Stowers and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 497

Stowers and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 497 (12 March 2021)
Division:GENERAL DIVISION
File Number(s): 2019/3979
Re:Junior Stowers
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:12 March 2021
Place:Sydney

The reviewable decision of the delegate of the Minister for Home Affairs made on 26 June 2019 is set aside, and in substitution the cancellation of Mr Stower’s visa is revoked pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958.
………………………………………….
Senior Member Linda Kirk
Catchwords
MIGRATION – applicant’s Class TY Subclass 444 Special Category (Temporary) visa – visa cancelled because applicant did not pass the character test – substantial criminal record under section 501(7) considered – whether discretion in section 501CA to revoke mandatory visa cancellation should be exercised – whether another reason to revoke exists – considerations under Direction No 79 – best interests of applicant’s minor children considered – protection and expectations of the Australian community considered – strength, nature and duration of ties – impediments to applicant if removed to New Zealand – decision under review set aside
Legislation
Migration Act 1958 (Cth) 499(2A), 500(1), 501, 501(3A), 501(4), 501(6), 501(7A), 501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
Cases
FYBR and 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
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
Secondary Materials
REASONS FOR DECISION
Senior Member Linda Kirk
5 March 2021
BACKGROUND

Junior Stowers (‘the Applicant’) is a 34-year-old citizen of New Zealand who first arrived in Australia on 16 September 2005 at the age of 19 years.
On 26 July 2016, the Applicant was convicted in the Gosford Local Court of Assault occasioning actual bodily harm (dv) and Assault occasioning actual bodily harm and was sentenced to 14 months’ imprisonment, with a non-parole period of nine months, for each offence. On appeal, the Gosford District Court confirmed the head sentence but reduced the non-parole period to six months.[1]
[1] Exhibit R1, G3, 25.
On 23 December 2016 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[2] At the time the Applicant was serving a sentence of full-time imprisonment at Grafton Correctional Centre in New South Wales.
[2] Exhibit R1,, G8, 42 – 45.
On 29 December 2016, the Applicant requested in writing revocation of his mandatory visa cancellation.[3] The Department of Home Affairs received further submissions, statements, and supporting documentation about revocation of the decision to cancel the visa.[4]
[3] Exhibit R1, G14 58 – 61.
[4] Exhibit R1, G15 61 – 79.
On 9 August 2017, the Assistant Minister to the Respondent made a decision not to revoke the cancellation decision.[5] On 11 April 2018, the Federal Court of Australia dismissed an application for judicial review and complaint of procedural fairness in respect of that decision.[6] On 12 October 2018, the Full Federal Court of Australia allowed an appeal, remitting the matter to the Respondent for reconsideration according to law.[7]
[5] Exhibit R1, G19 106 – 107.
[6] Stowers v Minister for Immigration and Border Protection [2018] FCA 485.
[7] Exhibit R1, G18 78 - 105; Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177.
On 4 February 2019, a delegate of the Respondent advised the Applicant it would make a fresh decision on whether to revoke the mandatory cancellation decision and invited the Applicant to provide further submissions.[8] The Applicant provided further submissions and letters of support.[9]
[8] Exhibit R1, G22, 110 – 112.
[9] Exhibit R1, G23, 114 – 133.
On 20 February 2019, the Department provided the Applicant with his Immigration Detention Incident Details, advising they may be taken into consideration and inviting his comment.[10] The Applicant provided further submissions and a letter of support.[11]
[10] Exhibit R1, G28, 134 – 145.
[11] Exhibit R1, G30, 146 – 149.
On 26 June 2019, a delegate of the Respondent decided, pursuant to s 501(CA)(4) of the Act, not to revoke the original decision (‘the Reviewable Decision’).[12]
[12] Exhibit R1, G2, 13 – 22.
On 4 July 2019, the Applicant applied to the Tribunal (‘the first Tribunal’) for review of the delegate’s decision.
On 19 September 2019 the first Tribunal made a decision to set aside the delegate’s decision and, in substitution for that decision, made a decision that the cancellation of the Applicant’s visa be revoked. The Minister sought judicial review of this decision.
On 27 March 2020 Yates J made orders quashing the decision of the first Tribunal and remitting the matter to the Tribunal, differently constituted, for determination according to law.[13] In summary His Honour found that the Tribunal failed to exercise its jurisdiction in failing to comply with paras 13.1.1(1)(b), 13.1.2(1) and 13.2(4) of Direction 79.[14] His Honour was also satisfied that in certain respects the Tribunal failed to conduct its review function by failing to deal with the case that was propounded by the Minister in relation to the best interests of the minor children and the protection of the Australian community.[15]
[13] Minister for Home Affairs v Stowers [2020] FCA 407
[14] Ibid at [67].
[15] Ibid t [82].
The matter was remitted to the Tribunal and heard by it as presently constituted at a hearing on 13 and 14 October 2020. The Applicant attended the hearing in person and gave oral evidence.
The following persons gave oral evidence by phone:
·Applicant’s partner, RH
·Applicant’s former partner, JC
·Clayton Brooke
·Peter Fenton
·Neil Pierson
The material before the Tribunal consists of:
·Applicant’s Statement filed 7 September 2020 (‘Exhibit A1’);
·Statement of RH dated 2 August 2019 (‘Exhibit A2’);
·Statement of JC dated 9 August 2019 (‘Exhibit A3’);
·Statement of CB dated 8 October 2020 (‘Exhibit A4’);
·Section 501 G-Documents filed 19 July 2020 (G1-G33, 186 pages) (‘Exhibit R1’);
·Respondent’s Tender Bundle filed 23 August 2019 (‘Exhibit R2’);
·Respondent’s Supplementary Tender Bundle filed 14 September 2020 (‘Exhibit R3’);
·Applicant’s Statement of Facts’, Issues and Contentions dated 7 August 2019 (‘Applicant’s SFIC’);
·Applicant’s Supplementary Statement of Facts, Issues and Contentions dated 7 September 2020 (‘Applicants Supp SFIC’);
·Respondent’s Statement of Facts, Issues and Contentions dated 23 August 2019 (‘Respondent’s SFIC’);
·Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 14 September 2020 (‘Respondent’s Supp SFIC’);
·Applicant’s Statement of Facts’, Issues and Contentions dated 7 August 2019 (‘Applicant’s SFIC’);
·Applicant’s Supplementary Statement of Facts, Issues and Contentions dated 7 September 2020 (‘Applicants Supp SFIC’);
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
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.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties [to Australia];
(c)       Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[16] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... 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...[17]
[16] [2018] FCAFC 151.
[17] 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).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background
The Applicant was born in Samoa in 1986.[18] In 1995 he moved to New Zealand where he gained New Zealand citizenship.[19] He first arrived in Australia in September 2005 when he was aged 19 years.[20] Prior to its cancellation the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa.[21]
The Applicant told the first Tribunal he is the second eldest of five siblings.[22] His father was a violent man, and his mother was the victim of domestic violence by his father against her.[23] The Applicant was sexually abused from the age of seven until nine years. In 1995 he was adopted by an aunt he had never met in New Zealand.[24] She took him to New Zealand on the basis of an agreement with his parents that she would raise him and help him to get a good job to support his parents in Samoa. His aunt beat and tortured him, and her children called him names and said his family were bad people. He lost trust in people, in his elders and his supporters at that time.[25] In 2004 he ran away and lived on the streets. He was found by his grandmother, and his aunt (his father’s sister) took him to Australia.[26]
[18] Exhibit R1, G23, 115.
[19] Exhibit R3, 17.
[20] Exhibit R1, G13, 57
[21] Exhibit R1, G2, 13.
[22] Applicant’s statement dated 6 August 2019, 1
[23] Exhibit R3, 7
[24] Applicant’s statement dated 6 August 2019, 1.
[25] Exhibit R3, 7; Applicant’s statement dated 6 August 2019, 1.
[26] Applicant’s statement 6 August 2019, 1
Relationships and children
The Applicant came to Australia with his aunt in September 2005. He lived with his aunt until 2009 when he left home and moved to Newcastle with his former partner, JC, who he met in 2007.[27] His first son, RC, was born in August 2008.[28] He left JC shortly after his son was born because his problems ‘were getting too much’. At the time he was being violent towards JC and would punch walls, throw things and say mean things to her.[29] His relationship with JC ended when he met his current partner RH in 2011.[30] He has two sons with RH, IH born in 2014 and ZH born in 2016.[31]
[27] Exhibit R3, 18.
[28] Exhibit R3, 19
[29] Exhibit R3, 20.
[30] Exhibit R3, 25.
[31] Exhibit R1, G15, 67.
Employment

The Applicant told the Tribunal that he has worked as a labourer in Australia. The longest period he worked for the same company was for two years.[32]
[32] Exhibit R3, 34.
Mental health condition
In his Personal Circumstances Form dated 29 December 2016, the Applicant wrote that he had been suffering from bipolar disorder and depression.[33] He told the first Tribunal that he ‘never wanted to believe’ that he had mental health issues.[34]
[33] Exhibit R1, G15, 64.
[34] Exhibit R3. 7.
The Applicant saw a psychologist in immigration detention in 2017.[35] He is currently not taking any medication as he is trying sort himself out without taking it.[36] He told the Tribunal that he has ‘surrounded [himself] with a lot of positive people’[37] and speaks to his church mentors about any problems.[38]
[35] Exhibit R3, 23; Transcript, 13.
[36] Exhibit R3, 7; Transcript, 20.
[37] Transcript, 12.
[38] Transcript, 13.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 19 December 2016 records the Applicant’s criminal history in Australia.[39]
[39] Exhibit R1, G18, 86-88.
Break and enter offences
According to police records, on 23 April 2007, the Applicant broke into a unit and stole a digital camera.[40] He returned on 4 May 2007 and stole $1,000 in cash.[41] When questioned by the police, the Applicant admitted to breaking into the house, but said that he only stole $2.[42] On 6 February 2008 the Applicant was convicted of two counts of Break and enter building (steal) value <= $15,000 and given a two year good behaviour bond.
[40] Exhibit R2, 351.
[41] Exhibit R2, 352.
[42] Exhibit R2, 352.
Driving offences
On 1 April 2010 the Applicant was convicted of six offences including two counts of Drive with high range Prescribed Concentration of Alcohol (PCA) and he was disqualified for driving for three years.[43]
[43] Exhibit R1, G3, 26.
According to a police facts sheet, on 9 December 2009 at 2am, the Applicant was pulled over by the police while driving, after narrowly missing a police vehicle.[44] He told the police he had not stopped because his car had been hit by another person and he was chasing them. The Applicant’s car reportedly had ‘front end’ damage and a smashed window. He was subjected to a breath test and taken to the police station where he was recorded to have produced a reading of 0.166 grams of alcohol per 210 litres of breath. Checks revealed that the Applicant's vehicle was not registered. The Applicant admitted to knowing that the car was not registered. His plates were confiscated. The Applicant was asked how the damage occurred to his car and he said that he hit something after leaving a pub, but he cannot remember what. He also said that he had only had three beers between 10pm and 10.30pm the night before. The Applicant was charged with driving with a high range PCA, using an uninsured motor vehicle and using an unregistered motor vehicle.[45] His licence was suspended on 9 December 2009 for the high range PCA offence.[46]
[44] Exhibit R2, 17 – 20.
[45] Exhibit R2, 17.
[46] Exhibit R2, 15.
A police facts sheet states that on 19 December 2009 at 4.45 am, police observed the Applicant come to a complete stop for a short time, and then drove from the scene.[47] The police followed the Applicant and saw him make a right-hand turn without stopping despite a red arrow showing. The vehicle had no registration plates. The Applicant was asked to produce a licence, and he said that he did not have one. On further questioning, he said that his licence was suspended. He returned a positive breath test, and when subject to a further breath test at the station he returned a reading of 0.151 grams of alcohol in 210 litres of breath. He claimed that he had only had five ‘stubbies’ of beer between 6pm and 11 pm the night before. A police check revealed that, despite a 2010 registration label fixed to the car, the registration expired on 6 November 2009. The Applicant was the owner of the vehicle. He was charged with driving while his licence was suspended, not stopping at a red arrow, using an unregistered vehicle and an uninsured vehicle and driving with a high range PCA. According to an Offender Intake Data Form and a Court Duty Officer Report the Applicant agreed with the police facts sheet.[48] The Applicant’s licence was suspended from 1 April 2010 to 9 December 2015.[49]
[47] Exhibit R2, 13 - 15.
[48] Exhibit R2, 10 and 22.
[49] Exhibit R2, 211.
During cross-examination at the first Tribunal hearing the Applicant agreed that the two high-range PCA offences he committed in December 2009 were ‘very serious’.[50]
[50] Exhibit R3, 40.
On 26 September 2012, the Applicant was driving and involved in an accident which was reported to the police.[51] This led to a further conviction on 26 June 2013 for Drive while disqualified from holding a licence.[52]
[51] Exhibit R2, 211
[52] Exhibit R1, G3, 26.
On 25 July 2014, the Applicant was convicted again for Drive while disqualified from holding a licence and was sentenced to four months’ imprisonment.[53]
[53] Exhibit R1, G3, 26.
Domestic violence offences
July 2011
On 26 June 2013 the Applicant was convicted of Common assault (DV) – t2 and sentenced to 18 months’ supervised probation.[54]
[54] Exhibit R1, G3, 26.
A police facts sheet dated 26 June 2013 describes the Applicant’s offending.[55] On 31 July 2011, the Applicant attended a hotel where his former partner JC was staying. The Applicant was lying on a bed with the victim when an argument ensued. The report records:
The victim laid on her side, facing away from the accused. The accused flipped the victim to her back and put his torso on top of hers, pinning her down. The accused grabbed and twisted the victim's right wrist, pushing it above her head. The accused held the victim's wrist in this position which caused the victim pain. The victim struggled against the accused, to which he said, "Why are you trying to be a tough bitch for? Why? Huh?
Huh?"
The accused then used his forehead and pushed it against the victim's forehead. The accused used his head and pushed it against the victim giving the victim an immediate headache. Whilst in this position, the accused asked the victim, "Why aren't we working? What am I doing wrong?" The victim told the accused, "You're hurting me and I'm really scared right now."
The accused then let the victim go and she asked the accused to leave. The victim escorted the accused out of the room to the hotel elevator.
Whilst waiting for the elevator, the accused grabbed the victim's left wrist and said multiple times, "It's all your fucken fault. You don't trust me. You're throwing Roman away because of it."
The accused eventually got into the lift and said, "I don't want to see your fucking face again.[56]
[55] Exhibit R2, 241 - 243.
[56] Exhibit R2, 7.
The Applicant and his former partner, JC gave evidence to the first Tribunal about the incident which led to the Applicant’s Common assault (DV) conviction in June 2013. While they both stated that the only harm caused to JC was the Applicant pushing his forehead against her, they accepted that he pinned her down and twice held her wrist in a way which was painful.[57] They did not contradict that he spoke to her in a threatening fashion. According to the police fact sheet[58] it was JC’s contemporaneous evidence that she told the Applicant that she was ‘really scared’ by his conduct. The Applicant told the first Tribunal that this was the only occasion when he was violent towards JC.[59]
April 2016
[57] Exhibit R3, 26, 43 and 66-67.
[58] Exhibit R2, 242.
[59] Exhibit R3, 21 and 42.
On 22 July 2016 the Applicant was convicted of Assault occasioning actual bodily harm (dv), and Assault occasioning actual bodily harm and was sentenced to 14 months’ imprisonment. He was also convicted of Common assault (dv), Armed with Intent commit indictable offence and Stalk/intimidate intend fear physical etc harm (personal) for which he received sentences of imprisonment of five months, seven months and six months respectively. On appeal, the District Court of New South Wales confirmed the head sentence and reduced the non-parole period to six months.[60]
[60] Exhibit R1, G3, 25.
On 26 April 2016, the Applicant was at home with his partner RH who was 33 weeks’ pregnant with their third child, ZH. Also present in the house was their then 17-month-old son IH, RH’s sister FH, and her sister’s boyfriend WC. At approximately 10.15pm, the Applicant went to the kitchen, saw WC and accused him of wearing the Applicant's clothes. The Applicant began attacking WC with a metal baseball bat. He hit WC with the baseball bat to the back of the head and arms a number of times. This attack caused WC to suffer five lumps to his head, two of which bled. He also had his right arm fractured and suffered grazes to his left arm.[61] RH and her sister tried to intervene. In doing so, RH was struck by the Applicant on the head and her sister on the left hand. RH suffered four lumps to her head as a result of the attack with the baseball bat. WC took the baseball bat from the Applicant. The Applicant then grabbed a 60cm knife, which he held up to WC, and said, ‘I'm going to kill you, leave the house now, I'm going to kill you.’
[61] Exhibit R1, G4, 28-29.
In his sentencing remarks on appeal, Judge Hoy SC, described the Applicant’s offending as ‘very serious’.[62] He stated:
The difficulty I have with the case is the objective seriousness. What occurred on this night is an act of unmitigated and continuing violence, swinging a baseball bat at individuals in the premises, in the kitchen late at night, in a fury resulting in fractures and injuries to the main victim and the collateral damage to the person he loves and his sister. Them just trying to intervene to help him. They are horrendous offences and they kept going. Once the bat was ripped from him he still wanted to kill the fellow and grabbed a knife to that effect. It must have been a terrifying experience for everyone involved.[63]
[62] Exhibit R3, 40.
[63] Exhibit R1, G5 33-34.
In addition to the term of imprisonment, the Applicant was also made the subject of Apprehended Domestic Violence Orders in respect of RH, FH and WC.[64]
[64] Exhibit R3, 79 – 80.
The Applicant told the first Tribunal that prior to his offending he had been away and drinking heavily for five days and taking drugs. When he returned home, he was depressed because he did not have himself ‘sorted’ and they had another baby on the way. He realised as soon as he hit WC that he was going to go to gaol for what he had done.[65]
[65] Exhibit R3, 43.
Incidents in immigration detention
There are seven incident reports relating to the Applicant's conduct in the Villawood Immigration Detention Centre (VIDC).
On 2 May 2017 the following conduct was reported after the Applicant was told he was too late to join an activity:
... STOWERS then kicked over the cricket stumps used in the activity. He then continued to pick one up and throw it at P&A officer XXXXX while XXXXX was standing at the top of the court yard. Detainee STOWERS made first attempt by throwing it directly at officer XXXXX but was unsuccessful due to P&A officer XXXXX ducking behind the wall.
Detainee STOWERS was then asked to refrain from doing that when he threw the second metal stump which appeared to narrowly miss P&A officer XXXXX . [Two detainees] had to intervene and escort detainee STOWERS from the basketball court in attempt to stop him from throwing anything else...[66]
[66] Exhibit R1, G29, 136.
On 8 August 2017, the Applicant was reported as arguing with another detainee. They grabbed each other by the collars of their shirts and continued arguing. The Applicant walked away and threw a speaker on to the ground.[67]
[67] Exhibit R1, G29, 137.
On 20 October 2017, a detainee presented himself to an officer. According to the report ‘[i]t appeared that [the detainee] had sustained injuries to his face, namely his nose which was bleeding heavily as well as bleeding to his left eye’.[68] The injured detainee initially said that the Applicant had punched him in the face, but he did not wish to elaborate further. He later advised that he had been smoking near Unit 5, when the Applicant approached him and told him to put the cigarette out. The detainee said he put the cigarette out and told the Applicant it was raining so he did not want to go outside. The report then says that the detainee ‘said that Detainee STOWERS then started hitting him in the face with a closed fist but was unable to say how many punches had been thrown.’[69] The Applicant was interviewed, and he explained his frustration at the detainee smoking. The report does not indicate that the Applicant denied hitting the detainee.
[68] Exhibit R1, G29, 138.
[69] Exhibit R1, G29 138.
On 27 November 2017, it was reported that a detainee had sustained injuries to his face, including a ‘small cut to the left-hand side of his face near his left eye, a bleeding nose and a cut inside his top lip’. The detainee was sent to Liverpool Hospital for treatment for his injuries. The report states, ‘[d]etainee STOWERS was taken to interview room two where he eventually admitted to assaulting [the detainee] over a disagreement over a television’.[70]
[70] Exhibit R1, G29, 139.
On 27 November 2018, it was reported that the Applicant was alleged to have assaulted another detainee. The detainee had a small laceration on his forehead.[71] The detainee claimed that the Applicant had said that the detainee had been touching his food. The detainee claimed that he let the Applicant punch him and did not retaliate.[72] Initially the Applicant claimed that the detainee had run into a table.[73] However, he subsequently advised that he was involved in an argument about food which led to the altercation, and he advised that he had apologised to the other detainee and that no further incidents of that nature would occur.[74]
[71] Exhibit R1, G29, 141.
[72] Exhibit R1, G29, 142.
[73] Exhibit R1, G29, 141.
[74] Exhibit R1, G29, 143.
On 15 January 2019 it was reported that the Applicant punched a detainee and hit another detainee over the head with a chair, and that he had some form of knuckle duster.[75] During this incident it was alleged that the Applicant broke a fan and caused some damage to the wall.[76] The Applicant claimed that he did not touch the other detainees, only the fan.[77]
[75] Exhibit R1, G29, 144.
[76] Exhibit R1, G29, 144.
[77] Exhibit R1, G29, 145.
On 23 April 2019, the Applicant is reported to have said to a female officer at VIDC, words to the effect that ‘your job is nothing special, you need to calm down now or you will be slapped’.[78]
[78] Exhibit R2, 391-393.
The Applicant told the first Tribunal that he did not deny he committed these acts but said that he would now deal with things differently.[79] He would ‘walk away’ because it would only make his time harder. He was put into maximum security as a result of the assaults but from the beginning of 2019 he was low security.[80]
[79] Exhibit R3, 46.
[80] Exhibit R3, 46-47.
Remorse and responsibility for offending
In a letter to the National Character Consideration Centre (NCCC) dated 18 February 2019 the Applicant wrote:
I am very remorseful for my actions and the damages (sic) and pain I have inflicted on my victims, family and friends.
…
I am truly and deeply remorseful and I have no intention of violence any more that would eventuate (sic) recidivism.[81]
[81] Exhibit R1, G23, 119.
Rehabilitation
In his letter to the NCCC, the Applicant stated
I have also matured and done a lot of self-growth. I want to be the best father and example for my children. I have been rehabilitated.[82]
I have successfully undertaken several physical activities in prison/detention centre and sessions of counselling in order to deal with my disposition to violent behaviour and to see what caused it and what measures I can put in place to manage it.
…
In short, I have taken real measures to improve myself, and to reform myself. I am also very aware now of the consequences of any future offences and what that would mean for my future in Australia, and the impact this would have on my family here. What I have put my partner and children through has been a big life lesson and ‘wake-up’ call.[83]
[82] Exhibit R1, G23, 119
[83] Exhibit R1, G23, 121.
Risk of re-offending
In his letter to the NCCC, the Applicant stated:
… this is not a case where I represent a continued unacceptable risk of harm to the Australian community. I have no intention to resort to any violence in my life again. I have taken steps towards recovery and bettering myself as a person.[84]
I am a changed person, no longer having any intention towards violent behaviour, assault, disobeying traffic rules or disregarding Australian law.[85]
[84] Exhibit R1, G23, 119.
[85] Exhibit R1, G23, 121.
Activities following release from VIDC
The Applicant told the Tribunal that following his release from detention he returned home to live with RH and their two sons.[86] He agreed with RH that he would ‘make up for lost time’ with the children and he now stays at home and is a ‘house husband’. He makes breakfast for the children and does the cooking, washing and cleaning. RH works full-time and starts early in the morning and finishes early afternoon.[87] He takes the pressure off her while she is at work.[88] On the weekends he does activities with the boys such as fishing and bushwalking, and on Sunday they go to church and spend the day together as a family.[89]
[86] Transcript, 7.
[87] Transcript, 18.
[88] Transcript, 7.
[89] Transcript, 8
Children
The Applicant has three minor sons, RC aged 12 years, IH aged six years, and ZH aged four years. In his letter to the NCCC, the Applicant wrote that he has ‘a loving and meaningful relationship’ with all of his sons.[90] Their relationship between him and his children is ‘warm, genuine, cordial and continuing.’[91]
[90] Exhibit R1, G23, 121.
[91] Exhibit R1, G23, 122.
The Applicant told the Tribunal that his eldest son, RC is starting high school next year and his is ‘at a very fragile age now where he really just needs to see [the Applicant] as his role model.’[92] He travels to Paramatta to see his son as often as he can and tries to attend most of his basketball games on a Friday evening.[93] RC has also visited the Applicant a couple of times and they have gone fishing and to the park. The Applicant speaks to RC on the phone or by video calls and they text each other. He gets along with RC’s mother for his sake and does his best to be there for her and support her mentally.[94]
[92] Transcript, 7
[93] Transcript, 8
[94] Transcript, 20
The Applicant told the Tribunal that his son, IH, has started kindergarten and he will go to school next year.[95] His youngest son ZH attends childcare on Fridays and the other days of the week the Applicant cares for him.[96]
[95] Transcript, 18.
[96] Transcript, 19
In his statement filed on 7 September 2020, the Applicant wrote about the time he has spent with his children since he has returned home:[97]
… it’s been a great blessing to watch my children grow and it brings me great joy as father to watch them grow and learn in confidence. We do everything together from first day of school, to school prize giving’s, church, fishing trips, learning to ride bicycle, bed time stories, football games … We have been inseparable … my children are much more confident and are able to succeed in life by having their father and role model present.
[97] Exhibit A1.
In his letter to the NCCC, the Applicant wrote that he provides financial support to his children and his partner. He described how he plans to be a role model for and support his children:
I will lead by example in a positive fatherly role and take the responsibilities of my children and head of family unit in the future lives of my children very seriously. I seek to play, and I have been playing a ‘fatherly role’ in the lives of my three children … as best I have been able. If I am released, I will support them emotional (sic) and financially.[98]
[98] Exhibit R1, G23, 122.

He described the affect his removal would have on his children:
If I were to be deported, they will be devastated, emotionally, morally and they will be disadvantage (sic) financially and without no (sic) support, they will be traumatised and depressed throughout their lives.
If deported I will lose any physical relationship where I am able to attend all their presentations at school, spend father’s day together, football games and training. This would mean their mums would be single mums without that additional support from me where I would be able to help in all those aspects providing mental, physical and emotional support to the children.[99]
[99] Exhibit R1, G23, 122.
Relationship with partner, RH
The Applicant has been in a relationship with RH since 2011. He told the Tribunal that his relationship with her is ‘[l]ike every other relationship’ and they have their disagreements, mainly about how to raise the children. They had had their problems, but they have managed to overcome them, and they have ‘become stronger’.[100]
[100] Transcript, 10.
Religious faith
The Applicant agreed that while he was committing criminal offences he was attending church. He said that at time he was a ‘church-goer’. Towards the end of his time in VIDC and since his release he has become a ‘believer’.[101] He has been baptised because he ‘wanted to let go of everything that was behind [him] and move forward with [his] family.’[102] He told the Tribunal that he helps out at the church by setting up equipment and packing up. He also assists with the youth by ‘encouraging them about the importance of having faith and … staying away from trouble.’[103]
[101] Transcript, 16-17.
[102] Transcript, 9.
[103] Transcript, 8.
Employment
The Applicant told the Tribunal that since his return to the community he has been doing work for some of the older church members a few times a week. He is sometimes paid for this work and sometimes it is voluntary.[104] He has obtained his learner’s permit and has started to look for paid employment. He has been interviewed for a position at a building storage company. Eventually he would like to work with young people and give them advice about avoiding criminal behaviour.[105] He has spoken to the church elders and RH about this, and he has their support.[106]
[104] Transcript, 17.
[105] Transcript, 27.
[106] Transcript, 28.
Sporting activities
The Applicant plays first grade rugby and was selected as captain and one of the senior members of the club.[107] He is starting a ‘fathering course’ at the club as there a few single dads there and his goal is to ‘try and create a group where we can encourage these young people to [know] the importance of their roles as role models in their children’s lives.’[108]
[107] Transcript, 9.
[108] Transcript, 9
Impediments on return
In his statement dated 6 August 2019, the Applicant wrote:
If I’m to be deported back to New Zealand I would face many hardships and difficulties. For a start I’d loose (sic) everything I have, the support of my children and family, and I would have to start life all over again. I would be living around the people I had run from all the dark memories of my past then eventually to the point I would have to move back to Samoa where I have no support and no hope at all.[109]
[109] Applicant’s statement 6 August 2019, 2.
Evidence of witnesses
Applicant’s partner, RH
On 7 October 2020, the Applicant’s partner, RH, provided a letter of support for the Applicant.[110] She explained that when the Applicant was in VIDC she and the children would visit him twice a week and then once a week when she started to work more often. When he was in VIDC, ‘the strain and guilt of being a single parent was really starting to weigh down on [her]’. She felt that they boys were not receiving the attention they needed from her and ‘they were clearly missing something in their lives.’ When the Applicant was released from VIDC it was ‘one of the happiest days of [their] lives as a family.’ Since the Applicant has returned home there has been a clear change in both boys. The Applicant ‘got involved straightaway without hesitation [w]ith all fatherly duties.’ He cares for the boys when she is at work and helps out as much as he can. It was ‘so nice to see the boys spending time with their father and creating beautiful memories finally after all the years without him.’[111]
[110] Exhibit A2, 1.
[111] Exhibit A2, 1
In her statement, RH stated that the Applicant ‘has been trying really hard to move forward with his life and leave his past mistakes behind him.’ He is ‘trying to set a good example for his kids’ and she knows that ‘he wants to be there for them throughout their lives.’[112] She described the impact on the children if the Applicant were to be removed from Australia:
They would both be devastated and would not fully understand what was happening. To finally get their Dad back and have him home for a year and then lose him again, would be very cruel … [113]
[112] Exhibit A2, 1
[113] Exhibit A2, 1-2
In her evidence at the hearing, RH told the Tribunal that during the 13 months since the Applicant has been back home, he helps with the daily tasks including bathing, making dinner for and taking the children to school. The bond between the Applicant and the children has become ‘even stronger’ and he has ‘been a good dad and the children love him a lot.’ [114]
[114] Transcript, 31.
During cross-examination, RH told the Tribunal that she and the Applicant have their disagreements, but he never gets angry at her nor does he raise his voice to her or the children.[115]
[115] Transcript, 34.
She told the Tribunal that the Applicant has been working about 15 to 20 hours a week at a construction site as a labourer assisting the tilers and tradesmen and cleaning up. He works when she is not working so he can care for the children.[116]
[116] Transcript, 36.
RH told the Tribunal that she would not want to go with the Applicant to New Zealand as she would not want to take the children away from their school and her family. Her parents live about half an hour away and she has two sisters who live close by and a brother who lives in Sydney.[117] The children have a close relationship with their aunts, and they see their grandparents fortnightly.[118]
[117] Transcript, 36
[118] Transcript, 35-36
She told the Tribunal that the Applicant is not currently taking any medication. When he needs to do so he reaches out to some of the men at the church or to friends. He does not have much contact with his family. [119]
Applicant’s former partner, JC
[119] Transcript, 37.
JC provided an email dated 8 October 2020 in support of the Applicant.[120] She stated that she and the Applicant ‘are on civil and friendly terms’ and she is friends with his new partner RH. The children ‘often catch up and play together and build their bond and relationship.’ She wrote that she believes that the Applicant’s presence in her son’s life ‘is necessary and healthy.’ The Applicant has made a considerable effort to see their son and to attend his basketball games and this has given RC ‘added confidence’. The Applicant talks and texts RC when he is unable to travel from the central coast to see him. She wrote that ‘it would be very detrimental to [RC’s] well-being’ if his father were removed.
[120] Exhibit A3.
In her oral evidence at the hearing, JC told the Tribunal that she did not tell RC that his father was in immigration detention. She believed it was in RC’s best interests to be told that the Applicant was overseas helping his parents. The Applicant and RC remained in contact via phone and text during this period, but they did not see each other for the three years the Applicant was in VIDC.[121] Since RC has been able to see the Applicant ‘he seems like a happier, more content boy’.[122] She has observed the positive impact it has had on RC having the Applicant back in his life.[123] He will be going to high school next year and becoming a young man and she will need the Applicant’s help to manage all that is ahead.[124]
[121] Transcript, 47-48.
[122] Transcript, 44.
[123] Transcript, 45.
[124] Transcript, 46.
JC told the Tribunal that she has a daughter from another relationship and the Applicant makes an effort to include her and speak to her on the phone, which she appreciates. All the children get along very well together.[125]
Clayton Brooke
[125] Transcript, 45-46.
Mr Brooke provided a letter of support for the Applicant dated 8 October 2020.[126] He is a prison chaplain and member of the church attended by the Applicant. He confirmed that the Applicant has attended church weekly since his release from detention. He described his observations of the Applicant:
[The Applicant] has been willing to address destructive patterns in his life and pray through areas of pain that have affected him today that have stemmed back to childhood trauma and have been contributing factors to his initial offending and poor choices.
[126] Exhibit A4.
In his oral evidence at the hearing, Mr Brooke told the Tribunal that he had known the Applicant for about a year since he has been attending church and he also catches up with him fortnightly ‘on a mentor basis’. The Applicant has been ‘very open and very honest’ in discussing with him ‘things that he’s having trouble with’. He has found him to be ‘very humble’ and ‘very teachable’ and he listens to things he says and takes them on board.[127] In his opinion, the Applicant is ‘doing really well and making strides and inroads that he’s never made before and willing to address places in his life that … haven’t seen much light in the past.’ He has ‘a lot of hope’ for the Applicant and sees ‘him going on and being a success’.[128]
Peter Fenton
[127] Transcript, 50.
[128] Transcript, 51.
Mr Fenton provided a letter of support for the Applicant dated 6 October 2020.[129] He is an experienced rugby coach and is the patron of the Applicant’s rugby club.[130] He has known the Applicant for seven years. He stated that the Applicant has been ‘an excellent contributor’ and he has helped to coach and encourage a number of the young players.
[129] Exhibit A5.
[130] Transcript, 62.
In his oral evidence at the hearing, he told the Tribunal that the Applicant now lives two doors from him and his wife in Ettalong. In the seven years he has known him he has ‘grown up’ and is ‘quite different’.[131] He is ‘very thoughtful’ and keen to help the young Pacific Islander players in the club who ‘need someone to look up to’ and he is a ‘role model’ for them.[132]
Neil Pierson
[131] Transcript, 59.
[132] Transcript, 60, 63.
Mr Pierson provided an undated letter of support for the Applicant.[133] He and the Applicant are both members of the same church on the Central Coast. He has observed the Applicant as a ‘dedicated, fun and enthusiastic father.’ The Applicant is ‘optimistic, encouraging and practical’ and has ‘encouraged several young men to consider their personal beliefs and invited them to church.’ He has watched the Applicant play rugby and has been impressed with his impact on the team and the wider community. He is ‘a good role model for the younger players having already shifted some of the entrenched negative culture of the club.’ He has the support of the club leaders for his vision of using rugby ‘to build community and the self-esteem of young males desperate for positive father figures.’
[133] Exhibit A6.
In his oral evidence, Mr Pierson described the Applicant as ‘very personable, friendly, honest’.[134] He is ‘a present dad’ and he ‘wants to be a good dad and a good role model to other fathers.’[135] He told the Tribunal that he sees the Applicant about once a week and once a fortnight at a minimum. The Applicant has talked to him ‘about his desire to build community and a sense of family among the rugby union team.’ He has the respect of the younger players and they look up to him ‘as a player, but also as a man and as a father.’[136]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[134] Transcript, 66.
[135] Transcript, 67.
[136] Transcript, 68.
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 19 December 2016 regarding his criminal convictions and sentences.
The evidence before the Tribunal is that on 22 July 2016 the Applicant was convicted in the Gosford Local Court of Assault occasioning actual bodily harm (dv) and Assault occasioning actual bodily harm and was sentenced to 14 months’ imprisonment. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 (1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(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 or officials due to the position they hold, or in the performance of their duties, are serious;
(d) Subject to subparagraph (b) above, the sentence imposed by the courts 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) …
(i)    …
The Applicant has an extensive criminal history of offending that commenced in April 2007, which includes driving offences and violent assaults against two female partners. His record includes 19 separate convictions in the eight-year period between February 2008 and June 2016.
The Applicant’s driving offences, including two high range PCAs, are objectively serious. His conduct potentially endangered the Australian community, particularly on the occasion he drove intoxicated, hit something and damaged his car. This conduct was also repeated in a short period, and involved an element of untruthfulness to the police, showing the Applicant’s disregard for the law.
In accordance with paragraph 13.1.1(1)(a) and (b) of the Direction, the Tribunal is required to view the Applicant’s violent offending, which includes physical assaults and intimidation of two domestic partners, very seriously. The Applicant’s assault against his former partner JC in 2011 was violent and, according to her contemporaneous account, caused JC both physical and psychological harm. The Tribunal finds that this offence was very serious. In accordance with cl 13.1.1(1)(b), the Tribunal finds it is not relevant to the seriousness of this offending that the Applicant only received an 18-month bond for this domestic violence offence.
The Applicant’s most recent domestic violence offending for which he was convicted in July 2016 of two counts of Assault occasioning actual bodily harm (dv), Common assault (dv), Stalk/intimidate intend fear physical etc harm (personal) and Armed with Intent commit indictable offence and was sentenced to 14 months’ imprisonment, is also very serious. The Applicant attacked his partner, RH, who was then 33 weeks’ pregnant, and her sister and her boyfriend, with a baseball bat. In finding that this offending was very serious, the Tribunal has given weight to the sentencing remarks on appeal of Judge Hoy SC who described the offences as ‘horrendous’ and what occurred as ‘an act of unmitigated and continuing violence’ and remarked that ‘[i]t must have been a terrifying experience for everyone involved.’
Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The Tribunal finds that while the sentences imposed on the Applicant are not at the higher end of the sentencing range, they do not detract from the very serious nature of his violent offending.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending was frequent and repetitive during the period 2011 to 2013. The Applicant engaged in violent and intimidating conduct against his victims, which included physical assaults and verbal abuse against his female partners and their family members in a domestic context. The Tribunal finds that the frequency and cumulative effect of the Applicant’s repeated offending increases its severity.
The Tribunal has also had regard to the Applicant’s conduct in immigration detention as required under paragraph 13.1.1 of the Direction. The recorded incidents include four occasions on which the Applicant punched or assaulted another detainee causing them injury, and one occasion when he verbally assaulted a female officer. These incidents, the most recent of which occurred in April 2019, demonstrate the Applicant’s inability to exercise control over his actions, leading him to engage in violent conduct. The Tribunal notes that these incidents did not lead to any criminal charges or convictions against the Applicant and accordingly it has placed less weight on these incidents relative to his recorded criminal convictions.

On the basis of the evidence before it, the Tribunal finds that the Applicant’s criminal offending is very serious in nature and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend in accordance with paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm, including serious injury or death, to members of the Australian community. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence committed against his victims, which include his two female partners, and fellow detainees, and driving whilst heavily intoxicated. The potential harm to individuals and the Australian community should he again engage in such conduct is very serious. His violent and irresponsible behaviour has caused, and has the potential to cause in the future, substantial harm to future victims, being both the psychological and physical impacts of his offending, and significant financial cost to the community associated with emergency services and law enforcement activities.
The Tribunal has previously recognised the physical and psychological harm that is inflicted as a result of violence directed towards women in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385, the Tribunal observed (at [45]):
… in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex-based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 13.1.2(1)(b) of the Direction, the Tribunal notes that the Applicant claims that he is not at risk of re-offending for reason that he has been back in the community for more than 12 months and has demonstrated that he is a responsible and law-abiding individual who is regarded as a role model in his local community.
Since his release, the Applicant has assumed a significant parental role in his children’s lives, has reaffirmed his faith, re-established his ties with his church community, and assumed a leadership and mentoring role with the younger players at his rugby club. The Applicant’s claims that he is unlikely to re-offend are supported by the evidence of his partner, former partner, friends and mentors, all of whom are confident that the Applicant has learned from his mistakes and is taking positive steps towards becoming a responsible and contributing member of his community.
There is limited independent evidence before the Tribunal in relation to the risk of the Applicant re-offending. A report dated 4 August 2019, was prepared in relation to the Applicant by Hasan Cinar, psychologist, who assessed the Applicant on 29 July 2019 at VIDC.[137] Mr Cinar reported that the Applicant’s Level of Service Inventory – Revised (LSI-R) results indicate that ‘he falls in the medium to high risk range for overall risk needs offences.’[138] He however noted that the Applicant had ‘a number of protective factors in place which will act to protect against future recidivism.’[139] These he identified as his relationship with his partner, his children, future employment and access to psychological treatment.[140]
[137] Exhibit R3, 130.
[138] Psychological Report of Mr Hasan Cinar dated 4 August 2019, 10.
[139] Psychological Report of Mr Hasan Cinar dated 4 August 2019, 12.
[140] Psychological Report of Mr Hasan Cinar dated 4 August 2019, 12.
An earlier psychological assessment dated 6 June 2016 prepared prior to the hearing of the offences for which the Applicant was convicted on 22 July 2016, George Dieter, psychologist, opined as follows:
If [the Applicant] undergoes appropriate treatment and addresses the issues that have resulted in his current behaviour pattern he has … a good prospect of not re-offending.[141]
[141] Psychological Report of Mr Hasan Cinar dated 4 August 2019, 12.
The authors of these two psychological reports did not give evidence at either Tribunal hearing, and were therefore not cross-examined in relation to their professional opinions in relation to the Applicant. Accordingly, the Tribunal gives their reports limited weight. However, it notes that their respective opinions as to the Applicant’s rehabilitation prospects and the likelihood of him re-offending are supported by the evidence of the Applicant’s behaviour in the 13 months following his release from immigration detention in September 2019.
The Tribunal notes that two of the protective factors identified by Mr Cinar were the Applicant receiving ongoing treatment for his mental health condition and him obtaining employment. The evidence before the Tribunal is that the Applicant has not received such treatment nor has he taken any medication in the period since his release from immigration detention. He has chosen to discuss any issues or problems with his partner or mentors and has not sought professional advice. The Tribunal finds that the fact that the Applicant has not continued treatment and counselling for his recognised mental health condition is a factor which creates some risk that the Applicant will reoffend.
The Applicant has undertaken some limited paid employment in the months since his release. His partner RH told the Tribunal that the Applicant has been working 15-20 hours per week assisting tradesmen on a construction site and the Applicant’s evidence is that he has obtained his learner’s permit and is actively seeking paid employment. The Tribunal finds that the Applicant having secure and ongoing employment is a factor which will lessen the likelihood of him reoffending.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low end of the scale.
For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs on balance against the revocation of the Mandatory Visa Cancellation Decision. While the Tribunal finds that the risk of the Applicant re-offending is low, the potential harm to individuals should he engage in the same or similar criminal conduct is very serious.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
In considering the best interests of the child, paragraph 13.2(4) provides:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three sons, aged 12, 6 and 4 years respectively. His eldest son lives with his mother in Paramatta and his two younger sons reside with him and their mother on the Central Coast.
Having regard to paragraph 13.2(4)(a) of the Direction, the evidence shows that the Applicant had a limited parental role in his children’s lives for the six months he was in gaol and the three years he was held in immigration detention. For the Applicant’s youngest son ZH, his father was absent for the vast majority of his early life, and his eldest son RC did not physically see his father while he was incarcerated and detained. However, the evidence before the Tribunal is that in the 13 months since his release from VIDC, the Applicant has resumed an active and involved fatherly role in the lives of his three sons. The Applicant clearly has a strong emotional bond with his children, and he wishes to be a significant role model in their lives. He has chosen to remain at home to care for IH and ZH while their mother is working and to ‘make up for lost time’ with his sons. The evidence before the Tribunal is that the Applicant is a loving and attentive father and that his sons adore him and have grown in confidence since his return home.
Having regard to paragraph 13.2(4)(b) of the Direction, the evidence demonstrates that the Applicant is very likely to play a significant parental role for the children in the foreseeable future. The Applicant’s younger children, IH and ZH, currently live with him and their mother and he is a present and significant parent in their lives. His eldest son lives, RC, with his mother in Paramatta and they are in regular contact by phone, text and video calls and the Applicant travels to watch his son play basketball on a fortnightly basis. Whereas RC’s mother is responsible on a daily basis for his care, the Applicant provides him with considerable emotional and other critical parental support.
The Tribunal has had regard to the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the children, as required by paragraph 13.2(4)(c) of the Direction. The evidence before the Tribunal is that the Applicant’s son IH was present at the time of the domestic violent offences the Applicant committed against his victims, including his partner RH, in April 2016. IH was aged 18 months at this time of this offending and therefore is unlikely to have been harmed or otherwise impacted by it. However, any future domestic violence offending by the Applicant in the presence of any of his children will most likely have a very negative impact on them.
For the purposes of paragraph 13.2(4)(d) of the Direction, the Tribunal has had regard to the Applicant’s evidence, and the evidence of JC and RH that his removal from Australia will have a devastating impact on his three children. Whereas the Applicant would be able to maintain contact with the children via phone, video calls, and text messages, they would be deprived again of the Applicant’s physical presence in their lives. The Tribunal finds that for the Applicant to be physically separated again from his sons, all three of whom have recently reconnected with and re-established their strong bond with their father, would be highly detrimental to their psychological well-being.
Considering the factors in paragraph 13.2(4)(e), the evidence before the Tribunal is that the Applicant’s younger children are receiving their primary care from the Applicant and their mother, and his eldest son is receiving his primary care from his mother. Therefore, whereas there are persons who fulfil a parental role in relation to the children, the Applicant is also a significant parental figure in his sons’ lives.
There is limited evidence before the Tribunal of the views of the children in relation to the Applicant or how they would be impacted if he were not to hold a visa, other than the evidence provided by the Applicant himself and that of their mothers, JC and RH. Given the ages of the children, the Tribunal accepts the evidence of their parents and has given this consideration due weight in accordance with paragraph 13.2(4)(f) of the Direction.
Having regard to paragraphs 13.2(4)(g) and (h) of the Direction, there is no evidence before the Tribunal to indicate that the Applicant has abused or neglected the children, or that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that, on balance, this primary consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as it is clearly in the best interests of the Applicant’s children (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[142] 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.[143]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[144] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[145]
[142] Charlesworth J at [66]; Stewart J at [91].
[143] Charlesworth J at [67]; Stewart J at [104].
[144] Charlesworth J at [76].
[145] Stewart J at [97].
The effect of paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving domestic violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of the non-citizen’s visa. The Australian community would have a very low tolerance for the Applicant's criminal offending, which has involved a series of violent offences, including against women with whom he was in a relationship.
The Applicant arrived in Australia at the age of 19 years and is now aged 34 years. Having regard to the factors in Principle 5 of paragraph 6.3 of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Tribunal finds that the length of time the Applicant has been living in Australia, namely a period of more than 15 years, is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having regard to the factors in Principle 7 in paragraph 6.3 of the Direction, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the Mandatory Visa Cancellation Decision on the Applicant’s partner, three sons and former partner who are Australian citizens and reside in Australia. The evidence before the Tribunal is that the Applicant’s partner and children are emotionally and financially dependent upon him and rely on him for practical support. His former partner also relies on him to assist with the upbringing of their son, including providing him with advice and emotional support as a teenage boy. The Applicant’s removal from Australia will prevent him from continuing to provide this support to his family members and will require them to maintain their relationship by phone and visits to New Zealand. The substantial impact on the Applicant’s family in Australia is a factor which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.
The Tribunal also has had regard to the contribution the Applicant has made to his local community, particularly since his release from immigration detention. The evidence is that the Applicant has provided assistance to elderly members of the church on a voluntary and paid basis, and he has played a mentor role for many of the young Pacific Islander boys at his rugby club. The Applicant’s contribution to his local community is a factor which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.

Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, the duration of his residency in Australia, the impact on his family of his removal and his contribution to his local community, the Tribunal finds that Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... 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.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Having regard to the factors in paragraph 14.2(1)(a), the Applicant first arrived in Australia at the age of 19 years and has resided here for 15 years.
Having regard to the factors in paragraph 14.2(1)(b), the evidence before the Tribunal is that the Applicant has very close family and social links with Australian citizens. The Applicant has been in a relationship with his Australian citizen partner, RH, for ten years and they have two young sons together. He and his partner have built and maintained a nuclear family with strong familial and social links to their local community. The evidence before the Tribunal is that RH relies on the Applicant to provide care for their sons, particularly while she attends work to earn an income for the family, and she and their sons rely on the Applicant for emotional support. The Applicant’s former partner JC and their son, RC, also are heavily reliant on the Applicant for emotional and practical support. All of the Applicant’s family members would suffer considerable hardship if he were removed. The Tribunal finds that the impact on the Applicant’s family members weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
The Applicant has established and strong ties with members of his church community and his rugby club. The evidence before the Tribunal is that he contributes to the church by assisting with setting up and cleaning and he also provides help around the home to elderly church members. He has a leadership role at his rugby club which includes providing mentoring to some of the younger players who need advice and guidance. These community members would be adversely impacted if the Applicant were removed from Australia and the Tribunal finds that this weighs in favour of revocation of the cancellation of the Applicant’s visa.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal finds that the evidence demonstrates that the Applicant has significant ties to Australia, particularly his partner, his former partner, and his three children, with whom he wishes to build their relationship and be physically present in their lives, and who would experience considerable hardship were he to be removed.
On the basis of the evidence before it, and having regard to the factors in paragraph 14.2(1), particularly the length of time the Applicant has resided in Australia and his positive contributions to the community, as well as the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was employed as a labourer prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is limited evidence before the Tribunal on the impact on the Applicant’s victims of the non-revocation of the cancellation decision. The evidence of JC is that she sustained some physical pain and was scared during the Applicant’s assault against her in 2011. The Applicant’s current partner, RH did not give evidence in relation to the offence he committed against her in 2016. Both women gave evidence that they would be adversely impacted by the Applicant’s removal from Australia as they will be left fully responsible for the upbringing and care of their children. The Tribunal has given this consideration neutral weight in determining whether the Mandatory Visa Cancellation Decision should be revoked.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
Having regard to paragraph 14.5(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant is 34 years old and he claims he is not currently suffering from any mental health issues and is not receiving any medical treatment. There is unlikely to be any substantial change to the social, medical and economic support available to the Applicant in New Zealand compared to Australia, and the Applicant would have access to those services and supports otherwise available to citizens of New Zealand. Treatment for psychological conditions is available in New Zealand and the Applicant will have the same access to this as other New Zealand citizens should he seek such assistance on his return.
Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in New Zealand until the age of 19 years and is familiar with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived for most of his adult life. The Applicant’s evidence is that he has some family members in New Zealand but that he has no relationship with these relatives. He will not therefore have family to support him emotionally or financially if he were removed to New Zealand.
If the Applicant's partner and their two children decide to relocate to New Zealand, this will greatly assist the Applicant to overcome any impediments faced by him if removed from Australia. However, the evidence before the Tribunal is that the Applicant’s partner does not wish to remove the children from their schools nor separate them from their grandparents and aunts, and therefore they are unlikely to join the Applicant in New Zealand if he is removed. Accordingly, the evidence supports a finding that the Applicant is most likely to be without any familial or social support if he is returned to New Zealand.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant has worked as a labourer in Australia and should not have difficulties finding similar employment.
Having regard to the evidence before it, the Tribunal finds the Applicant will face considerable hardship if he is required to establish himself in New Zealand, having not lived there since he was a teenager. He has no friends or family in New Zealand and will struggle to find a home and re-establish his life. This hardship will be exacerbated by his separation from his partner and three children who will remain in Australia.
Having had regard to the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly the domestic violence offences against two women, and despite the low risk of him committing future criminal offences, the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s three children for him to remain in Australia.
Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as whereas the expectations of the Australian community are that the Applicant’s serious offences should cause him to forfeit the privilege of remaining in Australia, the age at which he arrived in Australia, the duration of his residence in Australia, his positive contributions to the community, and the interests of his Australian citizen partner and three children, are such that the community would have greater tolerance for the Applicant’s offending and would accept that in the circumstances his visa should be reinstated.
In regard to the relevant Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision, as do the impediments he will face on return to New Zealand.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the decision to refuse to revoke the Mandatory Visa Cancellation Decision be set aside.
DECISION
a)The Reviewable Decision dated 26 June 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside;
b)In substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

........................................................................
Associate
Dated: 12 March 2021

Dates of the hearing:

Solicitor for the Applicant:

13 and 14 October 2020

Mr Fardin Nikjoo, Nikjoo Solicitors

Solicitor for the Respondent:

Ms Chloe Hillary, Australian Government Solicitor