Smith and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3570

Smith and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3570 (3 November 2023)

Division:GENERAL DIVISION
File Number(s): 2023/5976
Re:Rangi Lee Joseph Smith
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta
Date:3 November 2023
Place:Adelaide

The Tribunal affirms the decision under review.

...........[sgnd].............................................................
Senior Member Dr N A Manetta

CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – whether “another reason” for the cancellation decision to be revoked – Direction no. 99 – most recent convictions involve family violence – sentencing remarks considered – applicant’s assault extremely serious – applicant re-approaches victim six days after being released on parole and after AVO made final in his presence in Court – community’s expectations weigh against the applicant – substantial risk of reoffending – applicant’s ties to Australia and the best interests of minor children weigh in applicant’s favour particularly as children are half-Aboriginal Australian – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 268
Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION[1]

Senior Member Dr N A Manetta
[1] These reasons contain certain standard paragraphs; namely, [10] and [46].

This is an application by Mr Rangi Lee Joseph Smith seeking a review of a decision of the respondent’s delegate dated 10 August 2023. By this decision, the delegate declined to revoke the cancellation of Mr Smith’s visa[2] which had purportedly taken place under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[3]
[2] A Class TY subclass 444 Special Category (Temporary) visa.
[3] For reasons to be explained, the decision was made without jurisdiction, but was retrospectively validated by the provisions of an amending Act in February 2023.
PROCEDURAL BACKGROUND
The cancellation came about in the following circumstances. Mr Smith was convicted on 29 June 2022 of two offences arising out of a protracted episode of family violence against his then partner. On the same day, he received an aggregate sentence of 14 months’ imprisonment for his offending, but he was released on parole immediately (as he had been remanded in custody for some five and a half months at that stage). Six days after his release on parole (that is, on 5 July 2002), Mr Smith breached an AVO[4] protecting the same victim. As a result, he was sentenced to a fixed term of three months’ imprisonment, his parole was revoked, and he became obliged, subject to any further grant of parole, to serve the balance of his aggregate sentence in gaol.
[4] Apprehended Violence Order.
Mr Smith’s visa was cancelled under section 501(3A) of the Act on 25 October 2022. The delegate who made that decision proceeded as follows. First, Mr Smith was assessed to have a “substantial criminal record” by virtue of section 501(7)(c) of the Act, as he had been sentenced to a term of imprisonment of at least 12 months;[5] and, secondly, he was serving a sentence of imprisonment on a full-time basis in gaol at the time of the delegate’s decision.[6] Having reached these conclusions, the delegate was required to cancel Mr Smith’s visa under section 501(3A) of the Act.
[5] See s 501(3A)(a)(i).
[6] See s 501(3A)(b).
As soon as he was released from gaol,[7] Mr Smith was taken into immigration detention. He was released from detention in late December 2022 as a result of the full Federal Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177 (“Pearson”). The Court decided in Pearson that the reference in section 501(7)(c) of the Act to “being sentenced to a term of imprisonment of 12 months or more” did not include aggregate sentences. This implied that the initial cancellation of Mr Smith’s visa under section 501(3A) was not authorised. It followed that his continued detention was unlawful.
[7] On 28 October 2022, see Ex R1, 123.
After the decision in Pearson, the Federal Parliament amended the Act with effect from 17 February 2023.[8] The Act, as amended, required the expression “a term of imprisonment” in the Act, including in section 501(7)(c), to be read so as to include aggregate terms of imprisonment. In short, the effect of the decision in Pearson was reversed by the Federal Parliament. This amendment was retroactive, and the decision to cancel Mr Smith’s visa was validated.[9] Mr Smith was re-detained from ‒ I infer this from the records ‒ no later than 1 April 2023,[10] and he has not returned to live in the Australian community since that time.[11]
[8] By the insertion of a new section 5AB: see Migration Amendment (Aggregate Sentences) Act 2023 s 2(1) and Schedule 1, Item 1.
[9] See Ibid Item 4(3).
[10] Ex R2, 2 where Mr Smith is shown to have re-entered a correctional centre on 1 April 2023.
[11] It would appear that he was detained in gaol for some time pending disposition of a charge in respect of an assault alleged to have occurred on 14 March 2023. I have no official information in respect of that matter, but Mr Smith asserts that he was acquitted of the charge on 11 September 2023 (see Ex A7, p 6/10), and I have assumed this account is accurate and truthful.
Mr Smith sought an internal review of the cancellation decision. The internal-review delegate who was tasked with considering the matter had two questions to address under section 501CA(4)(b) of the Act. First, the delegate had to decide whether Mr Smith passed the “character test”. In light of the lengthy aggregate term of imprisonment that Mr Smith had received, the delegate decided that Mr Smith did not pass that test.
The second question, which only arises where an applicant does not pass the character test, was whether there was “another reason” for the cancellation decision to be revoked. In addressing this second question, the delegate was obliged to apply any direction issued under section 499 of the Act. The delegate applied Direction no. 99 (“the Direction”).[12] Having weighed the various considerations required to be addressed under the Direction, the delegate decided on balance that the cancellation of Mr Smith’s visa should remain in force. The delegate then formally concluded that the jurisdiction under section 501CA(4)(b)(ii) of the Act was not enlivened and that no revocation of the cancellation decision would be made.[13]
[12] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
[13] The delegate’s decision appears in Ex R1, 11-27.
Mr Smith now seeks a review of the internal-review delegate’s decision by the Tribunal.
TRIBUNAL’S TASK
Like the delegate, I must address the same two questions considered by the delegate. In addressing the second question, I must apply the Direction.
In exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[14] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[14] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; (2008) 103 ALD 467 at [98] and [141]; Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
At the hearing before me, Mr Nikjoo appeared for the applicant; Mr Goodwin, for the respondent. I acknowledge their assistance to me.
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I now set out now my findings of fact and my reasons for this conclusion.
FINDINGS OF FACT AND REASONS
(i)Findings of Fact
Mr Smith was born on 7 December 1972 in Auckland, New Zealand. He remains a citizen of that country. There were a number of written submissions and statements before me that he has made, and he gave oral evidence as well.[15] I also heard evidence from Mr Smith’s foster mother, Rev Dr Hall-Smith, amongst other witnesses. She provided a statement as well.[16] Rev Dr Hall-Smith is Mr Smith’s father’s older sister, and so she is Mr Smith’s biological aunt. She currently resides in New Zealand.
[15] Ex R1, 93ff, 115-119 (also reproduced at 124-128), 122, 129-31; 370ff, Ex A7.
[16] Part of Ex A8.
Mr Smith’s biological parents did not care for him for very long after his birth. His father died, unfortunately, when he was three or four years of age. His mother did not raise him after that point, but, rather, abandoned him without warning. It appears from Rev Dr Hall-Smith’s statement that Mr Smith first arrived in Sydney in 1977. Rev Dr Hall-Smith refers to the fact that she became Mr Smith’s guardian when he was about five years of age. Although she obtained Australian citizenship in 1978, Rev Dr Hall-Smith was not able to arrange for Mr Smith to obtain citizenship as he was a minor and the consent of Mr Smith’s remaining living parent (namely, his mother) was required.
Rev Dr Hall-Smith gave evidence that she had to work at two jobs to meet her mortgage repayments after her husband left her, and she raised Mr Smith as a single parent from that point on in difficult circumstances. The tenor of her evidence to the Tribunal was that she found the child-rearing experience difficult, that she felt herself to be ill-equipped to care for Mr Smith at that point in her life, and that she had been compelled, in a sense, to assume responsibility for Mr Smith after her brother’s (Mr Smith’s father’s) untimely death and Mr Smith’s mother’s abandonment of him.
Mr Smith attended primary school in Sydney. Rev Dr Hall-Smith pointed out that he was the only boy of an Indigenous background at the school.[17] She eventually sent him to a boarding school back in New Zealand. Her thinking was that he would have the benefit of a multicultural educational experience there. Rev Dr Hall Smith indicated in her evidence that, in retrospect, she appreciates that this decision was not “the right answer”. Rev Dr Hall-Smith also gave evidence that Mr Smith got into trouble while at school and that her sister, then living in New Zealand, was obliged to remove him.
[17] That is, of a New Zealand Indigenous background.
Rev Dr Hall-Smith gave evidence that, overall, Mr Smith had probably suffered substantially from his upbringing. I accept her evidence.
Mr Smith’s statements appear to give a somewhat different version of events; but any differences are not material in terms of the decision that I must make. It would appear that Mr Smith accepts that he moved back to New Zealand from Australia when he was just 13 years of age and attended boarding school there at the age of 15 for two years [18]. He moved to the Bay of Islands to live with his aunt and finished his schooling there, until he turned 18 years of age.[19] He then moved to his grandmother’s[20] and worked as a forest pine-tree pruner. He did that until turning 21 and then moved back to Australia on 18 December 1994.[21]
[18] Ex R1, 129.
[19] Ibid.
[20] Referred to as “Nanna”.
[21] Ex R1, 129.
I proceed on the basis that Mr Smith’s account of his background is broadly accurate. There is no doubt in my mind that Mr Smith’s upbringing was highly disrupted and that he lacked both affection and stability as he grew up. Rev Dr Hall-Smith acknowledged as much in her evidence to the Tribunal. Certainly, he did not have the benefit of a meaningful and sustained relationship with his biological parents, and I accept that the evidence strongly suggests a disturbed environment with frequent moves that may well have left Mr Smith feeling isolated or unwanted. That seems to me to be the case despite the observation Mr Smith made that he was raised “in a good environment with good family”.[22] I do not doubt that he found “fitting in” difficult at different points of his life in Australia and New Zealand.
[22] Ibid 115-116.
In Australia, Mr Smith has had varied employment. In 1999, he worked as a removalist in North Ryde, New South Wales and did that work until 2002.[23] He has also worked as a courier[24] and then with his uncle and cousins in their family business restoring roofs for some 10 years starting in 2008.[25] It would also appear he did this same work at an earlier period in his life, from the age of 23 until he was 26 (that is, in the mid-1990s).[26] He gave oral evidence that he has also worked as a child-care assistant and as an employee at Woolworths.
[23] Ibid 129.
[24] Ibid 130.
[25] Ibid 122.
[26] Ibid 129.
Mr Smith stopped work in 2017, he said, because of his right hip. His oral evidence to the Tribunal was that this hip was operated on earlier this year, the results have been satisfactory, and he enjoys better mobility. He still has ongoing problems with a shoulder dislocation, however.[27]
[27] Ibid 196.
Mr Smith has five[28] children from his relationships in Australia. The mothers are Aboriginal Australian citizens. The eldest, Jada, is 21 at the time of my decision, and her mother is a Ms Button. The remaining children all derive from Mr Smith’s relationship with a Ms Simon: Dakota (now 12); Neveah (now 10); Jotham (now 8); and Eruera (now 5). Jada has a son, and so Mr Smith is a grandfather to that child whom he said in his oral evidence he has met a few times. That child was said to be three months old as of October 2022 and so is still very young as of my decision today.[29]
[28] There is also a reference to a stepdaughter, who is now close to her majority: see Ex R1, 370. Her interests, unlike Mr Smith’s children’s interests, were not the subject of any detailed submissions by Mr Nikjoo in Ex A14.
[29] Ex R1, 117.
So far as Jada is concerned, Mr Smith records in one of his statements that she was removed from his and Ms Button’s care when she was only two years of age, because of the neighbourhood’s adverse circumstances: “where we were living there was a lot of drug using, domestic violence and alcoholism”.[30] Mr Smith accepts that after the removal, he and Ms Button both started to use illicit drugs to block out all the pain. Mr Smith says he has been drug-free for many years now.
[30] Ibid 129-130.
As for the remaining four children, Mr Smith records that Dakota and Neveah were removed from his and Ms Simon’s care in 2014. He maintains that the children were returned to his and Ms Simon’s care in 2015. That year the couple had Jotham, who was removed immediately from their care at birth because, according to Mr Smith, Ms Simon had misused drugs throughout her pregnancy, leaving Jotham gravely unwell at birth. In 2017, the second son, Eruera, was born and he too was removed from the couple’s care. From one of Mr Smith’s statements, I infer that all of Mr Smith’s minor children are currently in foster care although he is “fighting” to get them back.[31]
[31] Ibid 102.
I now come to Mr Smith’s criminal record, which was before me.[32] The court appearances began in 1997. The record is self-evidently extensive, but there is much in it that is of a minor nature only. I would include in this latter category the driving offences, the failures to pay public-transport fares, and his use of offensive language near a public place/school. I leave these types of offending to one side.
[32] Ibid 34-38.
There have been a number of convictions for dishonesty/theft, possession of housebreaking implements, and receiving/disposing of stolen property (e.g., appearances on 9 April 1997, 24 August 1999, 21 March 2005, 23 September 2005, 30 November 2005, 24 January 2007, 29 October 2014, 18 February 2015, and 27 January 2021). For the most part, these offences attracted fines. There were, however, a number of more serious sentences. The offence dealt with on 21 March 2005 for possession of housebreaking implements attracted a sentence of 12 months with a non-parole period of nine months. It was suspended on Mr Smith entering a 12-month bond. The offence dealt with on 24 January 2007 of receiving/disposing of stolen property attracted a 6-month good behaviour bond while the offence of larceny dealt with on 18 February 2015 attracted a 12-month supervised bond.
There are a number of assaults or personal-violence offences in the record. In 2001 Mr Smith was convicted of assault which attracted a fine of $400. That is 22 years ago, however. Mr Smith was convicted in 2005 of “riot”, which he linked in his evidence to a disturbance at Redfern. He was sentenced to a period of imprisonment of 12 months with a non-parole period of nine months, which was suspended on his entering a bond for 12 months. That is a significant sentence of imprisonment in relation to a serious charge, but it is many years ago now. On 19 December 2007, Mr Smith was found guilty of assaulting an officer in the execution of his duty and received a bond of nine months. On the next day in the same court, he was found guilty of assault occasioning actual bodily harm and was placed on a 12-month supervised bond. Again, this offending is old. On 15 January 2015, he was again found guilty of common assault and was placed on a 12-month supervised bond.
More recently, on 27 September 2018, Mr Smith was found guilty of contravening a prohibition or restriction in an AVO and received what is recorded as a conditional release order for 12 months. On the same day and in the same court he was found guilty of stalking/intimidating a person, again with a 12-month conditional release order being imposed. This offending assumes more significance for two reasons; first, it is relatively recent, and, secondly, it involved a type of offending that is broadly similar to the most recent offence Mr Smith committed when he breached an AVO. It is important to bear in mind, however, that between offences there are some significant periods where Mr Smith did not offend in a violent or antisocial way.
I turn now to the particularly serious episode that resulted in Mr Smith receiving the aggregate term of imprisonment of 14 months to which I have referred. Mr Smith appeared before the Local Court in Parramatta on 29 June 2022. The events in question had occurred on 14 January 2022. Mr Smith was 49 years of age at that time, and so a fully mature man. I had the sentencing remarks (by way of a transcript) before me.[33] I note that Mr Smith pleaded guilty on the first day scheduled for his trial to one count of intimidation and also to one count of assault occasioning actual bodily harm. A third charge, that Mr Smith was armed with a weapon with intent to harm, was withdrawn.
[33] Ibid 54ff.

I have read the sentencing remarks carefully, and I rely on them. The following account is drawn from those remarks. Mr Smith and his then partner, to whom I shall refer as “Ms F” as she was his victim, were at home. They resided together in Ms F’s unit. Ms F had sat down to use her mobile phone. Mr Smith began to mumble, she said “yes”, and he then said to her “not you”. He then approached her, wrapped his left arm around her torso and pulled her closer to his chest. He produced a knife and placed it against her neck stating: “I will kill you, then I’ll kill everyone.”
The victim reached into her pocket, grabbed a set of keys and began frantically to scratch and bite Mr Smith’s chest and back in an attempt to break free, which she managed to do. She escaped to the bedroom. He followed her there. He pulled her hair and then punched her in the mouth. Two of her bottom front teeth became loose as a result of the blow. Ms F managed to escape the unit to the stairwell, but he dragged her back into the unit by her hair. She continued to struggle with him until he was pushed out of the unit. Ms F managed to lock the door and phone the emergency triple-zero operator. Mr Smith continued to kick and bang on the door while she made this call.
The Court assessed the offending I have just described as a very serious incident of domestic violence, as it self-evidently was. Moreover, Ms F was pregnant at the time, a fact that increased the “overall criminality” in the Court’s view. The incident only ceased, the Court found, when the victim was able to lock herself in the unit and dial triple zero.[34] The Court summarised the position as follows:
The level of the offending and the injury to the victim, not only the marks on her body but also the loosening of her teeth and the threat of violence with the knife make this a very serious instance of domestic violence, and a custodial sentence is warranted, in my view.[35]
[34] Ibid 58.
[35] Ibid 59.
An aggregate 14-month gaol sentence was imposed in respect of the two charges. Mr Smith had been subject to an order to be of good behaviour at the time of the offending and that order was breached by his conduct. The Court found that it was not appropriate for an intensive correction order to be made: Mr Smith needed to serve his custodial sentence in gaol.
Mr Smith had been in custody for some five and a half months when he was sentenced on 29 June 2022. He was released on parole that same day. The transcript shows that the Court made an AVO in respect of Ms F final on that day in Mr Smith’s presence. This order prevented Mr Smith from approaching her or going within 100 metres of her residence or place of work for the next two years. He was expressly warned that breaching the AVO would be a criminal offence and that he could return to gaol if he breached it.[36]
[36] Ibid 59-60.
On 18 August 2022, Mr Smith appeared in the same Court charged with an offence of contravening the AVO to which I have just referred. Again the sentencing remarks were before me (by way of transcript)[37] and I accept and rely on them.
[37] Ibid 61ff.
The Court referred to the fact that after Mr Smith’s release from custody on 29 June, he breached the AVO within six days, namely on 5 July 2022. Mr Smith contacted Ms F by telephone on that day and came within 100 metres of the place where she was residing. Mr Smith stood in the front yard near Ms F’s unit and was found by the Court to have been yelling and screaming. The Court noted that there were no threats as such directed towards Ms F and the messages that were left on her phone were “in quite a pleasant mode”.[38] There were, however, screams and shouts in the vicinity of the unit as I have said. The objective seriousness of the offending was found to sit “probably towards the lower end of the range of seriousness for offences of this nature,”[39] according to the Court. The Court noted that the victim should have been protected by the AVO and that Mr Smith was willing “to flout the order” in the manner that he did.[40] The Court further noted that Mr Smith had “very guarded prospects” of rehabilitation given the ongoing offending that had been a feature of his life over the last few years.[41]
[38] Ibid 66.
[39] Ibid.
[40] Ibid 67.
[41] Ibid.
Mr Smith received a 25 per cent discount on account of his plea of guilty, and he was sentenced to a term of imprisonment of three months from the date he was arrested; namely, 5 July 2022. Mr Smith’s parole was, it appears, revoked on account of this sentence and so he also became obliged to serve the balance of the earlier 14-month sentence.
On 25 October 2022, while he was serving his sentence of imprisonment on a full-time basis in the Bathurst Correctional Centre, Mr Smith’s visa was cancelled. He was re-paroled with effect from 28 October 2022, but was taken immediately into immigration detention given the visa cancellation that had occurred a few days earlier.
(ii) Reasons
It is convenient to address first one argument put by Mr Nikjoo under the heading “Character Test – s 501CA(4)(b)(i)” in his written submissions.[42] As I understood the argument, Mr Nikjoo contends that as a result of the decision in Pearson, to which I have already referred, I should regard Mr Smith’s recent offending as not being of a very serious kind because Pearson makes it clear that only non-aggregate sentences of 12 months or more are to be considered very serious. It is also submitted that in the light of Pearson, Mr Smith should not be regarded as posing an unacceptable risk to the community when I come to apply the relevant considerations in the Direction.
[42] Ex A14, [13]ff.
I do not accept this submission.
As a decision of the full Federal Court, Pearson is, of course, binding upon me. The Court held that section 501(7)(c) of the Act, which refers to a person “being sentenced to a term of imprisonment of 12 months or more”, did not encompass aggregate sentences. It followed in the Court’s view that section 501(3A)(a)(i) was not enlivened by an aggregate sentence, but, rather, was enlivened only by an individual sentence of 12 months or more (or a sentence of life imprisonment, or a sentence of death).
The Court did not decide, however, that an aggregate sentence of imprisonment never involves serious offending; and this is where, with respect, Mr Nikjoo’s submission lacks persuasive force in my view. Self-evidently, an aggregate sentence may well involve very serious offending: it will all depend on the circumstances of the case at hand. The Court merely held that, on a proper construction, section 501(7)(c) was not intended to apply to aggregate sentences as a class of sentence because an aggregate sentence may in a particular case address a series of lesser offences none of which is particularly serious when considered in isolation.[43] But, to be clear, the Court did not say that aggregate sentences never involve very serious offending or that a person who has received an aggregate sentence cannot be held to pose an unacceptable risk to the community. That does not follow from the decision. Mr Smith was released into the community after Pearson was handed down because the decision to cancel Mr Smith’s visa was made without jurisdiction, not because he was judged not to be a risk to the community.
[43] See Pearson at [47].
The effect of Pearson has been reversed with retroactive force as a result of the amending Act to which I have earlier referred. The legal position I face, therefore, is that the initial cancellation of Mr Smith’s visa is now taken in law to have been within power (although it was not within power when it was made).
Character Test
In this circumstance, I am required to address the same two questions the internal-review delegate addressed under section 501CA(4)(b). The first question that I must address is whether Mr Smith passes the “character test”, which, I note, is a wider question than whether he failed the character test for having been sentenced to a term of imprisonment of 12 months or more.[44] As of today, Mr Smith does not pass the character test given the aggregate sentence of imprisonment of 14 months, but he also fails that test on other grounds in my opinion; e.g., that he is not “of good character” as of my decision today, and that there is a risk that he would commit a criminal offence or harass, molest, intimidate or stalk another person if he were allowed to remain in Australia.[45]
[44] See section 501CA(4)(b)(i).
[45] See section 501(6)(c), (d)(i) and (d)(ii) respectively. On Mr Smith’s future risk, see below at [58]ff.
Accordingly, I answer the first question in the same way as the delegate: Mr Smith does not pass the character test.

Considerations arising under the Direction

I now turn to the second question,[46] which requires me to apply the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks in respect of the Direction that I
repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
[46] Whether there is “another reason” to revoke the cancellation decision: see Migration Act 1958 (Cth) s 501CA(4)(b)(ii).
I now turn to apply the Direction. I begin by addressing the protection of the Australian community, the first primary consideration.
Paragraph 8.1(1) of the Direction provides that when considering the protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.
There has been considerable offending in Mr Smith’s record. It has extended to causing harm to the Australian community, and court orders made for the protection of individuals have been ignored by him. Mr Smith has, therefore, ignored an important Australian institution (namely, Australia’s court system, which issues AVOs and other orders to protect Australian community members). His most recent offending involves exactly that feature.
I must also give consideration under subparagraph (2) to the nature and seriousness of the non-citizen’s conduct to date and to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In respect of the nature and seriousness of Mr Smith’s conduct to date, paragraph 8.1.1(1) specifies (in subparagraphs (a) to (h)), a number of matters to be taken into account. Mr Smith’s record shows that he has been guilty of violent crimes, and in particular of a serious crime of violence nature against Ms F, a female partner, which also constituted an act of family violence.
The Direction requires me to view all the offending in Mr Smith’s criminal record that involves violence as very serious, but much of it is old and is of quite diminished relevance for that reason in my view. I regard the recent attack upon Ms F, who was pregnant at the time, as particularly serious, however. I note that I am to regard any crime against a woman as very serious regardless of the sentence imposed. The offending against Ms F was also an act of family violence, and it is to be regarded very seriously on that account as well.
I should also note that there have been several drug offences including possession and supply, and many stealing and dishonesty offences. Again, I make the point that it is clear that Mr Smith’s record is a substantial one taken as a whole; but it is his violence towards his most recent domestic partner that has caused me particular concern in light of the Direction. The offence against Ms F was of the most serious kind, in my opinion, because she was badly assaulted in a protracted attack and her life was explicitly and credibly threatened while Mr Smith held a knife to her neck. The assault was characterised by the sentencing Court as a very serious example of family violence, and that is undoubtedly correct.
I must have regard to the risk to the Australian community should Mr Smith commit further offences or engage in other serious conduct. I bear in mind what appears in paragraph 8.1.2(1). This subparagraph requires me to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm it would cause if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. I bear that principle in mind.
In assessing the risk that may be posed by Mr Smith to the Australian community, I must have regard to two matters “cumulatively”; namely, the nature of harm to individuals or the Australian community should the behaviour be repeated, and the likelihood of Mr Smith repeating his behaviour, taking into account information and evidence on the risk of his reoffending and evidence of rehabilitation achieved by the time of the decision.[47]
[47] Paragraph 8.1.2(2) of the Direction.
I am prepared to assume a low risk in respect of the theft and dishonesty offences, and this risk has not been “a tipping point” against Mr Smith in my deliberations. Equally, the drug offences are not a tipping point either. I shall not address these categories of offence further.
It is clear that if a protracted assault of the type that Ms F endured were repeated, there could be the most serious consequences for the victim’s physical health and psychological well-being. The offending in this case was, in my opinion, very serious as I have made clear. I bear in mind the Court’s observation that the assault only stopped because Ms F managed to lock Mr Smith out of the unit and ring the triple-zero operator.[48] The ordeal must have had a significant physical and psychological impact upon her.
[48] Ex R1, 58.
So far as the future is concerned, I believe the risk of recidivism is substantial. I accept that Mr Smith has undertaken a number of courses and that fact deserves to be acknowledged and weighed in his favour.[49] He has listed these as including two domestic violence programs, one anger management program, and one drug addiction program.[50] He has made an important start. I also acknowledge that he was re-paroled on 28 October, not long after his fixed three-month sentence ended on 4 October 2023. He must have been judged to be a suitable candidate for parole by the responsible State parole authority. His behaviour in gaol and immigration detention has been without incident and he has been co-operative.[51]
[49] See for example Ex R1, 361; Ex A1, Ex A2.
[50] Ex A7.
[51] See for example Ex R1, 89.
There are, however, a number of matters that cause me to rate the risk as substantial. First, Mr Smith actively denied the offending before me in his oral evidence.[52] He has also submitted in writing that he only pleaded guilty on poor advice from a lawyer because he did not believe he would receive the sentence the Court imposed.[53] He claimed the truth was that he merely wrestled with Ms F to remove drugs from her because he was concerned that she should not use them while she was pregnant.[54] He expressly denied attacking her or punching her.
[52] He also denied the assault in his written submission to the delegate: see Ex R1, 96.
[53] See for example Ex A7, p4/10.
[54] Ibid p3/10.
I do not accept Mr Smith’s evidence in this regard. I have said on previous occasions, and I repeat here, that I well understand the pressure applicants are under in the Tribunal. They frequently make the ill-advised decision to downplay, or deny outright, their offending. That said, I am not able to give an applicant credit for remorse if none is expressed. This is not a case, in my opinion, where Mr Smith has expressed genuine contrition or regret.
There are other aspects to the offending which give me cause for concern. Mr Smith breached the AVO that had been finalised in his presence in Court just six days earlier when he re-approached Ms F, both by phone and in person. I accept that the Court did not find that any threats were issued towards Ms F and that his telephone messages were, as the Court observed, “in quite a pleasant mode”. But he had very seriously assaulted Ms F and threatened her life just six months earlier, and it was completely unacceptable for Mr Smith to re-approach her. He had no legitimate reason to do so. That he did so in defiance of a court order, and after having been remanded in custody for some five and a half months, is a significant matter. Mr Smith knew that his behaviour in contacting Ms F would constitute an offence, and that he would lose, or at the least be at serious risk of losing, his parole as a result of his further approach to the victim, in addition to any penalty that might be imposed in respect of his breach of the AVO. These adverse prospects were not a sufficient deterrent despite his recent experience of life in custody. In my opinion, there is a real concern that gaol is not a sufficient deterrent for Mr Smith. He demonstrated scant respect for the AVO in respect of Ms F. There is a real risk Mr Smith will not comply with his legal obligations again.

There is some force, I acknowledge, in Mr Nikjoo’s submission that Mr Smith now appreciates that any further criminal activity would also put his visa at risk. That is true, and his predicament is now all too plain for him to see: he is being detained in a facility as an immediate precursor to a possible return to New Zealand. Once again, however, I return to the fact that a lengthy period in gaol did not prove to be a sufficient deterrent. Mr Smith was a mature man, and he had had the experience of life in custody as I say. He chose to ignore the AVO the Court made. As the Court observed, one can suppose there was some harm to the victim as a result of the breach of the AVO.[55] Finally, I do not regard Mr Smith’s good behaviour while he was in the community from Christmas 2022 to April 2023 (at which point he was re-detained) as a long enough period to cause me to alter my view of his risk.
[55] Ex R1, 67.
I believe that there is a substantial risk of Mr Smith re-offending either by re-approaching Ms F or by engaging in violence towards a new domestic partner. In this latter regard, I do not accept Mr Smith’s evidence that he will not seek out a new partner. He may do so. He has had a number of partners in the past.
Paragraph 8.2 of the Direction addresses family violence. Subparagraph (1) notes that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. The concerns are said to be proportionate to the seriousness of the family violence engaged in by the non-citizen. The concerns are to be assessed in accordance with subparagraph (3).
“Family violence” is defined in the Direction to include violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful.[56] A “member of the person’s family” is defined to include a former intimate partner.[57] Mr Smith’s decision to re-approach Ms F would have caused her great fear given the extreme violence to which she had been subjected just six months earlier. Accordingly, Mr Smith was guilty of family violence toward Ms F on two occasions; the first comprising the serious assault upon her, and the second comprising the breach of the AVO. I accept recent efforts have been made by Mr Smith to address factors contributing to his conduct. He has undertaken courses as I have said, and he appreciates, for example, the link between alcohol or drug misuse and domestic violence. I accept also that he rightly appreciates that employment is, in his case, a very important factor in keeping him balanced and focussed on prosocial choices. That said, I do not believe there has been substantial rehabilitation since Mr Smith’s last known act of family violence.[58] I note again that Mr Smith failed to accept responsibility before me of his violence against Ms F. Even allowing for the pressure applicants feel to minimise their offending, Mr Smith’s denial of his assault against Ms F suggests his rehabilitation has been limited, rather than substantial.
[56] Paragraph 4(1) of the Direction.
[57] Ibid.
[58] See paragraph 8.2(3)(c) of the Direction.
I bear in mind that I must not “double-count” the violence in which Mr Smith has engaged under various heads of the Direction. The Direction, however, does raise squarely concerns about Mr Smith remaining in Australia on account of his family violence. I should add that I have only considered those occasions where violence has led to a conviction. I have not taken into account the other reports to police, to which Mr Goodwin directed my attention. I have been able to decide this case without reliance upon them.
Paragraph 8.3 requires me to consider the strength, nature, and duration of ties to Australia. I accept that Mr Smith has spent almost all of his adult life in Australia and a substantial period of his childhood, including many of his formative years. He would have good work prospects if he were re-released into the Australian community. I accept that he could resume work with his uncle and cousins in the roofing business,[59] and he has other valuable qualifications.[60] I acknowledge the community contribution he has made through his paid work over many years and through his volunteering, which is referred to in his statements.[61] I accept also that he will lose the possibility of one-on-one contact with his children (and grandson) and lose also the prospect of gaining access to them on a more regular basis if he is forced to return to New Zealand. I accept that that is an important aspect of the matter from his perspective. Although all his minor children are in foster care, that does not mean that he could not over time, if he made a concerted effort, reach a point where he has meaningful periods of contact with them. I believe he is sincere when he says he wishes to re-establish a bond with them, and to establish a bond with his grandson. His statement that “he wouldn’t know what to do without them in [his] life” is credible.[62] In this regard, I accept that he has sought to maintain contact with his children within the confines of the foster-care arrangements that have seen the children placed with other families. The contact has been necessarily limited, but he has tried to keep the contact going.
[59] Ex A7.
[60] For example, as a forklift driver, as a platform operator, as a worker at heights or with asbestos: see Ex R1, 112, 119.
[61] For example, working for the Redfern Community Centre during NAIDOC week (Ex R1, 111, Ex A7) and volunteer work at the Parramatta Mission for the Homeless (Ex A7).
[62] Ex R1, 93.
I also accept that the majority of his extended family live in Australia: aunts, uncles, cousins, nieces and nephews. I accept that losing that contact will be very hard for Mr Smith as he makes clear.[63] He is very fond of this part of his family and misses them very much.[64] One cousin wrote a reference that displays great closeness to him.[65] I have no reason to doubt that his extended family would miss him if he were removed. Mr Smith also makes a special mention of his biological mother, Linda, who now lives in Australia. She is important to Mr Smith as his father died when he was young and his grandmother also died some years ago.[66] He has a nascent relationship with her that he wishes to build.[67] I understand that possibility would be particularly important to him given his troubled background, and it may well be important to her (although she was not called to give evidence).
[63] Ibid 94. There is a list of first cousins and one uncle that appears at Ex R1, 106.
[64] Ibid 95.
[65] Ex A9.
[66] Ex R1, 96.
[67] Ibid 117-118.
This consideration does count substantially in Mr Smith’s favour.
I must consider the best interests of minor children. Mr Smith has five minor children when I include the grandson.[68] So far as his minor children are concerned, all are in foster care as I have indicated. The foster mother of Jotham, Ms O’Brien, was called by Mr Smith to give evidence. She also provided a statement.[69] Her evidence indicates that Jotham is well adjusted and happy in her household. I understand that Jotham may have autism, and he may have a special sense of need for his father on that account.[70] I accept that evidence. Ms O’Brien is open to Mr Smith having time with Jotham to the extent that Jotham wishes to have it. Her evidence, however, was that one-on-one contact between Mr Smith and Jotham has been infrequent in recent times,[71] which is consistent with Mr Smith’s own evidence.
[68] And one stepchild who is approaching majority, but whose interests were not expanded on at the hearing.
[69] Ex A10.
[70] See Ex R1, 96; Ex A7, p3/10.
[71] Ex A10 refers to a last visit in November 2018 until a visit to Mr Smith in September 2023 on Father’s Day.
Nevertheless, Ms O’Brien was clear that Jotham values the connection with his father greatly and that all contact between the father and son is “loving, respectful and wholesome”.[72] Her evidence was that she would arrange for Jotham to visit Mr Smith in New Zealand when she herself went there (as she has family she visits there regularly). However, I do not have any evidence before me that suggests the same opportunities would be extended to the other three minor children. They are not in Ms O’Brien’s care.
[72] Ibid.
I bear in mind that all Mr Smith’s children have Aboriginal Australian mothers. That fostered Aboriginal Australian children in particular should have, where possible, good and productive contact with their biological parents is an important consideration. Mr Smith’s departure for New Zealand would prejudice their interests in this regard in my view, Moreover, he would be unable to offer them the same level of financial support from New Zealand given his superior employment prospects in Australia. Their interests do count substantially in Mr Smith’s favour in my opinion.
So far as Mr Smith’s grandson is concerned, I accept that there is as yet no existing relationship given the very young age of the child, and the relationship is one of grandfather/grandson rather than father/son.[73] I have little information concerning others who may be playing a role in this child’s upbringing. Still, I give the grandson’s interests some weight in Mr Smith’s favour.
[73] See the Direction, paragraph 8.4(4)(a).
I must also have regard to the expectations of the Australian community. By paragraph 8.5 (1), I note that the Australian community expects non-citizens to obey Australian laws while in Australia. I further note that where a non-citizen has engaged in serious conduct in breach of this expectation, as is the case here, the Australian community “as a norm” expects the Government to remove the non-citizen. This expectation is expressed to be “a norm”, however, and not an inflexible rule.
By subparagraph (2), it is provided that the non-revocation of a mandatory cancellation of a visa may be appropriate simply because of the nature of the character concerns or offences arising in connection with the person. This subparagraph points out that acts of family violence and the commission of serious crimes against women are instances of offences where the Australian community expects the Australian Government to cancel a visa.[74]
[74] Ibid paragraph 8.5(2)(a) and (c).
The expectations in paragraph 8.5 apply regardless of whether Mr Smith poses a measurable risk of causing physical harm to the Australian community.[75] Moreover I am not to assess for myself the communities expectations in this particular case.[76] This consideration applies substantially against Mr Smith in my opinion.
[75] Ibid paragraph 8.5(3).
[76] Ibid paragraph 8.5(4).
Section 9 requires me to have regard to so-called “other” considerations. In this respect I must have regard to the extent of impediments Mr Smith would face if he were removed to New Zealand. Rev Dr Hall-Smith said in her evidence, when pressed, that she would accept Mr Smith into her home on a temporary basis if needs be. I have decided to discount that evidence for the following reason. Rev Dr Hall-Smith was not aware before giving her evidence that Mr Smith had been convicted of a very serious assault upon his partner, Ms F. Although Rev Dr Hall-Smith indicated a willingness to receive Mr Smith into her home, more considered reflection might indicate that that choice could prove unwise. She gave evidence that Mr Smith felt abandoned by her during his youth. She might appreciate on reflection that her perceived mistreatment of him could prove to be a source of serious friction between them if he resided with her. She also lives, she said, in a deprived community in New Zealand wracked by social problems including widespread drug misuse and poor employment opportunities. That, too, may be an unwise environment for Mr Smith her perspective given his past drug problems and his need to obtain work. Accordingly, a more considered reflection by Rev Dr Hall-Smith might see her refuse him a place in her home. I proceed on the basis that that would be, in fact, the more likely scenario.
I do not see that there are other family members with whom Mr Smith could stay in New Zealand at this point in time. He would find himself, therefore, immediately reliant on the New Zealand social welfare system for housing upon his return there. That would be a serious impediment to him on his arrival. He would also have the ongoing impediment of his shoulder dislocation, which may impact his ability to work in at least some fields. All in all, there are quite serious impediments to Mr Smith re-establishing himself in New Zealand. In Australia, by way of contrast, I believe he would find work again with his family in the roofing business and he would have a residence.[77] I have already referred to the fact that Mr Smith has few family members in New Zealand.
[77] Ex A7, pp 9/10 and 10/10.
I should also mention that Mr Smith suffers from seizures, which he puts down to an assault or assaults upon him in the past, but I do not see that he would be at any particular disadvantage so far as medical treatment in New Zealand is concerned. I do accept, however, that it would be an added burden for him to face seizures alone and without support in New Zealand. I have no reason to suppose that his shoulder problem could not be adequately treated by the New Zealand health-care system.
The impediments-on-removal consideration applies substantially in Mr Smith’s favour.
None of the other listed considerations in section 9 applies. In particular, I note that I have no statement from Ms F to weigh up.
WEIGHING THE CONSIDERATIONS
I now turn to weighing the considerations. This has not been an easy task. There is much in Mr Smith’s background that elicits concern. He was badly neglected by his biological mother, he lost his father at a young age, and he appears to have grown up haphazardly without adequate guidance, affection, and supervision. He has shown himself to be capable of working effectively, particularly as a roofing contractor in a family business, and has volunteered in his community. There have been times in his life where there has not been criminal offending, even if, when viewed as a whole, Mr Smith’s criminal record is quite extensive. He has sufficient insight to appreciate that alcohol and drug misuse have not helped him but have, to the contrary, been harmful. I believe his own personal prospects for building a better life are more likely to be fulfilled in Australia than in New Zealand, where I have found that he would face the immediate prospect of not having accommodation or family to turn to for practical support. He would not have immediate work available to him in New Zealand either. The interests of his Aboriginal Australian children (particularly his minor children) do favour his retention in the Australian community so that, hopefully, over time, he might rebuild a relationship with them and support them financially. Dislocation within Australian Aboriginal families is a very concerning aspect of our society.
I appreciate also that the Direction indicates expressly that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years,[78] which is the case with Mr Smith. Moreover, I bear in mind paragraph 5.2(5) of the Direction, which is in the following terms:
With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
[78] Paragraph 8.3(4)(a)(i) of the Direction.
I do need to weigh carefully, however, Mr Smith’s family violence in relation to Ms F. The Direction plainly makes violence against domestic partners a matter of concern. The assault upon Ms F was of a most serious kind as the sentencing Court found. Ms F was pregnant at the time, and the offending took place in breach of a community corrections order. There was not only substantial physical violence inflicted upon Ms F, but a credible threat to her life was made. The physical assault only stopped when she managed to lock Mr Smith out of her unit.
Having spent five and a half months in jail, Mr Smith was then released on parole. When releasing Mr Smith into the community, the Court made its AVO in respect of Ms F final in his presence, and he knew full well that he was not to re-approach his victim. He did so within a very short period, namely after just six days, which is a very serious matter, even if the breach of the order was found to be at the lower end of the scale of seriousness for offences of that type. I have found that Mr Smith remains a substantial risk to the community (to Ms F or to any other future domestic partner he might have). That is a very serious matter for me to weigh. His violence toward Ms F was quite extreme, and his flouting of the AVO that had been made final by the sentencing Court just six days earlier was egregious. It is clear the community-expectations consideration in this case counts substantially against Mr Smith remaining in Australia.
On balance, I believe the correct or preferable decision in this case does favour non-revocation of the cancellation decision notwithstanding the personal hardship to Mr Smith (who has spent the vast majority of his life here) and the disadvantage to his children, grandchild, and other extended family members. This has not been an easy decision to make. I accept that removal from Australia in this case will involve substantial dislocation for Mr Smith and the destruction of his ties with his family. I accept that it is these ties that often give a person’s life meaning and purpose. I acknowledge these facts, and I bear in mind, as Mr Nikjoo urged me to do, that I should face squarely what a decision to remove Mr Smith from Australia would mean for him and for his family members.[79]
[79] See Ex A14, [22]; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 268, [3] (Allsop CJ).
FORMAL DECISION
Having reached the conclusion that I have stated, I shall affirm the decision under review.
I certify that the preceding eighty-seven (87)

paragraphs are a true copy of the reasons

for the decision herein of Senior Member

Dr N A Manetta

[sgnd]

……………………………..
Associate
Dated: 3 November 2023

Date of hearing: 16 & 17 October 2023

Advocate for the Applicant: Fardin Nikjoo,
Nikjoo Lawyers Sydney

Advocate for the Respondent: Tom Goodwin,
Australian Government Solicitor