SJPZ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2022] AATA 3156

SJPZ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3156 (26 August 2022)

Division:GENERAL DIVISION

File Number           2022/4715

Re:SJPZ  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member George

Date of Decision:               26 August 2022

Date of Written Reasons:      27 September 2022

Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 3 June 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

[Sgnd]             
Senior Member George

Catchwords

MIGRATION – Cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – offending very serious – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72

Cao v Minister for Immigration & Anor [2007] FMCA 225 (21 March 2007)

ENT19 v Minister for Home Affairs [2021] FCAFC 217

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Home Affairs v Buadromo [2018] FCAFC 15

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors [1992] HCA 66

PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235

The Queen v A2 [2019] HCA 35

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

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

REASONS FOR DECISION

Senior Member George

27 September 2022

INTRODUCTION

1. SJPZ (“the Applicant”), a citizen of New Zealand, was born in August 1995 in Samoa and is aged 27 years.[1] The Applicant first arrived in Australia in July 2008, on a Class TY Subclass 444 Special Category (Temporary) visa, aged 12 years and 11 months, where he has substantially resided. Following a short period overseas, the Applicant last arrived in Australia on 29 August 2018 and was granted a further Class TY Subclass 444 Special Category (Temporary) visa.[2]

   [1] Exhibit R1, G-Documents, G16, page 114.

   [2] Exhibit R1, G-Documents, G31, pages 208-209.

2. On 1 August 2019, following criminal offending and a resultant term of imprisonment, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as he failed the ‘character test’.[3] The Applicant made representations to have his visa cancellation revoked under s 501CA of the Act on 13 August 2019.[4]

   [3] Exhibit R1, G-Documents, G34, pages 221-227.

   [4] Exhibit R1, G-Documents, G16, pages 114-132.

3. On 3 June 2022, a delegate was not satisfied that the Applicant passed the ‘character test’ and that there was not another reason why the cancellation decision should not be revoked.[5] This is the reviewable decision.

   [5] Exhibit R1, G-Documents, G3, page 17; G4, pages 18-37.

4. The Applicant lodged an application for review of the reviewable decision before the Tribunal on 7 June 2022.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [6] Exhibit R1, G-Documents, G1, pages 1-6.

5. The hearing proceeded on 11 and 12 August 2022 by audio-visual means. The Applicant gave evidence on 11 August 2022. The Applicant’s partner Ms “BI”, his pastor Mr “PT”, and sister Ms “TE” gave evidence on 12 August 2022.

6. The Applicant was represented by Ms De Silva of Agape Henry Crux and the Respondent was represented by Ms Edmondstone of Minter Ellison.

7. The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

8. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No. 90 (“the Direction”),[7] to revoke the cancellation.

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

   Does the Applicant Pass the Character Test?

9. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

10. The Applicant has a lengthy criminal history dating back to March 2013,[8] when he was aged 17 years and six months. He was first dealt with by the Children’s Court of New South Wales at Parramatta for “Custody of knife in public place – first offence” and “Supply a prohibited drug”.

    [8] Exhibit R1, G-Documents, G7, pages 44-46.

11. In July 2014, the Applicant was again dealt with at the same Court for “Assault occasioning actual bodily harm (DV)-T2” and for breach of a bond regarding his earlier “Supply a prohibited drug” offence. Materially, for the offence of assault occasioning actual bodily harm, the Applicant was sentenced to a Control Order under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) for a period of 18 months. A control order is a sentence subject to the sentencing procedures for imprisonment contained in Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

12. The delegate regarded the imposition of the Control Order in July 2014 as a custodial sentence for the purposes of New South Wales law,[9] which is consistent with the relevant sentencing remarks.[10] This was conceded by the Applicant in representations dated 26 May 2021.[11] Nevertheless, for the purposes of these proceedings the Applicant contended that “The Applicant does not meet the character test by virtue of his convictions of 24 November 2020”.[12]

    [9] Exhibit R1, G-Documents, G4, page 18.

    [10] Exhibit R1, G-Documents, G8, page 48, lines 10-11.

    [11] Exhibit R1, G-Documents, G17, page 134, paragraph [6].

    [12] Exhibit A1, page 2, paragraph [5].

13. On 7 May 2021, following a trial by jury that concluded on 24 November 2020,[13] the Applicant was sentenced for two offences in the District Court of New South Wales at Sydney Downing Centre.

    [13] Exhibit R2, S-Documents, S7A, page 546.

14. The first count for which the Applicant was found guilty was to intentionally strangle another person so as to render the other person incapable of resistance, being reckless as to rendering the other person incapable of resistance, pursuant to s 37(1) of the Crimes Act 1900 (NSW).[14] For this offending, the Applicant was sentenced to a period of four years and four months’ imprisonment commencing in May 2019 with a non-parole period of two years and two months.[15] An Apprehended Violence Order was made, pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), for the protection of the victim for three years from May 2021.[16] For ease of reference, this criminal conduct is referred to as “the strangling”.

    [14] Exhibit R1, G-Documents, G11, page 55.

    [15] Exhibit R1, G-Documents, G12, page 64.

    [16] Exhibit R1, G-Documents, G12, page 66-68.

15. The Applicant filed a Notice of Appeal in the Court of Criminal Appeal of the Supreme Court of New South Wales.[17] This is an appeal against both conviction and sentence.[18] That appeal is due to be heard on 4 November 2022.[19]

    [17] Exhibit R1, G-Documents, G12, page 69-76.

    [18] Exhibit R1, G-Documents, G12, page 100.

    [19] Exhibit R1, G-Documents, G12, page 102.

16. The sentencing Judge further revoked a bond that the Applicant had entered for a prior common assault against his partner, Ms BI, and sentenced him to a period of six months’ imprisonment from February 2019.[20] For ease of reference, this criminal conduct is referred to as “the common assault”.

    [20] Exhibit R1, G-Documents, G13, page 63-64.

17. The sentencing Judge noted that an Intensive Correction Order for driving offences, made on 12 December 2018 by the Local Court of New South Wales at Mt Druitt,[21] had been revoked and the Applicant sentenced to a fixed term of six months and ten days’ imprisonment. In representations dated 26 May 2021, the Applicant says that, at the time of cancellation, he “was at Hunter Correctional Centre for the offence of Revoking Intensive Correction Order”.[22]

    [21] Exhibit R2, S-Documents, S83, pages 677-680.

    [22] Exhibit R1, G-Documents, G17, page 134.

18. The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.

    Is there another reason why the refusal of the Applicant’s visa application should be revoked?

19. In considering whether to exercise its discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA has application.[23]

    [23] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

20. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.

21. The principles that are found in paragraph 5.2 of the Direction are stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

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

22. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

23. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they 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; and

    (4)expectations of the Australian community.

24. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community, including:

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

    (ii)impact on Australian business interests.

25. Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”

    BACKGROUND and offending

26. The Applicant’s personal, work and educational background is set out in a psychological assessment report of Ms Dianne Gramp, dated 8 August 2021. In that report, Ms Gramp reported that the Applicant was born in Samoa and is the oldest of five children. The Applicant’s parents moved the family to New Zealand when the Applicant was aged 10 years old, being approximately 2005, before moving to Australia in 2008.[24] The Tribunal notes that Ms Gramp’s summary of the Applicant’s background is consistent with a similar summary contained in a Juvenile Justice Confidential Background Report of July 2014.[25]

    [24] Exhibit A3, Appendix F.

    [25] Exhibit R2, S143, pages 788-790.

27. Ms Gramp reported that the Applicant was educated in Australia from Year 7 onwards. He changed schools several times in Years 11 and 12 and did not complete Year 12. The Applicant then commenced an apprenticeship as a kitchen installer, before working as a roofer. After a short period of unemployment, the Applicant began working for a small-goods factory and after five to six years he rose through supervisor roles into management.[26]

    [26] Exhibit A3, Appendix F.

28. The Applicant’s partner, children, siblings and mother reside in Australia.[27]

    [27] Exhibit R1, G-Documents, G16, pages 114-132; G20, pages 158-159; G22, pages 165-169; G23, pages 170-173.

29. The Applicant’s sister, Ms TE, gave evidence that the Applicant “comes from a good family with strong beliefs” and that “He knows what it means to do an honest days work and also recognises the value of his fatherly obligations”.[28] Indeed, the Applicant “was the main source of income” for his extended family prior to his incarceration.[29]

    [28] Exhibit A3, Appendix B.

    [29] Transcript, page 80, line 11.

30. The Applicant has two minor children, aged six years and four years old, with his partner Ms BI.[30] Ms BI’s evidence is that she and the Applicant:

    … have been together for 6 years before [the Applicant] was incarcerated he was our sole provider; he would go to work every day 9-5 to provide the necessities and more for our little family so yes, we solely depended on him to get us through daily.[31]

    [30] Exhibit A3, Appendix B; Exhibit R1, G-Documents, G16, page 119; G28, page 202; G30, page 206.

    [31] Exhibit A3, Appendix B.

31. Ms BI’s evidence is that the Applicant is a “loving man” who has had regular video calls with his children since he was incarcerated, although the children’s needs would be better met by the Applicant’s physical presence. Both children have eczema and asthma; and as well as providing for his family financially, before his incarceration the Applicant would take care of the children and was “there as a father”.[32] Consistent with this, the Applicant’s evidence is that:

    I have worked consistently since I left high school so that I could provide for my family so that my kids do not have to grow up with nothing and continuously struggle as I did. My daughter will be starting pre-school here in Australia next year and that’s my aim able to walk my daughter to her first day of school just like any father will do for there baby girl. I have Miss a lot of birthdays and special events of my kids life’s and that’s Event I dearly don’t wanna miss out on.[33]

    [32] Transcript, page 57, lines 23-24.

    [33] Exhibit R1, G-Documents, G20, page 159.

32. Since the Applicant’s incarceration, Ms BI has struggled with her two children. She has had to get a job to financially provide for them and her sleeping and eating habits have been impacted. Ms BI’s evidence is that both she and her children would be “miserable” if the Applicant were not to return to them and that the Applicant’s daughter, in particular, keeps asking after him.[34]

    [34] Exhibit A3, Appendix B.

33. Ms BI’s evidence is that the Applicant “is deeply loved by his church community and is a devoted man of God” and that this community will assist the Applicant.[35] This evidence is supported by the Applicant’s pastor, Mr PT, who has ministered to the Applicant through weekly online Church services.[36] In doing so, Mr PT has also spoken to the Applicant “a couple of times”[37] about the importance of upholding the law and “That he’s starting to make inroads into a new life”.[38]

    [35] Exhibit A3, Appendix B.

    [36] Exhibit A3, Appendix H.

    [37] Transcript, page 74, lines 22-23.

    [38] Transcript, page 74, line 42.

34. The Tribunal has already noted that the Applicant has a lengthy criminal history dating back to March 2013, and that in July 2014, the Applicant was dealt with by the Children’s Court of New South Wales at Parramatta for “Assault occasioning actual bodily harm (DV)-T2” and for breach of a bond regarding an earlier offence of “Supply a prohibited drug” offence.[39] The sentencing Magistrate described the Applicant’s assault occasioning actual bodily harm in the following terms:

    But let us start at the beginning. You and your family members were at this man's home. You and your family members were using his pool table. His evidence was that he had not given any permission for that. I do not know whether you knew that he had not given the permission. I assume that you thought it was okay to be there.

    But even if he comes home drunk and a bit cranky, a decent person would have asked the first question, "Well, why is he cranky? Maybe it's because we've invaded his space when he's not there, and he's perfectly entitled to be annoyed that we're just treating him in that disrespectful fashion". So that is point number 1. But it seems that you did not think about that, that you thought that he was being disrespectful. That is pathetic, and even if he was, so what? There would have been no harm to anybody for you and others to just walk away. No harm whatsoever. Anyone with guts and with decency would have done that.

    What is even worse is that he is then assaulted and seriously injured, obvious to anybody that he was seriously injured, and you have the pathetic inclination to then assault him further. That is a totally gutless, disgraceful piece of behaviour. [40]

    [39] Exhibit R1, G-Documents, G7, pages 44-46.

    [40] Exhibit R1, G-Documents, G8, page 47, lines 25-44.

1. Under cross-examination the Applicant conceded that his victim in the assault occasioning actual bodily harm lost an eye as a result of the assault.[41] This is consistent with New South Wales Police records from a meeting with the victim at Westmead Hospital in order to obtain a statement.[42] However, the Applicant’s concession cannot necessarily be heard as an admission of liability for the injury. To accept the concession to be as much would be contrary to the pen-amended New South Wales Police Facts Sheet, which seems to have originated from the relevant Court file, and which materially reads, “It is accepted by the prosecution that the actions of the young person did not cause the injury to the victim’s eye”.[43]

   [41] Transcript, page 26, lines 36-37.

   [42] Exhibit R2, S-Documents, FS2, pages 23-24.

   [43] Exhibit R2, S-Documents, S141, page 780.

2. The Tribunal observes that the Applicant was not convicted of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), for which he was originally served a Court Attendance Notice.[44] This leads the Tribunal to place greater weight on the pen-amended police facts rather than the Applicant’s oral evidence to the extent that the Tribunal is satisfied that the actions of the Applicant did not cause injury to the victim’s eye.

   [44] Exhibit R2, S-Documents, S144, page 793.

3. The Tribunal notes that, in later sentencing for the strangling, the sentencing Judge disregarded the Applicant’s juvenile record having had regard to s 15 of the Children (Criminal Proceedings) Act 1987 (NSW).[45] The Tribunal does not disregard the Applicant’s juvenile record. The Tribunal places weight on the fact that the Applicant was dealt with by the Children’s Court of New South Wales four years and seven months after he first arrived in Australia. However, it is the Applicant’s adult offending upon which the Tribunal places the most weight.

   [45] Exhibit R1, G-Documents, G11, pages 57-58.

4. The Applicant became an adult in August 2013 and was issued with a Learner Licence for driving a Class C motor vehicle in October 2013. Within a matter of weeks, he was then issued a Provisional Licence.[46] From June 2014, when he committed a first drink-drive offence, the Applicant repeatedly committed traffic offences until December 2018. It is unnecessary to particularise these. It is sufficient to note that the Applicant was dealt with for traffic offences by the Local Court at Mt Druitt on five separate occasions.[47] He was sentenced to various fines, a Good Behaviour Bond, a Community Service Order, and finally an eight-month Intensive Correction Order.[48] A Sentencing Assessment Report from December 2018 is clear that the Applicant knew it was wrong to drive whilst disqualified.[49]

   [46] Exhibit R2, S-Documents, S2, page 5.

   [47] August 2014, August 2015, March 2016, August 2017, December 2018.

   [48] Exhibit R2, S-Documents, S2, pages 2-4.

   [49] Exhibit R2, S-Documents, S90, page 694.

5. In May 2017, aged 21 years and eight months, the Applicant committed the common assault against his partner, Ms BI.

6. The Respondent has contended that the Tribunal should accept the New South Wales Police Facts as evidence of the particulars of the common assault.[50] The Tribunal is guarded in so doing, in that there is no evidence before the Tribunal that these alleged facts were the facts indeed accepted by the Court in its finding of guilt and subsequent sentencing.[51] However, they are consistent with the facts relied upon by the sentencing Judge during re-sentencing following the strangling.[52] Nevertheless, at the hearing the Applicant recalled “grabbing” Ms BI by her sleeve and pulling her towards him,[53] pushing her to the face (as opposed to punching her), before dragging her into a car.[54] Notwithstanding the issue of a punch versus a push, both of which are an assault, this account substantially matched that of the New South Wales Police Facts Sheet.[55]

   [50] Exhibit R3, page 15, paragraph [26].

   [51] Transcript, page 99, lines 11-35.

   [52] Exhibit R1, G-Documents, G11, page 59.

   [53] Transcript, page 32, lines 37-38.

   [54] Transcript, page 33, lines 21-25.

   [55] Exhibit R1, G-Documents, G9, pages 49-52.

7. The fact of an assault, and the nature of its wrongdoing, were readily admitted by the Applicant.[56] The Applicant’s albeit apparently limited efforts at taking anger management counselling,[57] to address his “kid brain” whereby he acted before thinking,[58] seem to have assisted him in understanding the impact of his behaviour. Indeed, Ms BI’s evidence is that the Applicant “was very remorseful for his action, he never acted on any other way since that day, like towards me”.[59] The Tribunal takes this to mean that the common assault has not been repeated against Ms BI, as she is not afraid of the Applicant hurting her or their children.[60]

   [56] Transcript, page 33, lines 30-33.

   [57] Exhibit R1, G-Documents, G20, page 158.The Tribunal notes the Respondent’s submissions as to the lack of evidence regarding participation in anger management counselling after 2015. Transcript, page 98, lines 7-11.

   [58] Transcript, page 14, lines 17-19.

   [59] Transcript, page 59, lines 1-3.

   [60] Transcript, page 59, lines 7-8.

8. For the common assault, the Applicant was sentenced to a bond for 18 months that was subsequently revoked upon his perpetration of the strangling.[61]

   [61] Exhibit R1, G-Documents, G11, page 60.

9. In February 2019, the Applicant perpetrated the strangling against the victim, with whom he was having a sexual relationship. So as not to provide detail in this decision record that could lead to the identification of the victim, who was a work colleague of the Applicant, the Tribunal need only summarise the sentencing Judge’s material remarks in broad terms.

10. After a social function with colleagues, the Applicant and the victim alighted from a bus and entered a park at night. Following a conversation, the victim started running towards the bus, but the Applicant pulled her by the hair, “and put his foot up”, causing the victim to fall backwards. The Applicant “sat on the victim’s stomach and chest and squeezed her throat with two hand, saying whilst doing so, “I’m going to kill you. I’m going to kill you”. The victim passed out …”.[62] The sentencing Judge went on to say:

    [62] Exhibit R1, G-Documents, G11, page 55.

    The offender did not give evidence at the sentencing hearing. There is no evidence of remorse or insight into his offending behaviour. The offender was subject to an 18 month section 9 good behaviour bond at the time of the offence for an offence of common assault.

    The offender does have a criminal history - although not aggravating, it does disentitle him to the leniency he would otherwise be afforded. I would, however, disregard his juvenile record, having regard to s 15 of the Children (Criminal Proceedings) Act.

    The parties have consented for the Court to deal with the breach of that bond. That offence was also a domestic violence offence - the victim being his de facto partner with whom he has a daughter who at the time was 14 months old. The offence involved punching the victim to the face before dragging her and pushing her inside a motor vehicle.

    The fact that the offender was subject to conditional liberty is an aggravating factor to be taken into account on sentence. The fact that the offence was also a domestic violence offence - although not the same victim as the present proceedings - nevertheless is more aggravating.

    The offender was also the subject to an eight month Intensive Correction Order for an offence of Drive whilst disqualified. The ICO has been subsequently revoked and he was sentenced to a fixed term of six months ten days. Although the offence did not involve violence it nevertheless is an aggravating factor to be taken into account.

    Given the lack of subjective material and having regard to the offender’s prior domestic violence offence, I could not be satisfied he has good prospects of rehabilitation, although he does have strong family support. In doing so, I note that a number of family members attended court in both the sentencing hearing and at trial, and, indeed, today.

    The present offence is objectively serious. The maximum penalty of ten years’ imprisonment acts as a legislative yardstick when considering the appropriate sentence. The offence occurred at night in a park. The offender sat on the victim and squeezed her throat with both hands saying, “I’m going to kill you. I’m going to kill you”. The victim passed out and when she opened her eyes the offender was still on top of her. The victim sustained multiple bruises around her neck, although no fractures were detected and no abnormalities were detected to the blood vessels in the victim’s neck.

    The offending behaviour represents a serious example of this offence. I would assess the objective gravity of the offending behaviour at about the midrange for offences of this type.

    I am satisfied the only sentence which can be imposed is a sentence of fulltime imprisonment, having regard to the gravity of the offending behaviour and taking into account the offender’s subjective circumstances. In doing so, I have regard to both the principles of specific and general deterrence.

    Violent offences against women by men are all too common in our community. This is especially so in a domestic context. The sentence to be imposed must, in part, act as a deterrent not only to the offender but to others in the community who may act in a similar manner.[63]

    [Emphasis added]

    [63] Exhibit R1, G-Documents, G11, pages 58-60.

11. In her report, Ms Gramp concluded that:

    [The Applicant’s] core attitudes and values have been and will continue to be directed towards his family. I do not believe [the Applicant] would be a threat to the Australian wider community however, that is not to say he would not be a threat to any individual who he perceives as a threat to his family.

    [The Applicant’s] affect was congruent with remorse. His presenting behavior was calm. His current mental state is stable, and he was not identified as currently suffering from any mental illness. It is not possible to infer if this indicates any patterns of aggressive past behavior will be repeated or not. It is up to [the Applicant] to decide what actions and steps he needs to take to ensure it does not.

    It is not possible for me to state if [the Applicant] is a person of good character despite his previous criminal records, although it is his belief and claim he is of good character within the framework of family and work. It would appear he has been able to hold down employment and thrive in leadership roles in factory work and provide financial stability for his family. Weather he continues to do so I am unable to comment.

    I have not interviewed any third parties involved with [the Applicant] to determine if he is a changed person from all his previous charges or if he would be a threat to his family members, specifically his partner and children. I can only state he assures me he is not and reports he has never smacked or been violent with his children, despite experiencing violence as a child himself, and he is determined not to.[64]

    [Emphasis added]

    [64] Exhibit R1, G-Documents, G21, page 163.

12. In assessing Ms Gramp’s conclusion that she does not believe that the Applicant “would be a threat to the Australian wider community”, except possibly to anyone who threatens his family, the Tribunal notes that in assessing the Applicant’s psychometric testing results Ms Gramp reported:

    To those he cares about and trusts he would be trustworthy, loyal, protective, and compassionate. To those outside this group whom he perceives threaten him, he would tend to be emotional, unrealistic, and condescending.[65]

    [65] Exhibit R1, G-Documents, G21, page 161.

13. These issues raised by Ms Gramp go to the Applicant’s risk of reoffending.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

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

15. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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 Nature and Seriousness of the Applicant’s Conduct to Date

16. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. The Tribunal will now turn to addressing these considerations.

17. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

18. The Applicant has committed two violent crimes against women as an adult, one of which was against his domestic partner and constituted family violence. Both crimes were committed against women with which the Applicant was maintaining a relationship. On either of these offences alone, notwithstanding all other offending, the Applicant’s offending must be viewed very seriously by the Tribunal.

19. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

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

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

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

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

20. The Applicant has submitted that he has not committed any crimes against vulnerable members of the community or whilst being held in immigration detention.[66] The Tribunal accepts this submission.

    [66] Exhibit A2, page 4, paragraph [29].

21. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[67]

    [67] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].

22. For the strangling, the sentencing Judge was “satisfied the only sentence which can be imposed is a sentence of fulltime imprisonment”.[68] It is also material that the Applicant was sentenced to a Control Order for the assault occasioning actual bodily harm. He was further sentenced to terms of actual imprisonment for breaching his bond for the common assault, and for breaching his Intensive Corrections Order for driving offences. These custodial sentences are reflective of the objective seriousness of the Applicant’s offending.

    [68] Exhibit R1, G-Documents, G11, page 59.

23. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

24. The Applicant has offended persistently from March 2013, when he was first found to be in custody of a knife and supplying a prohibited drug, through to his incarceration for the strangling. From June 2014 until December 2018, the Applicant repeatedly committed driving offences.

25. The Applicant has been convicted of three separate violent offences against three separate victims. Following his July 2014 conviction for assault occasioning actual bodily harm (and the breach of bond that it caused), the Applicant committed the common assault in May 2017 and the strangling in February 2019 (causing yet another breach of a bond).

26. From March 2013 until his incarceration, the Applicant’s offending increased in frequency, whilst the objective serious of his violent offending overall trended upwards from assault occasioning actual bodily harm through to intentionally strangling another person so as to render them incapable of resistance.

27. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

28. Repeated traffic offending represents frequent and consistent breaches of the peace, posing an inherent danger by a road user to other individuals. These other individuals may be other road users or simple bystanders. The Court and police resources expended to regulate the Applicant’s repeated driving offences are, cumulatively, significant.

29. Although the Applicant’s other offending has escalated, it has been committed against different victims. Accordingly, the Tribunal is not satisfied that there can been seen to be a significant cumulative effect of that offending under sub-paragraph (e).

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

31. The Applicant has provided false and misleading information to the Department by not disclosing prior criminal offending on incoming passenger cards dated 28 September 2014, 6 December 2015, 10 April 2017 and 29 August 2018.[69] The Applicant’s evidence is that he now realises that he should have declared his convictions, “But, I thought, you know, a criminal conviction is going to gaol and I thought that’s what the question means, is convicted and going to gaol”.[70]

    [69] Exhibit R1, G-Documents, G32, pages 210-214.

    [70] Transcript, page 43, lines 7-9.

32. Relying upon BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72, the Tribunal has been urged not “to penalise an individual in a current process for the false/misleading information that occurred years ago for events not in connection with current proceedings”.[71] Given the express consideration of this issue by the Direction, the Applicant’s provision of false and misleading information to the Department by not disclosing prior criminal offending must be considered in these proceedings.

    [71] Exhibit A2, Legal Submission, paragraph [28].

33. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.

1. There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.

2. The Tribunal does not consider factors (b) and (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

3. Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

4. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

5. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

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

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

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

   Nature of harm should the Applicant engage in further criminal or other serious conduct

6. The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

   Likelihood of engaging in further criminal or other serious conduct

7. The Tribunal places weight on the sentencing Judge’s remarks as to his lack of satisfaction as to the Applicant’s good prospects of rehabilitation. The Tribunal weighs these remarks with Ms Gramp’s belief that the Applicant would not be a “threat” to the Australian wider community, which was qualified with her view that, “however, that is not to say he would not be a threat to any individual who he perceives as a threat to his family”.[72]

   [72] Exhibit R1, G-Documents, G21, page 163.

8. The Tribunal is satisfied that the Applicant is likely to reoffend if released into the Australian community given the range, frequency and seriousness of the Applicant’s antecedents.

9. Furthermore, the Tribunal cannot ignore the escalating and very serious nature of those antecedents. For a man to strangle a woman in a park at night-time is so serious that any risk that it may be repeated is unacceptable. Accordingly, the Tribunal regards the Applicant’s risk of engaging in further criminal or other serious conduct as unacceptable. This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.

   Conclusion: Primary Consideration 1

10. Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

11. Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).

12. The Tribunal has noted that Apprehended Violence Order was made, pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), for the protection of the victim of the strangling offence for three years from May 2021.[73] However, it does not automatically follow that the strangling offence constitutes family violence for the purposes of Direction 90. Indeed, neither party has contended as much.[74]

    [73] Exhibit R1, G-Documents, G12, page 66-68.

    [74] Exhibit A1; Exhibit A2; Exhibit R3, pages 10-11.

13. Paragraph 8.2 does not seem to contemplate domestic violence against a person who is not a member of a person’s family unit, as is the present case. Had it done so, then this primary consideration may have been worded in terms of domestic and family violence, rather than solely family violence. The victim of the strangling may have been in a domestic relationship with the Applicant, but there is no evidence before the Tribunal to support a finding that she had become a member of his family. Accordingly, the strangling is not relevant to Primary Consideration 2.

14. The Applicant has contended that, “the Applicant’s offending conduct only involves a single incident of family violence against his long-term partner [Ms BI] rather than multiple family violence offences against different victims”.[75] This single incident is the common assault offending. The Tribunal accepts this characterisation, albeit not for the reasons relied upon by the Applicant.

    [75] Exhibit A1, paragraph [19].

15. The Applicant has sought to import definitions of family violence and assault from the non-exclusive examples of family violence contained in the definition of family violence in s 4AB of the Family Law Act 1975 (Cth). The Applicant has also pointed to the lack of a definition for ‘assault’ in the Direction in support of this submission.[76] The Respondent has submitted[77] that Paragraph 4(1) makes clear that “family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful”. Such conduct includes “an assault”. The very conviction of the Applicant for the common assault offence against his partner leads the Tribunal to be satisfied that the Applicant has committed family violence for the purposes of the Direction.

    [76] Exhibit A2, paragraph [18].

    [77] Transcript, page 91, lines 1-28.

16. Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.

17. The Applicant has committed a single act of family violence and therefore there is no trend of increasing seriousness. Accordingly, this consideration is not relevant.

18. Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.

19. Given that the common assault offence was a single act of family violence, this consideration is not relevant.

20. Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.

21. At the hearing the Applicant recalled “grabbing” Ms BI by her sleeve and pulling her towards him,[78] pushing her to the face (as opposed to punching her), before dragging her into a car.[79] This account substantially matched that of the New South Wales Police Facts Sheet,[80] noting that there is no evidence before the Tribunal that it is was these unamended and alleged facts that were relied upon by the Court in accepting the Applicant’s plea to the common assault offending and finding him guilty.

    [78] Transcript, page 32, lines 37-38.

    [79] Transcript, page 33, lines 21-25.

    [80] Exhibit R1, s 501 G-Documents, G9, pages 49-52.

22. Pushes may be firm and punches light, and the distinction between the two actions is immaterial for the Tribunal’s purposes where both are a clear assault by the Applicant on his partner. The fact of this assault, and the nature of its wrongdoing, were readily admitted by the Applicant.[81] The Applicant’s anger management counselling,[82] to address his “kid brain” whereby he acted before thinking,[83] seems to have assisted him in understanding the impact of his behaviour.

    [81] Transcript, page 33, lines 30-33.

    [82] The Tribunal notes the Respondent’s submissions as to the lack of evidence regarding participation in anger management counselling after 2015. Transcript, page 98, lines 7-11.

    [83] Transcript, page 14, lines 17-19.

23. Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.

24. As the Applicant has not committed an act of family violence since the common assault, this consideration is not relevant.

25. The Tribunal does not consider factors (a), (b) or (d) of paragraph 8.2(3) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.2(3) of the Direction, in their totality, weigh moderately against revocation of the cancellation of the Applicant’s visa.

    Conclusion: Primary Consideration 2

26. Primary Consideration 2 weighs moderately against revocation of the cancellation of the Applicant’s visa.

    Primary Consideration 3: The best interests of minor children in Australia AFFECTED BY THE DECISION

27. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3), respectively, contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

28. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The Tribunal will now turn to addressing these considerations.

29. Sub-paragraph (a) of paragraph 8.3(4) of the Direction causes the Tribunal to consider the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).

30. The evidence before the Tribunal indicates that the Applicant is a devoted father to his two minor children and, despite his offending against their mother, he has been an integral part of their family unit since their respective births. Although long periods of absence have been caused by incarceration and detention, nevertheless meaningful contact has been maintained through electronic means.

31. Sub-paragraph (b) of paragraph 8.3(4) of the Direction causes a decision-maker to examine the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.

32. The Applicant has expressed regret that he has been unable to play a positive parental role in the lives of his children whilst absent in gaol or immigration detention, but that he would like to do so in future. The evidence indicates that the Applicant seeks to financially and emotionally provide for his children in the future and support them in positive activities, such as attending school.

33. Sub-paragraph (c) of paragraph 8.3(4) of the Direction points to the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child.

34. There is no evidence before the Tribunal to suggest that the Applicant has been violent towards his children, and the evidence of Ms Gramp is that the Applicant is protective of his family. The Tribunal therefore does not consider this consideration to be relevant.

35. Sub-paragraph (d) of paragraph 8.3(4) of the Direction causes a decision-maker to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[84]

    [84] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, the Court at [44].

36. The Applicant has submitted that:

    The long-term effects of a father’s absence in a child’s life is well documented with studies showing that the absence of a father has negative impacts on a child’s educational attainment, socio-emotional development and adult mental health outcomes. For the Client’s children, non-revocation means a childhood marked by the development of unhealthy behaviours such as aggression, anxiety, depression and attention seeking.[85]

    [85] Exhibit R1, G-Documents, G18, page 147.

37. There is no objective evidence before the Tribunal that the Applicant’s minor children would be harmed by his absence if he was removed from Australia, or that they have already been harmed during the Applicant’s incarceration and detention. On the contrary, the evidence before the Tribunal is that Ms BI has admirably cared for her children and provided for them in the Applicant’s absence. Nevertheless, given the youth of the Applicant’s children, the Tribunal is satisfied that they would have a more fulsome relationship with their father if he were physically dwelling with them in Australia rather than having to communicate by electronic means from elsewhere.

38. Sub-paragraph (e) of paragraph 8.3(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.

39. It is uncontroversial in these proceedings that Ms BI already fulfils the parental role of a mother in relation to both of her minor children.

40. Sub-paragraph (f) of paragraph 8.3(4) of the Direction causes a decision-maker to examine any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

41. The Tribunal does not have the benefit of the views of the Applicant’s children, except largely through the evidence of Ms BI. That evidence is to the effect that the children would be miserable in the physical absence of their father.

42. Sub-paragraph (g) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.

43. Contrary to the Applicant’s submissions,[86] the evidence before the Tribunal does not suggest that the common assault occurred in the presence of the Applicant’s daughter.[87] Accordingly there is no evidence before the Tribunal that the Applicant’s children have been, or are at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or have otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally. Therefore, this consideration is not relevant.

    [86] Exhibit R1, G-Documents, G18, page 148.

    [87] Exhibit R1, G-Documents, G9, pages 49-52.

44. Sub-paragraph (h) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

45. There is no evidence before the Tribunal that the Applicant’s children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. Therefore, this consideration is not relevant.

46. The Tribunal does not consider factors (c), (g) or (h) of paragraph 8.3(4) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.3(4) of the Direction, in their totality, weigh heavily in favour of revocation of the cancellation of the Applicant’s visa.

    Conclusion: Primary Consideration 3

47. Primary Consideration 3 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

48. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

49. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

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

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

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

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

    (f)worker exploitation.

50. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

1. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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

2. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[88]

   [88] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.

3. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision-maker must have regard to.

   Analysis – Allocation of Weight to this Primary Consideration 4

4. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

   (a)The Applicant moved Australia when he was aged 12 years and 11 months and is now aged 27 years.

   (b)The Applicant maintains strong family connections in Australia, although he has committed an act of family violence.

   (c)The Applicant maintains community connections in Australia, particularly through his church.

   (d)The Applicant’s has a strong employment history in Australia and prospects of further employment if released back into the Australian community.

   (e)The Applicant first offended as a juvenile and has frequently offended since.

   (f)The Applicant’s offending has escalated in seriousness.

   (g)The Applicant has committed two violent offences as an adult against women, both of whom he was in a relationship with.

   (h)The Applicant has repeatedly committed driving offences and, in so doing, has placed members of the Australian community at risk.

   (i)The Applicant has been imprisoned for his offending.

   (j)The Applicant’s crimes are serious and raise character concerns.

5. The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations of him to obey Australian laws while in Australia by engaging in serious conduct. This weighs very heavily against the revocation of the cancellation of the Applicant’s visa.

   Conclusion: Primary Consideration 4

6. Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

   Other Considerations

7. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.

   (a) International non-refoulement obligations

8. Claims with respect to Australia’s non-refoulement obligations do not arise from the evidence. Accordingly, consideration of Australia’s non-refoulement obligations is not relevant.

   (b) Extent of Impediments if Removed

9. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

10. The Applicant is aged 27 years, and beyond Ms Gramp’s report, the evidence is largely silent as to his health. Certainly, there is no evidence before the Tribunal that the Applicant is physically or mentally suffering any condition that could not be adequately treated in New Zealand.

11. The Applicant has expressed doubt that he may be able to find employment in New Zealand.[89] However, the Tribunal places minimal weight on this evidence, given the Applicant’s lengthy employment history in Australia.

    [89] Transcript, page 47, lines 16-17.

12. Although there are no language barriers to the Applicant returning to New Zealand, the Applicant has submitted that there are cultural barriers. The substance of that submission is as follows:

    73. We submit that studies have shown that the Pacific ethnic group in New Zealand suffer from a greater level of socioeconomic deprivation than any other minority group in New Zealand and these factors subsequently result in a decreased life expectancy. We expect that these factors will be exacerbated without the support of his family in New Zealand.

    74. In June 2021, New Zealand Prime Minister Jacinda Arden formally apologised to New Zealand’s Pacific community for New Zealand’s long history of racially targeting the Pacific community, specifically unjustified police raids. Acknowledging that Pacific Islanders have been subject to racial discrimination and have been unfairly targeted by law enforcement.[90]

    [90] Exhibit R1, G-Documents, G18, page 151.

13. On the face of these submissions, it is unclear the extent to which the cultural barriers that the Applicant faces in Australia are any greater than they are in New Zealand.

14. On the balance of this consideration, the Tribunal is not satisfied that the Applicant will face significant impediments if removed and therefore places minimal weight against revoking the Applicant’s mandatory visa cancellation.

    (c) Impact on victims

15. This Other Consideration (1)(c) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

16. Where evidence of a victim’s views is available to the Tribunal, those views do not necessarily or always weigh against revoking the Applicant’s mandatory visa cancellation.[91]

    [91] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.

17. The Tribunal notes that it does not have any evidence of the views of the of the victims of the assault occasioning actual bodily harm, or the strangling, regarding possible revocation of the Applicant’s visa. Although the Applicant has loosely asserted that his victim of the assault occasioning actual bodily harm may want “revenge”,[92] there is insufficient current evidence before the Tribunal to infer the views that these victims would likely currently hold. Nevertheless, the silence of these victims is not taken as acquiesced support for the Applicant.

    [92] Exhibit R1, G-Documents, G21, page 162.

18. It is clear from the evidence that the imprisonment, and subsequent detention, of the Applicant has had a significant effect on the Applicant’s partner, and victim, Ms BI. She has struggled with her two children. She has had to get a job to financially provide for them and her sleeping and eating habits have been impacted.[93] The evidence does not indicate that Ms BI lives in fear of the Applicant, but rather that she would like him home and to return to his role as a father.

    [93] Exhibit A3, Appendix B.

19. Noting the silence of two of the Applicant’s victims, but the support of Ms BI, the Tribunal places moderate weight in favour of revoking the Applicant’s mandatory visa cancellation.

    (d) Links to the Australian Community

20. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2, respectively:

    (a)       the strength, nature and duration of ties to Australia; and

    (b)the impact on Australian business interests.

    The strength, nature and duration of ties to Australia

21. The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. Whilst guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.[94]

    [94] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27].

22. The Applicant’s partner, Ms BI, and his children, siblings and mother, reside in Australia. The Applicant is strongly supported by his family and also his church.

23. The Applicant has resided in Australia since 2008, albeit he has repeatedly offended during that time and been imprisoned and detained. As required by paragraph 9.4.1(2) of the Direction, the Tribunal attaches less weight to the Applicant's period of residence in circumstances where he was being dealt with by the Children’s Court of New South Wales within five years of first arriving in Australia.

24. The Applicant has a strong work history, albeit the victim of the strangling was a work colleague.

25. The Applicant has submitted that he “has grown up experiencing disproportionate and prejudiced treatment from law enforcement”.[95] This is a very serious allegation, levelled seemingly at the New South Wales Police, which, given its gravity, is not supported by the objective evidence before the Tribunal.[96]

    [95] Exhibit R1, G-Documents, G18, page 154.

    [96] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors [1992] HCA 66.

26. Given the strength, nature and duration of the Applicant’s ties to Australia, the Tribunal places moderate weight in favour of revoking the Applicant’s mandatory visa cancellation.

    Impact on Australian business interests

27. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    CONCLUSION

28. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.

29. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds:

    (a)Primary Consideration 1 – Protection of the Australian community: weighs very heavily against revocation.

    (b)Primary Consideration 2 – Family violence: weighs moderately against revocation.

    (c)Primary Consideration 3 – Best interests of minor children: weighs heavily in favour of revocation.

    (d)Primary Consideration 4 – Expectations of the Australian community: weighs very heavily against revocation.

    (e)Other Consideration (a) – International non-refoulement obligations: not relevant.

    (f)Other Consideration (b) – Extent of impediments if removed: weighs minimally against revocation.

    (g)Other Consideration (c) – Impact on victims: weighs moderately in favour of revocation.

    (h)Other Consideration (d) – Links to the Australian community: weighs moderately in favour of revoking.

30. The Tribunal has considered all the Considerations in the Direction and the totality of the evidence. The combined weight of these Considerations and the evidence weigh against the revocation of the mandatory cancellation of the Applicant’s visa.

31. Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    Decision

32. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 3 June 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.............................[sgnd]..................................

Associate

Date of Decision:

Date of Written Reasons:

26 August 2022

27 September 2022

Date of Hearing:

11 and 12 August 2022

Solicitor for the Applicant:

Ms A De Silva
Agape Henry Crux

Solicitor for the Respondent:

Ms S Edmondstone
Minter Ellison

Annexure A – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
A1	Statement of Facts, Issues & Contentions	A	Undated	8 July 2022
A2	Applicant’s Evidence Bundle 1. Legal Submission to Request Revocation of Decision to Cancel Visa 2. Skynews Article (08.08.2022) 3. Guardian Australia Article (10.06.2022) 4. Letter – Ms BI (07.08.2022) 5. Statement – Applicant 6. Statement – Ms TE	A	Various	8 August 2022
A3	Bundle of Documents: 1. Appendix A – Movement History (23.07.2020) 2. Appendix B – Statutory Declarations of Ms BI (17.09.2021) and Ms TE (17.09.2021) 3. Appendix D – Department of Communities and Justice Records (14.07.2020) 4.  Appendix F – Assessment from Psychologist (08.09.2021) 6.  Appendix G – Statement – Applicant (13.09.2021) 7.  Appendix H – Character Reference Letter from Mr PT (09.09.2021) 8.  Appendix I – Guardian News Article (10.06.2022) 9. Appendix C – Notice of Decision (03.06.2022)	A	Various	8 July 2022
A4	List of Authorities	A	Undated	8 August 2022
R1	Section G-Documents	R	Various	15 June 2022
R2	Supplementary and Further Supplementary G-Documents	R	Various	27 July 2022
R3	Statement of Facts, Issues & Contentions	R	Undated	27 July 2022