Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 2110

Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2110 (13 April 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0518
Re:Kenneth Robert Smith
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar
Date:13 April 2021
Place:Adelaide

The decision under review is affirmed.
.........................[SGND].........................................
Senior Member K Millar
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) of Migration Act 1958 – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – Direction No. 79 – primary considerations – nature and seriousness of conduct – cumulative effect of reoffending - risk to Australian community – best interests of minor children – expectations of Australian community – other considerations – strength, nature and duration of ties - extent of impediments if removed - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member K Millar
INTRODUCTION

Mr Smith is a citizen of the United Kingdom. He came to Australia on 29 June 1984 when he was 18 years old. On travelling out of Australia in 1993, he was granted a Class BF Transitional (Permanent) visa.
Mr Smith commenced offending in November 1984, and has an extensive criminal history, with over 150 offences. On 7 January 1997 he was convicted of assault occasioning bodily harm and assaulting a public officer and sentenced to imprisonment for 12 months. He has been imprisoned since on several occasions, including for offences involving the assault of others and of police officers. Most recently, he was convicted of a series of offences involving possession of drugs, the dangerous operation of a vehicle, public nuisance, and assault of and obstructing police officers. He was sentenced to a series of concurrent terms of imprisonment, with the longest term of 6 months.
As a result of this imprisonment, his visa was cancelled under s.501(3A) of the Migration Act 1958 (the Act). Mr Smith sought revocation of the cancellation of his visa under s.501CA(4) and on 25 January 2021, a delegate of the Minister found that Mr Smith did not pass the character test and was not satisfied there was another reason the cancellation should be revoked. As a result, his visa remained cancelled. Mr Smith has applied to the Tribunal for a review of the decision not to revoke the cancellation of his visa.
BACKGROUND
Mr Smith was born in Manchester in 1966 and is now 55 years of age. He has two brothers in the United Kingdom and two sisters in Australia. He has one sister who is deceased. His father died in 2006 and his mother, who is now 92 years old, lives in Australia and is currently in residential aged care.
On arriving in Australia Mr Smith has done a variety of work, generally in the construction industry, starting off working for a builder doing renovations and progressing to a surveying assistant in the Northern Territory. He returned to the United Kingdom in 1987–1988 to visit family and worked in a building company as part of a working holiday. He returned to Australia and continued to work as a surveying assistant, including a period as an engineering surveyor in Adelaide. He has lived in the Northern Territory, South Australia, Western Australia and Queensland, and has been in work in this time in the building industry.
In 1993–1994 he returned with his ex-wife to the United Kingdom. They married in 1993 and returned to Australia when she was pregnant. His daughter was born in 1994.
Mr Smith said he separated from his ex-wife in 1999 or 2000, and the breakdown of his marriage led to problems with alcohol and depression. Mr Smith moved to a small town in Queensland to look after his mother in 2013. Mr Smith purchased a house and renovated it to suit his mother’s needs and they lived there for approximately 7 years. In June 2020, his mother moved into residential care.
OFFENDING HISTORY
Mr Smith has been convicted of over 150 offences ranging from driving offences, disorderly conduct, property offences, stealing, drug offences, assault, assaulting or obstructing police and assault occasioning actual bodily harm.[1] The offences have occurred in the Northern Territory, South Australia, Western Australia and Queensland. The current National Criminal History Check records an outstanding warrant in Western Australia.[2]
[1] G2, pages 25–33.
[2] G2, page 27.
The most consistent theme is assaulting or obstructing police or public officers and offences that relate to the use of a motor vehicle. The most serious offences are offences involving assault and assault occasioning bodily harm. He has several public disorder offences, convictions for use or possession of drugs as well as convictions for property offences. He has a number of convictions for breaching orders, including domestic violence orders and bail.
In his application to revoke the cancellation of his visa, Mr Smith explains his offending as follows:
Almost all my offending before 2015 has had alcohol as prime for my irrational and somewhat violent behaviour. After the breakdown of my marriage in 1996 I really struggled to live my life without alcohol to numb the depression, self worth issues linked to poor self esteem and the sense of being a failure. I believe I was born to the predisposition to alcohol. Alcoholism is a disease and I have it.[3]
[3] G2, page 86.
(i)Assault
Mr Smith was first convicted of assault and assault occasioning actual bodily harm in 1991 and sentenced to 6 months imprisonment. The sentencing remarks are not before the Tribunal for this offence.
Mr Smith was convicted in January 1997 of assault occasioning actual bodily harm (victim over 60 years old), common assault and assaulting a public officer and was sentenced to imprisonment for 12 months for the assault occasioning bodily harm and assaulting a public officer, and 6 months for common assault.
These charges occurred as a result of an attack on a man unknown to Mr Smith at a train station. The statement of material facts[4] record that at the time Mr Smith was intoxicated and had previously climbed down onto the railway tracks. He sat next to the victim saying things like “you c… shouldn’t even be here” and accusing them of stealing the country from Aboriginal people. He stood over the victim and kicked him causing the book he was reading to strike him. The victim stood and Mr Smith overpowered him and forced his head down on a steel bench; the victim pushed him away causing Mr Smith to fall to the ground. Mr Smith attacked the victim again wrestling him to the ground and holding his head to the concrete, causing the victim to sustain cuts and grazes. The victim got away and was sitting on the bench when Mr Smith again approached and punched him on the back of the head, and then punched him again to the head. He placed his hand on the victim’s face/throat area and started forcing his weight down and backwards over the steel bench. Transit guards arrived and took Mr Smith into custody.
[4] Exhibit SM, SM 8, page 1623.
Mr Smith agrees that the person he assaulted was not doing anything other than waiting for the train, and that he had thought the man was bothering a young woman sitting beside him. He disputes that the person was trying to get away and says when he returned to apologise the man lunged at him. He accepts he got the wrong end of the stick and assumed something that was incorrect. He said he pleaded guilty to the offence and wrote a letter to the victim while he was in prison. Mr Smith also said his memory of the event was “sketchy at best” and he accepted this was a bad example of his character.
In sentencing him for the assault charge and trespass onto the railway lines, Magistrate Woods stated it was a very serious assault because the victim was doing absolutely nothing except trying to catch a train. It was regarded as aggravated due to the victim’s age and because he was trying to get away.[5] Mr Smith was sentenced to imprisonment for 6 months and one day and fined.
[5] G2, page 48.
The Tribunal also has before it the sentencing remarks of Magistrate Young in the Magistrates’ Court of Western Australia on 8 August 2011 for assault and damage to property, for which Mr Smith was sentenced to imprisonment for one month.[6] The offence occurred after a taxi driver took Mr Smith to a property, and then was to take him to East Perth lock up. After leaving the property, the driver asked Mr Smith for money up front to go to East Perth. An altercation occurred and Mr Smith got out of the taxi. The taxi driver went back to the property to ask for money. Mr Smith followed him back to the house and assaulted him. He then damaged the taxi. Magistrate Young accepts the assault was at the lower end of the scale but was aggravated by the damage to the taxi. Mr Smith’s lack of respect for the judicial system was illustrated during the hearing in which he said he had no remorse and repeatedly interrupted the Magistrate stating he did not give a “flying fuck” about contempt of court, and that it could be added to his sentence.
[6] G2, page 41 – 45.
Mr Smith does not accept he assaulted the taxi driver, and said he gave him a gentle push towards the door to get him out of the house. He says the driver picked up a chair and had armed himself with the chair, and he took the chair off him and pushed him in the direction of the door. He said there was maybe only three times in his criminal history he pleaded not guilty. He still believes he is not guilty and that it was “blown out of proportion”.
Mr Smith was charged with assault and other offences following an altercation at a hotel in Biggenden. He was also charged with serious assault of police on this occasion, which is addressed below. The police court brief[7] states he was banned from a hotel in Biggenden. The publican was sitting at a table near a window of this hotel. Mr Smith approached the publican and appeared intoxicated and an exchange was had in which the publican told him to go away. Mr Smith left and then returned with cans of Wild Turkey and started to argue with the publican through the window, swearing and calling him names. The publican stated he went to shut the window and Mr Smith hit the window causing the glass to crack. The publican states he swung at Mr Smith through the window and Mr Smith reached through the window and threw the publican’s dinner across the floor and attempted to engage in a fight. It is stated Mr Smith went to the entrance and tried to enter. The victim stood at the doorway between Mr Smith and the publican and told him to leave. Mr Smith is stated to have called her a fat slut and pushed her in the chest, forcing her backwards while attempting to get to the publican. He then left. Police attended and observed the publican was visibly shaken, the window was cracked, and a steak and other food was strewn across the carpet inside the hotel. Other witnesses confirmed the version of events of the victim and the publican.
[7] Exhibit SM, SM 7, page 1553.
Mr Smith was convicted in the Magistrates’ Court of assault, wilful damage and committing a public nuisance at a licensed premise. He was sentenced to imprisonment for 127 days.
Mr Smith states[8] he went past the hotel and said hello to the publican and received a frosty reply. On his return he said he asked the publican if he was still banned and he said he would ask the bar manager. Mr Smith said he reached in the window and pinched a chip from a plate, and the publican stood and punched him through the window. Mr Smith returned the punch, but the publican had closed the window and he cracked the glass of the window with his punch. On going to the doorway, the publican’s wife was between them. He states the publican had a baseball bat in his hand and was determined to hit him with it. Mr Smith said he saw the publican’s wife was determined and would not remove herself, so he backed off and left. He said after he left the publican hit him with a pool cue to the head. Mr Smith said he took the pool cue from him and threw it at him, and the publican retreated to the hotel.
[8] G2, pages 122–123.
As Mr Smith was convicted of assaulting the publican’s wife, wilful damage and of public nuisance at a licensed premises, the Tribunal finds this is what occurred as recorded in the police facts.
(ii)Assault/obstruct police or public officer
Mr Smith has been convicted on approximately 20 occasions of assaulting a police or public officer or obstructing a police officer. This has included kicking a police dog, spitting at police, and elbowing a police officer in the chest. He has been sentenced to terms of imprisonment for this offence on a number of occasions, with the terms ranging from a matter of days to 18 months.
Of the charges of assaulting police, there are two incidents that resulted in charges of serious assault against police.
In sentencing Mr Smith on 12 August 2015 for one count of aggravated assault involving spitting in a police officer’s eye and for one count of assaulting a police office in the course of his duty, Justice Flanagan of the Supreme Court of Queensland (sitting in the District Court)[9] found Mr Smith had been drinking and attempted to go to a hotel where he was banned. He was a nuisance at the hotel, getting into an altercation with the manager and then the publican’s wife which led to offences which were the subject of a hearing in the Magistrates’ Court. The police attended his house. Justice Flanagan states he viewed the video taken when police attended the house, and the police were to be commended on their restraint and politeness.
[9] G2, pages 34 - 40
Mr Smith allowed police to enter the house but became agitated when told a police officer was going to issue a notice in relation to the altercation at the hotel. Mr Smith pulled a knife for a brief time and was restrained and ultimately tasered. Even though he had been tasered and restrained Mr Smith spat into an eye of one of the police officers.
Justice Flanagan stated that as Mr Smith was 49 years of age there is no discount on the basis that he was youthful and may rehabilitate himself. Justice Flanagan notes Mr Smith has a good employment history. He describes Mr Smith as having an extensive criminal history, and numerous offences in relation to assaulting police officers and interfering with a police officer in the execution of their duties. Because of his extensive criminal history and the seriousness of the offences, he was sentenced to 18 months imprisonment for the assault involving spitting and 9 months’ imprisonment (concurrent) for assaulting the police officer.
Mr Smith said he does not recall anything after he was tasered but was told by a neighbour he was spear-tackled and his head was hit into the police car. He made a point that he was in his own home at the time, as was one of the other incidents of assaulting a police officer. He said the knife was a letter opener. On first being asked why he was holding a letter opener, he said “why were they holding a taser,” and then said he may have just had it to hand as he might have been opening letters.
In relation to the assault of police in 2008, Mr Smith said a girlfriend had visited and they argued so he was not in a good mood and was intoxicated, however the argument had passed and he was eating his evening meal. Police attended and tried to enter his house which he took objection to and he pushed them back outside the door. He was then handcuffed. Mr Smith said he kicked the police dog as he was already restrained and was defending himself against the dog who was barking and lunging towards him. He states the dog handler then punched him in the face twice. He said the police had been called to a minor disturbance, so he did not see why the dog squad was there. He said he was put in the back of a police vehicle and one of the officers kept asking him to blow into a breathalyser which he declined. She kept asking him and he spat on her in frustration. He said he regretted it and knew he was in serious trouble and apologised the next day to police when he was calm.
On 31 July 2008 Mr Smith was convicted of two counts of serious assault of a police officer and sentenced to a term of imprisonment for 6 months.
At hearing, in response to his record of assault and obstructing police, Mr Smith said:
I’ve never been a person to be pushed around …I’ve always been a stand up guy don’t like being pushed around. Sometimes the police treat me the wrong way and I just wouldn’t accept it and I’d push back hence police assaults and making bad decisions because affected by alcohol.
(iii)Domestic violence orders and offences
Mr Smith has been the subject of an order made on 24 November 2014 requiring him to be of good behaviour towards his mother and not commit domestic violence against her.[10] This order expired 23 November 2016.
[10] Exhibit SM, SM 7, page 1518.
The police report[11] states they were contacted through triple zero on 18 November 2014 because his mother was calling for help and a disturbance could be heard at the property. On arrival, police were told his mother had sheltered at a nearby house, and Mr Smith had tried to get in. His mother, who was 85 years old at the time, had blood on her face and was taken to hospital. Mr Smith told police they had an argument about the death of his sister in 2003 with Mr Smith alleging his sister died because his mother was having an affair. Police were shown his mother’s bedroom which had items thrown on the floor and a large broken mirror. Police observed blood on some of the items and on a door in the room. Mr Smith admitted he had damaged the property and got physical with his mother. The police report records while being transported he continued to make threats against his mother and states she deserved it. It is recorded he made multiple threats to assault the transporting office once he was released. Police spoke to the doctor treating his mother who said her nose was probably broken, but this would not be known until she had X-rays.
[11] Exhibit SM, SM 7, pages 1513–1515.
Police stated they spoke to his mother who said she did not want to make a complaint, as she said it was out of character for Mr Smith and he only behaved like he did because he had been drinking. She said she had no concerns for her safety or of Mr Smith returning to the property. She did not wish to proceed with charges.
Mr Smith said he would rather not talk about the circumstances resulting in the order. He said he was not physical with his mother and denied involvement in anything resulting in blood on her face but did acknowledge some damage to property. He denied showing police officers the bedroom, admitting to physical contact with his mother, or stating in the police car to police that she deserved it. He acknowledged he threatened the officer transporting him.
Mr Smith has been the subject of a protection order protecting his previous partner from having any contact with or approaching the aggrieved or her premises or where she works.

Mr Smith has approximately five convictions for breaching domestic violence orders.
He has been the subject of a protection order in 2001 and was convicted of a breach of this order in December 2001 following an incident at a motel where it was stated that, while intoxicated, Mr Smith grabbed the aggrieved by the throat and hair and pushed her against the door.[12]
[12] G2, pages 54.
Police attended the residence of his previous partner in January 2002 and found damage and blood, however the aggrieved did not assist police beyond providing a statement.
In relation to the breach in January 2002, Mr Smith states he, the aggrieved and her three children had travelled by train from Cairns to Brisbane and this was a long and stressful trip with three children aged 7 to 13 years. He wanted time out and had been drinking in a local hotel and had returned to tell the aggrieved he had booked a room in another hotel. He denies grabbing her by the throat and pinning her to the wall, but states he pushed her out of the way as he went through.
On 16 December 2003, his previous partner attended the police station and supplied a statement about Mr Smith assaulting her and the children.[13]
[13] SM7, pages 1491 – 1492.
In response to the breaches in 2004, Mr Smith states he did call the aggrieved to tell her he was collecting his property; as no-one was home he waited, but police arrived first. Mr Smith states: “I was disappointed at the police being involved, as on earlier occasions. She “cried wolf” to the authorities. [Aggrieved] is in my opinion a materialistic person.” He states on other occasions she had travelled to see him and “played the law to her advantage when it suited her”. He was convicted of two breaches of the protection order on 10 November 2004.
In April 2005 the police were called to a property where the aggrieved was locked out and distressed. She stated Mr Smith had assaulted her with a diary causing minor abrasions to her chest. Mr Smith said he did lock her out but does not recall striking her with a diary. He locked her out as he considered she had reneged on the 50/50 split in expenses and as she did not have her name on the lease and she “really had no right to enter”.
Mr Smith was the subject of a further protection order dated 3 August 2008 following reports by a different complainant that he continued to go to her address and refused to leave when asked. The aggrieved said she had been hit by Mr Smith but did not want to make a complaint due to her excessive drug and alcohol use.
A protection order dated 3 August 2020 was provided to Mr Smith for comment by the delegate. In response to this order,[14] he states he met the protected person a few weeks before the order was made, and as a result of her behaviour police were called and he was evicted from the boarding house where he was living, and he went to stay at her house. He states he tried to help her get her act together by cleaning and tidying her home, but it was “apparent she was unable to go through daily life without alcohol. She was on a different level of alcoholism to me.” He said he came home one day and his belongings were outside. He states “eventually the whole thing fell apart and police were involved. I never physically hurt her or threatened her.”
[14] G2, pages 114–115.
(iv)Drug offences
Mr Smith was first convicted of possessing cannabis and possessing a controlled substance in 1992. He has other drug or drug related convictions in 1999, 2000, 2004, 2008, 2013, 2019 and 2020. He has been sentenced to fines and periods of imprisonment.
(v)Public disorder offences
Mr Smith has many convictions for offences such as fighting in a public place, being disorderly, disorderly language or conduct, creating a disturbance, being drunk in a public place and public nuisance. He has convictions for possession of a knife in a public place, carrying an offensive weapon and carrying an article of disguise. He has been convicted of failing to pay a taxi fare.
(vi)Property offences
Mr Smith has been convicted of stealing in 1992 and 2002. He has convictions for wilful damage or damage to property in 1997, 2008, 2011 and 2015.
(vii)Motor vehicle offences
Mr Smith has many convictions for driving without a licence or while his licence was suspended. He acknowledged this was against the law, but the seriousness depended on “whether you had a license to start with” or did not have the ability to drive. He did not consider driving without a licence a serious offence. At one stage of the hearing, he said that he drove more carefully because he did not have a licence.
He has several convictions for driving with excess blood alcohol or refusing a breath test. Mr Smith said that driving with excess blood alcohol is serious and he does not agree to driving while intoxicated. He said there is no evidence his driving has ever been a hazard and there are different levels of people who can handle alcohol.
Mr Smith’s confidence in his driving ability is undermined by convictions for reckless driving, dangerous driving, failing to stop after an accident, failing to report an accident, speeding, changing lanes when unsafe, and careless driving.
Police reports of some of these incidents include apprehending Mr Smith after his vehicle was swaying side to side on 20 November 2013, and he was recorded as having a blood alcohol level of 0.116. In 2012 a member of the public called police reporting an intoxicated person driving a car. His blood alcohol level was 0.134.[15]
[15] Exhibit SM, SM 7, page 1538.
Mr Smith said the dangerous driving, except the first time, was for refusing to stop “because I didn’t want to get pinched for driving without a licence yet again”.
Mr Smith’s driving offences culminated in a conviction for dangerous operation of a vehicle in 2020.
On being asked about the numerous convictions for driving unlicensed or while his licence was under suspension, Mr Smith said it was more important for him to earn a living and this outweighed whether it was against the law. He said in his mind it was OK to drive because he had to earn a living.
(viii)Failing to comply or breaching orders
Mr Smith has many convictions for failing to give his name or address or giving a false name, estreatment/breach of bail and failing to appear in breach of an undertaking. There is an outstanding warrant in Western Australia for failing to appear in relation to three counts of assaulting a public officer and one of disorderly behaviour in a police station.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a substantial criminal record, and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[16]
[16] Section 501CA(4) Migration Act1958.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[17]
[17] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 79, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
The matters to be decided in this case are whether the Applicant does not pass the character test; and if he does not, whether there is another reason the decision to cancel the visa should be revoked.
The effect of a previous decision not to cancel Mr Smith’s visa
A delegate of the Minister has previously considered cancellation of Mr Smith’s visa on character grounds under s 501 of the Act. In a letter dated 20 June 2013,[18] Mr Smith was advised the delegate made a decision not to cancel his visa on character grounds, and he was issued with a formal warning that visa cancellation may be reconsidered if he commits further offences or otherwise breaches the character test in future. He was warned that disregard of the warning will weigh heavily against him if his case is reconsidered.
[18] G2, page 65.
The High Court of Australia handed down its decision in Minister for Immigration and Border Protection v Makasa[19] (Makasa) on 3 February 2021. In this decision, the High Court of Australia held that a decision of a delegate or the Administrative Appeals Tribunal not to cancel a visa made in the exercise of a power conferred by s 501(2) of the Act on the basis of a reasonable suspicion that the visa holder does not pass the character test is final, subject to the ministerial override power in s 501A. The High Court of Australia states:
The Minister or a delegate can re-exercise the power conferred by s 501(2) to cancel the visa if subsequent events or further information provide a different factual basis for the Minister or a delegate to form a reasonable suspicion that a visa holder does not pass the character test at the first stage of the requisite two-stage decision-making process. But neither the Minister nor the delegate can rely on subsequent events or further information simple to re-exercise the discretion to cancel the visa at the second stage of the decision-making process.
[19] [2021] HCA 1 at [57].
This decision brings into question whether, where a delegate of the Minister held a reasonable suspicion that Mr Smith failed to meet the character test in 2013, there needs to be a subsequent event or further information for him to again fail to meet the character test.
The High Court of Australia in Makasa addresses a different provision than that under consideration in this case. Makasa examines s 501(2) of the Act which states:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
This involves a two-stage decision process. The first stage is the decision-maker forming a reasonable suspicion the person does not pass the character test, and the second stage is a decision-maker reasonably, and in compliance with any reasonable directions given under s 499 of the Act, making a decision to cancel or not cancel the visa.[20]
[20]Makasa at [40]
Mr Smith’s visa was cancelled under s 501(3A) of the Act which states:
The Minister may cancel a visa that has been granted to a person if:
(a) the Minister is satisfied the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph 7(a)(b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
At the time Mr Smith was issued with the warning, s 501(3A) of the Act had not yet been enacted as this provision was inserted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 which commenced on 11 December 2014.
In Ketjan v Assistant Minister for Immigration and Border Protection,[21] decided before the High Court decision in Makasa, the Full Court of the Federal Court held the term of imprisonment of 12 months or more does not need to have occurred since this provision commenced, nor is it required that the sentence of imprisonment that the person is serving when his or her visa was cancelled is the same sentence that gave rise to the non-citizen having a substantial criminal record.
The Tribunal considers itself bound by Ketjan as this addresses the specific section under consideration in this case, which is different to the provision considered in Makasa. While it uses the same definition of failing to meet the character test in s 501(6), and whether a person has a substantial criminal record in s 501(7), s 501(3A) applies a different test to that in to s 501(2) because it has two elements; the person must both fail the character test and be imprisoned. The cancellation of the visa then occurs by operation of law. It addresses a specific set of circumstances and as such applies despite a general power in s 501(2).
In any event, it is unnecessary to decide this issue on the facts of this case as Mr Smith was sentenced to another period of imprisonment for 18 months on 12 August 2015, after the date of the warning. While it does not appear on his National Criminal History Check, the sentencing remarks of Justice Flanagan,[22] and the verdict and record of judgment signed by the Registrar of the Maryborough District Court[23] record a sentence of imprisonment for 18 months against Mr Smith for a serious assault of a police officer by spitting. Mr Smith acknowledged this is his conviction. It follows there is an event subsequent to the warning issued in 2013 that results in him again failing to meet the character test.
[22] G2, pages 37–40.
[23] G6, page 228.
DOES THE APPLICANT PASS THE CHARACTER TEST?
A person does not pass the character test if he or she has a “substantial criminal record”.[24] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[24] Section 501(6)(a) the Act.
Mr Smith has been sentenced to a term of imprisonment of 12 months or more on 7 January 1997 and again on 12 August 2015. He was most recently sentenced to four concurrent terms of imprisonment, with the longest term being 6 months for the offences of dangerous operation of a vehicle, driving without a licence, public nuisance, failure to provide a breath test, assault police, obstruct police, possessing dangerous drugs and possessing utensils or pipes that had been used.[25] His visa was cancelled when he was serving a full-time sentence of imprisonment for these offences.
[25] G2, page 100.
Mr Smith concedes he does not meet the character test.
As Mr Smith has been sentenced to a term of imprisonment exceeding 12 months, he does not pass the character test.
The remaining question is whether there is another reason the decision to cancel the visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether there is another reason to revoke the cancellation of Mr Smith’s visa, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in Paragraph 6.3, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[26]
[26] Paragraph 7(1)(b) of the Direction
Principles that inform the decision-maker
Paragraph 6.3 of the Direction sets out a number of principles that inform the decision-maker. They are:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
While these are principles that guide decision-making rather than requirements, matters that apply particularly to Mr Smith are that:
·     He has been convicted of a large number of offences including assault and driving offences which can place members of the community at risk. He has failed to respect Australia’s law enforcement framework, as shown by multiple convictions for assault/obstructing police or public officers. It is also shown by his comments to Magistrate Young in the transcript of his sentencing.
·     Mr Smith has been convicted of assaulting a person over 60 years of age, and has had protection orders made protecting his previous domestic partners and his mother.
·     Mr Smith has been in Australia for 36 years and arrived when he was 18 years old. The length of time he has been in Australia and his age on arrival means that he will be afforded a higher level of tolerance.
·     Mr Smith has been acknowledged to have a good work history and has provided care for his mother. These are considerations in the context of determining whether his visa should be cancelled.
The Primary and Other Considerations
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.

Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations being:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in Paragraph 14(1) of the Direction, these considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection[27] Colvin J, in applying the identical condition to Paragraph 8(3) from Direction No. 65 stated that while generally Primary Considerations should be given greater weight, the Direction:
requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[28]
[27] [2018] FCA 594.
[28] Ibid at [23].
An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the Primary Considerations may outweigh the Other Considerations in accordance with Paragraph 8(3), Other Considerations can outweigh the Primary Considerations in the particular circumstances of the case.

THE PRIMARY CONSIDERATIONS

Protection of the Australian community

Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and the 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 conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. In working through each of these factors:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously
Mr Smith has been convicted of violent offences of assault occasioning harm (1991), assault and assault occasioning actual bodily harm (1997, 2004), assaulting a person of or over 60 years of age (2011) and assault (2011, 2015). He has been convicted of assaulting police on many occasions. As these are offences involving violence they are viewed very seriously.
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed
Mr Smith has breached domestic violence orders. While he states these have not resulted from being charged with assault, the basis of the orders being made are that allegations were made that he was violent or intimidatory towards previous partners and towards his mother.
Mr Smith states that the orders have lapsed and there have been no domestic violence entries on his record for many years, which is supported by the information before the Tribunal. The order to protect his mother expired in November 2016.
It is not apparent on the material before the Tribunal that Mr Smith has been convicted of assault against a domestic partner, however the breaches of domestic violence orders show he has behaved in a manner that has intimidated the subject of the order, and the Tribunal regards this as a crime of a violent nature against women.
c)The principle that 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, are serious
Mr Smith has many convictions for assaulting or obstructing police or public officers, and these are serious offences. He also committed assault causing bodily harm to a person over 60.
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes
Mr Smith has been subject to a range of sentences including fines, bonds, protection orders, and suspension of his driver’s licence. He has been imprisoned on a number of occasions, including for noncompliance with non-custodial sentences. The most significant terms of imprisonment result from charges of assault occasioning actual bodily harm and serious assault of police.
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
Starting from a relatively high point of assault occasioning actual bodily harm in 1991, there cannot be said to be a trend of increasing seriousness of this type of offence. Mr Smith has a consistent theme of assaulting police officers. The severity of this offence increased to the extent that he was sentenced to 18 months imprisonment, but the last occasion he was convicted of this offence it was less serious in nature. The Tribunal does not consider there is a trend of increasing seriousness in Mr Smith’s offending.
Mr Smith points to a period of lesser offending in the period 2015–2020. The frequency of Mr Smith’s offending, while lesser in the period 2015–2020, remains significant.
f)The cumulative effect of repeated offending
Mr Smith has committed a very large number of offences. He argues that his offending is less serious in the period 2015 to 2020. However, in this time he was convicted of contravening a requirement (2016), as well as producing dangerous drugs and possessing dangerous drugs (2019).
The Tribunal is not satisfied that any decrease in the frequency of his offending between 2015 and 2020 reduces the cumulative effect of the overall number of offences, which exceeds 150 offences.
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending
There is no information before the Tribunal to show Mr Smith has provided false or misleading information to the Department or has failed to disclose his criminal offending.
h)Whether the non-citizen has re-offended since being formally warned, or otherwise since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migrations status (noting that the absence of a formal warning should not be considered to be in the non-citizen’s favour)
Mr Smith was issued with a written warning in June 2013. This followed the consideration of cancelling his visa on character grounds and a decision not to cancel his visa. The warning, which he signed, states:
I, Kenneth Robert SMITH acknowledge I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can again be reconsidered.
Mr Smith adds below his signature “Thankyou for deciding to let me stay in Australia”.
Mr Smith states he took this warning very seriously and made a sincere effort to get his alcohol consumption under control. He bought a home and renovated it while taking responsibility for his mother. He says he has only had two episodes since this warning, and after the episode in 2014 stopped drinking spirits. He puts the offending in 2020 down to prescription medication, ongoing isolation due to COVID-19, alcohol and depression.
Since the warning was issued, Mr Smith has been convicted of being drunk in a public place, possessing dangerous drugs (on three occasions), common assault, wilful damage, committing public nuisance on a licensed premises, contravening a direction or requirement, producing dangerous drugs, public nuisance, assault police, obstruct police, dangerous operation of a vehicle, possess utensils or pipes that had been used, and possessing dangerous drugs. This does not support his contention that he took this warning seriously.
i)Whether the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act
There is no information to show Mr Smith has committed offences since being in immigration detention.
Having considered all these matters, the Tribunal regards Mr Smith’s offending as very serious.
The risk to the Australian community
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It states:
(1) In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to the Australian community should Mr Smith continue to offend is severe. He has assaulted members of the public on several occasions and has repeatedly assaulted police officers. His most recent series of offences involved driving a car on the wrong side of the street near other people and resulted in three people calling 000. While he initially denied there were other people present, he later acknowledged there were people at the bakery. Had he hit anyone, lives could have been lost. Mr Smith has stated past convictions for dangerous driving and failing to stop resulted from his failing to stop because he did not want to be charged again for driving while unlicensed. He has been convicted of reckless or careless driving, exceeding the blood alcohol limit and failing to stop or report an accident on more than one occasion. This is not consistent with his claim in evidence that he drives more carefully than other people because he is unlicensed. He has continued to drive when he considers there to be a greater personal imperative than obeying the law, such as getting to work or objecting to his complaint not being taken seriously by police. He has been convicted on many occasions of refusing blood alcohol tests and driving under the influence.
There is a serious risk to members of the community should he drive a car and an even greater risk should he drive a car and attempt to evade police.
There is also a serious risk to members of the community if he were to again assault members of the community or police officers. There is a risk serious injury to others, in particular police officers, who are acting in the course of their duties.
Mr Smith has breached domestic violence orders. Should he do this again in the future, it would result in the serious costs involved to the person which encompasses but is not limited to physical, psychological and financial harm.
The Tribunal considers the nature of the harm to the community if he repeats his criminal or other serious conduct is severe.
In looking to the likelihood of Mr Smith engaging in further criminal or other serious conduct, it is notable that Mr Smith has not been deterred by fines, imprisonment or the effect on others of his actions.
He acknowledges he is an alcoholic and that alcohol has played a part in nearly all his offending. Mr Smith states he has made enquiries about entering rehabilitation, but without a release date states it is impossible to reserve a place in any facility that caters for his needs. He said he intends to go to rehabilitation for 6 to 12 months, and that this intention is a turning point for him.
Despite a longstanding problem with alcohol and the many offences resulting from his use of alcohol, including a warning about cancelling his visa and period of imprisonment, there is little information to show that Mr Smith has undertaken rehabilitation or counselling for the misuse of alcohol. He said he has attended AA meetings, but could not do this where he was living as it was a small country town some distance from the meetings, he had the care of his mother and did not have a driver’s licence. He states he reduced his alcohol consumption and ceased drinking spirits. This has not been successful, as shown by his most recent offending. He says, and the Tribunal accepts, that he has attended cognitive skills and drug and alcohol groups while in immigration detention. He has attended regular appointments with a mental health nurse and has been assessed by a psychiatrist while in immigration detention.
Mr Smith has been given the opportunity for rehabilitation in the past. The report from community corrections in November 2013 states he attended several sessions with a psychologist but stopped attending as he did not see he was gaining any benefit in attending.
In finding that he was not suitable for further community corrections orders, the Corrections Officer notes that Mr Smith was able to identify the links between his alcohol use, depression/anxiety and offending behaviour. The Corrections Officer records Mr Smith initially stated he was abstinent from alcohol but relapsed. He felt that a direction to remain under 0.05% blood alcohol concentration was harsh given he considered he could drink well above this and not show signs of intoxication. He was charged with being drunk in a public place during the course of the supervision order, as well as driving over the middle alcohol limit and at 0.116% BAC, and a decision was made to suspend his parole.
In a referral letter dated 20 August 2015 from the Probation and Parole Office, Mr Smith is described as having longstanding alcohol misuse issues, as minimising the severity of his violent behaviour and was considered at high risk of offending which is stated to be concerning as he lives with his elderly frail mother and he had behaved violently towards her.
As recently as 23 December 2020 he is recorded by the mental health nurse in immigration detention as stating he is ambivalent about ceasing alcohol altogether and believes he can control the drink in future.[29] It is noted that by 4 March 2021 Mr Smith was showing more insight into his alcohol dependency and a commitment to abstinence, as well as being aware he needs the support of AA.
[29] Exhibit A4.
The Tribunal finds that Mr Smith has a longstanding problem with alcohol that was a common feature of his past offending and is a significant factor in the likelihood of him reoffending. While he is recorded as having made progress in his awareness of the cost of his alcohol use, and has a developing commitment to abstinence and obtaining support, the Tribunal is not satisfied that a recent intention to enter rehabilitation, however genuinely held at this point in time, significantly reduces the likelihood of him committing further offences.
Mr Smith previously cared for his mother. She entered residential care in June 2020 which he says was one of the factors leading to his offending. He is now attempting to sell the house he was renovating and said that if he is released from immigration detention he can live with his nephew for any period before he enters rehabilitation which he estimated to be for 2 weeks. His nephew provided a statutory declaration,[30] but did not attend to give evidence. The statutory declaration refers to support provided by Mr Smith, including giving the nephew a place to live when he was at a crossroads and steering him back in the right direction. Mr Smith said his nephew was doing crazy things and he told him he could not drink in the mornings. He said his nephew has changed and now has a fiancée. He would like to start a business with his nephew after he has undertaken rehabilitation and provide building services to rural communities who may have difficulty accessing these services. His nephew has a driver’s licence.
[30] Exhibit A1.
It was put to Mr Smith that he was recorded to have told the mental health nurse in immigration detention that he was angry with his nephew who he believed had stolen some of his property, hadn’t written a letter he needed, and had sold his car to the wreckers for next to nothing.[31] Mr Smith responded that “who is to say it is the same nephew”.
[31] Exhibit A4.
At the next record of the mental health nurse, he is recorded as stating he finally has the reference from his nephew, and the Tribunal finds this is the statutory declaration provided and concludes he was talking about this particular nephew.
The Tribunal finds it likely that Mr Smith’s relationship with his nephew is not so supportive that it would act as a protective factor against him reoffending, other than as providing temporary accommodation.
Mr Smith has one sister who he does not currently have contact with, and one sister in South Australia who is supportive. He has nieces and nephews he said he sees every 2–3 years and the children of his nieces and nephews. He stated had hoped to see one of his nieces over Christmas and is concerned for her as she has had some of her children removed from her care, but the proposed visit did not happen.
Mr Smith said he did not want to call his family members to give evidence because he is here on his own, and he did not want them concerned that what they said led to him being deported. He said the way evidence is twisted, he did not want his family members to go through this.
Mr Smith is highly motivated to see his mother and to remain in Australia to support his mother. This acts to reduce the likelihood of him reoffending. His sister offers support from South Australia, and he has a nephew who appreciates the assistance Mr Smith provided to him in the past and is likely to provide some support. He has other relatives in Australia with whom he remains in contact but sees infrequently. The Tribunal finds Mr Smith has limited family support that would assist to reduce the likelihood of further criminal offending or other serious conduct.
Mr Smith’s response to the offending frequently diverts blame onto those who are the victims of his offending. Mr Smith objects to this characterisation of his state of mind and states:
I object strongly to this incorrect synopsis of my mind regarding my offending, inferring I fail to take responsibility for my actions and blame victims. I fully accept I am the bottom denominator in all but a few of my incidents on my Police record.

In his response to the decision of the delegate, Mr Smith states the assault of the taxi driver occurred because “he brought it on himself”. In sentencing, the transcripts record him as stating he does not feel any remorse. He confirmed at hearing he did not think he assaulted the taxi driver and did not feel any remorse.
In response to various assaults on police officers, he said he does not like to be pushed around, and there is no evidence that is about injuries he suffered such as fractures to his eye socket and ribs and he had been spear-tackled and his head hit against a police car. He emphasises the more serious assaults on police happened when they were in his home and implied that this is justification for his behaviour. He said the assault by elbowing a police officer in the chest was unintentional. He said events that led to his imprisonment in 2020 happened when he felt like he was out of his own body. He states the drug offences relate to his use of marijuana which was as a pain reliever for the problems he has with his knees.
He also points to various ways in which he was not at fault or where he considers the offences were viewed as minor and claims in relation to his breach of a domestic violence order:
I say the majority of the aggrieved statements are the fictious fabrication of a materialistic woman who had lied and stolen money from me over a number of years and I wanted my property also…. I did things I’m not proud of in these years, all I ask is you view this for what it really is, a relationship that takes 2 to tango.
At hearing, Mr Smith said the events that led to a protection order were “just a domestic dispute” and described his previous partner as a person who “cried wolf to the authorities”.[32]
[32] G2, page 109.
Mr Smith considers it justifiable to drive while unlicensed or under suspension if his need is to go to work and earn a living. He said he thought it was more important to earn a living, and this outweighed whether it was against the law. He told the Tribunal that he would not drive unlicensed or suspended again if he is released and this is shown by a 7-year period of not being convicted for driving while suspended, at least until the conviction in 2020. He said if he has not done something for 7 years it shows he moved on from it.
This ignores his most recent conviction for driving unlicensed in 2020 which led to the term of imprisonment and the cancellation of his visa. Given the many opportunities Mr Smith has had to change his behaviour and his failure to do so despite fines, disqualification, suspended sentences and terms of imprisonment imposed the Tribunal considers there is a real risk he would drive again while unlicensed if he considered there was a need to do so. The Tribunal considers the risk to the community is increased as Mr Smith has failed to stop because he was trying to avoid being charged with driving while unlicensed. Mr Smith said his licence is now suspended until around 2036.
Mr Smith states the circumstances that led to his most recent convictions are unlikely to occur again, as his mother went into aged care on 10 June 2020 and he was on his own for 2 months. He says he did not realise how burnt out he was from caring for his mother and was drinking a bit, but not a great deal with no more than a six pack of beers a few days of the week. He states there was hardly anyone around when he drove down the road the wrong way as it was 6 am and it was in a dead-end street.
While the Tribunal accepts that his mother moving to residential care after a long period of being in his care affected Mr Smith, and he was upset his complaint about the pharmacist was not being investigated, it does not consider his response to a stressor in turning to alcohol and driving in a dangerous way shows he is any less likely to respond this way to future stressors.
Mr Smith stated that the examination of his offending and his written responses to this record of offending “painted him in a bad light”. He did not acknowledge it was his criminal record itself that conveyed this impression, rather than the questions asked of him about this offending. This exhibits his failure to engage with the severity of his offending and the harm his offending has caused to members of the community. While he points to the times he has pleaded guilty and acknowledged the offences, he has also minimised the effect of his offending and seeks to explain his offending in a way that justifies his actions on other occasions.
The Tribunal finds there is a high likelihood of Mr Smith engaging in further criminal or other serious conduct.
Having individually and cumulatively considered the nature of the harm to individuals or the Australian community should Mr Smith engage in further criminal or other serious conduct and the likelihood of this occurring, the Tribunal finds the risk to the Australian community weighs heavily in favour of not revoking the cancellation of Mr Smith’s visa.
The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out matters to be considered when examining the best interests of the child.
On being asked if there were any children in Australia that would be affected by the decision, Mr Smith said “yes and no”. He said his sister Gillian’s daughter has five children and some of her children had been removed from his niece’s care. He said his niece was going to visit him over Christmas, but this did not happen. He said he has not met any of his niece’s children.
In his response to the cancellation of his visa, Mr Smith did not identify any minor children who would be affected by not revoking the cancellation of his visa.
There is no suggestion Mr Smith has a parental role for any children, and he has not met the children who may be affected by the decision in person. The nature of any relationship with these children is distant and of no duration. Given the risk of him reoffending, there is limited information to show he would play either a positive role or a parental role in the future. As he has not met the children, there would be little if no impact on them of any separation.
As a result, the Tribunal finds there is insufficient information to show it would be in the best interest of minor children in Australia to revoke the cancellation of Mr Smith’s visa, and this consideration does not weigh in favour of or against revoking the cancellation of his visa.
Expectations of the Australian community
Paragraph 13.3(1) of the Direction sets out the third of the Primary Considerations and provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The equivalent provision in relation to revoking the mandatory cancellation of a visa was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.[33] Justice Charlesworth clarifies this provision as meaning that “it is not for the decision maker to make his or her own assessment of the community expectations” and that this provision “concerns what the government has deemed the community’s expectation to be”.[34] Justice Stewart agrees that the effect of this provision is to deem what community expectations are, and that it is not for the decision-maker to decide what community expectations are.
[33] [2019] FCAFC 185.
[34]Ibid at [67] and [68]
The Tribunal has had regard to the Principles in Paragraph 6.3 in considering the weight to be given to this consideration.
The Tribunal acknowledges Mr Smith has been in Australia for approximately 36 years, and he arrived when he was 18 years old. His length of residence and youth on arrival means a greater tolerance can be extended to him. Mr Smith has been extended that tolerance when, having had the cancellation of his visa considered in 2013, a decision was made not to cancel his visa and to issue a formal warning at this time. Since then he has continued to offend.
Mr Smith’s offending commenced within a short period of 6 months from his arrival. He has made a positive contribution through being employed in Australia.
Mr Smith submits he made a positive contribution by caring for his mother. While the Tribunal has reservations about this care due to the allegations of assault against his mother, it finds that there is a contribution to the Australian community through his care of his mother. His mother states she will be affected by a decision to cancel his visa, and he also provided statements from one of his sisters and a nephew and he has some ties to Australia.
Mr Smith has an extensive criminal history over the period he has been in Australia. The nature of his crimes is serious and if repeated could result in serious harm to individuals and the community.
Overall, the expectations of the Australian community consideration weighs heavily in favour of not revoking the cancellation of his visa.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in Paragraph 14(1) of the Direction, include (but are not limited to):
·International non-refoulement obligations;
·Strength, nature and duration of ties;
·Impact on Australian business interests;
·Impact on victims; and
·Extent of impediments if removed.
International non-refoulement obligations
As Mr Smith is a citizen of the United Kingdom, and has not raised any non-refoulment obligations, this does not apply.
The strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
Mr Smith has been in Australia since 1984, however commenced offending within 6 months of arrival and less weight is given to this factor as a result. He has contributed to the community through employment and the care of his mother which attracts more weight to this consideration. Paragraph 14.2(1) must weigh in his favour,[35] however the Tribunal gives minimal weight to this factor.
[35] Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.
Mr Smith states he has had close contact with his mother throughout his life and has lived with her for the last decade as her carer. He states his mother was in his full-time care from 2015–2020. He says all his spare time and money was put into renovating the home so that it was suitable for her needs.
Mr Smith’s mother provided a written statement and a copy of her Australian citizenship certificate. In it she states Mr Smith’s behaviour in going to the police with a knife was wrong, but that he had also spoken of the brutality of the police towards him while handcuffed. His mother states Mr Smith is a man Australia needs, but without the drink. She says sending him back to England would break her heart. She says he was her carer for 7 years and deserves a last chance. Mr Smith’s mother is elderly, and her care needs mean she is now in residential care. Mr Smith states she was admitted to hospital in January and February 2021. The Tribunal infers she may not have long to live. This adds weight to the effect on both her and Mr Smith if the cancellation of his visa is not revoked. The Tribunal finds Mr Smith has a strong and long-lasting tie to his mother, and that she would be significantly affected if the cancellation of his visa is not revoked.
Mr Smith has an adult daughter who lives in Australia, but he has not been in contact with his daughter for a significant period.
Mr Smith provided a statutory declaration from his sister dated 22 December 2020, together with a copy of her passport for the United Kingdom. It is not clear if his sister is a permanent resident of Australia, however the Tribunal assumes for the purposes of this decision that she has a right to remain in Australia indefinitely. His sister declares that he has put all his money into a rundown house in a quiet town for the sake of their mother’s wellbeing and renovated the property with an ensuite bathroom, handrails, wheelchair ramps and other safety features to care for their mother. His sister states Mr Smith made sure she was well looked after including cooked nutritional meals, exercise and social interaction in a safe and secure location. She states his possible deportation is having an adverse effect on her mother. In addition, the Tribunal finds it would have some effect on his sister.
Mr Smith’s nephew declares Mr Smith has been a “big support”. He states Mr Smith gave him a place to live and steered him in the right direction. His nephew seemed unaware at the date of his declaration in February 2021 that Mr Smith is no longer the primary carer for his grandmother. His nephew states if Mr Smith stays in Australia, Mr Smith can live with him to help him get back on his feet. It is of note that Mr Smith has also accused his nephew of stealing his property after he went to prison and had repeatedly sought a statutory declaration from his nephew before it was forthcoming. The Tribunal finds that there will be some effect on his nephew if the cancellation of Mr Smith’s visa is not revoked, and he would lose Mr Smith as a source of support.
Mr Smith provided a statutory declaration from a neighbour who says she always found him polite and courteous, including when she was recovering from serious injuries sustained in a motor vehicle accident. She states he made improvements to the home and performed landscaping. The Tribunal finds his relationship with the neighbour is not a strong tie Mr Smith has to Australia and there will not be a significant effect on the neighbour if the cancellation of Mr Smith’s visa is not revoked.
A statutory declaration from a previous neighbour to his parents states Mr Smith helped them with their bore on several occasions. On travelling to visit Mr Smith’s mother while she was living with Mr Smith, the author states she is aware of his knee problems and states this can affect behaviour at stressful times and cause self-medication with alcohol, which should be taken into account in Mr Smith’s interaction with authorities. The author states Mr Smith’s detention has distressed his mother dreadfully and she had asked the author to write on his behalf. The author is concerned about the effect the deportation of Mr Smith would have on his mother. While the Tribunal finds that not revoking the cancellation of Mr Smith’s visa will have little effect on the author, it supports the distress it would cause his mother.
Mr Smith said he is not currently in contact with another sister who lives in Australia but has occasional contact with this sister’s children. He said he sees a niece in Perth and keeps in touch with another niece who lives in Albury-Wodonga. He sees them every 2–3 years, and the distance means they make do with phone calls and video calls. He is concerned about one of his nieces who has had children removed from her care. The Tribunal finds that while he has little contact with his extended family, and the nature of these ties is not strong there will be an effect on them if he is required to leave.
Overall, this factor weighs in favour of revoking the cancellation of his visa.
Impact on Australian business interests
It is not suggested that cancelling Mr Smith’s visa will have an effect on Australian business interests.
Impact on victims
There is no information before the Tribunal about the impact on the victims of Mr Smith’s offending.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Smith states if he is removed from Australia, he will have to start again in the United Kingdom at 55 years of age. He says the United Kingdom will be a foreign country to him and has worrying levels of COVID-19.
Mr Smith has two brothers who live in England. Mr Smith says one brother does not have a desirable environment as he uses alcohol and other things, and that he has not been in contact with his other brother for some time but would like to re-establish contact with him.
Mr Smith was referred to records of mental health consultations in immigration detention which record him as saying he has a brother in the United Kingdom he could stay with if he returns, and telling the psychiatrist he wants to go back to the United Kingdom and see his brother. Mr Smith acknowledged he had said he wants to go back but thinks he should retain the option to live in the United Kingdom or in Australia. He said he will enter rehabilitation if he returns to the United Kingdom. He said he has not seen his brother since the early 1990s and has wanted to see him for some time, but that does not mean he wants to live in the United Kingdom.
Mr Smith said he is selling his house but is losing money on it while he is in immigration detention, and he owes $20,000 so would be lucky to get $180,000. He said if he remains in Australia he can access “family money” but declined to answer any other questions on this money or why he would be unable to access it if he returned to the United Kingdom. He says he has always worked and has some resources, so would not need to rely on Centrelink if he went to rehabilitation. The Tribunal finds he can also use these financial resources to re-establish himself in the United Kingdom.
Mr Smith was concerned about his ability to earn a living in the United Kingdom as he says the building industry operates much differently in the United Kingdom and it is dog eat dog to try and get a job. He has worked consistently in Australia and has some skills he could use. For example, he referred to basic building work such as concreting and replacing floor coverings if he remained in Australia, and he has some transferrable skills. The Tribunal acknowledges he has problems with his knees and is 55 years of age, and this will increase the difficulty in him obtaining employment. The United Kingdom provides social, medical and welfare services of a similar nature to Australia.

The Tribunal finds Mr Smith will face minor impediments if removed from Australia as he has a brother in the United Kingdom with whom he could stay, has some financial resources and some skills. He is now 55 and has problems with his knees and with alcohol that will make it more difficult to re-establish himself. While he has not been to the United Kingdom for over 20 years, the Tribunal does not consider there would be substantial language or cultural barriers that would prevent him establishing himself and maintaining a basic living standard. He will have access to social, medical and economic support available to citizens of the United Kingdom.
As a result, the Tribunal finds these factors weigh in favour of revoking the cancellation of his visa to a limited extent.
CONCLUSION
The protection of the Australian community and the expectations of the community weigh heavily in favour of not revoking the cancellation of Mr Smith’s visa. The strength, nature and duration of Mr Smith’s ties to Australia weigh in favour of revoking the cancellation of his visa, and the extent of impediments if removed from Australia weigh in favour of revoking the cancellation of his visa to a limited extent.
The Primary Considerations are generally to be given greater weight, and two of the three Primary Considerations weigh heavily in favour of not revoking the cancellation of the visa. The Tribunal does not consider there are circumstances that take this matter out of the general or ordinary situation.
As a result, the Tribunal is not satisfied there is another reason the cancellation of Mr Smith’s visa should be revoked.
DECISION
The decision not to revoke the cancellation of Mr Smith’s visa is affirmed.
DECISION

177. I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

……………[SGND]……………

Administrative Assistant Legal

Dated: 13 April 2021

Date of hearing: 7- 8 April 2021

Advocate for the Applicant: Self-represented

Advocate for the Respondent: Tal Aviram, Clayton UTZ

[21] [2019] FCAFC 207.

Date of hearing:	7- 8 April 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Tal Aviram, Clayton UTZ