wall. The Applicant placed his hands around the victim’s neck in a tight grip. A neighbour called the police and the Applicant is reported to have told the police that “nothing had happened”.
It is reported that in May 2021 the Applicant presented to the police evidence of domestic violence stating that his partner assaulted him, causing his injuries. He subsequently admitted to lying due to the pressure of police presence and that the truthful version is that the injuries were self-inflicted, caused by a plastic lid that he smashed over his head.[9]
[9] Respondent’s Tender Bundle, R2, p 29.
There is before the Tribunal the Facts Sheet regarding the breach of bail, as it is reported that in May 2021 the victim received seven phone calls and spoke to the Applicant on one occasion about the upcoming court hearing.[10]
[10] Respondent’s Tender Bundle, R2, p 29.
The Tribunal has considered the sentencing remarks by Magistrate Price made on 9 December 2021.[11] Information before the court was that the Applicant and the victim met about 12 months prior to the conviction, there was an instant attraction and they moved to live together. There were problems in the relationship as the couple did not know each other well, and the Applicant himself was physically assaulted on a number of occasions but did not take any action. Magistrate Price stated that in terms of objective seriousness of the offences, all the matters were serious and most of them were above mid-range, with some a little below and some above. The magistrate noted that there was no prior criminal history and that the Applicant is a young person with good prospects of rehabilitation who has demonstrated remorse and contrition.
[11] G5, pp 31-35.
In oral evidence the Applicant agreed with some of the incidents as described above, but he also told the Tribunal that he pleaded guilty to some of the charges on advice of his lawyer that it was a ‘good deal’ and that he would get a discount on the sentence if he pleaded guilty. The Applicant did not agree that he had committed some of the offences for which he was convicted and denied that some of the events described in the police reports had taken place. The Tribunal is of the view, however, that the convictions can be taken as evidence that the offences had been committed. The Tribunal is mindful that there is no indication of the Applicant appealing the convictions and he confirmed in oral evidence to the Tribunal that he was aware of his right to plead not guilty if he did not believe he had committed the offences. The Tribunal finds that the Applicant did commit the offences for which he was convicted.
There are also before the Tribunal the Applicant’s driving records showing traffic fines resulting in suspensions of his license[12] and the Applicant agreed in oral evidence that he had committed driving offences.
[12] Respondent’s Tender Bungle, R3, p 78.
The Tribunal finds that the offences involved violence and threats of violence toward the Applicant’s former partner. The Tribunal finds that the offending conduct took place over several months and, despite the Applicant’s claimed remorse, consistently involved violence towards his former partner. The Tribunal has formed the view that the offending was serious.
The Tribunal has considered the risk to the community, should the Applicant reoffend. The Applicant submits that he had not committed any other offences, that the offending conduct took place over a short period of time and that he no longer has a relationship or any contact with his former partner, so there is no risk of reoffending. The Tribunal does not accept that this is necessarily so. The sentencing remarks indicate that the offending behaviour took place between August 2020 and May 2021, for a period of nearly ten months. The Tribunal does not consider this to be a brief period. The Tribunal accepts that the Applicant has complied with the Apprehended Violence Order (AVO) and has no contact with his former partner, but offences of that nature can also occur in any future relationships and not only in relation to one person.
The Tribunal is mindful that the Applicant has been in detention for a lengthy period of time, where it would be much more difficult for him (if not impossible) to engage in family violence. That is, the absence of other offending conduct since the convictions is not an indication, in the Tribunal’s view, that the Applicant has reformed and that the risk of reoffending no longer exists.
The Applicant repeatedly told the Tribunal that he is remorseful for his conduct and he apologised to the Australian community and to his former partner. The Applicant claims in his evidence to the Tribunal and in his revocation request that he appreciates his conduct was wrong, that he had completed a number of occupational courses and a domestic violence course while in jail and that he would not engage in such conduct again. The Tribunal accepts that completion of courses may, in some circumstances, assist the perpetrator in better managing their behaviour and to avoid conflict situations. The Tribunal is not satisfied that this is necessarily the case here. The Applicant’s evidence to the Tribunal is that he completed about three weeks of a domestic violence course while in jail (before he was transferred to another jail where the course was not offered). The Applicant’s recollection of what he had learned in that course seems to be vague. He told the Tribunal that he has not had the opportunity to complete any other courses relating to family violence. Having heard from the Applicant and having regard to the Applicant’s somewhat vague responses as to how he could avoid perpetrating violence in the future or avoid the same issues in future relationships, the Tribunal has not been satisfied that the Applicant has acquired meaningful skills as a result of completing the domestic violence course. That is, the Tribunal does not consider that completing the three week course aids the Applicant in his rehabilitation.

The sentencing magistrate refers to the Applicant having good prospects of rehabilitation and notes that he had expressed remorse and contrition. The Applicant also states in his evidence to the Tribunal that he had pleaded guilty at the first available opportunity, acknowledging his misconduct.[13] The Tribunal acknowledges that he has done so, but the Applicant’s evidence to the Tribunal is that he pleaded guilty on advice of his lawyer, because it was a “good deal” and would result in a discounted sentence and not because he was remorseful for his conduct or appreciative of its seriousness. In the circumstances, the Tribunal does not consider that the Applicant’s guilty plea is an indication of his remorse.
[13] Applicant’s Statement of Facts, Issues and Contentions, p 3.
The Tribunal acknowledges that there has been no further offending. However, as noted above, the Tribunal is also of the view that there would have been very limited opportunities (if any) for the Applicant to commit domestic violence offences or offences against women while in detention. He has not been subjected to the same stressors since he was found guilty and sentenced as could exist in another relationship. (The above description suggests that jealousy may have been a significant factor in the Applicant’s past conduct). That is, the Applicant’s commitment to avoid the same conduct in the future has not been tested in the community and even if the Applicant is genuine in his intention not to reoffend, the Tribunal is not satisfied that the Applicant has gained the skills to avoid the repeat of the same behaviour. As noted above, the Tribunal is not satisfied that the Applicant is now better equipped or more capable of avoiding the same conduct than at the time when the offending conduct took place.
The Tribunal has formed the view that the risk of reoffending remains, and it is a real risk. The Applicant agreed in oral evidence that his past conduct demonstrated a pattern of violent behaviour. The Tribunal considers that the harm to the community, should the applicant reoffend, could be very serious, given the nature of offending (repeated incidents of domestic violence). The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Expectation of the Australian Community
Sub-clause 8.4 of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
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.
The Tribunal is of the view (which is supported by the Direction) that the Australian community has an expectation that those who live in Australia abide by the Australian laws. The Applicant has not done so. He committed multiple violent offences towards others. He also has not complied with the driving laws, showing a broader disregard for the Australian laws.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, the community expectations would weigh heavily against the revocation.
Whether the conduct engaged in constituted family violence
The Applicant was convicted of family violence offences. It is not in dispute that the offending was in relation to a person with whom the Applicant was in a domestic relationship at the time the offending conduct took place. The sentencing magistrate referred to the offending being at the middle range of seriousness and the evidence before the court indicated that the offending conduct occurred over a lengthy period of time close to ten months.
This consideration weighs heavily against the revocation.
The best interests of minor children in Australia
The Applicant claims to have no biological children but states that he has a close relationship and plays an uncle role in the life of another child, his nephew, who is presently 13 years of age. The Applicant states that he had resided with his aunt and took care of the child for about 2 months in 2020.[14] The Applicant describes the activities he had engaged in with the child (playing football, cooking and taking care of the child) and submits that it is in the child’s best interests that he remains in Australia.
[14] Applicant’s Statement of Facts, Issues and Contentions, p 5.
In oral evidence the Applicant told the Tribunal that he last saw his nephew in 2020 and since that time they have had contact over Facetime about once or twice a month. The Applicant told the Tribunal that when he was in Perth, there were times when he did look after his nephew when the child’s mother had work commitments and this occurred over a two month period at the end of 2020.
The Applicant’s oral evidence indicates that he has had minimal personal involvement with his nephew since 2020 (noting that they live in different states and a significant distance apart from each other in Australia). Since that time the Applicant has maintained a relationship with him only through electronic means and his evidence to the Tribunal is that there is no reason why he could not maintain the same contact if he was to live in New Zealand. In light of the fact that the Applicant appears to have had only limited involvement with his nephew (during a relatively short period of two months) and that occurred two years ago and that the Applicant seems to have been able to maintain a meaningful relationship with the child since that time through electronic contact which he can continue from New Zealand, the Tribunal has formed the view that the Applicant’s contact and relationship with his nephew can continue in the same form irrespective of the Applicant’s place of residence and visa status. The Tribunal has formed the view that the child’s interests would not be adversely affected if the Applicant’s visa is cancelled. The Tribunal finds that this consideration is neutral.
International non-refoulement obligations
The Applicant does not claim, and there is no evidence before the Tribunal to indicate that Australia’s non-refoulement obligations arise in this case. The Tribunal finds this consideration to be neutral.
Extent of impediments if removed
The Applicant is 23 years of age and he told the Tribunal that he has no health concerns. He also told the Tribunal that given his employment history in Australia, he would be able to find employment in New Zealand. The Applicant also told the Tribunal that he has the majority of his immediate family in New Zealand.
In his written submission to the Tribunal the Applicant concedes that he has spent the majority of his life in New Zealand and would not face language or cultural barriers if removed.[15] However, he claims that he has established his life in Australia since January 2019, has maintained employment and has migrated to Australia to pursue his Rugby League career (the Applicant refers to the clubs he has played with). The Applicant submits that he would suffer emotional and financial hardship if removed to New Zealand.
[15] Applicant’s Statement of Facts, Issues and Contentions, p 5.
The Tribunal does not accept that evidence. The Applicant presented evidence relating to his employment in Australia, but little evidence is before the Tribunal concerning the Applicant’s employment prospects in New Zealand. For example, the Applicant has not satisfied the Tribunal that he would be unable to find gainful employment in New Zealand, in whatever field, and his oral evidence to the Tribunal is that he believes he would be able to find employment if returned to New Zealand. Thus, the Tribunal does not accept that financial hardship would be caused to the Applicant if he were to leave Australia, even if he cannot pursue a Rugby League career in Australia.
As for emotional hardship, the Tribunal accepts that the Applicant travelled to Australia in 2019 with the intention of remaining in Australia permanently. The Tribunal accepts that he has established ties in Australia. However, the Applicant also has significant ties in New Zealand, where he has spent the majority of his life. The Tribunal does not accept that removal of the Applicant from Australia would necessarily cause him emotional hardship.
The Applicant stated when applying for the revocation that in New Zealand he may join a gang and his life would be at risk and he would have a better future in Australia.[16] It is not clear to the Tribunal why the Applicant considers that joining a gang is the only option for him in New Zealand. There must be a considerable proportion of the society who are able to maintain normal lives in New Zealand without being members of any gangs.
[16] G12, p 66.
The Tribunal is of the view that there would be some impediment to the Applicant if he is removed from Australia arising from his inability to pursue his Rugby League career in Australia but not due to other factors. This consideration weighs somewhat in favour of the revocation.
Impact on victims
There is no evidence before the Tribunal concerning any impact on victims. This consideration is neutral.
Links to the Australian community
The Applicant’s evidence to the Tribunal is that he has been living in Australia for a relatively short period and has aunts and uncles in this country. His two aunts live in Western Australia and his uncle lives in Liverpool. (His parents, siblings and grandmother remain in New Zealand.)[17] The Tribunal accepts the Applicant has family links in Australia although these do not appear to be extensive. The Tribunal is also mindful that the Applicant appears to have been able to maintain his relationship with these relatives despite living in different cities or different states. If that is the case, the Tribunal is of the view that the Applicant will be equally able to maintain meaningful relationships with these relatives, for example through electronic contact, even if he does not live in Australia.
[17] Applicant’s Statement of Facts, Issues and Contentions, p 6.
The Applicant refers to his employment in Australia, stating that he has maintained full-time employment since arriving in Australia in 2019. The Tribunal accepts that evidence.[18]
[18] Applicant’s Statement of Facts, Issues and Contentions, p 6.
The Applicant states that he has contributed to the community through his dedication to sport and the Tribunal accepts that evidence.[19]
[19] Ibid.
The Tribunal accepts that the Applicant has some ties in the community (although it does not consider his family ties to be extensive) and accepts that this consideration weighs in favour of the revocation.
Conclusion
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant had committed serious offences, involving violence against a woman, over a considerable period of time. The Applicant does not dispute that his offending was serious. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community. The Tribunal has formed the view that the protection of the Australian community and the expectations of the Australian community weigh heavily against the revocation. It is not in dispute that the Applicant had committed family violence. These are primary considerations which weigh against the revocation and the Tribunal gives these significant weight.
The Tribunal has formed the view that the other primary consideration, the best interests of minor children in Australia, is neutral because the Tribunal has formed the view that the best interests of the Applicant’s nephew would not be affected by the Applicant’s visa status.
With respect to the other considerations, the Tribunal accepts that the Applicant has formed links to Australia and also that there would be some impediment if removed as the Applicant would not be able to pursue his career. These factors weigh somewhat in favour of the revocation.
In the particular circumstances of this case, the Tribunal has decided to give greater weight to the primary considerations of protection of the Australian community, the expectations of the Australian community and the fact that the offences involved family violence. The Tribunal has decided that the decision under review should be affirmed.
Decision
The Tribunal affirms the decision not to revoke the cancelation of a Class TY Special Category visa held by the Applicant.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

...................................[SGD].....................................
Associate
Dated: 20 December 2022

Date(s) of hearing: 14 December 2022

Applicant: Mr M Selwyn

Solicitors for the Respondent: Ms S Liddy, Sparke Helmore Lawyers

[2022] AATA 4413

16 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	14 December 2022
Applicant:	Mr M Selwyn
Solicitors for the Respondent:	Ms S Liddy, Sparke Helmore Lawyers