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

Sexton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 320 (22 February 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8100
Re:Darren Sexton
APPLICANT

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

DECISION
Tribunal:Member M Kennedy
Date:22 February 2021
Place:Adelaide

The decision under review is affirmed.
......................[sgnd]..................................
Member M Kennedy
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations –strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY and Minister for Home Affairs [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member M Kennedy
22 February 2021

Mr Sexton (the applicant) is a citizen of the United Kingdom. He migrated to Australia with his parents as an infant in 1971 but has not become an Australian citizen. He held a Class BF Transitional (Permanent) visa. His visa was cancelled on 16 December 2019 as a consequence of being sentenced for violent offending to a term of imprisonment exceeding 12 months. The applicant requested that the visa cancellation be revoked, but a delegate of the respondent decided not to revoke the visa cancellation. The applicant asks the Tribunal to review the decision not to revoke the mandatory cancellation of his visa.
LEGISLATIVE FRAMEWORK
Section 501 of the Migration Act 1958 (Cth) (the Act) provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the ‘character test’ because a person has a ‘substantial criminal record’ and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa.[1] This is often referred to as the mandatory cancellation of visas on character grounds.
[1] Migration Act 1958 (Cth) s 501(3A).
The applicant does not pass the character test. The character test referred to in s 501(3A) is outlined in s 501(6) of the Act. It provides that a person does not pass the character test if the person has a ‘substantial criminal record’. A person will have a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.[2] The applicant has such a record on account of the sentences imposed on him by the District Court of South Australia, and also an earlier sentence imposed on him by the Victorian County Court in 2006. I will elaborate on these circumstances later in these reasons. At the time the visa was cancelled, the applicant was serving a full-time sentence of imprisonment in South Australia. It follows that the mandatory cancellation provisions of s 501(3A) of the Act applied.
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under section 501(3A), the Minister has power, under section 501CA(4) to revoke the cancellation decision. That section provides that:
(a)[the person makes representations to have the cancellation revoked]; 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.
The applicant requested revocation of the visa cancellation within the required timeframe. As mentioned above, it is clear that the applicant does not pass the character test on account of his convictions. The remaining basis upon which the mandatory visa cancellation may be revoked is the sole issue in this review; that is, whether the Tribunal is satisfied that there is another reason why the original decision should be revoked. My approach to the consideration of that issue is the subject of a Ministerial Direction.
DIRECTION NO. 79
Section 499 of the Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.
Ministerial Direction 79 (the Direction), at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing the applicant’s revocation request. I am to treat the following as primary considerations:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community.
Other considerations must also be taken into account. They are:
(a)international non-refoulement obligations;
(b)the strength, nature and duration of ties;
(c)the impact on Australia’s business interests; and
(d)the impact on victims and the extent of impediments.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance in terms of the objectives of the Act, the character provisions, and the objectives of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my powers in this matter are that:
·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;
·sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated is so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia.
The applicant’s background
Before considering these principles and how they apply in these particular circumstances, I will provide a brief summary of the evidence I have received regarding the applicant’s background and life in Australia.
The applicant migrated to Australia as an infant. He has two older siblings. One of his siblings, his brother Karl, has become an Australian citizen but the other, his sister Sharon, has not. The applicant was married and has three adult children, but he separated from his wife 15 years ago. He does not keep in touch with his ex-wife. He is estranged from his eldest son but has had some limited contact with his other two children. He has three grandchildren and a fourth is on the way.
The applicant started working as a butcher at the age of 14. He largely maintained employment throughout his life, with perhaps two years off between jobs. He has also worked as a plasterer. Prior to being imprisoned most recently, he was helping a friend in Port Pirie to renovate a house.
The applicant grew up in Mornington in Victoria, spent a significant amount of time in and around Horsham, and has also lived in the Northern Territory and outback South Australia. It was in Coober Pedy where the applicant’s most recent offences were committed in June 2009. Other serious violent offences were committed in Jeparit (near Horsham) in October 2003.
The applicant has an extensive list of criminal convictions commencing in 1988 when he was dealt with in Dromana for intentionally or recklessly causing injury. Between 1990 and 1994 the applicant has convictions for theft, burglary, possessing cannabis, public drunkenness and having an unregistered and uncontrolled dog that attacked someone. The applicant was dealt with by way of fine for all these matters.
The applicant has a conviction for welfare fraud in 2000, dealt with by recognizance and pecuniary penalty.
The applicant has a conviction for robbery and assault with intent to rob for which he was sentenced to a suspended term of imprisonment of four months in 1991. Nothing is known about that matter and the applicant said he could not recall any details when asked about it during cross examination.
The applicant explained that he had used drugs throughout his life and tried a number of different drugs. The applicant accepted he had a cannabis problem before his last term of imprisonment. The applicant said he would not resume using cannabis if he was able to remain in Australia.
As to his future intentions, the applicant said that if he was released from prison, subject to parole obligations, he would go and live with his brother Karl in Queensland. The applicant also predicted he would probably end up back in western Victoria ultimately as that was where his children and grandchildren were. The applicant confirmed that he held trade qualifications as a butcher. Although he had worked as a plasterer, he held no formal qualifications for that trade.
If he were required to leave Australia, the applicant indicated that, essentially, he had no knowledge and no clear plan as to where he would go or what he would do in the United Kingdom. The applicant mentioned he had a cousin in the United Kingdom and had spoken with a welfare organisation from the United Kingdom, ‘Prisoners Abroad’, about the limited assistance he might receive on arrival.
I now turn to the considerations under Direction 79.
Primary consideration: The protection of the Australian community
When considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Furthermore, remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding and will not cause or threaten harm to individuals or the Australian community.
I am to 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 applicant, through his offending, has not met the expectation that he be law-abiding as a non-citizen in Australia. The two incidents that resulted in convictions and terms of imprisonment were violent in nature, and self-evidently caused significant harm to members of the Australian community.
The nature and seriousness of the applicant’s conduct
As to the first incident, I summarise and extract the detail of the circumstances of the offending from the sentencing remarks of Judge Duckett of the County Court of Victoria in Melbourne of 9 February 2006. His Honour was passing sentence on the applicant and a co-offender following a jury trial where the applicant had been found guilty of aggravated burglary and recklessly causing injury.
It is apparent from the sentencing remarks that there had been earlier incidents between the applicant’s associates and the residents of neighbouring premises where the incident took place. A serious incident, not involving the applicant, had taken place in April 2003 resulting in a conviction and term of imprisonment being imposed on the brother of the applicant’s co-offender. The sentencing remarks record incidents taking place at the premises earlier on 4 October 2003 involving Police attendance. Essentially, abuse (including verbal abuse directed towards children), offensive conduct and the throwing of bottles had been taking place earlier in the day. The Police had attended at 4:50pm. From the sentencing remarks it does not appear that the applicant was involved in those incidents, arriving at the premises late in the afternoon for a barbecue. Events commencing from about 6:00pm resulted in the offending and convictions:
5A barbecue was held at the Black home and in the late afternoon others joined those who had spent the day there. Darren Sexton, you had spent the day playing cricket and you, your wife and three year old daughter joined the barbeque. You had little alcohol to drink that day. Between six and seven p.m. a stubby bottle was thrown from the victims’ property over the fence. It smashed within a few feet of Sexton’s young daughter. She was upset but not injured in any way. Her mother and friends took her into the house. Darren Sexton you later told police that “I just lost a little bit of it and I knew where it” (that is the stubby) “come from”. You went by way of the footpath to the front of the victim’s property, along the side of the house to the back door.
6Steven Black, you and a co-accused who was acquitted in this trial, and the gentleman who had earlier exposed himself, followed Darren Sexton. Darren Sexton you forcibly broke down the locked back door, a door which could have been damaged in the April 2003 attack. Members of your group shouted threats that they would kill those sheltering in the house and saying that they would burn the house down. One of your group carried a knife and the male victim was punched and forced into a toilet area by you, Sexton. He fell to the ground unconscious. You continued to kick him in that position and the force of your blows moved the toilet bowl from its fastenings.
7Immediately before this attack the female victim was on the phone to the police. She told them that she was in fear for her safety. She came to the rear of the premises and saw the attack on the male victim and took a knife and stabbed Mr McGrath. He and the other person left when told to leave. Sexton, you said that the female would be the next victim and continued to attack the male on the floor. The female victim stabbed you several times, causing injury later described as life threatening. You then left and the police arrived later.
8You both acted with a common purpose to attack and injure. Steven Black, your earlier attack on the same residence in the same home a few months earlier adds very substantially to your criminality. While the throwing of the stubby might cause you to complain that evening, Darren Sexton, you were at the Black premises long enough that evening to know something of the antagonism between the two camps. You were the first to break into the house and you were one of the violent assailants. Your conduct is not excused by the careless throwing of the stubby.
9In your record of interview with police, Darren Sexton, you said that you went to the premises to complain about the throwing of the stubby. You said that at the back door you were grabbed by the male victim, that he dragged you into the house and that he stabbed you. In the light of all the evidence that was not a persuasive defence. You are not to be punished for that reason.
…
17Darren Sexton, you are aged 36. You have admitted 10 previous court appearances. You have convictions for recklessly causing injury and burglary. In February 1991 you were convicted of robbery and assault with intent to rob and were sentenced to imprisonment for four months wholly suspended for 12 months. On all other court appearances you were fined and this is your first experience of an immediate gaol sentence.
…
26You have not previously been involved with these victims. Despite 10 previous court appearances this will be your first immediate sentence of imprisonment. You have been married for many years and there are three children of that marriage. You have a good reputation in the Japarit district. You are in a position that is different from that of your co-prisoner.[3]
[3] Section 501 - G documents, G6, Attachment B: Sentencing remarks of the County Court of Victoria dated 09 February 2006, 30–36.
As to the second incident, I summarise and extract the detail of the circumstances of the offending from the sentencing remarks of Judge McIntyre of the District Court of South Australia:
Darren James Sexton, you were found guilty following a trial by jury of a number of offences committed in Coober Pedy in the early hours of 25 June 2009. These offences were:
otwo counts of aggravated assault, one of which carries a maximum penalty of imprisonment for three years and the other a maximum penalty of imprisonment for four years because the circumstance of aggravation was the use of an offensive weapon, a metal pole;
oaggravated threatening life, the maximum penalty for which is imprisonment for 12 years; and
oone count of false imprisonment which is a common law offence with no statutory penalty.
The background to your offending is an incident at the Desert Cave Hotel in Coober Pedy. Your son was at the hotel with a friend and late on 24 June 2009 they became involved in a physical altercation with another group of men. Your son came home with his friend and told you what had happened at the hotel. You saw your son's shirt was ripped and his friend's glasses broken. The three of you got into your car and drove towards the Desert Cave. You saw two men walking on Hutchison Street. You did a U-turn and drove toward them. One of those men was your victim, Mr Dawson, and the other was his workmate Mr Milera. They were both young Aboriginal men in Coober Pedy as part of their work. Both had been at that hotel that night with a group of workmates. Mr Dawson had not been involved in the altercation involving your son.
As you approached both men ran in separate directions. Mr Dawson hid in bushes at the side of the road. The car pulled up near him and two men got out of the car and yelled words to the effect of 'Where are you black cunts try and fight me now' and threw an object into the bushes. Mr Dawson remained hidden and the two men got back in the car and drove off.
Mr Dawson then ran towards the caravan park where he was staying. You accosted him nearby. You told Mr Dawson that he got into a fight with your son in the pub and you told him you were a local police officer. Mr Dawson told you that it was not him. You then swung a metal pole at him and hit him on the back of the legs. This is the first aggravated assault. As you were wrestling over the pole the car returned, your son got out and punched Mr Dawson to the right-side of the jaw. This is the second aggravated assault. You were convicted of this on the basis that the jury accepted you were in a joint criminal enterprise with your son.
Your son also had a samurai sword and he threatened to slit Mr Dawson's throat if he did not get in the car. When Mr Dawson made no move to get into the car you grabbed him by the back of the shirt and pushed him into the back seat. You then drove the car around the area looking for Mr Dawson's friend. When you were unable to locate Mr Milera you drove the car outside Coober Pedy. Both you and your son made a number of threats to Mr Dawson. You told Mr Dawson that you were going to slit his throat and put him down a mine shaft, that he was dead and no-one was going to find him and that you were going to take him out to ”the 15 Mile” and drop him down a hole. These statements are the basis of the conviction for aggravated threatening life.
Mr Dawson genuinely thought you were going to kill him which is a rational fear in the light of your actions. The only thing he could think to do was to tell you that if you were to drive back into Coober Pedy he knew where you could find his friend, Mr Milera. Shortly after you entered the town you encountered the police. When Mr Dawson saw the police car he jumped out of the moving vehicle and ran towards the police in a distressed state.
It appears that you do not accept the jury verdicts and that you maintain the version of events that form the basis of your evidence to the jury. You told the jury that you got into the car with your son and his friend because you wanted to get to the bottom of what happened at the hotel. You said Mr Dawson got in the car voluntarily to help you find his friend and that you were surprised when he jumped out. You denied assaulting Mr Dawson and you said no threats had been made.
The jury plainly, and in my view, correctly rejected your evidence and accepted Mr Dawson's evidence and the prosecution case that you were seeking retribution for the events at the Desert Cave.
You are now 49 years of age. You were at the time of these events 40. You left school at year 9 and completed an apprenticeship as a butcher. You have worked as a butcher and have also worked over some years as a plasterer and gyprocker. Clearly you have a willingness to work and the capacity to be productive in the community. You are currently single as the relationship with the mother of your three adult children broke down when you were gaoled in Victoria in 2006. You were devastated by this.
Your parents are both dead. You are particularly upset by the death of your mother. You are however fortunate to have the support of your brother and sister. Your brother in particular is willing and able to give you work in his plastering business.
You have a number of prior convictions including for assault, driving offences and offences of dishonesty. You also have a number of breaches of bail and community orders which demonstrate a lack of regard to the authority of the court and an unwillingness to comply with court orders. This, together with the fact that you do not accept the jury's verdict and your lack of remorse, makes it difficult to assess your prospect of rehabilitation.
You breached bail in this matter hence the significant delay in it coming to trial. You were originally arrested at the time of the offending. You were on various bail agreements. You failed to attend court as required in June 2011. You say that you thought the matter had been withdrawn. I reject that proposition as it does not accord with the court record of your various court attendances on this matter, leading up to the issue of the bench warrant on 6 June 2011. You could have been under no illusion that your matter was listed for trial in 2011.
In those circumstances I consider you made a conscious decision to avoid trial. It is not clear to me why it took so long for you to be arrested on the bench warrant. It appears you made little effort to hide. Fortunately, when you were re-arrested on 27 December 2017, your victim Mr Dawson was still willing and able to give evidence as were the police who attended this matter.
You heard Mr Dawson's victim impact statement read in court. You saw him give evidence. It is clear from what he says in his statement and his demeanour whilst giving evidence that Mr Dawson is still traumatised by the events that night. This is hardly surprising. He was only 19 or 20 at the time. He was assaulted, dragged into a car and threatened with death. Clearly this must have been a terrifying experience. To have this happen as revenge from an earlier incident in which he played no part adds insult to injury.
The delay has no doubt caused him added distress. Mr Dawson says he tried to move on but when the police contacted him following your arrest on the second occasion it all came back to him. He was forced to relive the events of that night in order to give evidence.
These are serious offences. They were not committed on the spur of the moment. It was a protracted course of conduct. You hunted Mr Dawson down. You drove around with him in the car for some time looking for his friend. You made repeated threats. You drove out of the town until Mr Dawson was able to persuade you to return. You have properly conceded through your counsel that the only appropriate course of action in view of the seriousness of your offending and your antecedent history is a sentence of imprisonment to be served. There is no good reason to suspend the sentence of imprisonment, nor is it appropriate that the sentence be served on home detention.
I will use the provisions of s.26 of the Sentencing Act to impose one penalty for all four offences of five years imprisonment. You are not entitled to any discount on penalty. I have carefully considered the matters put to me by both prosecution and defence in terms of the length of your non-parole period. In all of the circumstances I will impose a non-parole period of three years. Both the head sentence and the non-parole period will be backdated to 27 December 2017, the date you were taken into custody.[4]
[4] Section 501 - G documents, G7, Attachment C: Sentencing remarks of the District Court of South Australia dated 26 July 2018, 39–42.

The incident described by her Honour had taken place in Coober Pedy on 25 June 2009, but the trial by jury was not completed until July 2018, some 9 years after the incident. Her Honour observed that the significant delay in the matter coming to trial was because the applicant had breached bail, failing to attend court in June 2011. Her Honour specifically rejected the applicant’s contention that he had thought the matter had been withdrawn. Her Honour mentioned that it was not clear to her why it had taken so long for the applicant to be arrested on the bench warrant, accepting that the applicant had made little effort to hide. In fact, I can see that the applicant was dealt with in the Nhill Magistrates Court for possessing and cultivating cannabis in December 2013, presumably without the court or Police in Victoria noticing or acting on the outstanding bench warrant from the District Court of South Australia.
In his opening statement and in cross-examination the applicant acknowledged his criminal history, although I observed that initially the applicant was suggesting that his offending was not as serious as had been alleged. On further elaboration, I understand the applicant may have been referring to his convictions arising out of incidents other than those that resulted in sentences of imprisonment being imposed; although when asked further questions about those incidents, the applicant put forward versions of events in relation to both incidents that were not consistent with the convictions or the sentencing remarks, and tended to downplay the gravity and violent nature of the two incidents.
In relation to the first incident for example, the applicant did not consider the last part of the sentencing remarks was correct. In that regard, the court had expressly rejected the applicant’s account to the effect that he had been dragged into the house and stabbed, and his conviction was not otherwise consistent with the applicant’s contention that he had acted in self-defence. The applicant also disagreed with the court’s finding that he had been carrying a knife when he entered the neighbouring premises.
When asked, the applicant could not identify any reason why I would prefer his version of events over the version set out in the sentencing remarks. In relation to the first incident, the applicant reiterated that he had acted in self-defence.
In relation to the second incident, the applicant disputed the part of the sentencing remarks which had recorded that there had been a samurai sword, and he denied that he had threatened to slit the victim’s throat and throw him down a mineshaft.[5] The applicant also denied that he hit the victim with a metal pole and said it had been his fist.
[5] Section 501 - G documents, G7, Attachment C: Sentencing remarks of the District Court of South Australia at Adelaide dated 26 July 2018, 40.
In response to further questions regarding the characterisation of the incident, the applicant accepted it had been ‘a little bit violent’.
The respondent contends that the applicant has committed multiple crimes of violence that ought to be viewed very seriously in accordance with the Direction. In this regard, the Direction obliges me to have regard to factors including the principle that violent crimes are viewed very seriously.
The offences described in the sentencing remarks I have reproduced above, which I prefer to the account offered by the applicant in respect of all particulars, are manifestly violent offences in my view. The second incident well exceeds the description of ‘a little bit violent’ as conceded by the applicant in cross examination. As observed by the court, the applicant had hunted down his victim and then engaged in a protracted course of conduct and made repeated threats. The court accepted that the victim genuinely and rationally thought the applicant was going to kill him. In accordance with the description of the offence in the sentencing remarks and the principle enounced in the Direction, I find that the second incident was a very serious offence indeed.
The first incident was also plainly violent in my view. The jury implicitly rejected the applicant’s assertions as to self defence and the sentencing judge expressly rejected those assertions. I do not accept the applicant’s evidence about the circumstances of the offence raising issues about self-defence. The victim of the offence was seriously assaulted in his own home after the applicant had broken down a locked door, and the applicant had kicked the victim after he had fallen to the floor. The applicant had threatened the female victim that she would be the next victim, while he continued his attack on the male victim.
The Directions further provide that crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed. I am satisfied that the circumstances of the first incident generally justify the characterisation of the offending as very serious. The fact that a victim of the offending was female reinforces my characterisation of that first incident as amounting to a very serious offence indeed.
I have also taken into account the sentences imposed by the Court in relation to each incident, noting that on both occasions the court imposed sentences of immediate imprisonment. This reflects the seriousness with which the court viewed the applicant’s conduct. As to the applicant’s conduct generally, I take into account that there are two violent offences that have attracted terms of imprisonment. In this regard, the cumulative effect of repeat offending further reinforces my view that the applicant’s conduct generally is to be viewed very seriously. I view the last incident as the most serious, and this is reflected in the sentence. In this way, the applicant’s criminal history generally discloses a trend of increasing seriousness in my view. I recognise however that there was a substantial period between the date when the applicant committed his last violent offence and when it was dealt with by the court.
Taking into account the factors set out at Part C, item 13.1.1 of the Direction, I consider the nature and seriousness of the applicant’s criminal offending to date to amount to very serious and repeated violent offending, with an observable trend of increasing seriousness; albeit subject to a lengthy period when the applicant did not commit a further violent offence.
The risk to the Australian community should the applicant commit further offences
Paragraph 13.1.2 of the Direction provides that in considering the risk to the Australian community, I 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; and
(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 reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
As to the nature of the harm should the applicant engage in further conduct of the kind reflected in the sentencing remarks arising out of both incidents, I consider that the harm would be of the nature of personal and psychological injury and trauma caused by violent offending.
Under cross-examination in relation to the second incident, the applicant accepted that his victim would have been very scared. In relation to similar questions about the first incident however, the applicant restated his position that he had acted in self-defence, although did accept that he had caused physical injury to the male victim and psychological injury to the female victim.
Given the nature of the offending, the nature of the harm to individuals or the community should the applicant engage in further criminal conduct is readily identifiable. However, I must also cumulatively form a view as to the likelihood that the applicant will engage in further criminal conduct in light of available evidence, in order to appreciate the risk to the community.
The applicant’s position and evidence in this regard is clear. His position is that he is now older and wiser, and has everything to lose. Under cross examination, perhaps to emphasise this point, the applicant did not accept the proposition that if he were to act violently people could be seriously harmed because he did not accept he would be acting violently towards anyone. The applicant stated there was no ‘if’ about it.
The applicant relies on having completed the ‘Living Without Violence’ rehabilitation program offered by the Department of Correctional Services in South Australia. I have limited information about the program, but I can see the program is designed for people with convictions for violent offences, with key treatment areas pertaining to violence-supportive attitudes, anti-social and criminal attitudes, empathy and victim awareness, alcohol and drug use and impulsivity.[6] I have noted that the applicant participated in the program from 27 July 2020 to 27 December 2020.
[6] Exhibit A2, Letter from Timothy Jarrad (Department of Correctional Services) re ‘Living Without Violence’ rehabilitation program dated 1 February 2021.
Other than the fact of participation, I have no evidence directly addressing the quality of the applicant’s individual engagement with the program or any assessment as to his individual progress. I have no expert evidence, for example from a psychologist, to assist me in forming a view as to whether the applicant’s particular criminogenic tendencies or characteristics have been identified and addressed, and whether any opinion may be cogently offered to predict the likelihood of offending in the future. The applicant’s mere assertion that there is no ‘if’ about the question of the potential for further offending, in the particular context of these proceedings, does little to adequately fill this vacuum of evidence. Having made that observation however, I accept there is some weight to be given to the applicant’s explanation that facing removal from Australia as a result of further criminal offending may have a significant influence on his future behaviour. As the applicant has put it, he has everything to lose. On the other hand however, as was put to the applicant during cross examination, it is difficult to place substantial weight on that position in circumstances where the criminal justice system and the corrections system have demonstrably not previously been effective in changing his behaviour, because I am considering a repeat violent offence after the applicant had served a term of imprisonment.
Having regard to the circumstances of the offences dealt with in the sentencing remarks, I am inclined to speculate that impulsivity and an absence of empathy or victim awareness (to adopt the list of treatment areas in the letter at Exhibit A2) were the applicant’s criminogenic drivers in those incidents. The period of time over which the second incident was perpetrated leads me to consider that impulsivity was less of a driver than lack of empathy or victim awareness. There was very little I observed in the applicant’s cross-examination to indicate that he now genuinely empathised with the victims of his offences or fully appreciated the effect of his offending on his victims. As mentioned above, some elements of the applicant’s responses to questions put to him in cross-examination suggested he still had not fully appreciated the gravity of his conduct and therefore the effect it had on his victims.
I note that the sentencing remarks of the County Court of Victoria do not specifically record the sentencing Judge’s assessment as to the applicant’s risk of recidivism at that time. Judge McIntyre of the District Court of South Australia observed that she found it difficult to assess the applicant’s prospect of rehabilitation in circumstances where he had not accepted the jury’s verdict and had demonstrated a lack of regard to the authority of the court through breaching bail and the prior convictions on his record. In this way, I have identified nothing in the sentencing remarks that is positively in the applicant’s favour in forming a view about the risk of repeated violent conduct.
During cross-examination and in summing up, the applicant described how he might address situations that previously may have provoked a violent response. I appreciate that the applicant wished to demonstrate that he had engaged with the rehabilitation course he had completed, and I accept that the applicant has taken some approaches away from the course.
However, I am inclined to accept the respondent’s contentions that the applicant’s assertions that he is now older and wiser, and has everything to lose from repeated conduct, do not outweigh other features of the evidence; namely that he is a repeat violent offender, and has shown a lack of regard to the court process. Furthermore, as mentioned above, I do not consider that in the circumstances of this case the applicant’s assertions replace the need for objective evidence demonstrating the applicant has identified and addressed criminogenic factors that have led to his violent offending in the past. I consider that there remains a real, and perhaps substantial likelihood, that the applicant will offend again in the future, and the nature of his offending may be violent. Cumulatively therefore, I am of the view that the applicant presents a real risk to the community should he commit further violent offences.
I mention the general principle expressed in the preamble to the Direction at item 6.3(4) that in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. For the reasons explained above, the evidence leads me to conclude that there is a real risk that the applicant’s violent conduct will be repeated, and I have characterised the applicant’s violent conduct as very serious indeed. I have formed the view therefore that the applicant presents an unacceptable risk to the community, and in accordance with the Direction, it may be that even strong countervailing considerations may be insufficient to justify revocation of the visa cancellation.
I place very substantial weight on this primary consideration, and consider it points strongly away from a finding that there is another reason to revoke the mandatory visa cancellation.
I turn to other considerations that include some considerations that may be described as countervailing in the applicant’s circumstances.
The best interests of minor children in Australia affected by the decision
I must make a determination about whether revocation of the visa cancellation is in the best interest of a child or children where the children are under 18 at the time I make my decision. I must consider each child individually to the extent that their interests differ. There are eight specific matters provided for in the Direction that must be considered.
The applicant has identified his three grandchildren as children whose interests may be affected by the decision. His grandchildren, ‘M’ (nearly 4) and ‘O’ (nearly 3), are the children of his middle son, Darren. The applicant’s middle son is expecting another child in May. Another grandchild is ‘A’ (4), who is the child of his eldest son, Ashley. M and O live with their parents in western Victoria. ‘A’ lives with his parents, but the applicant does not know where.
The applicant has acknowledged that his incarceration had made it not possible for him to have contact with his grandchildren. They are too young to speak with him. The applicant said he had met ‘A’ once at ‘A’s first birthday party. The applicant believed that his children were good parents to his grandchildren, and was not aware of any issues arising in relation to child protection.
The applicant’s submission in respect of his grandchildren is that while he accepts he does not currently have a relationship with them, he hopes to build a relationship with them in the future. There was no evidence before the Tribunal from the applicant’s children, or the other parents of the applicant’s grandchildren, as to the nature of the relationship between the applicant and the grandchildren and whether a future relationship is sought.
The respondent submits that the starting point must be that the applicant currently has no relationship with his grandchildren as there was insufficient time for a relationship to develop before the applicant was imprisoned. The respondent however accepts that the possibility of a future relationship between the applicant and his grandchildren is in the best interests of the children, although cautions that it is not known what the parents of the children want.
While I must consider each child individually to the extent that their interests differ, I have identified no cogent distinction between the children other than that the applicant is estranged from his eldest son and does not know where ‘A’ lives at the present time. I cannot predict whether the estrangement is short-term or permanent, or somewhere in between. As I am proceeding on the basis that the potential for a future relationship is the core of the children’s interests in the decision I must make, and there must be some speculation as to what the children and their parents would want in the absence of any direct evidence, I do not consider that to be a material distinction. My observations below therefore apply to all the grandchildren equally.
I turn to consider the specific matters identified in the Direction in relation to the best interests of minor children.
As to the nature and duration of the relationship between each child and the applicant, I observe the relationship is very limited to non-existent at the present time, but recognise that the applicant’s current circumstances make the formation of a relationship with very young children almost impossible. I proceed on the basis however that there has been no meaningful contact between the applicant and his grandchildren, and the relationship is non-parental. The Direction indicates that less weight is to be given in these circumstances, and I find accordingly.
As to the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until the children turn 18 and including any orders relating to parental access, I consider again that the applicant will not be playing a parental role in respect of the children. There is no basis in the evidence before me to disturb the assumption that the children’s parents will perform the parental role in respect of them. The factor does not therefore introduce greater weight in favour of revocation.
I have no evidence to identify a negative impact on the children of the applicant’s prior conduct or any likely future conduct (based on that prior conduct). The applicant’s criminal history does not contain any offences or court orders pertaining to family violence.
I am to take into account the likely effect that any separation from the applicant would have on the children, taking into account the children’s and applicant’s ability to maintain contact in other ways. Of course, the applicant contends that remote contact with children electronically or through very occasional overseas visits is a poor substitute to direct and regular personal contact throughout a child’s childhood, and I agree. However, I consider that there would be no impediment to the applicant maintaining contact with the children in the other ways envisaged by the Direction.
I can identify no specific adverse effect on the children of separation from the applicant at the time I am considering this issue, beyond the loss of opportunity to develop the close, important and positive grand-parental bond that sometimes develops between a grandparent and their grand-children. In the case of the applicant and his grandchildren however, the prospects of such a bond developing is almost impossible to cogently assess and attribute weight to.

The applicant has acknowledged that his own children did not visit him in prison throughout his incarceration, and they have not provided any evidence to the Tribunal in support of him. The applicant also acknowledged that he is currently estranged from his eldest son. These factors might indicate that the family is not particularly close. That may, in turn, indicate that the likelihood of the applicant developing the close bond with his grandchildren that he desires is remote. However, I think to reach such a finding with any degree of certainty would be speculative and would fail to appreciate the dynamics of family relationships over time. I remain of the view that it is in the children’s best interest that the opportunity to develop such a relationship with the applicant is not rendered substantially more difficult through non-revocation of the visa, but in all the circumstances this does not attract substantial weight.
As mentioned above, I am satisfied that other persons perform a parental role in respect of the children; namely, their parents.
There is no evidence before me setting out the views of the children. The children are too young to comprehend the situation or express a view. It is a significant point of hesitation for me that I do not have any supporting evidence from the children’s parents to support the applicant’s contention that he wishes to develop a close relationship with the children.
There is no evidence that the applicant has abused or neglected the children, or that the children have suffered physical or emotional trauma arising from the applicant’s conduct. While such matters must be considered, they are not relevant to this case.
Taking into account all the matters identified in the Direction at item 13.2, I accept that it is in the best interests of the children to revoke the mandatory cancellation of the applicant’s visa. This however would be to preserve the children’s interest in potentially being able to develop a relationship with the applicant as a grandparent, in circumstances where the children have persons fulfilling a parental role and there are indicators in the evidence to suggest that the development of a close relationship between the applicant and the children is by no means inevitable but for the visa cancellation. I therefore place limited weight on this primary consideration.
Expectations of the Australian community
Paragraph 13.3 of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
It has been observed in YNQY and Minister for Home Affairs[7] that the effect of paragraph 13.3 is that community expectation will in most cases call for non-revocation.
[7] [2017] FCA 1466 at [76].
I note, as explained in Afu and Minister for Home Affairs[8] and now FYBR v Minister for Home Affairs,[9] the concept of community expectations is not a matter to be measured as though it is a provable fact, but rather an assessment of community values made on behalf of the community by the executive Government. I am obliged to consider this factor in line with the norms expressed in the Direction.
[8] [2018] FCA 1311 at [85].
[9] [2019] FCAFC 185.
In this regard, I have mentioned above that the Direction espouses the principle that in some circumstances criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable.
In addition, the Direction espouses the principles that Australia has a low tolerance of criminal conduct by people who have been participating in and contributing to the community only for a short period of time, but may afford a higher level of tolerance of criminal conduct in relation to a non-citizen who has lived in the Australian community for most of their life. The length of time a non-citizen has been making a positive contribution, and the consequences of visa cancellation for minor children and other immediate family members, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
I recognise that the applicant migrated to Australia as an infant, and so at the age of 51 he has essentially lived his entire life in Australia. During that time, I accept the applicant’s evidence that he has usually been employed and, in that sense, contributing positively to the community through work. Against this however, I see that the applicant’s criminal history is extensive, with offences of varying seriousness taking place with regularity throughout his early adulthood. The applicant’s general criminal history in this regard tends to dilute what might otherwise be seen to be a generally positive contribution to the community. I have taken into account the applicant’s evidence concerning the work he undertook in the APY lands and view that as a positive contribution.
Ultimately, my assessment of the expectation of the Australian community based on the guidance in the Directions is that the community would expect the visa to be cancelled. While the community would indeed have greater tolerance for the applicant’s criminal conduct on account of the length of time he has lived in Australia, I consider that tolerance would have been exhausted by the risk to the community he poses and the extent to which his positive contribution is punctuated by criminal convictions.
In assessing the expectations of the community, I have taken into account the evidence available to me about the impact of visa cancellation on other immediate family members in Australia. I elaborate on my considerations in this regard later in these reasons in relation to the non-primary consideration of the strength, nature and duration of ties. My conclusion for the purposes of assessing the expectations of the Australian community in accordance with the Directions is that the Australian community would still expect the visa to be cancelled in all the circumstances, notwithstanding the applicant has lived in Australia for a very long time and after taking into account the consequences on other immediate family members.
In my view, the Direction establishes that the Australian community would expect the applicant’s visa to remain cancelled. I consider that the Directions enunciate the principle that, having committed repeated serious offences in Australia and presenting a risk to the Australian community, the applicant can have no expectation that he will be permitted to remain here permanently.
I place significant weight on the expectations of the community that the visa remain cancelled.
Other considerations: strength, nature and duration of ties
When considering the strength, nature and duration of ties to Australia, I must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As to the first sub-consideration mentioned above, I recognise the applicant has lived essentially his entire life in Australia, and he therefore has very strong ties to Australia. I note the applicant has lived in many different parts of Australia and has not left the country after his arrival as an infant.
I have taken into account that his offending commenced in early adulthood and continued. In my assessment, this has diluted the favourable weight to be given to how long the applicant has resided in Australia and the fact he arrived as an infant.
I also consider that the time the applicant has spent contributing positively to the community through his employment is to be understood against the substantial amount of time the applicant has spent in prison, which I do not view as periods of positive contribution to the community.
Notwithstanding that those matters reduce the favourable weight to be given to how long the applicant has resided in Australia, I remain of the view that the duration of the applicant’s residence in Australia points to strong and significant ties that cannot be understated. The applicant’s ties arising out of the duration of his residence in Australia attract significant weight in favour of revoking the visa cancellation when considering the strength, nature and duration of his ties to Australia.
Indeed, I mention that the applicant relied heavily on the strength, nature and duration of his ties in putting forward his arguments to the Tribunal.
I have considered carefully the evidence available to me regarding the strength, duration, nature of family and social links. As remarked upon above, I have noted that none of the applicant’s children have provided evidence in support of the applicant’s case for revocation, and despite asking the applicant about this at the hearing it is not entirely clear to me whether this is the result of the applicant asking for support and it being refused, or the applicant not wishing to involve his adult children in these proceedings. I proceed on the basis that the applicant’s children are Australian citizens. I note the applicant has accepted that he is estranged from his eldest child, and has not had direct contact with his younger son or daughter for years, although I understand he has been in touch with them. The absence of their participation in these proceedings, and the applicant’s confirmation that his children have not visited him in prison in South Australia (even before the COVID-19 pandemic) leads me to conclude that their relationship is not close.
In understanding the strength, nature and duration of family and social links in relation to the applicant and his children (and their families), I consider that the nature of his links with his children falls between the links of a not-particularly-close family, and estrangement in the case of his eldest son. I view these as links of substance, albeit not particularly strong.
The applicant has provided written statements from his brother Karl, his sister-in-law Alison, his niece Shanice, his cousins Kris, Renee, Kelly, and his Aunt Bridget Sexton. The statements are all supportive of the applicant being permitted to remain in Australia, point out the difficulties that would be faced in maintaining any contact with him, and draw attention to personal qualities of the applicant such as a willingness to work hard, joviality and a desire to help others.
I have taken these additional statements of the applicant’s brother and more distant relatives into account. I attach some positive weight to the existence of these links.
Other considerations: impact on victims
There has been no evidence provided to the Tribunal addressing the impact of a decision not to revoke the visa cancellation on any of the particular victims of the applicant’s serious offending that resulted in terms of imprisonment. I have taken into account the impact of the applicant’s conduct on the victims, as described in sentencing remarks in assessing the nature and seriousness of the offending, and the risk to the community should it be repeated. I place no further adverse weight on this consideration.
Other considerations: extent of impediments if removed
The applicant would be removed from Australia to the United Kingdom. The applicant told me during the hearing that he had not made any contingent plans for a situation where he would be returned to the United Kingdom. The applicant fears isolation from his family in general, and is not confident he would find work or be able to survive financially. The applicant could only identify a cousin as a relative in the United Kingdom and I understood him to consider that he could not expect any support from this person, although he might seek support out of desperation.
The respondent has correctly emphasised that this consideration is concerned with the applicant being able to establish himself and maintain basic living standards in the context of what is generally available to citizens of the United Kingdom. In that regard, I accept that I can take on notice that the United Kingdom is very similar to Australia in terms of language and culture, arrangements for medical care and social support. I proceed on the basis that the medical care available to citizens of the United Kingdom would be available to assist the applicant if, as he fears, his mental health deteriorates as a consequence of removal.
The applicant was concerned that he could not find work, but the applicant states he has skills in butchery and plastering, holding trade qualifications in the former. I see no basis to adopt the applicant’s concerns that he would not be able to find work, but in any event, he would be able to access social security support in the United Kingdom as a citizen of that country.
I do not accept that the applicant will face substantial language or cultural barriers, or any particular problem arising out of his age or health. The applicant is in good health, is in late middle age and presented in the Tribunal as a person who possessed internal resilience that would assist him meet adversity.
Recent developments in the United Kingdom regarding the COVID-19 pandemic were raised at hearing. I accept the contention of the respondent that while it is notorious that the United Kingdom has to date not fared as well as Australia in managing the pandemic, a vaccination program is now well underway and the applicant can expect to be vaccinated in accordance with his place in the queue, which takes into account his personal characteristics and age. I do not view the circumstances of the COVID-19 pandemic in the United Kingdom as a material impediment to removal, other than perhaps logistically in the immediate short term.
The focus of this consideration on basic living standards leads me to conclude that it does not weigh in favour of revoking the visa cancellation. I am satisfied that the applicant will not face any significant impediments in establishing himself or maintaining basic living standards. There is a different question as to whether the applicant will face personal emotional distress and disruption. I accept that the applicant will face personal emotional distress at the disruption caused by removal from Australia, but this does not amount to an impediment to removal as that concept is explained in the Direction.
Other considerations: International non-refoulement obligations and Impact on Australian businesses
The applicant raises no concerns regarding Australia’s non-refoulement obligations, and nor are any reasonably apparent in respect of the United Kingdom. Similarly, no evidence has been provided putting Australia’s business interests in issue in this review.
ASSESSMENT
The respondent contends that I should view the nature and seriousness of the applicant’s conduct as very serious, and the nature of harm and the likelihood of conduct being repeated warrants a conclusion that the applicant represents an unacceptable risk to the community. For the reasons set out above, I have reached those conclusions.
The respondent further contends that while it may be in the best interests of the applicant’s grandchildren to form a relationship with the applicant, he has no such relationship now, the children are cared for by their parents, and the applicant may develop a relationship with his grandchildren by electronic means. The respondent contends that in these circumstances the second primary consideration should be given less weight.
The applicant has emphasised his wish to establish a good relationship with his grandchildren and pointed out his incarceration has prevented him from doing so to date. The applicant has submitted that attempting to establish a relationship with his grandchildren by electronic means will be inferior to being in Australia. The applicant stated that if he was given the opportunity to remain in Australia to establish that relationship with his grandchildren, he would grab it with both hands.
As explained above, I accept that it is in the applicant’s grandchildren’s best interest to have the possibility of a close relationship with the applicant preserved by the applicant remaining in Australia, but for the reasons elaborated upon above, I do not attach substantial weight to the children’s interests in this regard.
The respondent contends that the Directions should lead me to conclude that the Australian community would expect the visa to remain cancelled. I agree that the principles espoused in the Directions, in light of my findings, leads to the conclusion that the Australian community would expect the visa to be cancelled.
The first and third primary considerations attract very significant weight. The second primary consideration does not outweigh the adverse weight I attach to the first and third primary considerations.
As to the other considerations, the nature, strength and duration of the applicant’s ties with Australia through the longevity of his residence here and the ties he has with members of his family, carries significant weight in favour of revoking the visa cancellation. It was this matter, and the applicant’s wish to establish a relationship with his grandchildren, that was the focus of the applicant’s representations to the Tribunal.
I have placed substantial weight in favour of revoking the visa cancellation upon considering the nature, strength and duration of the applicant’s ties with Australia. The applicant’s strength and duration of ties to Australia are not to be disregarded as they are life-long and significant. However, the Directions envisage that the primary considerations will generally outweigh the other considerations, and I have concluded that a correct application of the Directions in this case calls on me to attach greater determinative weight on them. I have decided that the substantial weight I have attached to the consideration of the applicant’s strength, nature and duration of ties to Australia, and the limited favourable weight I have attached to the best interests of the applicant’s grandchildren, does not outweigh the heavy adverse weight I have attached to the first and third primary considerations.
The remaining other considerations do not adjust the balance in favour of the applicant.
DECISION
I therefore find that there is not another reason why the mandatory cancellation of the applicant’s visa should be revoked. The decision under review is affirmed.

112.    I certify that the preceding one hundred and eleven [111] paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy.

...................[sgnd]...........................
Administrative Assistant Legal
Dated: 22 February 2021
Date of hearing:  9 February 2021
Applicant’s Representative:  Self-represented
Respondent’s Representative:                   Mr S Cummings, Sparke Helmore

[2021] AATA 320

22 February 2021

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Immigration

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