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

Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4184 (19 October 2020)
Division:GENERAL DIVISION
File Number: 2019/7934
Re:Mr Brendon Smith
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:19 October 2020
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Stowers [2020] FCA 407
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
19 October 2020
INTRODUCTION AND BACKGROUND

Mr Brendon Smith (“the Applicant”) is a 46 year old citizen of New Zealand.[1] Movement records indicate that the Applicant first arrived in Australia in 1981 and has left Australia on numerous occasions. He lived in Australia from May 1991 to December 1995 and March 1996 to July 2017.[2] Those records further indicate that he spent liberal amounts of time in Australia during the 1980s, specifically from 1981 to 1988.[3] On 24 July 2017, following the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”) on 13 June 2017, he voluntarily departed Australia for New Zealand.[4] He has remained in New Zealand since that time.[5]
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [3].
[2]      Exhibit T1, T28, page 112.
[3]      Ibid, pages 107-111.
[4]      Exhibit R1, Respondent’s SFIC, page 1, paragraph [1] and page 2, paragraph [9]; Exhibit T1, T28, page 112.
[5]      Exhibit T1, T28, page 112.
The Applicant has, in terms of the number of offences he has committed, a very lengthy history of criminal offending in Australia. That history (in terms of appearances in courts for sentencing) spans the period 19 March 1992 to 10 July 2017, a period of some 25 years. The material contains a report from Interpol, Wellington, which states that “Based on a nominal search this subject [the Applicant] has negative NZ criminal convictions.”[6]
[6] Ibid, T23, page 91.
The Applicant’s history of offending in this country is so lamentably extensive that there is little or no difficulty in reaching the necessary statutory threshold to confirm he does not pass the character test. Perhaps even more lamentably, some of his offending was committed in circumstances where the Respondent Department had twice written to him expressing serious concerns and misgivings about the effect of his criminal activity on his visa status to remain in Australia. He received the first such notification by letter dated 5 December 2007, whereby he was, for all intents and purposes, warned to ameliorate and temper his propensity to offend in order to avoid adverse consequences on his visa status.[7]
[7] Ibid, T3, page 8.
Four years later, on 30 March 2011, the Applicant found himself before the Townsville District Court for sentencing on the following charges: (1) “Unlawful entry of vehicle for committing indictable offence at night”[8], (2) “Assaults occasioning bodily harm whilst armed”[9], (3) “Unlawfully wound another”[10] and (4) “Common assault”.[11] For this offending, convictions on all charges were recorded and the Applicant was sentenced to a head custodial term of two years and three months, to be suspended for an operative period of two years after the Applicant had served a term in actual custody of three months.[12]
[8] Pursuant to s 427(1) & (2)(A) of the Criminal Code Act 1899 (Qld).
[9] Pursuant to s 339(1) of the Criminal Code Act 1899 (Qld).
[10] Pursuant to s 323(1) of the Criminal Code Act 1899 (Qld).
[11] Pursuant to s 335 of the Criminal Code Act 1899 (Qld).
[12] Exhibit T1, T22, page 87.
Only a matter of months after receiving this sentence, the Applicant was again contacted by the Respondent Department. Under cover of its letter dated 16 September 2011, the Applicant was notified that the Respondent Department was aware of his offending, but, despite that, had nevertheless made the decision to not cancel his visa. It was made abundantly clear to him that the commission of further offences could very well imperil his visa status to remain in this country.[13]
[13] Ibid, T4, pages 9-10.
Following his receipt of this second letter from the Respondent Department, the Applicant found himself before lawful authority for another 10 sentencing episodes for the purposes of punishing something in the order of an additional 25 offences he had committed since September 2011. To be clear, this sentencing history applies after his receipt of the second letter of counselling/warning from the Respondent Department.
This period of offending (i.e. post-September 2011) saw the Applicant incarcerated consequent upon a sentence he received on 22 May 2017 from the Townsville Magistrates Court. On that day, he was sentenced to a head custodial term of nine months imprisonment for the Commonwealth offence of “obtaining a financial advantage”.[14] This nine month custodial term was fashioned such that the Applicant was to be released from custody after serving two months in actual custody. The release was conditional upon him entering a recognisance in the amount of $2,000 to be of good behaviour for two years. A reparation order in the sum of $13,642.13 was also made as part of this sentencing regime.[15]
[14] Pursuant to s 20(1)(B) of the Crimes Act 1914 (Cth).
[15] Exhibit T1, T27, page 105.
While serving the two months in actual custody, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 13 June 2017 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[16]
[16] Ibid, T5, pages 11-15.
The Applicant duly requested revocation of the decision to mandatorily cancel his visa. He provided submissions and evidence in support of that request. This is confirmed by a letter dated 27 June 2016, in which the Respondent duly notified the Applicant that:
“This letter is to confirm that we have received your representations and we will consider them in due course. You will be notified when a decision has been made about whether or not to revoke the decision to cancel your visa.”[17]
[17] Ibid, T7, page 36.
There followed the Applicant’s abovementioned voluntary departure from Australia for New Zealand on 24 July 2017.[18] While the Applicant was offshore, a delegate of the Minister decided on 1 November 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[19] The subject decision was duly communicated to the Applicant under cover the Respondent’s letter dated 11 November 2019.[20]
[18]     Ibid, T28, page 112 – Movement records – final entry.
[19]     Ibid, T21, pages 71-82.
[20]     Ibid, T21, pages 67-68.
The Applicant lodged an application with this Tribunal seeking a review of the abovementioned decision dated 1 November 2019 not to revoke the cancellation of his visa.[21] This application also contained a further application from the Applicant for an extension of time to lodge his application for review of the abovementioned non‑revocation decision on or about 13February 2020. The extension to lodge the application was sought until 22 July 2020.[22] The Respondent did not oppose that requested extension of time.[23] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[24]
[21]     Ibid, T1, pages 3-
[22]     Ibid, T1, pages 1-2.
[23]     Ibid, page 3.
[24] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act. However, this nine day time limit did not apply to the Applicant because the decision under subsection 501CA(4) of the Act not to revoke the decision to mandatorily cancel his visa did not relate to “a person in the migration zone” as required by s 500(6B) of the Act. Accordingly, the extension of time was capable of being validly granted to the Applicant.
The hearing of the instant application proceeded on 24 September 2020 and received oral evidence from the Applicant. The Tribunal also received written evidence. This written evidence was categorised into an exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[25]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[26]
[25] [2018] FCAFC 151.
[26] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[27] I will address each of these grounds in turn.
[27] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant’s criminal history is so extensive that one does not need to look far to isolate either a singular or cumulative period of head custodial terms equivalent to or exceeding 12 months. Focusing solely on his offending post-September 2011 (i.e. after he received the second counselling/warning letter from the Respondent), the Applicant received had custodial terms as follows:
·On 22 May 2017, the Townsville Magistrates Court imposed a head custodial term of nine months’ imprisonment for the abovementioned offence of “obtaining a financial advantage” pursuant to s 20(1)(B) of the Crimes Act 1914 (Cth); and
·On 10 July 2017, the Townsville District Court imposed a head custodial term of six months’ imprisonment for the Applicant’s breach of a suspended sentence imposed on him on 30 March 2011 by that same court.
As mentioned, the Applicant’s criminal history is very lengthy and extensive, and I will discuss his offending in greater detail later in these Reasons. For the instant purposes of ascertaining whether or not he passes the character test, it is only necessary to have regard to the cumulative period of 15 months’ custodial time imposed upon him as particularised in the immediately preceding paragraph.
At the hearing and in his written material, the Applicant sought to suggest that some type of anomaly or misconstruction of certain sentences that had been imposed upon him meant that he, on some basis, did pass the character test. The contention was put thus:
“In paragraph 7 they state on 22^nd May 2017, I was sentenced to a period of nine months I would like to add that this offence took palace [sic] back in 2011. It was in 2017 that they looked back on my history and this was discovered and I was recharged for these previous charges and resentenced the immigration department did not wait until my court dates had been dealt with whilst on remand in prison they started the deportation process at the time my lawyer and friend [name of lawyer redacted] stated by law the immigration Department are supposed to wait until my matters are finalised. This was not the case, they used my past sentencing of 12 months or more as a fail to pass a character test. Given the fact that I was on remand for this offence and was sentenced to 6 months. Given these facts I do believe that I do pass the character test of 12 months or less in my history, as this is what my history concurrently states.”[28]
[28] Exhibit A1, page 1.
To my mind, the contention goes nowhere because even if one discounts the abovementioned custodial terms respectively imposed on 10 July 2017 (six months) and 22 May 2017 (nine months), even a cursory review of the Applicant’s very lengthy offending history readily discloses the imposition of terms of imprisonment that well and truly exceed the 12 month threshold. For example, on:
·19 March 2001, the Townsville Supreme Court convicted the Applicant on one count of “produce dangerous drugs specified in Schedule 2 and 3 [of the Drugs Misuse Act 1986 (Qld)]”, for which he was sentenced to a term of imprisonment of one year; and
·10 January 2005, the Townsville Magistrates Court convicted the Applicant on one count of “obtain financial advantage”, for which he was sentenced to a term of imprisonment of 12 months.
The terms of the second warning letter he received in September 2011 tell him that “…visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future.” This letter does not give rise to any sort of temporal threshold of offending. In other words, it does not say that his past offending (i.e. pre‑September 2011), which has been punished by both singular and cumulative custodial terms well and truly exceeding 12 months, has somehow been forgiven or expunged or will not be taken into account in the future. Nor does this letter say cancellation of the visa will be solely predicated on whether he breaches the character test in future. It clearly points out that cancellation will be an option “…if you commit further offences…”.
There can be no argument against the reality that the Applicant does not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”. I also note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[29]
[29] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[30] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[31]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[30] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[31] The Direction, sub-paragraph 7(1)(b).

The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 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;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[32]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it 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.”
[32] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(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 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;
(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;
(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; and
(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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
There are little or no concessions made by the Applicant in terms of the nature and seriousness of his almost 25 year history of offending in Australia. Instead, he adopts an exculpatory tone and now seeks to re-cast or re-characterise the circumstances of many of the offences he has committed and for which he has been sentenced. For example, in his written material, in reply to the Respondent’s SFIC, he said:
“I would like to add I think at this point in paragraphs 30/31 that It’s crap how I’m being made to look like a violent monster, anyone who knows me and my children’s mother Dianna would know that’s not the case. Since getting involved with Dianna Tribasic I’ve had nothing but trouble with DVO’s/ police/courts from having a partner with a serious drug issue and lack of mental stability. As for the following paragraphs they have statements such as knives, threats, etc. Law has dealt with these incidents; there is no proof of these things taking place so I ask that they be stricken from the record.”[33]
[33] Exhibit A1, page 2.
By way of further example, and with particular reference to his appalling record of domestic violence offending, the Applicant said in his evidence in chief at the hearing:
“MR SMITH: Yes. It doesn’t state in a lot of those domestic violence breaches that I was charged for were technicalities. They were technicality breaches due to a toxic relationship. As my mum stated in her support letter, my partner was (indistinct) and because we had children, I was a stable foundation of the family and the relationship, and she would continuously do drugs and not stop, even though I had broken the habit, and I continued to stay with her because of the children’s sake.
And it was just a continuous cycle, pretty much, of just around and around with - she would leave, and then she would be on the drugs, she would leave, and then become unwell, and then she would come back and say, “I’m sorry,” and I would give her a chance, and then I would get technically breached for her being at my own accommodation for contact breaches. That’s pretty what a lot of that is, but it doesn’t state any of that in the things, I just makes it look like I’m just a violent person, like, outright.”[34]
[34] Transcript, 24 September 2020, page 6, lines 34-46, and page 7, lines 1-2.
In its SFIC, the Respondent contends that “the applicant’s offending should be viewed as very serious.”[35] For reasons that will now follow, I think that contention is well-made. Viewed reasonably and holistically, the nature of the Applicant’s offending is such as to immediately attract the attention of the relevant Principles contained in paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s 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.
[35] Exhibit R1, page 6, paragraph [25].
The nature and seriousness of the Applicant’s offending becomes readily apparent from a review of the nature and circumstances of the offences listed in his history. The following discussion about the nature and seriousness of the Applicant’s offending will be predicated on an application of the relevant factors contained in paragraph 13.1.1(1) of the Direction. I will further particularise how the Applicant’s offending attracts operation of the relevant sub-paragraph(s) of the Direction in the assessment of the nature and seriousness of the Applicant’s conduct.
Application of Factors in Paragraph 13.1.1(1) of the Direction
Prior to a discussion about, and allocation of weight to, the relevant factors in paragraph 13.1.1(1) of the Direction, it is necessary to conduct a broad overview of the nature of the Applicant’s offending across its entire history. As mentioned earlier, his criminal history in this country commences with a conviction for breaching bail, for which the Applicant was fined the sum of $300 by the Townsville Magistrates Court on 19 March 1992. In the ensuing almost 25 years, the history is redolent of the commission of something in the order of 80 offences, punished by 30 separate sentencing episodes. The Respondent’s SFIC conveniently and accurately particularises the range of different types of offences appearing in the criminal history:[36]
[36] Ibid, page 6, paragraph [26].
·breaching bail conditions, breaching probation orders;
·breaching domestic violence restraining orders (including aggravated forms of this offending);
·breaching suspended sentences;
·breaching intensive drug rehabilitation orders;
·breaching undertakings;
·drug and drug paraphernalia possession offences;
·drug production offences;
·entering upon land without lawful excuse;
·unlawful use of motor vehicles;
·unlawful entry of motor vehicles;
·unlawful possession of weapons;
·wilful damage;
·disorderly behaviour;
·assault/obstruct police;
·stealing;
·assaults, including assaults occasioning bodily harm whilst armed; and
·trespass.
The Applicant’s criminal history also records the commission of offences in the realm of dishonesty. There are two convictions for this type of offending. On 10 January 2005, the Townsville Magistrates Court convicted the Applicant for the offence of “obtain financial advantage”. He was sentenced to 12 months’ imprisonment to be released after serving three months in actual custody. His release was conditional upon him entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of 30 months. This sentencing regime including a reparation order in the sum of $6,899.48.
On 22 May 2017, the Townsville Magistrates Court convicted the Applicant for the offence of “obtaining a financial advantage” pursuant to s 20(1)(B) of the Crimes Act 1914 (Cth). A head custodial term of nine months was imposed. The Applicant was required to serve two months in actual custody after which he was released upon entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of two years. This sentencing regime also included a reparation order in the sum of $13,642.13. In sentencing the Applicant for this offending, the learned sentencing Magistrate[37] summarised the circumstances of the offending thus:
“BENCH: Mr Smith, you’ve pleaded guilty to receiving a financial advantage to which you’re not entitled. You were overpaid $13,642.13 by way of Newstart payments. At the time of receiving Newstart, you were employed on a casual basis as a deckhand and you grossed an income of $56,967.55, approximately $1,370 per fortnight gross income. You declared nil income for 26 fortnights, under declared for two and disclosed correct income for three fortnights. You were not entitled to any social security or Centrelink benefit for 23 fortnights, entitled to part-payment in six. You did not desist the conduct on a voluntary basis. It was detected via Data Match and, essentially, you stopped falsely declaring when you were no longer in employment, your employment ceased.”[38]
[37] Ms Wadley SM.
[38] Exhibit T1, T27, page 103.
The learned sentencing Magistrate also had regard to the Applicant’s history and, in particular, to his previous commission of an identical offence in 2005. Her Honour said the following:
“BENCH: …What is against you is your history and you do have that previous history where you were sentenced to a term of imprisonment obtaining a financial advantage. It is of some age, approximately 12 years, where you were sentenced to 12 months imprisonment, to be released after serving three months and entering into recognisance in the sum of $2,000 to be of good behaviour for 30 months. There’s reparation of $6899.48. I understand the overpayment for that conviction was approximately $10,000. Regrettably, that did not deter you from re-offending in this way.”[39]
[39] Ibid.
Also within the realm of dishonesty offending are the four convictions recorded against the Applicant for the offence of stealing pursuant to s 398 of the Criminal Code Act 1899 (Qld). There are two convictions for this offence imposed by the Townsville Magistrates Court on 25 November 2013. There are two earlier convictions imposed by the same court for the same offending on 15 May 2009.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes 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;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)....
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history discloses several convictions for crimes of a violent nature. In applying the componentry of the Direction to this type of violent offending, the Tribunal’s discretion to view such offending (including in a domestic context) in any light other than a very serious one is extremely limited or non-existent. As recently noted by the Federal Court:
“That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light...”[40]
[40] Minister for Home Affairs v Stowers [2020] FCA 407 at [45], per Yates J.
The Applicant was dealt with by the Townsville District Court on 30 March 2011 for the commission of various forms of violent offences. They comprised:
·Assaults occasioning bodily harm whilst armed (pursuant to s 339(1) of the Criminal Code Act 1899 (Qld));
·Unlawfully wound another (pursuant to s 323(1) of the Criminal Code Act 1899 (Qld)); and
·Common assault (pursuant to s 335 of the Criminal Code Act 1899 (Qld)).
As mentioned earlier, his commission of the first two offences resulted in the imposition of a head custodial term of two years. The third offence was punished by a custodial term of three months. The circumstances of the offending are recorded in the material:
“FACTS OF THE ORIGINAL OFFENCES
The complainant was the defendant’s ex girlfriend, Dianna TRBUSIC and her male companion Gregory Whiting.
On the 17^th June 2009 they drove to the Westpac bank at Stocklands Shopping Centre in order to take money out of the defendant’s bank account that they felt they were owed.
The defendant followed them in his vehicle, parked behind them, exited his vehicle and walked towards the driver’s side window of the complainant’s vehicle holding a knife and stated “I am going to stab you.”
The defendant was waving the knife around saying, to his ex-girlfriend, “Diana you are coming with me, I will stab Greg if you don’t come with me.” The defendant was holding the knife towards the complainant Greg Whiting’s chest and the knife penetrated the skin on his chest – this offending is subject to the first count of Assault occasioning bodily harm.
The defendant continued to threaten both complainant’s while moving the knife around inside the complainant’s vehicle. The defendant was screaming “I’m going to kill you”. The complainant Whiting took hold of the knife and as the defendant attempted to pull the knife back outside of the vehicle the blade sliced his index figure [sic] and this offending is subject to the count of wounding.
The defendant then tried to drag Diana TRBUSIC out of the vehicle – this was the common assault. But the complainant was able to wind the window up and then the defendant ran away.”[41]
[41] Exhibit R2, page 109.
During cross-examination, the Applicant sought to re-characterise the circumstances of the offending such that his reaction arose from Ms Trbusic and Mr Whiting having earlier intended to commit a stealing offence against him. He eventually denied the accuracy of the above factual summary and sought to suggest that the statement was contradictory and otherwise incorrect and unreliable. The circumstances of the offending were read to him and he responded as follows:
“MR SMITH: No, that's not accurate at all. What - what actually happened was I had [Child E] in my care and he was very young at that age and he was on formula. I was working at the meatworks. I had just been paid. I went to the Westpac Bank to get my money out so I could get formula and nappies and pay my rent. When I got to the Westpac they were waiting there in the car park because Dianna knew my movements, she knew my pay day, she knew my bank. She had Greg with her. They robbed me at the bank. I chased them in my car from Aitkenvale, about two suburbs over, and they got caught at the red light. I was three cars behind them. I jumped out spur of the moment thinking. I wasn't thinking rationally because of the fact that I was - I had responsibilities to get formula for my son and I had - all my money was taken that I'd worked for. I grabbed my meatworks knife, my work knife which I had there in my car. I walked up to their car and I lent in his window and grabbed his car keys and I held the knife and I said, "I'm not mucking around, I was my f'n money." He tried to grab the knife. I slit his finger, and then in the moment of tussling the knife I accidentally stabbed him. It wasn't intentional. I said, "I want my f'n money", and he goes, "She's got it", and then I went around to the side of her car, of the car where she was on, opened the door and she gave me her handbag, and said, "It's in there." I got my money, I went back to my car, I did a U-turn and I threw the keys at them, and then they went and had me charged. In court, when I went through the District Courts they said - in cross-examination my lawyer said, "What were you doing at the Westpac Bank", because it was my bank where I was to get my money out, and they said, Dianna stated, "We were there to rob him", and then it's been turned around to make me look like a violent person that's just deliberately gone to attack them…But that statement that you've read to me it contradicts itself, like it says they were at the bank to get money from my account that they felt they owned, they were owed. Well, common sense would state where do I come into the picture, how come I was at the bank at the same time. That - that statement that you've got there is not correct at all. I was at the bank getting my money. They knew my movements because she had been with me, she knew every week when my pay went in I'd go to the bank. They were there waiting for me. I got my money and they robbed me.
MR KYRANIS[42]: You refer to - - ?
MR SMITH: None of that's put in any of the court documents. Even though she stood up in court on the stand and she - she even stated that they were there to rob me, and none of that's been mentioned in anything. So it makes it look like I'm the person that's in the wrong has gone out and attached people. That's not the case at all.
MR KYRANIS: You said that there was cross-examination, did you plead guilty or were you convicted after a trial?
MR SMITH: No, I pleaded guilty and the judge - the judge in the District Court said due to the fact that - although their actions were - due to the fact that they were at the Westpac Bank to rob me and were - and she - they had - she had planned that and stated that. The fact that my actions were worse than their actions is the reason why I was there getting - being dealt with my law today. That's what the judge said, and in my mind I think what they had done was against the law. They should have been charged as well. Even though I was being charged for my actions, which is fair enough, I believe they should have been charged and they weren't. Instead the court took - took a view upon that my actions were worse than theirs and so I got charged, but their actions were still illegal and unjust, so why weren't they charged. It was still a criminal act what they did and they weren't charged, and I don't understand why, and made to look like I've done something like intent, criminally - some sort of criminal intent and that wasn't the case at all.”[43]
[42] Mr Jake Kyranis, Senior Associate, Sparke Helmore, Legal Representatives of the Respondent.
[43] Transcript, 24 September 2020, page 20, lines 5-30 and 35-46, and page 21, lines 1-2.

The Applicant’s attempt to re-characterise both the circumstances of the offending episode and how that offence should now be perceived does not, in any way, ameliorate the nature and seriousness of the violent conduct towards his victims. Such contentions are to be entirely rejected. None of the elements now propounded by the Applicant purporting to militate in favour of a finding about the nature and seriousness of this offence convince this Tribunal that his violent offending has been anything other than very serious.
I am of therefore of the view that an application of this sub-paragraph (a) militates in favour of a finding that the Applicant’s violent conduct has been of a very serious nature.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant’s history reveals at least one contravention of a domestic violence order (aggravated offence), 13 contraventions of a domestic violence order and 14 breaches of an order issued under the Domestic and Family Violence Protection Act 2012 (Qld).
On 17 May 2016, the Townsville Magistrates Court dealt with the Applicant in relation to four charges committed between 16 January 2016 and 26 April 2016. Three of those charges involved breaches of domestic violence orders, while the remaining charge related to the Applicant’s obstruction of police. As noted by the learned sentencing Magistrate:[44]
“BENCH: The first two breaches of domestic violence orders involve his [i.e. the Applicant’s] former partner, with there being an order in place restricting his ability to have any contact with his former partner unless it’s somehow associated with children. On 16 and 17 January 2016, it’s alleged the defendant sent text messages to his former partner, which were not related to their children, and as such, were in breach of his order…
The offences on 26 April 2016 are more concerning. These involved a different aggrieved, being the mother of the defendant, and a named party on an order, being the defendant’s 12 year old son. It seems that there was some dispute that developed over some reasonably minor domestic issues that then escalated to the point of the defendant becoming verbally abusive towards the aggrieved and threatening to hurt her and that she would pay for turning his son against him. It’s said he continued to yell and scream at her and threaten both her and passers-by and said that his son sought to intervene to have the defendant stop his behaviour, in response to which he yelled at his son:
“Why should I listen to you? I’m not your dad.”
I will take into account that there was no physical violence involved, but I think it’s a very disappointing set of circumstances to have this sort of behaviour play out in front of the defendant’s 12 year old son. The defendant has a criminal history running to seven pages. I’ve gone back for a period of about 10 years, and I can see that the defendant has been dealt with for multiple previous breaches of domestic violence orders. On my count, there are more than a dozen offences that have occurred during that period. More recently, he’s received fines, but prior to that he was receiving terms of imprisonment. I’m going to take into account that he’s been held in custody for a period of 21 days on all of these charges.”[45]
[My underlining]
[44] Mr Mosch SM.
[45] Exhibit T1, T25, pages 98.
Once again, in cross-examination the Applicant adopted an obfuscatory approach to the evidence and sought to suggest that the factual circumstances had either been misreported or misconceived. He sought to minimise the offending on the basis of (1) the breaches of the orders being primarily “technicality breaches”, and that (2) law enforcement authorities had proceeded against him to “manipulate” him. Likewise, with the words he is alleged to have spoken to his son, he denied ever uttering those words and otherwise extolled his own virtues as a loving and caring parent. After a summary of the events was put to him, the following transpired:
“MR KYRANIS: Is that an accurate summary of those three offences you were sentenced for then?
MR SMITH: No, I can't recall. I don't (indistinct) saying that to my son. Any disputes that my mother and I have had have been to do with my children, decisions made on my children. There's been no threats of violence of any of that. You know, it's coming across like all these DVOs next to me like I'm a violent person and I'm not. Like nobody - apart from that incident with Greg Whiting there's - there's no harmful incidents so anyone's been harmed, and I'm quite a big fellow and - you know, I'm 100 kilos, and all these statements time and time and time and time again there's no actual physical harm in any of them, it's just - it's pretty much all been manipulation on protection orders put upon me to control me pretty much. That's why they're put in place, because action is reaction, and like my mum - my mum knows that, you know, I'm going to get pissed off if she's doing the wrong thing and just doing whatever she wants and I'm not in agreement to that, so they put these orders in place to be able to do whatever they do, when they can use the police to respond on me. You know, this has been technicality breaches. A couple of the orders been put in place have been to manipulate me in cases. That's all I can say on those matters.
MR KYRANIS: Did you say to [Child E], "Why should I listen to you, I'm not your dad”?
MR SMITH: No, never ever. I've never - I've never spoken out of place to my children. I don't hit my children, I don't verbally abuse them.”[46]
[46] Transcript, 24 September 2020, page 25, lines 21-42.
Also relevant for the purposes of this sub-paragraph (b) of paragraph 13.1.1(1) are the instances of the Applicant’s convictions for contravening a domestic violence order. As mentioned earlier, his history discloses respective convictions for at least one contravention of a domestic violence order (aggravated offence), 13 contraventions of a domestic violence order and 14 breaches of an order issued under the Domestic and Family Violence Protection Act 2012 (Qld).
Indeed, his conduct with reference to non-observance of domestic violence-type orders saw him imprisoned on 15 May 2012. This term of imprisonment resulted from three counts of the Applicant breaching an order for domestic violence. The factual bases of each charge vary. Suffice it to say that the first charge was based upon the Applicant communicating with the aggrieved person named in the subject order by way of 12 SMS messages between 5 and 8 February 2012.[47]
[47] Exhibit R2, page 16.
The second charge involved the Applicant dealing with the aggrieved person on a personal basis by way of signalling to her while she was sitting at the front of a rehabilitation centre on 14 February 2012. Following this signalling, the Applicant, in total ignorance of the requirements of the subject order restraining him from such conduct, traversed the boundary of the rehabilitation centre and captured the aggrieved person in a “hugging grip”, and then proceeded to physically remove her from the facility by suggesting “your (sic) coming with me”. The aggrieved rejected the physical approach in no uncertain terms by responding with ”like hell”. This was not sufficient to dissuade the Applicant and he then proceeded to produce a 20 centimetre knife from his person and actually held it to the stomach of the aggrieved person. Thankfully, there was a verbal intervention from a nearby witness who warned the Applicant “don’t you dare”. This verbal admonition was sufficient to cause the Applicant to eventually depart the scene of the incident.[48]
[48] Ibid, page 18.
The third charge arose from circumstances that occurred on 22 February 2012. It resulted from the Applicant sending the aggrieved person a bouquet of flowers (with chocolates, $50 and a greeting card). This gesture, while perhaps well-intended by the Applicant, was nevertheless found to be in breach of the relevant domestic violence order which prevented such contact between him and her.[49]
[49] Ibid, page 19.
There followed further convictions for beaches of relevant and applicable domestic violence orders binding the Applicant. The respective dates of those convictions were 7 November 2014 and 3 July 2015. In the former, the Applicant again communicated with the aggrieved person by SMS. The message was not benign and, in it, the Applicant sought to castigate the aggrieved person for issues relating to a child or children of their relationship. It menacingly commences with the words “The kids arnt [sic] impressed with u at the moment…” It concludes with the unfriendly tone to this effect: “Kids come first not there for them! We sure as hell ant gonna [sic] be there for him so why are u!!!!!” For this conduct, the Applicant was fined $400.[50]
[50] Ibid, page 31.
The latter charge derives from more nasty, threatening and abusive conduct by the Applicant towards the aggrieved person. Following the subject incident on 15 December 2014, the aggrieved person actually waved down police and she told them that she had just been involved in a domestic violence incident with the Applicant. She also told them that the Applicant had verbally abused her while she was driving with him in a car and that the abuse related to custodial arrangements for a child of their relationship. She also reported to police that during the course of the abusive discussion, he told her that “you’re nothing but a fucking cunt”. More concerningly, when she pulled the car over at a local shopping area, she told police that he had stated “go on, call the police, I will gut you with my knife.” This caused her to become very fearful for both herself and the subject infant child who was also present.[51]
[51] Ibid, page 35.
While the police were intervening in the matter, they noted that the Applicant contacted her on her mobile phone and verbally abused her. Within earshot of the police, the Applicant was heard to say to the aggrieved person: “Wait til I fucking see you cunt.”[52] For this offence, the Applicant was fined the sum of $300. This particular offence was accompanied by a conviction on the same day (i.e. 3 July 2015) for a further breach of the subject order. It resulted from the Applicant attending the residence of the aggrieved person. For this breach the Applicant was also fined the sum of $300.[53]
[52] Ibid.
[53] Ibid, page 39.
The Applicant’s pattern of offending by way of repeatedly breaching domestic violence orders did not abate and on 10 October 2016, he was dealt with in the Townsville Magistrates Court for eight separate contraventions of a domestic violence order. The breaches derived from his repeated attempts to telephonically contact the aggrieved person and to otherwise send her SMS messages between the dates of 13 and 14 March 2016. Each of these breaches resulted in the recording of a conviction with the Applicant not being further punished.
There can be little or no argument that the Applicant’s conduct towards the aggrieved person via the various and repeated breaches of relevantly imposed domestic violence orders do constitute violent conduct against a woman for the purposes of this sub‑paragraph (b). As such, his offending in this regard should be viewed very seriously and, to my mind, an application of this sub-paragraph (b) to this aspect of the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” A cursory review of the Applicant’s criminal history reveals that he has respective convictions for “assault or obstruct police officer”[54] and “obstruct police officer”. With reference to the latter, he was convicted of two such charges by the Townsville Magistrates Court on 27 April 2004. Pursuant to a conviction for each charge, he was sentenced to one month imprisonment to be served on a concurrent basis and suspended on the basis of an intensive drug rehabilitation order.[55]
[54] Pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld).
[55] Made pursuant to s 19 of the Drug Rehabilitation (Court Diversion) Act 2000 (Qld).
With regard to the former offence, the Townsville Magistrates Court (on 17 May 2016) formally recorded a conviction and imposed a custodial term of 21 days to be served concurrently with a conviction for a further contravention of a domestic violence order dealt with by the same court on that day. This offending was clearly committed upon “government representatives or officials…in the performance of their duties”. In accordance with the terms of sub-paragraph (c), such conduct is to be viewed as “serious”. Upon the application of this sub-paragraph to the Applicant’s conduct in this regard, I accordingly find that it weighs in favour of a finding that the Applicant’s offending has been of at least a serious nature.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant’s sentencing history makes for sobering reading. Stated broadly, his offending history in Australia has seen him before lawful authority on at least 30 occasions for the purposes of him being sentenced for his offending. The totality of offences he has committed is in the order of 80 separate offences. More particularly relevant is the stark reality that terms of imprisonment have been imposed on at least 12 separate occasions. While not entirely clear, I have carefully sought to review each sentence imposed upon the Applicant from the perspective of calculating the cumulative amount of custodial time that has been imposed upon him for his offending. According to my calculations, the totality of custodial time imposed for his offending has been something in the order of 10 years.
It should also be noted that the Applicant’s attempt to now provide largely exculpatory‑type evidence around the circumstances of his offending does not square with how his offending has been viewed by judicial sentencing officers who have imposed almost 10 years of custodial time upon him. It logically follows that the Applicant’s purported exculpatory and minimising evidence is clearly at odds with the nature of the sentences that have been imposed on him.
Another aspect of the Applicant’s evidence which must be approached with caution involved him suggesting that whenever he pleaded guilty to an offence or offences, he did so out of expedience rather than him necessarily being guilty of committing those offences. Likewise, he purported to suggest in his oral evidence that the basis on which much of his criminal offending was dealt with could have been more readily explained by his then-legal representative, who (according to the Applicant) could not be produced for the purposes of the instant hearing:
“MR KYRANIS: Did you plead guilty to these offences?
MR SMITH: In most cases, yes, just to get them dealt with, and thinking back - thinking back on my past, you know, maybe I should have thought - now the way it looks on my history maybe I should have fought a few of them instead of just pleading guilty to get it dealt with. [Name of lawyer redacted] was - he represented me on most of these cases. I did - I did try to contact him, contact his contact to have him as a witness for this case here today. The Queensland - I think it's the Queensland Law Society wouldn't give me - wouldn't give me his details because he moved from Townsville to Brisbane and I don't have his contact any more, his personal contact. I tried looking him up on Facebook. I couldn't reach him on there. I heard he's working in Brisbane through - through Legal Aid. I contacted Legal Aid in Brisbane and they said, "Yes, we're aware of who [Name of lawyer redacted] is, he does do legal aid work for us." I said, "Can I get his contact number, please." They said, "Sorry we can't give that information out." I said, "Well, you can please ask him to contact me", and they said, "Sorry, he's not representing you in any cases through us so we cannot do that." So I come to a dead end and was unable to contact him and have him do a support letter for me and put some insight into all these - all this criminal history stuff, because he represented me and in most cases he could see what was what and he knows exactly what was happening with all of it, because he was - he was a local and he knew me personally and he knew the situations as well as all the court stuff.”[56]
[My underlining]
[56] Transcript, 24 September 2020, page 26, lines 10-31.
This Tribunal will not look behind how or why the Applicant now says he pleaded guilty (or was found guilty) of any of his past offending. What is before this Tribunal is the Applicant’s criminal history and the recorded circumstances of how those offences came to be committed. It would be inherently unsafe for this Tribunal to now reconstrue the nature of the Applicant’s offending on the basis that the sentences actually imposed upon him might say one thing, while his subsequent purported amelioration of his unlawful conduct (on the basis of how many of those convictions came to be formulated and imposed on him) is now attempting to say something else. This Tribunal will not embark on such a process.
As mentioned, the Applicant has found himself before lawful authority for sentencing in at least 30 separate sentencing episodes. At least 12 of those episodes involved the imposition of custodial sentences. Suffice it to say that judicial sentencing officers sought to deter the Applicant from offending by the earlier application of non-custodial terms. While well-intended, it is clear that no such deterrent effect was experienced by the Applicant and the inevitable result has been the imposition of custodial terms in the cumulative approximate total of 10 years.
Accordingly, for the purposes of this sub-paragraph (d), it surely cannot be denied that the totality of the sentencing regimes imposed upon the Applicant in this country from March 1992 to July 2017 militate very strongly in favour of a finding that the sentences imposed for the Applicant’s offending renders the totality of his offending history as very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The task involving the allocation of any weight to this sub-paragraph (e) largely mirrors that required in relation to the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. He is now is 46 years of age. He has an offending history in this country that runs for approximately 25 years. After spending considerable amounts of time in Australia from 1981 to 1988, he lived here from May 1991 to December 1995 and from March 1996 to July 2017. It is undeniable that his very lengthy offending history in this country has featured quite significantly for virtually the entirety of his adult life spent in this country. Has the Applicant’s offending been frequent? To my mind, the relevant numbers tell the story. There have been 30 sentencing episodes dealing with the commission of some 80 separate offences over a 25 year period. It would be absurd to suggest that the commission of approximately 3.2 offences per annum across 25 years can be construed as anything other than frequent.

I turn now to any discernible increasing trend in the seriousness of the Applicant’s offending. To properly answer this question, it is necessary to longitudinally view the totality of the Applicant’s offending. The earlier phases of the offending are characterised by relatively unremarkable offences involving possession of unlawful drugs, breaches of lawfully imposed orders, the unlawful use of a motor vehicle and wilful damage to property. State broadly, this phase in his offending history ran from 1992 to approximately 2004. From 2004 onwards, the Applicant was committing offences of a significantly more serious nature, such as repeatedly breaching domestic violence orders, stealing offences, a weapons offence, assaults occasioning bodily harm whilst armed, wounding and dishonesty offences committed against taxpayers of this country.
During almost the totality of the Applicant’s offending, there has also been an abject refusal to respect lawful authority, be it in the form of police officers going about their regular business or by way of repeated breaches of duly imposed orders to, for example, observe the terms of bail or to comply with intensive drug rehabilitation orders. There is thus a clearly discernible “trend” in the seriousness of the Applicant’s offending from 2004 to 2017. At the risk of repeating myself, it would be fair to say that his difficulties with lawful authority arising from his offending have been the predominant feature of his adult life in this country.
According to the Applicant’s oral evidence, his offending was attributable to then‑unresolved substance abuse issues with illicit substances. At the hearing, he said the following:
“SENIOR MEMBER: … Anything else in relation to your offending that you would like to mention?
MR SMITH: Yes. As I said, a lot of it was to do with drug addiction and a toxic relationship with a partner and drug addiction, and mental health issues. That’s pretty much where all this has arose from. Before that relationship and the drug addiction I had no legal issues or anything with the law for years and years, and then since I’ve dealt with that, I’ve had done in the future now either as well.”[57]
[My underlining]
[57] Ibid, page 7, lines 4-12.
There is no doubt that when he has been affected by either or both illicit drugs and/or alcohol, his capacity to distinguish between right and wrong and to otherwise comprehend the nature and effect of his conduct has been severely impacted. It has caused him to (1) repeatedly fail to observe the terms of lawfully imposed orders, (2) fail to develop any measure of respect for lawful authority, and (3) continue to try and ameliorate or minimise the circumstances that now confront him in terms of his very serious and lengthy criminal history in this country.
Thus, an application of this sub-paragraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending throughout his 25 year criminal history and its self‑evident increasing trend of seriousness, certainly since 2004, is such as to attract a finding that his offending has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect(s) does or does not demonstrate the seriousness of that offending.
The history discloses something in the order of 18 attempts by judicial sentencing officers to punish the Applicant’s offending by the imposition of non-custodial means. Those means have included the imposition of sentencing instruments ranging (1) from fines, (2) probation, (3) wholly suspended custodial terms, (4) intensive drug rehabilitation orders in lieu of serving a term in custody, (5) the serving of custodial terms on a concurrent, versus cumulative, basis, (6) orders that he be of good behaviour (again, in lieu of serving further custodial time), (7) the recording of a conviction(s) with him not being further punished, (8) parole release dates close to the actual date of commencement of a custodial term and/or (9) orders for payment of restitution.
The history also discloses something in the order of 12 sentencing episodes resulting in the imposition of custodial terms from March 2001 onwards. Taken cumulatively, and as mentioned earlier, these custodial terms amount to something in the order of nearly 10 years of duly imposed cumulative custodial time. Put another way, the totality of custodial time he has received has featured very significantly across the totality of the time he has spent residing in Australia.
I have identified the following cumulative effects from the Applicant’s offending. First, he has a criminal history that runs for some 25 years. He has been given (in sentencing terms) a large number of opportunities to experience some measure of deterrence towards further offending. None of those deterrent measures have resonated or otherwise impacted upon him. In many respects, he continues to minimise or try to re‑interpret either the circumstances of his offending or how judicial officers punished him for it. He has taken little or nothing from the progressively imposed sentencing regime that I have outlined earlier. Any reasonably objective analysis of his offending history – certainly since 2004 - leads to no other conclusion.
The second cumulative effect arising from the Applicant’s offending is that he has failed to develop any measure of respect for the lawful authority governing the Australian community to which he now seeks re-admission. The criminal history makes it clear that he has failed to respect lawful authority, be it in the form of specific individuals (i.e. police officers) or the authority represented by duly imposed orders requiring him to do or refrain from doing something. The history demonstrates that he does not understand that the making of a domestic violence order absolutely prohibits him from approaching or otherwise communicating with the aggrieved party. He has failed to understand the benefits of the making of an order requiring him to commit to drug diversion/rehabilitation in lieu of serving a term in actual custody. He has failed to understand the primacy of him appearing in a court of law or reporting to a relevant government official pursuant to a grant of bail made in his favour.
The factual circumstances surrounding commission of offences by him around issues of domestic violence and otherwise seeking to resolve his differences with other people are both menacing and, ultimately, concerning. His recorded conduct towards aggrieved parties in domestic violence orders, when he has been breaching those orders, speaks for itself and can only be construed in one way. His conduct relating to his conviction in 2011 for “assaults occasioning bodily harm whilst armed” and “unlawfully wound another” involved inherently dangerous conduct and a completely wrong approach to the resolution of a perceived dispute with other members of the community. He has failed to understand that a large number of other people in the Australian community have similar disputes or problems with their fellow community members, but do not resort to conduct resulting in convictions pursuant to the Queensland Criminal Code for very serious conduct.
Instead, he does not comprehend the lawful “boundary” represented by the making of a domestic violence order against him. He has continued his very threatening conduct towards aggrieved parties to those orders. In such situations, where a domestic violence order is made and the perpetrator maintains a line of very threatening communication and correspondence with the aggrieved, then it is, to my mind, reasonable to conclude that a cumulative effect of such breach-type offending is that the person has failed to recognise both the legal import behind the order and the potential for harm that his further actual or threatened violent conduct will cause.
I am of the view that the cumulative effect(s) of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material does not contain evidence relevant to this factor, and accordingly, I find that this sub-paragraph (g) is not relevant to the instant facts.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I have earlier made reference to two separate warnings that the Applicant has received from the Respondent about the potential adverse consequences of further offending upon his visa status to remain in this country.
He received the first such notification by letter dated 5 December 2007, whereby he was clearly warned to ameliorate and temper his propensity to offend in order to avoid future adverse consequences on his visa status:
“Dear Mr Smith
FORMAL COUNSELLING LETTER
I am writing to you as you are the holder of a visa granted by the Department of Immigration and Citizenship. You have come to the notice of the department because you have a substantial criminal record or because of your past or present criminal or general conduct. This behaviour has brought you within the provisions of section 501 of the Migration Act 1958 (the Act).
…
Your visa is not currently being considered for cancellation.
However, the purpose of this letter is to counsel you that any other conduct on your behalf that comes within the scope of subsection 501(6) could result in the consideration of the cancellation of your visa or refusal of any future visa application under section 501 of the Act. Please note that the consequences of visa cancellation under section 501 of the Act may include your removal from Australia and, in certain cases, you may not be able to return to Australia.
…
5 December 2007”[58]
[Emphasis in original]
[58] Exhibit T1, T3, page 8.
Subsequent to his receipt of this letter, the Applicant found himself before lawful authority for sentencing on four further sentencing episodes that dealt with the commission of 11 offences between 15 May 2009 and 27 April 2011, particulars of which comprise:
·     15 May 2009, Townsville Magistrates Court:
o   Convicted for two counts of stealing (s398(1) Criminal Code Act 1899 (Qld));
·     10 August 2009, Townsville Magistrates Court:
o   Convicted for two breaches of bail (s29(1) of the Bail Act 1980 (Qld));
·     30 March 2011, Townsville District Court:
o   Convicted for one count of unlawful entry of vehicle for committing indictable offence at night (ss 427(1) and (2)(A) of the Criminal Code Act 1899 (Qld));
o   Convicted for one count of assaults occasioning bodily harm (s 339(1) of the Criminal Code Act 1899 (Qld));
o   Convicted for one count of unlawfully wound another (s 323(1) of the Criminal Code Act 1899 (Qld));
o   Convicted for one count of common assault (s 335 of the Criminal Code Act 1899 (Qld));
·     27 April 2011, Townsville Magistrates Court:
o   Convicted for three breaches of a domestic violence order (s 80(1)(B) of the Domestic and Family Violence Prevention Act 2012 (Qld)).
Only a matter of months after receiving the sentence on 27 April 2011, the Applicant was again contacted by the Respondent Department. As mentioned earlier in these Reasons, under cover of its letter dated 16 September 2011, the Applicant was notified that the Respondent Department was aware of his offending but had made the decision to not cancel his visa. The terms of this second letter of warning could not be clearer:
“Dear Mr SMITH
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958
On 3 June 2011 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class TY Subclass 444 Special Category (Temporary) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
…
16 September 2011”[59]
[Emphasis and underlining in original]
[59] Ibid, T4, pages 9-10.
Following his receipt of this second letter from the Respondent Department, the Applicant found himself before lawful authority for another 10 sentencing episodes for the purposes of punishing something in the order of an additional 23 separate offences, with two of those sentencing episodes involving judicial officers dealing with the Applicant for breaches of previously imposed sentencing orders. Suffice it to say that the sentencing arose from the Applicant’s offending in the realms of (1) trespass, (2) breaches of domestic of domestic violence orders, (3) stealing, (4) breaches of bail, (5) assaulting or obstructing a police officer, and (6) obtaining a financial advantage. To be clear, this sentencing history applies after his receipt of the second letter of counselling/warning from the Respondent Department.
Little more need be said about the clear and obvious level of weight attributable to this sub-paragraph (h) in favour of a finding that the Applicant’s conduct has been of a very serious nature.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. As also mentioned earlier, the mandatory cancellation of the Applicant’s visa occurred while he was in criminal custody. He voluntarily removed himself from the Australian migration zone prior to his placement into immigration detention at the conclusion of his serving his term in criminal custody. This sub-paragraph (i) is not relevant to determination of this application.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (b), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s offending conduct can be readily characterised as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider 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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In its SFIC, the Respondent contends that:
“38. The applicant’s varied criminal history means that a broad range of harms may befall members of the Australian community were he to reoffend. That harm may be financial in nature if he commits further dishonesty offences. The harm may be physical, psychological or emotional in nature if he commits further acts of violence (including domestic violence) against others.”[60]
[60] Exhibit R1, page 10.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
The very lengthy nature of the Applicant’s history of criminal offending in Australia between March 1992 and July 2017 is demonstrative of an evolution of offending that is both concerning and otherwise unresolved. His early offending was largely unremarkable. However, his offending pattern evolved into a persistent cycle of repeated offences in the realms of breaches of domestic violence orders and offences where he failed to respect the personal and property rights of other members of the community. The nature of his offending cannot be said to have ‘tailed off’ in terms of its level of seriousness. Perhaps most concerning is the reality that his most recent sentencing episode did not involve sentencing for the commission of fresh offences, but instead involved him being dealt with for proven breaches of previously imposed sentencing regimes.
If one has regard to the evolving trajectory of the Applicant’s unlawful conduct, there is much to suggest that, were he to re-offend if returned to that Australian community, the consequences of that offending would be analogous to exactly what has occurred in the past. That is, there would be very serious and quite conceivably, significant, and potentially catastrophic physical, financial and psychological harm to members of the Australian community. It is not a stretch to imagine or infer that a number of the Applicant’s offending episodes from the past could have resulted in much more serious and potentially catastrophic outcomes.
Having regard to the nature of his offending history, it is very difficult to avoid a finding that, were he to re-commit his offences against people and/or their property upon a return to the Australian community, the nature of the harm to be suffered by such victims would be at least identical to that experienced by the past victims of his offending, particularly during the period 2004 to 2017 of the offending history.
It is therefore reasonable and safe to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has a period of criminal offending running for approximately 25 years, involving the commission of some 80 offences punished by his appearance at 30 sentencing episodes. During his criminal history, he has been afforded the benefit of virtually the full ambit of deterrent non-custodial sentencing regimes, ranging from (1) fines, (2) probation, (3) wholly suspended custodial terms, (4) intensive drug rehabilitation orders in lieu of serving a term in custody, (5) the serving of custodial terms on a concurrent, versus cumulative, basis, (6) orders that he be of good behaviour (again, in lieu of serving further custodial time), (7) the recording of a conviction(s) with him not being further punished, (8) parole release dates close to the actual date of commencement of a custodial term, to (9) orders for payment of restitution. It is very difficult to detect any sense of deterrent effect experienced by the Applicant arising from those non-custodial sentences. Instead, there are at least 12 separate sentencing episodes involving the imposition of custodial terms. Stated cumulatively, the totality of custodial time imposed upon him approximates 10 years.

The Applicant has failed to develop any measure of respect for lawful authority, no matter which component of the Australian community it seeks to govern. He does not respect the personal rights or space of others. Domestic violence offending is rightfully regarded as a deplorable scourge in our community. Orders restraining people from committing domestic violence are put in place for a specific reason. The Applicant’s conduct is such that he has (1) failed to respect the personal rights of an aggrieved party named in those orders (resulting in the making of those orders in the first place) and (2) failed to respect the legal authority behind those orders by wantonly and irresponsibly breaching them, on various bases, on at least 28 occasions.[61]
[61] See paragraph [51] of these Reasons for particularisation of those breaches of previously imposed domestic violence orders.
I have earlier recounted the Applicant’s astonishingly brazen ignorance of the two warning/counselling letters he has received from the Respondent Department. There is no suggestion that the Applicant did not fully comprehend the contents of those communications and the specific warning contained in each of them. Nor is there any sustainable contention that he did not receive both of those communications. Despite receiving both of them, he obviously took nothing from what they had to say. After receipt of the first letter of warning/counselling, he committed a further 10 offences punished by four sentencing episodes. After receipt of the second warning/counselling letter, he committed a further 23 offences punished by 10 sentencing episodes.
In his evidence at the hearing, the Applicant was forthright enough to attribute his past offending to unresolved issues with illicit drugs. He said the following:
“SENIOR MEMBER: … Anything else in relation to your offending that you would like to mention?
MR SMITH: Yes. As I said, a lot of it was to do with drug addiction and a toxic relationship with a partner and drug addiction, and mental health issues. That’s pretty much where all this has arose from. Before that relationship and the drug addiction I had no legal issues or anything with the law for years and years, and then since I’ve dealt with that, I’ve had done in the future now either as well. Mr Kyranis was talking about my past, and the key in the direction, and where it says, number 2, risk to Australian community, and it’s all to do with my past.
And he states that there’s going to be no change in the future, but the past has been the past, and I’ve paid for that, and it has been a messy past, as I stated, due to drugs. I’ve submitted evidence to show that I’ve made the effort to change, to turn that around with the rehab, with the support, with the support programs that I’ve done, the Safe Dad programs, the lifestyle program, the aggression, the anger programs, all through Salvation Army (indistinct) rehab. I’ve also done positive parenting courses for my children.
I’ve broken away from the old life and the drugs. I am now working full-time. I’ve had no issues over here to do with the law or any sort of things. All that should be taken into consideration, where I just feel like on number 2 where they’re saying “a risk to the Australian community”, they’re just looking at past facts of records and not looking at what has actually been - the effort put in to change all that for the future, and the better of my children, and my life. And it has been a long road, and I’ve put in a lot of effort to change. And I just feel like Immigration is not taking that into account, even acknowledging that fact. It has not been mentioned once about the effort that has been made.
SENIOR MEMBER: All right, I’ve got that. Keep going. Anything else that you would like to say about your offending or your risk to the community?
MR SMITH: I don’t feel like I am a risk to the community, or else if that was a fact, then it would be shown over here in this community because, you know, all communities are alike. Doesn’t matter if it’s Australian or New Zealand or - you know, it would be the same thing. But, you know, I’m here in New Zealand and there’s no offending here. I’m not a negative to the community. Not just on top of offending, there’s no negative impact at all that I’ve put on the community. And (indistinct) matter which community I’m in.
I’m pretty much - as I said, I’ve changed my ways and my focus is my children and my family, and that’s what I’m about. That’s what fulfils me in my life these that’s. That’s who I am.”[62]
[My underlining]
[62] Transcript, 24 September 2020, page 7, lines 4-45, and page 8, lines 1-3.
This oral evidence is echoed in the Applicant’s written material. In his Personal Circumstances Form, he said that he has not:
“…offended in years…old charges have arised, [sic] I’ve moved on, These days I have alot [sic] more responsibilitys [sic] as a father and a son, Im [sic] also on a 2 year good behaviour upon release.”[63]
[63] Exhibit T1, T31, page 129.
Further, in his submissions in response, he said the following:
“Paragraph 26: I was in a toxic relationship with Dianna Trbusic for 15 years. This relationship contained drugs, her mental health issues, her cheating numerous times, her setting me up for DVO breaches due to her unstableness. I have addressed these past problems. I’ve done and completed rehab, I’ve separated from Dianna Trbusic, and I’ve completed safe Dads Course with the domestic violence resource centre. I’ve completed the Salvation Army’s life style course. I’ve completed the triple parenting program. I am drug free, I work full time.
…
I’ve provided my New Zealand criminal history, which states I’ve had no criminal activities or charges in NZ over the 3 years I’ve been here, proof as to I’m not likely to offend and I’m working full time. I have made an effort to change from my past mistakes and my actions today are proof of this even though the delegate of the Immigration Minister speculates that in the future I will and am likely to reoffend. Given this speculation alone the delegate failed me on my visa appeal application.”[64]
[64] Exhibit A1, page 2.
While the Applicant has broadly attributed his past offending to “the old life and the drugs,” there is little or nothing in the way of independent clinical and expert evidence upon which to safely make such a finding. The only evidence before the Tribunal that the Applicant’s propensity to abuse illicit drugs has been resolved arises from his own lay evidence and resulting contention that he has done so. There is no expert, independent and suitably qualified clinician to corroborate and safely confirm the Applicant’s contention. Without such independent and expert evidence, very little, if any, weight can now be allocated to his contentions about having been rehabilitated. In short, the Applicant’s evidence about rehabilitation and a consequential removal/elimination of previously causative factors behind his offending goes no further than him saying that this has occurred.
There is a very significant difficulty appearing in the material relating to the Applicant’s contentions about experiencing some kind of rehabilitative effect from courses he has undertaken. I refer again to the two letters of warning/counselling he received from the Respondent Department. After he received the second letter of warning/counselling (in July 2011) he sought legal assistance from the Townsville Community Legal Service Inc for the drafting and forwarding of responsive submissions to that second letter of warning/counselling. Those submissions are dated 12 August 2011.[65] In those submissions, it is contended on behalf of the Applicant that:
“Mr Smith submits that his sobriety for the last two years indicates that his risk of reoffending is now very low.
Mr Smith has also completed the Safe Dads programme offered by the Domestic Violence Resource Service. We attach a letter from the Domestic Violence Resource Service in Townsville confirming Mr Smith’s completion of that course (attachment 10).”[66]
[65] Exhibit T1, T34, pages 134-155.
[66] Ibid, page 139.
The significant difficulty for the Applicant arises from the reality that, following submission of this letter, he nevertheless proceeded to commit multiple breaches of domestic violence orders and to otherwise commit much of his other very serious offending. Consequently, it is difficult to reliably glean any measure of rehabilitative effect he may have experienced from completing the Safe Dads Program or, indeed, any of the other rehabilitative courses and programs he has undertaken.
While he talks about having participated and/or undertaken such programs and courses, the evidence does not point to any convincing likelihood that completion of such courses is somehow equivalent to the necessary expert and independent clinical evidence demonstrative that (1) the causative factors of his offending have been identified, (2) that those factors are under some kind of remedial treatment, management and control such that (3) it can be reliably found that the Applicant’s risk of re-offending is low or any different to what it was at the time of his most recent removal from the Australian community.
Consequently, I find that in both his written material and oral evidence, there seems to be a demonstrated lack of the Applicant having developed sufficient insight into the psycho-social factors that have previously predisposed him to offend. It is not enough for him to blithely suggest that his offending in the past has been due to “the drugs” and to “a toxic relationship” with another person. The more critical question – which the Applicant has failed to answer for the present proceedings – is why it is that he has not been able to resist a predisposition to abusing illicit drugs in the first place and to what extent that propensity has now been overcome.
There may very well be other psychological reasons and motivations behind his past conduct or the factors giving rise to his past conduct. He speaks of being the victim of a violent sexual assault while he was a child. He says:
“While living in PNG when I was only 4 years old…I was abducted, sexually assaulted, had my head held under water, and a knife held to my throat! This horrific act haunted me my whole life, as my father refused the whole family councilling [sic] of any kind.”[67]
[67] Ibid, T35, page 155.
Once again, the Applicant’s contention about this asserted factor derives from his evidence alone. If he has been traumatised to the extent he contends, then one would reasonably have expected him to have sought some type of trauma counselling or similar psychological/psychiatric treatment for an event that apparently occurred in his childhood. In the absence of such corroborative independent and expert clinical evidence, it would be unsafe to attribute any weight to a finding that his past offending is in whole or in part due to the Applicant’s self-reported childhood trauma. The resulting and broader finding is that, were the Applicant to be returned to the Australian community, his propensity to offend remains untested within that broader community and, therefore, unknown.
I also receive with caution the Applicant’s now-made contention that he will not again offend in Australia because “…I’ve changed my ways and my focus is my children and my family, and that’s what I’m about. That’s what fulfils me in life…” The Applicant had a child/children in his life when he committed much of his very serious offending. The element of children in his life did not serve to change his ways in the past, and I am not convinced that this factor will reliably serve to, in any way, lower his propensity to offend in future.
There are two further items worthy of discussion on the specific issue of recidivism. First, the Applicant contends that his risk of recidivism in Australia is to be regarded as low because he has not been convicted of any criminal offences since his voluntary return to New Zealand. The basis of the contention seems to be that, given the relative lull or abatement in his propensity to offend during his time in New Zealand, this Tribunal should now use this as a basis to make a finding that the same position is likely to apply upon the Applicant’s return to Australia. Such a contention should be rejected. Previous lulls or abatements in his offending (in Australia) have been followed by significant and very serious spates of re-offending. For example, he did not offend in Australia from November 1997 to February 2000, from June 2001 to November 2003 and from July 2006 to January 2009. Be that as it may, the Applicant emerged from those ‘quiet periods’ and committed his very serious offences now appearing in his criminal history. Accordingly, this contention goes nowhere.
Second, and in a rather novel way in applications of this type, the Applicant said the following during cross-examination:
“MR KYRANIS: If the tribunal gave you your visa back, where would you live?
MR SMITH: At this stage I would be looking at Auckland still, and just visiting my children and family in Australia. That’s what we’re looking at because we don’t think that it would be a good decision for me to move straight back to Australia if I did have my visa. We are mostly looking at me having a visa so if my children need me or my mother needs me, or my brother for some sort of health issue, I can take time off work and by [sic] straight over. Yes, so that’s a hard question to answer, to tell you the truth. I would just be moving straight back into Australia and saying, “Yes, I got my visa, and just throwing everything here. I could maybe live at my mum’s in Australia with my son and maybe fly over here and work away from home with Rayglass still, and then just on my - do, like, two months on and a couple of weeks off; and two months on and a couple of weeks off. That would probably be an option as well. It would be something I’d have to talk to my family and children about, to tell you the truth, to be honest.
MR KYRANIS: Why do you think that - you said coming to Australia would not be a good decision. Why not?
MR SMITH: Well, for starters I haven’t talked through with my family. It’s not something I could just decide on my own, yes. I’m looking - the reason - as I was saying to Abby from AAT last night, Abby T, the reason why I’m doing this is for my children, for my mother, and then that is for myself, by doing that. I’m actually in a better - my life is better here. If it was just me and I didn’t have children and my mum, my life is actually better here. But that’s just looking at it from a selfish point of view, but I’m not in that situation. I’m a part of a family, and I’m an important part of my children, which comes before my own - you know, what’s better for myself. So yes.”[68]
[My emphasis and underlining]
[68] Transcript, 24 September 2020, page 11, lines 12-38.
I reject any resulting inference or contention that the Applicant is at a lower risk of re‑offending in Australia because he is (at this stage) only seeking restoration of his visa status in Australia to “just visit my children and family in Australia”. That contention should receive no weight because (1) the factors predisposing him to offend have not been identified and are not under any demonstrated clinical remedial management and control, and (2) to the extent his absence in New Zealand does now or may in future represent a lull in his offending pattern, such lulls and abstinences in the past have consistently devolved into the Applicant returning to his offending ways.
In assessing the Applicant’s risk of re-offending, a decision-maker is required to “take into account available information and evidence on the risk of the non-citizen re‑offending…”[69] Apart from the Applicant’s own evidence, including certificates/confirmations of completion of certain courses, there is no such evidence before the Tribunal. There was no evidence adduced at the hearing to demonstrate that the Applicant’s level of insight into the nature of both his offending and its causes is now any greater than it was at the time of his most recent removal from the Australian community.
[69] See paragraph 13.1.2(1)(b) of the Direction.
The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
I am also mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[70]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[70] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
It is clear from the Applicant’s pattern of offending and resulting history, that he has been afforded multiple non-custodial opportunities to modify and ameliorate his conduct. I have earlier particularised those non-custodial opportunities and sentences. He has consequently failed to grasp the opportunities to alter his offending behaviour and, instead, continued to offend, and, for at least 13 years of his offending history, very seriously so.
The state of the evidence before the Tribunal does not even remotely reach the necessary threshold such as to be demonstrative of a reality that he has engaged with a process of meaningful or effective treatment or other expert and clinical intervention‑based therapies sufficient to safely ground a finding that his risk of re‑offending could now be construed as anything different to what it was at the time of his most recent removal from the Australian community.
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong, convincing and unresolved likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non‑revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the subject visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
It is first necessary to identify the children actually or possibly relevant to this proceeding. In his evidence given in cross-examination, the Applicant spoke of three children who are now over the age of 18 years and are not relevant to a consideration of this Primary Consideration B.[71] Those three adult children are [Child C] who is a stepchild of the Applicant, [Child J], who is also a stepchild of the Applicant, and a (presumably biological) daughter, [Child K]. The adult children K and J are 25 and 23 years of age, respectively. The adult Child C was born in November 2002[72] and, as at the date of these Reasons, is less than a month away from attaining the age of 18 years.
[71] See Transcript, 24 September 2020, page 17, lines 11-47, and page 18, lines 1-28.
[72] Ibid, page 17, lines 42-43.

The difficulty for the Applicant is that each of these primary caregivers have played this primary carer role for the very significant majority of the children’s lives thus far. Given that (1) Child M is “in the care of child safety”, (2) Child S is in foster care, apparently until he attains the age of 18 years, and (3) the fact that the Applicant’s mother is the primary caregiver for Child E[93], I am of the view that this sub-paragraph (e) must surely be of neutral weight.
[93] Supported by Ms Tate as (in her words), “I have been a secondary caregiver for [Child E].
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity.
There are no known such views relating to the children S and M. However, the material contains a statement from Child E, indicating his unhappiness that the Applicant cannot travel to Australia to spend time with him. In this statement, Child E said:
“I am writing this letter today on behalf of myself for the reasoning that I am unhappy my father cannot transport himself to Australia from New Zealand. I know my father is doing well in New Zealand supporting himself with his job, I am unhappy that my father cannot come to visit me and my siblings that are in foster care…. It also saddens me knowing that he may also miss my Highschool graduation and that my siblings can’t see our father.”[94]
[94] Exhibit A5.
With particular reference to the abovementioned statement provided by Child E, I am inclined to the view that this sub-paragraph (f) merits a slight measure of weight in favour of revocation of the mandatory cancellation decision such that the Applicant’s visa status to remain in Australia be restored to him.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. There is no evidence of such abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. I am of the view that this sub-paragraph (h) is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the Respondent’s rightly made concession that “The Minister accepts that the best interests of these three children weigh in favour of revocation” tempered by the submission that it should be afforded limited weight only in favour of the Applicant;[95]
[95] Exhibit R1, Respondent’s SFIC, page 12, paragraph [42].
(b)the virtually non-existent nature and duration of any parental relationship between the children S and M and the Applicant, both prior to and after his most recent removal from the Australian community that is, when placed into criminal custody;
(c)the very limited nature and duration of any parental relationship between the Applicant and Child E;
(d)my finding that the Applicant can still be expected to play some slight positive parental role in the lives of the two youngest children, taking into account the no doubt significant legal and administrative hurdles he will have to overcome to do so, and the cumulative parenting period of 24 years until the two youngest children each attain the age of 18 years;
(e)my finding that it is more likely than not that the Applicant can be expected to play some measure of a positive parenting role in the life of Child E for the three remaining parenting years until that child attains the age of 18 years;
(f)the reality that all three children are primarily cared for by other primary caregivers as follows;
oChild M, who is in the care of child safety;
oChild S, who is in foster care, apparently until he attains the age of 18 years; and
oChild E, who is primarily cared for by the Applicant’s mother;
(g)in terms of any allocated weight in favour of the Applicant:
(i)the slight level of weight I have attributed to sub-paragraphs (a), (b), (c) and (f) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the Applicant’s three relevant minor children in Australia weighs slightly in favour of revocation of the mandatory cancellation of his visa. I qualify this finding by saying that the slight weight attributable to this Primary Consideration B does not outweigh the very heavy weight I have attributed to Primary Consideration A.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[96] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[97] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[96] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[97] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·following a number of arrivals/departures, the Applicant finally arrived in Australia in March 1996. He is now 46 years of age;
·I have proceeded on the basis that he has three minor biological children of his own. Each of those children are primarily cared for by people other than him;
·he was first sentenced in Australia in March 1992 and has a criminal history in Australia that runs for some 25 years;
·his offending has seen him before lawful authority in this country on at least 30 occasions between March 1992 and July 2017, involving the commission of some 80 separate offences;
·my finding that his very serious offending, were it to be repeated, could realistically have the potential of very serious or even catastrophic harm to members of the Australian community;
·his offending derives from unresolved issues with illicit drugs. The only tangible evidence that these issues have been addressed derives from the Applicant’s contention that he has simply stopped doing or partaking in illicit drug abuse;
·without the benefit of any current, independent expert evidence, those unresolved issues can be (inexpertly) stated as: (1) a predisposition towards abusing illicit drugs; (2) a lack of regulation of his impulsivity to engage in criminal conduct; and (3) a demonstrated lack of insight into the causative effects behind his predisposition to offend;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or arising from his voluntary removal to New Zealand, since approximately July 2017;
·he has received a cumulative total of approximately 10 years of custodial time for his offences in Australia;
·my finding that difficulties with law enforcement have been a significant feature for the entirety of his adult life in this country thus far;
·my further finding that the state of the evidence goes no further than to suggest that the Applicant’s risk of re-offending remains as it was prior to his most recent removal from the Australian community in July 2017;
·there is no current, independent or expert evidence before the Tribunal:
(i)providing any diagnosis of the extent of the Applicant’s predisposition to abuse illicit substances;
(ii)the extent to which those unresolved and unmanaged substance abuse and/or addiction issues contribute to, and are directly causative of, his predisposition to offend;
(iii)that any such diagnosed causative factors are now the subject of an externally imposed and monitored regime of remedial therapy, treatment, management and control; and
(iv)that the Applicant has demonstrated any independently measured level of insight into his offending which, in turn, makes it unsafe for this Tribunal to ground any finding that his risk of re-offending is lower than it was prior to his most recent removal from the Australian community in July 2017.
The Evolution of the Australian Community’s “Expectations”
In 2003, Deputy President Block of this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[98]
[98] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[99]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[99] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”),[100] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[100] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[101] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[102] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [103]
[My underlining]
[101]    [2019] FCA 500.
[102]    Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[103]    FYBR, paragraph [42] (Perry J).
FYBRwas appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[104]
[104] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[105]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[106]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[107]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[108]
[105]    Afu at paragraph [85].
[106]    FYBR at paragraph [42].
[107]    FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[108] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a demonstrated history of participation in the Australian workforce. He has described it thus:[109]
“From 1988 to 1991 –Service station att – [Name of business redacted]
From 1995 to 2006 – fisherman/farming – [Name of business redacted]
From 2008 to 2010 – cleaner – [Name of business redacted]
From 2010 to 2012 – scales/boner – [Name of business redacted]
From 2012 to 2015 – deck officer – [Name of business redacted]”
[109] Exhibit T1, T31, page 130.
He has also made certain contributions to Australian community and cultural activities: “Salvation Army volunteer, commercial fishing industry, church group, fruit farming.”[110]
[110] Ibid.
His personal and employment references speak well of him. A former employer (that is, after the Applicant’s voluntary return to New Zealand) spoke positively about the Applicant in that workplace. She noted: “Brendon slotted into the team effortlessly and will be missed.”[111] There is also a letter of support from a Captain Brad Whittle of the Salvation Army, which reports generally about the Applicant’s overall situation and goes no further than saying “…thank you for your consideration of the prospect of a further review in regards to Mr Smith’s application for a Visa to visit with his family in Australia.”[112]
[111] Exhibit A8, letter from PAE Facilities Management Specialists (per Ms Natalie Watson), Auckland, New Zealand.
[112] Exhibit A10, email from Captain Brad Whittle, the Salvation Army.
Having regard to the totality of the Applicant’s unlawful conduct from 1992 to 2017, and his resulting very extensive criminal history, he has surely breached the expectations of the Australian community. He has, over some 25 years, consistently and, especially post 2004, very seriously failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the extent of the Applicant’s positive contributions to the Australian community;[113]
(ii)the Applicant arrived here on a final basis in 1996 and has lived in Australia for approximately 21 years (up to his voluntary removal from Australia in mid-2017);[114]
(iii)my finding that the permanent removal of the Applicant may have a slight adverse impact on the relevant three minor children in Australia;[115]
(iv)the very serious nature of the Applicant’s offending to date committed upon members of the Australian community;
(v)the nature of the totality of his conduct in this country, involving, as it does, inter alia, a lack of respect for lawful authority and the personal and property rights of others;
(vi)the lack of current, independent and expert evidence measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vii)my finding of a strong, convincing and unresolved likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[113]    The Direction, paragraph 6.3(7).
[114]    The Direction, paragraph 6.3(5).
[115]    Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. Indeed, he has safely and successfully re-established himself in New Zealand with no suggestion of any risk of harm in those circumstances. It should also be noted that he voluntarily removed himself to New Zealand in July 2017 and, on his own evidence, intends to primarily base himself in New Zealand and to visit Australia in order to try to spend time with his children. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“50. Overall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community.”[116]
[116] Exhibit R1, Respondent’s SFIC, page 15.
The Applicant first came to Australia in 1981 and there followed periods of absences in New Zealand. He appears to have finally settled in Australia in 1996. He has no offending history in New Zealand. He commenced offending in Australia in 1992 and was first dealt with by lawful authority for his offending in this country in that year. I have had regard to paragraph 14.2(1)(a)(i) of the Direction and find that the Applicant did begin offending “soon after arriving in Australia.” Of course, there were earlier arrivals prior to 1992, but as I have found, he appears to have finally settled here in 1996. Therefore, no weight can be safely allocated in favour of the Applicant on the basis of paragraph 14.2(1)(a)(i).
On the other hand, it is possible to apply paragraph 14.2(1)(a)(ii) for the purposes of allocating weight in the Applicant’s favour. I have earlier recounted the Applicant’s sound employment history in Australia. This contention is supported by the letter from the Applicant’s former employer (albeit in New Zealand) appearing in the material.[117] Consequent upon such employment in Australia, the Applicant will have lodged income taxation returns in Australia for certain years of income and thus made a contribution to the Australian community. This is confirmed in the Applicant’s Personal Circumstances Form, which also refers to non-employment contributions which comprise him acting as a volunteer for The Salvation Army, having an active involvement in the commercial fishing industry, a church group and fruit farming.[118] I therefore find that the Applicant has made positive contributions to the Australian community. A moderate level of weight in his favour can therefore be allocated to an application of paragraph 14.2(1)(a)(ii).
[117] Exhibit A8.
[118] Exhibit T1, T31, page 130.

Regard must also be had to paragraph 14.2(1)(b) of the Direction which is concerned with the Applicant’s strength, duration and nature of any family or social links with Australian citizens and/or people who can otherwise remain here indefinitely. The material demonstrates the Applicant has ties with Australian citizens and/or people who have an indefinite right to remain in Australia. As mentioned, he finally settled in Australia in 1996 and has lived the majority of his life in Australia. In addition to his three biological minor children and his adult children/stepchildren to which I have referred, he also has immediate and extended family who reside here. According to his Personal Circumstances Form, those people are:[119]
(a) his mother;
(b) his older brother;
(c) a female cousin; and
[119] Exhibit T1, T31 page 128.
(d) a male cousin.
I am mindful of the Applicant’s comments closing submissions to this effect:
“…my children are Australian citizens and part of the Australian community, and so is my family in Australia and my friends in Australia, and also the people that have sent through support letters. They’re all part of the Australian community and they’re all in support of me having a visa, as well as other friends and their children who are Australians and in Australia who I grew up with who I have not actually submitted anything from them due to the fact that I’m so far away and not in contact with them.”[120]
[120] Transcript, 24 September 2020, page 36, lines 1-7.
In closing submissions, the Respondent’s representative said:
“In terms of the other considerations and the first relevant – which I say is the ties to Australia, the Minister accepts that this consideration weighs in his favour due to the period of residence that he lived in Australia. It is acknowledged that he has some family members in Australia, his eldest daughter and stepson, mother, who may suffer some emotional hardship if he stays in New Zealand, but there’s no evidence that these people are otherwise reliant on the applicant.”[121]
[121] Ibid, page 34, lines 37-44.
With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community are genuine and palpable. I find that this paragraph 14.2(1)(b) weighs moderately in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Accordingly, having regard to the totality of the evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, the victim of the Applicant’s numerous domestic violence-type offences may have had something to say about the impact of the Applicant’s continued presence in Australia upon her.
However, in the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on that or any other of his victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
A relatively novel feature of this case – insofar as this Other Consideration (e) is concerned – is that the Applicant voluntarily removed himself from Australia to New Zealand in mid-2017. He has resided in New Zealand since that time. The Respondent made the submission that: “…there’s no significant impediments, and this consideration is neutral and does not weigh in the Applicant’s favour.”[122]
[122] Transcript, 24 September 2020, page 34, line 47, and page 35, line 1.
I am inclined to agree with that submission because over the course of almost three and a half years after voluntarily removing himself from Australia to New Zealand, the Applicant has obtained safe and serviceable housing, and has also secured reliable and remunerative employment in which he has been engaged since at least September 2019. In addition, he has his father in New Zealand, who resides approximately one hour’s travelling time from him. There are little or no linguistic or cultural differences between Australia and New Zealand.
In cross-examination, the Applicant’s evidence was indicative of him being well-settled and established in New Zealand:
“MR KYRANIS: Did you work anywhere before PAE?
MR SMITH: Yes, I did. I worked for McMullen & Wing for about two years. They’re a boat building company about 100 metres down the road from Rayglass. They’re an aluminium boat building company, I was an aluminium fabricator for them. We built a $3 million project for the mussel boats for the mussel farm, and once that project had finished, I finished up. And then about two months later I worked for PAE, and then once I finished at PAE, about a month later I started with Rayglass. So I’ve pretty much been working full-time I’ve been over here. That’s pretty much all I do. I don’t have my family life here, so I keep myself busy working, and just fishing on the weekends. And gym and training, that’s about it.
MR KYRANIS: You said that you’re working at Rayglass and it’s your dream job. What kind of work do you do?
MR SMITH: I’m a fit-out boat builder. There’s a team of three of us: the supervisor, the lead fit-out builder, and the fit-out builder, which is myself. We built a 35 foot fibreglass custom-designed boat worth 500,000, $600,000 a boat. I’m currently building my ninth boat. And we build one of them roughly in every - one every six weeks, the three of us.”[123]
[123] Ibid, page 9, lines 6-23.
Rather than speaking of impediments, the Applicant frankly said that since his voluntary removal from Australia his life has actually improved in New Zealand compared to the life he had in Australia:
“MR KYRANIS: If the tribunal gave you your visa back, where would you live?
MR SMITH: At this stage I would be looking at Auckland still, and just visiting my children and family in Australia. That’s what we’re looking at because we don’t think that it would be a good decision for me to move straight back to Australia if I did have my visa. We are mostly looking at me having a visa so if my children need me or my mother needs me, or my brother for some sort of health issue, I can take time off work and by [sic] straight over. Yes, so that’s a hard question to answer, to tell you the truth. I would just be moving straight back into Australia and saying, “Yes, I got my visa, and just throwing everything here. I could maybe live at my mum’s in Australia with my son and maybe fly over here and work away from home with Rayglass still, and then just on my - do, like, two months on and a couple of weeks off; and two months on and a couple of weeks off. That would probably be an option as well. It would be something I’d have to talk to my family and children about, to tell you the truth, to be honest.
MR KYRANIS: Why do you think that - you said coming to Australia would not be a good decision. Why not?
MR SMITH: Well, for starters I haven’t talked through with my family. It’s not something I could just decide on my own, yes... I’m actually in a better - my life is better here. If it was just me and I didn’t have children and my mum, my life is actually better here.”[124]
[124] Ibid, page 11, lines 12-30 and 33-35.
In his Personal Circumstances Form, the Applicant speaks of adverse outcomes were he to be returned to New Zealand as follows:
“Are there any other problems you would face if you have to return to your country of citizenship?
Yes, never lived there, left before I was one year old, all my family ties are in Townsville my carer [sic] is Townsville based, I’ve built a good reputation in the commercial/recreational fishing industry, no employment opportunity’s, [sic] no New Zealand fishing industries experance [sic].” [125]
[125] Exhibit T1, T31, page 132.
I have difficulty accepting any weight or gravity to that written submission in his Personal Circumstances Form in light of what the Applicant said in evidence at the hearing. The Applicant is an apparently healthy man of 46 years of age. In response to a question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[126] To the extent he requires it, he has been (and will be) able to access medical care, treatment and governmental social support in New Zealand[127] to the same (or very nearly the same) level as that which was available to him in Australia. The Applicant will have access to those services and supports in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).[128]
[126]    Ibid, page 131.
[127]    Section 14.5(1)(c) of the Direction.
[128]    Section 14.5(1)(a) of the Direction.
As mentioned, there are no significant or substantial language or other cultural barriers to the Applicant’s continued presence in New Zealand.[129] New Zealand is culturally and linguistically similar to Australia. He will not face significant linguistic or cultural barriers were he compelled to remain there.[130]
[129] Section 14.5(1)(b) of the Direction.
[130] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As mentioned earlier, the Applicant has a solid employment history in Australia. He has clearly re-established himself in remunerative employment in New Zealand and reports that he enjoys his work, which he describes as his “dream job”. There is a letter in the material from his current employer confirming that he is in full-time employment, working a minimum of 40 hours per week.[131] There is no suggestion in any of the evidence, written or oral, to cavil with the contention that the Applicant will not remain in his current employment in New Zealand.
[131] Exhibit A9, letter from Steve Collinson, operations manager, Ray Glass Boats, Auckland, New Zealand.
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of neutral weight.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: moderate weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: neutral.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them,[132] even when combined with Primary Consideration B, outweigh the significant and determinative weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non‑revocation of the cancellation of the Applicant’s visa.
[132] Note: I have only attributed a measure of weight to one of the Other Considerations, specifically, Other Consideration (b) (which weighs moderately in favour of revocation).
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding two‑hundred and eighteen (218) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........................[SGD]...........................................
Associate
Dated: 19 October 2020

Date of hearing: 24 September 2020

Applicant: Appeared by telephone

Solicitors for the Respondent: Mr Jake Kyranis by video-link
Senior Associate, Sparke Helmore Lawyers
Annexure A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

T1

Section 37 T-Documents

(Pages 1 - 195)

R

-

19-03-2020

R1

Respondent’s Statement of Facts, Issues and Contentions
(Pages 1 – 16)

R

19-08-2020

19-08-2020

R2

Respondent’s Tender Bundle
(Pages 1 – 113)

R

-

19-08-2020

A1

Applicant’s submissions in response (4 pages)

A

5-09-2020

07-09-2020

A2

Letter from Suzanne Smith (Applicant’s mother) (4 pages)

A

28-06-2020

13-07-2020

A3

Witness Statement from Peter Smith (Applicant’s father) (4 pages)

A

5-07-2020

13-07-2020

A4

Witness Statement from Anthony Smith (1 Page)

A

6-07-2020

13-07-2020

A5

Letter from [Child E] (1 page)

A

03-07-2020

13-07-2020

A6

Letter from Dr Karl Horsburgh (1 Page)

A

12-06-2020

13-07-2020

A7

Email from Yvonne Tait (1 page)

A

27-06-2020

13-07-2020

A8

Letter from Natalie Watson (1 page)

A

09-08-2019

13-07-2020

A9

Letter from Steve Collinson (1 page)

A

10-06-2020

13-07-2020

A10

Email from Brad Whittle (2 pages)

A

08-07-2020

13-07-2020

A11

Conviction Check from the Ministry of Justice, New Zealand (1 page)

A

09-06-2020

13-07-2020

A12

Criminal Record in Australia (45 pages)

A

-

13-07-2020

A13

Email from Applicant (1 page)

A

16-07-2020

16-07-2020

[2020] AATA 4184

19 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	24 September 2020
Applicant:	Appeared by telephone
Solicitors for the Respondent:	Mr Jake Kyranis by video-link Senior Associate, Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T-Documents (Pages 1 - 195)	R	-	19-03-2020
R1	Respondent’s Statement of Facts, Issues and Contentions (Pages 1 – 16)	R	19-08-2020	19-08-2020
R2	Respondent’s Tender Bundle (Pages 1 – 113)	R	-	19-08-2020
A1	Applicant’s submissions in response (4 pages)	A	5-09-2020	07-09-2020
A2	Letter from Suzanne Smith (Applicant’s mother) (4 pages)	A	28-06-2020	13-07-2020
A3	Witness Statement from Peter Smith (Applicant’s father) (4 pages)	A	5-07-2020	13-07-2020
A4	Witness Statement from Anthony Smith (1 Page)	A	6-07-2020	13-07-2020
A5	Letter from [Child E] (1 page)	A	03-07-2020	13-07-2020
A6	Letter from Dr Karl Horsburgh (1 Page)	A	12-06-2020	13-07-2020
A7	Email from Yvonne Tait (1 page)	A	27-06-2020	13-07-2020
A8	Letter from Natalie Watson (1 page)	A	09-08-2019	13-07-2020
A9	Letter from Steve Collinson (1 page)	A	10-06-2020	13-07-2020
A10	Email from Brad Whittle (2 pages)	A	08-07-2020	13-07-2020
A11	Conviction Check from the Ministry of Justice, New Zealand (1 page)	A	09-06-2020	13-07-2020
A12	Criminal Record in Australia (45 pages)	A	-	13-07-2020
A13	Email from Applicant (1 page)	A	16-07-2020	16-07-2020