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

[2021] AATA 3322

Sua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3322 (10 September 2021)

Division:GENERAL DIVISION

File Number:          2021/4218

Re:Lorenzo Alexander Sua  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member J Rau SC

Date:10 September 2021

Place:Adelaide

The decision under review is affirmed.

............................[Sgnd]................................
            Senior Member J Rau SC

CATCHWORDS

MIGRATION – mandatory cancellation of Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4) - where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – domestic violence offences – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member John Rau

10 September 2021

INTRODUCTION AND BACKGROUND

1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs, (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 23 June 2021, not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (Subclass 444) visa (“the Visa”).

2. The hearing was held by video via Microsoft Teams on 30 August 2021. The Applicant appeared by video link from Yongah Hill Detention Centre in Western Australia and was self-represented. Cormac Burke of Sparke Helmore appeared for the Respondent, also via Microsoft Teams video link.

3. The Applicant was born in New Zealand on 31 January 1984 and is currently 37 years of age. He is a New Zealand citizen; his background is Samoan.

4. The Applicant attended school in New Zealand leaving when he was 15. Between leaving school and the age of 17, he completed courses in sports and recreation and farming skills. Up until his incarceration in December 2016, he has generally been employed. He has had a variety of unskilled or semiskilled jobs, ranging from retail, administration, sheep shearing, to process work, and fork-lift driving.

5. Whilst still living in New Zealand, the Applicant commenced a relationship with his first partner (“LC”), this resulted in the birth of two male children. Child A is currently 20 years of age, born when the Applicant was 17 years of age. Child B is currently 18 years of age. The Applicant and LC separated in 2004.

6. On 17 May 2005, the Applicant moved to Australia, joining his parents and siblings. The Applicant has lived in Australia since May 2005. Between 2005 and 2010 he lived with his sister (“RS”) in Melbourne. She moved to Sydney in 2010. Shortly after his arrival in Australia he commenced a relationship with his second partner (“TC”). This relationship lasted for approximately 10 years. They did not marry and there were no children from that relationship.

7. In 2012, the Applicant moved from Melbourne to Sydney, where many of his siblings, and his mother and stepfather were living. After moving to Sydney, the Applicant again lived with RS and formed a close relationship with her daughter, his niece (“Child C”). Child C is currently 16 years of age. RS also has a son (“Child K”), who is the Applicant’s nephew and is currently 6 years of age. The Applicant lived with RS for about two years, until he began to co-habit with his next partner (“JH”) in about April or May of 2014.

8. Also, in 2012, LC and her by then husband, moved from New Zealand to Australia with Child A and Child B. They settled in Melbourne. The Applicant has seen his children from time to time, during school holidays, or for other special events.

9. According to psychologist Dr Yoxall, (report dated 10 May 2018), the Applicant told her that it was around this time (2012-13), that he started using cannabis and methamphetamines (“ice”)[1]. This conflicts with other accounts. The Applicant told NSW Corrections that he started using in about October 2016 after being introduced to drugs by his third partner JH.[2] RS reported an earlier date, presumably in 2014.[3] In his evidence to the Tribunal the Applicant stated that his drug use began after he was introduced to ice by JH in early 2014, after he began to live with her. His consumption began intermittently but quickly accelerated to heavy use. He was incarcerated between December 2016 and July 2019, initially with NSW Corrections and later in immigration detention. He relapsed into drug use soon after his release from Villawood Detention Centre in July 2019. He was unemployed. By December of 2019 he was a heavy user of ice again.

   [1] Exhibit 2, G36, p 159.

   [2] Exhibit 6, TB3, p 171.

   [3] Ibid, p 173.

10. In about February 2014, whilst still in his relationship with TC, the Applicant commenced a relationship with JH. On 8 August 2014, a few months after they began to co-habit, the Department of Community Services (“DOCS”), removed JH’s two young daughters (from a previous relationship), due to her drug addiction and inappropriate supervision.[4] As per an affidavit filed in the NSW Children’s Court proceedings dated 11 November 2016, JH reported ongoing domestic violence since September 2014 at the hands of the Applicant.[5] On 11 August 2015 ,she reported being bashed and punched in the abdomen by the Applicant whilst she was pregnant. She also reported, amongst other things, being punched in the mouth and having a tooth knocked out, requiring stitches. She showed pictures of her injuries to her caseworker who observed the injuries to be “significant and permanent”.[6]

    [4] Exhibit 6, TB6, p 291.

    [5] Ibid, p 342.

    [6] Ibid, p 343.

11. By the first half of 2015, the Applicant’s relationship with TC had understandably broken down and JH was pregnant, ostensibly with the Applicant’s third child (“Child D”). Child D is currently five years of age. When Child D was eight weeks of age, he was taken into custody by NSW Child Protection Services. The records state that NSW Community Services had concerns regarding “no basic provisions for (Child D), (JH’s) refusal of medical treatment, (Child D’s) potential exposure to severe domestic violence and (JH) not following case plan“.[7] Child D was ultimately placed in foster care until the age of 18. Between the mid-2016 and his incarceration in December 2016, the Applicant had weekly DOCS supervised one-hour visits with Child D. Between his release from immigration detention in July 2019 and February 2020 when he returned to prison, the Applicant saw him three or four times. He would like to gain custody of Child D but has taken no concrete steps in this regard. His chance of ever succeeding in achieving this must be objectively regarded as slim, irrespective of his visa status. Child D has had little meaningful contact with the Applicant and very little with JH. By the time Child D was born, JH and the Applicant had separated, after he was charged with assaulting JH on 30 July 2015.

    [7] Ibid, p 290.

12. The Applicant says that to improve his chances of obtaining Court orders to resume care of Child D, the Applicant and JH rekindled their relationship. This is curious given that one of the reasons that Child D was removed in the first place was because of the risks created by the presence of the Applicant. This reconciliation occurred in about May of 2016 and was also in contravention of Court orders. Unsurprisingly perhaps, this was not successful. JH was a drug addict, and their relationship was volatile, in the Applicant’s words, “toxic”. By this time, the Applicant himself was drug dependant. The relationship was frequently violent. On 25 July 2016, there was an instance of further domestic violence against JH which ultimately resulted in the Applicant being convicted of various domestic violence offences and sentenced to imprisonment. The Applicant remained drug dependant until his incarceration in December 2016.[8]

    [8] Ibid, p 280.

13. JH reported a number of instances of family violence involving the Applicant to caseworkers and NSW Police. According to documents subpoenaed from the New South Wales Police Force Computerised Operational Policing System (“COPS”), relevant Event/Incident reports mention many instances of family violence.

14. The following are excerpts from a report created on 29 July 2015. This report refers to an interview between the police officer creating the report and the victim at 10 PM on 28 July 2015. It is clear from the context of the report, that the victim making the complaint was the Applicant’s then partner, JH.

    “INJURIES swelling to right side of forehead, blood around left ear and bruising to breasts, bruising left side of top of head, left side of neck, bruising to shoulders, left ring finger…….

    HISTORY OF RELATIONSHIP AND DURATION: Vic and POI have been in intimate relationships since February 2014. – – – Vic has disclosed a history of violence however has not reported the assaults to police. The Vic has taken photos on her phone. – – – The victim is currently 19 weeks pregnant with the couple’s child. The accused and the victim currently live together at – – – the victim has stated that she has been subject to a number of assaults from the accused since the commencement of their relationship.

    On 6 September 2014 the accused was driving with the victim. The victim and the accused have had a verbal argument. During the argument the accused has grabbed the victim and commenced to throw her around the cab of the accused vehicle. The accused has grabbed the thumb of the victim causing it the fracture (sic). The accused has punched the victim to the left side of the victim’s face causing the victim to get a black eye.

    (In his evidence to the Tribunal, the Applicant agreed that this happened).

    On 2 March 2015 the accused was driving with the victim along the M5 motorway. The accused and the victim had an argument. The accused has grabbed the victim on the neck and choked her while he was driving. The victim sustained marks to the neck as a result of this attack.

    (In his evidence to the Tribunal, the Applicant said that he could not recall this incident).

    On March 7 2015 the accused was and victim were at their home. The accused and the victim had an argument over the accused wanting to take victim’s car into the city. The accused and the victim have gone outside. The accused has grabbed the victim and started to push the victim. The accused has then grabbed the victim on the neck and commenced to choke her for a short time. The victim sustained a number of marks to her neck and chest as a result of this.

    (In his evidence to the Tribunal, the Applicant said that he could not recall this incident).

    On 30 March 2015 the accused and the victim were at their home. The victim and the accused had an argument. The accused grabbed the victim’s throat and pinned her down on the bed, choking her. The accused has punched the victim in the mouth. The force of the assault has dislodged one of the victim’s teeth and caused her lip to split open and bleed. Victim has sought medical attention the next day for these injuries.[9]

    (In his evidence to the Tribunal, the Applicant agreed that this happened).

    On 21 May 2015 the accused has strangled the victim and punched her about three or four time on her stomach. At the time the accused was aware the [victim] was pregnant. The as a result of the assault the victim has sustained a number of scratches to her neck (sic). She has attended Campbelltown to receive treatment as a result of this. – – –[10]

    (In his evidence to the Tribunal, the Applicant agreed that this happened).

    Around 8:50 PM on Monday 28 July 2015 the victim was travelling to the accused’s work at… to go home with the accused after he finished work. The victim has received a text message from the accused requesting that she wait in a nearby pub as his ex-girlfriend was attending his workplace to give him money. The victim and the accused have exchanged a number of heated text messages. The accused has texted the victim “U just fuckin wait you got me fuming now”. And shortly after another message “well see how fuckn smart ur mouth is wen I pick u up bitch”. At this point the victim felt there was a good chance she may be assaulted by the accused. The accused has driven to – – – which is a cul-de-sac near where the accused’s work is located. This is where the victim was waiting for the accused. The victim got into the accused’s car. When the victim got in the car the accused said “why couldn’t you keep your fuckin mouth shut, I told you when I’m angry just let me have my tantrum”. The victim said “I didn’t think it was that much to ask for basic human courtesy regardless if you say you care about me or not”. The accused has grabbed the victim by her hair and right ear and slammed the victim’s head on the dashboard of the vehicle. The accused has commenced to punch the victim in her stomach about six times. While he was punching the victim the accused has hit the victim’s head against the dashboard another eight times. The accused has grabbed hold of the victim’s hair and ears with both hands. The accused has faced the victim and head-butted her about three times. The victim has got out of the time and drive off (sic). The victim is gone to the accused’s work. There she has spoken to staff about what occurred. The accused has returned a short time later and requested she go with him. The victim got in the car. The victim and the accused have had an argument and the accused has kicked the victim out of the car on Newton Road. The victim has started to walk back to the accused’s work where she was picked up by the accused again. Another argument occurred in the accused has kicked the victim out of the car on Cowpasture Road Wetherill Park. The victim has called police. Police have attended and located the victim on Newton Road Wetherill Park. Police have observed the victim to have a large lump to the right side of her forehead and an amount of dried blood around her ear. Police have arranged for an ambulance to attend and assess the victim. The victim was taken to Liverpool Hospital for assessment of her injuries.”[11]

    [9] Ibid, TB4, p 240 – 241.

    [10] Ibid, p 241.

    [11] Ibid, p 241.

    (In his evidence to the Tribunal, the Applicant agreed that this happened).

15. The allegations regarding the 28 July 2015 incident were ultimately the subject of a successful prosecution, the others were not the subject of a prosecution. It seems that JH was still reluctant to make a break from the Applicant.

16. As was stated by Magistrate Degnan on 10 January 2017:

    “With respect to the further offences also committed upon [JH] as I found

    at the conclusion of the hearing and bear in mind with that period six months

    sentence I do take into account the plea of guilty, there is further more recent

    matters were matters where [JH] was required to attend Court and give

    evidence before me in very difficult circumstances where she was clearly still

    holding some affections for the offender and was in the process of with his

    support, trying to have their child returned to them from Family and Community

    Services care (sic). It was quite clear to me, bearing in mind the circumstances of

    violence and drugs, that the child is far better off, at this point in time, in the

    care of Family and Community Services.”[12]

    [12] Ibid, TB5, p 257.

17. The following are excerpts from a similar COPS report, this time created on 25 July 2016.

    “[The Applicant] and the victim were in an intimate relationship for about two and a half years separating in July 2015 after a domestic incident. For the past one and a half months the victim and the accused have recently re-establish their relationship (sic)..…… On Wednesday 29 July 2015 police applied for a Provisional Apprehended Violence Order as a result of a domestic incident between the victim and the accused. A Domestic Apprehended Violence Order was granted by the magistrate at Fairfield Local Court on Tuesday 12 July 2016 and include the following orders:

    Mandatory orders:

    1a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    1b. The defendant must not engage in any other conduct that intimidates the protected person(s) or person(s) with whom the protected person has/have a domestic relationship.

    1c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    Additional orders:

    2. The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises:

    About 1:30 AM on Monday 25 July 2016, the victim was at her residential address… with the accused, …. During this time the victim and the accused were inside the victim’s bedroom. The accused was packing his bag for work in the morning, whilst the accused was packing his bag the victim and the accused were engaged in a verbal argument in relation to the accused going out during the night and the victim suspecting he had cheated on her. The argument has escalated between the victim and the accused… The accused has approached the victim, grabbed hold of her ears and pushed her head against the wall resulting in damage to the bedroom wall. The accused has pulled the victim to the floor and has pinned her with one leg to her throat and the other leg on her arm. The victim has repeatedly stated to the accused to let her up however the accused has refused. After a short period of time the accused has released the victim off the floor. The victim has grabbed her mobile phone off to bed, left the room and proceeded to the garage. During this time the [victim]() has contacted police. The accused has followed the victim into the garage and the argument between them has continued. The accused has approached the victim who was at the time seated on a lounge and has grabbed hold of the victim’s neck with both hands and proceeded to squeeze the victim’s neck tightly. The accused has pushed the victim head backwards into the head of the chair. The accused has continued to squeeze the victim’s neck resulting in her having difficulty breathing. Whilst squeezing the victim’s neck the accused was mimicking the sound the victim was making and laughing. The accused has let go of the victim’s neck with his right hand and proceeded to punch the victim to her left shoulder and torso with a closed fist, whilst still having his left hand around her neck. The accused stated “I’m going to keep hitting you till you shut up”. The accused has placed both hands around the victim’s neck and stated, “you better calm down and shut the fuck up or I am not letting go, you’re not fucking going anywhere”. The accused has let go of the victim’s neck and sat next to her. Whilst the accused was seated next to the victim he has grabbed his shirt refused the victim from getting out. The victim has continued to plead with the accused to let her go however he has continued to hold her down. The accused stated, “shut the fuck up your tears do nothing, it will get no sympathy  from me, stop acting like the victim, you can cry or you want to deserve this, this is going to happen for the rest of our lives”. The accused has grabbed hold of the victim’s neck and face. The accused has proceeded to dig his nails into his face. The victim has repeatedly stated to the accused to let her go. – – –

    Police attended location and sighted the victim 50 metres from her residential address. Police stopped and spoke to the victim. Police sighted the accused walking towards police. Police stopped and spoke to the accused. Police obtained a Domestic Violence Evidence in Chief Statement from the victim. Police sighted and took photos of injuries to her neck, left hand, right here, left arm, facial injuries. Police sighted and took photos of damage to bedroom wall and text messages sent to the witness.… Police have charged the accused and placed him before the court.”[13]

    [13] Ibid, TB4, p 237.

1. This incident was the subject of a prosecution. It is difficult to ascertain exactly what facts were found or agreed before the Magistrate. Some clue can be seen at Exhibit 6, TB 2 p 141-2, which appears to be a redacted statement of facts based on the COPS records referred to above. It is signed and dated 29 March 2016. The fact that the Applicant has convictions for family violence, however, is beyond dispute.

2. On 10 January 2017, the Applicant was sentenced to a total term of 20 months imprisonment for his family violence against JH. On 15 June 2017, that sentence was reduced to 14 months imprisonment. The Applicant was released on parole on 5 September 2017. He was immediately placed in immigration detention due to the cancellation of his visa. He remained in detention until he was released pursuant to a decision of this Tribunal on 9 July 2019. (The overall sentence expired on 5 April 2018). Shortly after his release, in July 2019, the Applicant again became a “heavy user of the drug ice”.[14] He mixed with a bad crowd, had no stable accommodation, and hid his drug abuse from his family and in due course, his new partner (“CR”).

   [14] Exhibit 2, G14, p. 96.

3. According to his documentation dated 14 October 2020, and his oral evidence, the Applicant has been in a relationship with CR since October 2019.[15] Given his re-offending in early 2020 and his subsequent incarceration, the actual duration of the relationship with CR, her two daughters (“Child E” and “Child F”) and her niece (“Child G”), has been very short (October 2019 to February 2020). Since his incarceration they have visited him in person and spoken to him by phone.

   [15] Ibid, p. 81.

4. Although the Applicant has known CR for some years, he has never lived with CR. They only began “dating” in October 2019. Their relationship only became “official” in about April 2020, sometime after he was imprisoned in February 2020. If the Applicant were to have his visa cancellation revoked, he plans to live with CR, her daughters and niece. Although CR has provided a short statement in support of the Applicant[16],  she was not called to give evidence. Her absence at the hearing was explained by the Applicant on the basis that she “had to work”. No request was made for the Tribunal to accommodate her convenience or to contact her by phone. Given that a great deal of the Applicant’s plan to remain drug free is dependent on him being able to live with CR and find stable employment, this is a matter of concern. The prospect of the Applicant’s plan to co-habit with a woman that he only started “dating” in October 2019 and with whom he has never lived being successful, must be treated with some caution.

   [16] Exhibit 2, G17, p. 107.

5. The Applicant’s then visa was mandatorily cancelled on 21 June 2017, by which time he was serving a sentence of imprisonment. The Applicant made representations regarding his Visa cancellation on 24 June 2017. After consideration had been given to the Applicant’s representations, a delegate of the Minister decided not to revoke the cancellation. The Applicant was advised of this decision on 17 April 2019. At the Applicant’s request, this decision was in turn reviewed by the Administrative Appeals Tribunal. By decision dated 9 July 2019, the mandatory cancellation of the Applicant’s then visa was revoked.

6. During the morning of 17 January 2020, whilst in possession of various housebreaking implements, the Applicant and his co-accused were observed attempting to break into commercial premises. This was the second such break in that they had attempted that morning. The Applicant was arrested and subsequently released on bail. On 19 February 2020, the Applicant, who was high on ice, was driving an unregistered vehicle with stolen numberplates. He was asked to pull over by police. There was a pursuit during which time the Applicant drove in circumstances that were substantially uncontrolled and could easily have resulted in potentially serious injury or death to the pedestrians who were nearby. This resulted in him ultimately crashing into the curb. He then attempted to escape by foot before being apprehended. He was initially convicted and sentenced for this offending on 19 August 2020. He subsequently appealed the severity of the sentence and on 29 September 2020 the District Court of New South Wales varied the aggregate sentence to 14 months imprisonment, with a non-parole period of nine months.

7. On 14 October 2020, the Applicant’s Visa was cancelled under section 501(3A) of the Act. At the Applicant’s request, this decision was reviewed by the Respondent who on 23 June 2021 determined not to revoke the cancellation of the Applicant’s Visa.

8. It is this decision that the Applicant seeks to have reviewed in these proceedings before the Tribunal.

   LEGISLATIVE FRAMEWORK

9. Section 501(1) of the Act provides that:

   “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “

10. There are two issues presently before the Tribunal:

    ·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;

    ·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.

    Does the Applicant Pass the Character Test?

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

12. On 19 August 2020, the Applicant was sentenced by the Liverpool Local Court to a term of imprisonment of 16 months with a non-parole period of 11 months.

13. On 29 September 2020, the District Court of New South Wales, on appeal, varied the sentence to a term of imprisonment of 14 months with a non-parole period of 9 months.

14. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.

15. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[17] It is noted that at the time of the Applicant’s previous application for review before the Tribunal, an earlier iteration of the direction, namely Direction No. 79, was applicable. There are material differences between the Direction No. 79 and the Direction (Direction No. 90).

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

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

17. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

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

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

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

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

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

18. Paragraph 6 of the Direction provides that:

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

19. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

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

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

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

    ii)impact on Australian business interests.

21. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]

    “…Direction 65 [now Direction 90] 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.”[19]

    [18] [2018] FCA 594.

    [19] Ibid, [23].

    OFFENDING HISTORY

22. The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure A.

23. The Applicant’s offending commenced in 2015 when he was 31 years of age. This corresponded with him being addicted to ice and being associated with JH. After serving his first term of imprisonment and immigration detention, he was released on 9 July 2019. Upon his release he soon resumed an unstable drug dependant lifestyle, which he attributed to his mental health issues caused by his unemployment and associating himself with the wrong crowd. Notwithstanding his relationship with his family and his new partner, CR, he was involved in more offences in January and February 2020.

    Direction No. 90 v Direction No.79

24. The Applicant has previously been before this Tribunal in a matter regarding the cancellation of his Visa.[20] That decision, dated 9 July 2019, considered the Applicant’s circumstances as they were at that time, against the then relevant Direction No.79.

    [20] Exhibit 2, G50, p 265.

25. The present circumstances in this matter are different in some important respects:

    (a)the Applicant has since reoffended and been sentenced to another term of imprisonment in excess of 12 months;

    (b)the Applicant has recently developed a relationship with CR, her daughters, and her niece; and

    (c)Direction No. 79 has been replaced with Direction No. 90.

26. In comparison with Direction 79, Direction No. 90 contains a number of materially different provisions, placing much greater emphasis on family violence as being “serious conduct”. For example:

    (a)A new definition of “Family violence” appears in Clause 4(1);

    (b)Clause 8.1.1(1)(iii) states, amongst other things that:

    “in considering the nature and seriousness of the noncitizen’s criminal offending or other conduct to date, decision-makers must have regard to the following: – – – without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian government and the Australian community: – – – acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.”; and

    (c)Clause 8(2) directs attention specifically again to the question of family violence (see paragraph 44 below).

27. Although Direction No.79 did make reference, for example, in clause 9.1.1(1)(b) to “the principle that crimes of a violent nature against women or children are viewed very seriously regardless of sentence imposed”. Direction No.90 places far greater emphasis on the significance and seriousness of family violence. It does not require either a conviction, or a sentence to be imposed. It concerns itself with both crimes and conduct. It is also now a stand-alone primary consideration.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

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

29. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

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

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

32. In 2017, the Applicant was convicted of multiple offences relating to family violence. The details of these are set out in paragraphs 10-18 above and at Annexure A. The offending for which the Applicant was convicted, included family violence, breach of intervention orders and stalking. There are records before the Tribunal suggesting that other complaints were made by the Applicant’s then partner (JH) to the police or caseworkers, which were not ultimately the subject of charges. In his evidence the Applicant agreed that many of these did happen. He agreed that he often perpetrated family violence. He agreed that his conduct was cowardly and humiliating to his victim. It is not uncommon in family violence cases for victims not to press charges, or to seek to have them withdrawn. This is a well-documented feature of the dynamics at play between the victims and the perpetrators of family violence. Whilst I give these various untested allegations less weight than criminal convictions, given that many were conceded by the Applicant in his evidence, they are strong evidence of other “conduct” under the Direction.

33. Having regard to all these matters, the Applicant’s offending must be regarded as extremely serious.

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

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

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

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

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

35. This consideration is neutral.

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

1. The Applicant has been convicted twice since 2016 of multiple serious offences and has been sentenced to two terms of imprisonment in excess of 12 months. Bearing in mind that only serious offending results in a sentence of imprisonment, this is an indication of very serious offending.

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

3. Until 2015, the Applicant had not come to the attention of the police for any offending. There are, however, Family and Community Services (“FACS’) and COPS records suggesting prior uncharged incidents of family violence. This was conceded by the Applicant in his evidence. Since 2015, the Applicant has been convicted of a number of serious offences. The Applicant’s initial offences were in the nature of family violence. His subsequent offences involved a planned enterprise to illegally enter two commercial premises and steal property. He also engaged in a dangerous car chase to evade police while he was high on ice. Not only has the Applicant committed serious offences warranting imprisonment for a term in excess of 12 months, on two occasions since 2015; he has broadened the scope of his offending. It is significant that the breaking and entering offences constitute a step into the realm of pre-meditated (albeit, unsophisticated) planned criminal conduct. This is very different in its nature to an impulsive, violent assault. In this respect, it can be regarded as a worrying escalation in his offending.

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

5. Having regard to the nature of the Applicant’s offending and its seriousness, as evidenced by two terms of imprisonment in excess of 12 months within the space of four years, the Applicant’s offending has had a significant cumulative effect on community safety. It is only good fortune that has prevented some of his conduct resulting in serious injury or death.

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

7. This consideration is neutral.

8. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

9. This consideration weighs extremely heavily against the Applicant. After the Applicant’s conviction in 2017, his visa was cancelled. Ultimately, upon his application, this decision was reviewed by this Tribunal and on 9 July 2019, the cancellation of his visa was revoked. It is difficult to comprehend a more explicit articulation of the risk that the Applicant faced should he further offend, than having gone through such a process as recently as 2019. In that hearing before the Tribunal, the Applicant stated that “he understood the consequences of any further offending by him would be “instant deportation” and he was firmly committed to leading a law-abiding life.”[21] Notwithstanding his near deportation experience in July 2019, the Applicant soon returned to drug use and dependency, continued to make poor choices and ultimately within six months, committed other very serious offences, for which he was sentenced to another term of imprisonment in excess of 12 months.

   [21] Ibid, p. 288.

10. I do not consider factors (b) and (f) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.

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

11. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

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

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

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and

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

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

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

14. Since 2015, the Applicant has committed numerous serious offences, some involving family violence, which have been so serious as to warrant him being incarcerated for two separate periods in excess of 12 months. This is especially significant given the fact that up until 2015, the Applicant had no criminal record.

15. If the Applicant were to be returned to the community and continue to offend, the consequences would be extremely serious. Indeed, the nature of his offending has broadened, as can be seen from his most recent convictions.

    Likelihood of engaging in further criminal or other serious conduct

16. At the time of the Applicant’s first offending, given that he had reached 31 years of age without being convicted of any criminal offences, there was evidence to suggest that he was unlikely to reoffend, particularly if he was properly supported. I note the medical report of Dr Yoxall, dated 10 May 2018, which expresses the view at page 24, that his “risk of reoffending is low overall but is risk can be further decreased through engagement in evidence-based treatment and rehabilitation”.[22]

    [22] Ibid, G36, p 173.

17. As it turns out, the Applicant did not engage in any evidence-based treatment and rehabilitation. Instead, shortly after his release from detention in July 2019, he returned to a chaotic life of drug abuse, having no fixed address and mixing with criminals. Ultimately, 6 months after his release, he had reoffended.

18. Whatever might have been said for the risk that the Applicant presented to the community prior to his first release from prison and detention, his conduct since that time, has done nothing to inspire any confidence that he has the will, or the capacity, to avoid drugs and reoffending. A Sentencing Assessment Report dated 13 August 2020, prepared by a community corrections officer in connection with the Applicant’s prosecution for the January and February 2020 offences, assessed him “at a T2/Medium risk of reoffending”.[23] This is a much more concerning assessment than Dr Yoxall’s assessment of “low risk”[24] on 10 May 2018. This assessment means that he would require active supervision by Community Corrections, and it would require his positive co-operation in programmes.[25] I note that his sentence concluded on 19 June 2021, having become eligible for parole on 19 February 2021. If he were released now, he would not be subject to any supervision by Community Corrections. As mentioned above, he has not engaged with treatment and rehabilitation when released in the past. The Applicant must be seen as presenting a significant risk of reoffending.

    [23] Exhibit 6, TB1, p 3.

    [24] Exhibit 2, G36, p 173.

    [25] Exhibit 6, TB1, p 5.

    Conclusion: Primary Consideration 1

19. Primary consideration number one weighs very heavily against the Applicant.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

20. Paragraph 8.2 of the Direction provides:  

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

21. The Applicant’s history of family violence has been set out in detail above. The evidence before the Tribunal suggests that the Applicant’s chaotic relationship with JH was the stimulus and context for his initial offending. He had and still has, no other criminal record for this type of offending, although it is clear from his evidence that his history of family violence is far more extensive and serious than his convictions alone would suggest. He has not reoffended in this way since his initial convictions. The evidence suggests that he has a capacity, though not necessarily a propensity, to commit acts of family violence. The Applicant has accepted responsibility for his offending and seems to feel genuine remorse.

    Conclusion: Primary Consideration 2

22. This consideration weighs heavily against the Applicant.

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

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

24. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     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;

    ·     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;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    ·     whether there are other persons who already fulfil a parental role in relation to the child;

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    ·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

25. The relevant minor children in Australia are:

    (a)Child C, aged 16, niece, RS’s daughter.

    (b)Child D, aged 5, Applicant’s son.

    (c)Child E, aged 7, daughter of CR.

    (d)Child F, aged 5, daughter of CR.

    (e)Child G, aged 13, niece of CR.

    (f)Child H, aged 12, nephew, stepbrother’s son.

    (g)Child I, aged 10, niece, sister’s (“CS”) daughter.

    (h)Child J, aged 11, niece, CS's daughter.

    (i)Child K, aged 6, nephew, RS’s son.

26. The Applicant has one biological child under the age of 18, Child D. Although the Applicant has expressed a desire to be in a position to make a successful application to have Child D removed from foster care and placed in his care, the prospects of that at the present time, leaving aside any question of deportation, appear remote. The Applicant has had minimal contact with Child D who is now five years of age. He has never performed a parental role. This has been attended to by foster parents. Given his minimal contact with Child D, his removal to New Zealand would have minimal impact. Whilst it may be in the best interests of Child D to have a constructive ongoing relationship with his father, he presently lives and has done since birth, completely independently of any parental support from his father. Contact could easily be achieved by electronic means from New Zealand.

27. Child E is the 7-year-old daughter of the Applicant’s most recent partner, CR. The Applicant has had a relationship with this child since he started dating her mother in October 2019. The Applicant has not lived with Child E, supported her financially, or had a parental role. He was a visitor to her home on occasions when he was not taking drugs, between October 2019 and his incarceration in February 2020. Since his incarceration, he has seen Child E on visits and spoken to her on the phone. His brief period of interaction with Child E has been significantly interrupted by his imprisonment. He says that he is regarded well by Child E, who calls him “uncle”. If the Applicant were to be returned to the community and to reside with CR and her children as planned, he would play significant part in the life of Child E. That said, he could continue to interact with her electronically from New Zealand. If he were to resume using drugs, his influence would be negative.

28. Child F is the 5-year-old daughter and of CR. The relationship between the Applicant and Child F is substantially the same as Child E, thus the same considerations apply to Child F as to Child E above.

29. Child G is the 13-year-old niece of CR. She has been in the care of her aunt, CR, as a result of child safety interventions due to her natural parents’ drug use and abusive nature. Although very wary of the Applicant in the beginning, he says that Child G has warmed to him. The relationship between the Applicant and Child G is substantially the same as Child E and Child F, thus the same considerations apply to Child G as given to Child E and Child F above.

30. Child H lives in Perth with his parents. The Applicant has had minimal contact with Child H. If the Applicant were returned to New Zealand the impact on Child H would be minimal. Contact could be maintained electronically.

31. Child I, lives in Melbourne with her parents. The Applicant has had minimal contact with Child I. If the Applicant were returned to New Zealand the impact on Child I would be minimal. Contact could be maintained electronically.

32. Child J, lives in Melbourne with her parents. The Applicant has had minimal contact with Child J. If the Applicant were returned to New Zealand the impact on Child J would be minimal. Contact could be maintained electronically.

33. Child K, lives in Sydney with his mother. Child K has had minimal contact with the Applicant since he was a toddler. The Applicant has spent much of Child K’s life in prison or detention. The Applicant has not had a parental role or supported Child K. If the Applicant were returned to New Zealand the impact on Child K would be minimal. Contact could be maintained electronically.

    Conclusion: Primary Consideration 3

34. Having regard to all of the above, and assuming in the Applicant’s favour that he does not return to drug use, primary consideration 3 weighs slightly in favour of the Applicant.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

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

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

    (a)acts of family violence; or

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

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

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

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

    (f)worker exploitation.

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

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

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

3. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[26]

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

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

   Analysis – Allocation of Weight to this Primary Consideration 4

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

   (a)the Applicant’s criminal record as set out in Annexure A. Since 2014, the Applicant has been a drug abuser and repeat serious offender. He has committed multiple acts of family violence, admitting to more in his evidence than was ever the subject of criminal charges. His offending has continued and escalated to include premeditated criminal behaviour and high-risk behaviour such as engaging in dangerous driving while high on ice.

   Conclusion: Primary Consideration 4

6. Primary consideration 4 weighs heavily against the Applicant.

   OTHER CONSIDERATIONS

7. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

   (a) International non-refoulement obligations

8. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.

9. This Other Consideration (a) is neutral.

   (b) Extent of Impediments if Removed

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

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

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

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

11. The Applicant is 37 years of age and is apparently in good health. If he were removed from Australia and returned to New Zealand, he would not face any substantial language or cultural barriers. As citizen of New Zealand, he would be entitled to the same social, medical, and economic support as any other citizen of that country. The provision of these services to citizens in New Zealand is comparable to that provided to citizens in Australia. He has many relatives in New Zealand, but they are not close relatives. He would certainly encounter some challenges in re-establishing himself there after an absence of so many years.

12. This Other Consideration (b) weighs slightly in favour of revocation.

    (c) Impact on victims

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

14. There is no evidence to suggest that a decision to allow the Applicant to remain in Australia would have any particular impact on any victim.

15. This Other Consideration (c) is therefore neutral.

    (d)     Links to the Australian Community

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

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

17. The overwhelming majority of the Applicant’s family members are permanent residents or citizens of Australia. He has three biological children in this country. He has a mother and stepfather here. He has nieces and nephews here. None of these people are currently, or indeed since 2017 could have been in any way dependant on the Applicant. To the extent that there has been ongoing connection with relatives and friends, this has been maintained (or not, as the case may be) by electronic communications. Removal to New Zealand would not compromise this. There is no doubt, however, that his physical presence in Australia would be beneficial to him in this respect.

18. In his evidence, he was particularly concerned about his mother and stepfather being financially supported and getting to and from medical appointments. The fact is that they have managed without his help since 2017, and there is no reason to assume that this cannot continue. Even if he were deported, the Applicant could send money to assist them. He is prohibited from driving until 2023, so it is difficult to see how he can be much help with transport.

19. The Applicant has been in Australia for the last 15 years. He arrived in Australia in 2005 when he was 21 years of age. He did not offend until 2015. For most of the time up until then, he was gainfully employed. Up until 2015, the Applicant was a net contributor to the community.

20. There is no doubt that all the Applicant’s significant connections to friends and extended family are in Australia.

21. This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs in the Applicant’s favour.

    Impact on Australian business interests

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

23. This Other Consideration (d), paragraph 9.4.2 of the Direction, carries no weight.

    Findings: Other Considerations

24. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: neutral;

    (b)extent of impediments if removed: weighs slightly in favour of revocation;

    (c)impact on victims: neutral;

    (d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in the Applicant’s favour; and

    (e)the impact on Australian business interests: neutral.

    CONCLUSION

25. It is necessary to weigh up all of the primary and other considerations.

26. Primary consideration 1 weighs very heavily against the Applicant.

27. Primary consideration 2 weighs heavily against the Applicant.

28. Primary consideration 3 weighs slightly in favour of the Applicant.

29. Primary consideration 4 weighs heavily against the Applicant.

30. Other considerations (a), (c), and (e) are neutral.

31. Other consideration (b), extent of impediments if removed, weighs slightly in favour of the Applicant.

32. Other consideration (d), links to the Australian community, weighs in the Applicant’s favour.

33. In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I do not find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.

    DECISION

34. The decision under review is affirmed.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

...............................[Sgnd]....................................

Legal Administrative Assistant

Dated:   10 September 2021  

Date of hearing:

30 August 2021

Applicant:

Self-Represented

Advocate for the Respondent:

Cormac Burke

Sparke Helmore

Annexure A – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Fairfield Local Court	12/04/2016	Assault occasioning actual bodily harm	12 months supervision
Campbelltown Local Court	10/01/2017	Stalk/intimidate intend fear physical etc harm (domestic)	20 months imprisonment with 10-month non-parole period
		Contravene prohibition/restriction in AVO (Domestic)
		Destroy or damage property <=$2000
		Assault occasioning actual bodily harm
		Assault occasioning actual bodily harm (DV)	6 months imprisonment
Campbelltown Local Court	28/04/2017	Contravene prohibition/restriction in AVO (Domestic)	S10A conviction with no other penalty
Campbelltown District Court	15/06/2017	Stalk/intimidate intend fear physical etc harm (domestic)	Sentence of 10/01/2017 of Campbelltown Local Court varied to 14 months imprisonment with 7-month non-parole period
		Contravene prohibition/restriction in AVO (Domestic)
		Destroy or damage property <=$2000
		Assault occasioning actual bodily harm
Liverpool Local Court	19/08/2020	Police pursuit – not stop – drive recklessly – 1st off	16 months imprisonment with 11-month non-parole period
		Goods suspected stolen in/on premises (not m/v)	Conditional release order – 7 months
		Use class A vehicle with unauthorised number plate affixed	Conditional release order – 8 months
		Agg B&E dwelling etc in company steal <=$60000	16 months imprisonment with 11-month non-parole period
		Custody of knife in public place – first offence	S10A conviction with no other penalty
		Possess housebreaking implements	16 months imprisonment with 11-month non-parole period
		Break and enter dwelling-house etc with intent (steal)
Parramatta District Court	29/09/2020	Police pursuit – not stop – drive recklessly – 1st off	Sentence of 19/08/2020 of Liverpool Local Court varied to 14 months imprisonment with 9-month non-parole period
		Use class A vehicle with unauthorised number plate affixed	Conditional release order – 8 months – of Liverpool Local Court retained
		Goods suspected stolen in/on premises (not m/v)	Conditional release order – 7 months – of Liverpool Local Court retained
		Agg B&E dwelling etc in company steal <=$60000	Sentence of 19/08/2020 of Liverpool Local Court varied to 14 months imprisonment with 9-month non-parole period
		Break and enter dwelling-house etc with intent (steal)
		Possess housebreaking implements