Tangapiri and Minister for Home Affairs (Migration)

Tangapiri and Minister for Home Affairs (Migration) [2018] AATA 3599 (21 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3675
Re:Aumai Junior Nootai Tangapiri
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:21 September 2018
Place:Melbourne

The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Member Richard West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – decision under review affirmed.
Legislation
Migration Act 1958
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Gordon and Minister for Immigration and Border Protection [2018] AATA 39
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 6.2(1), 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C
REASONS FOR DECISION
Member Richard West
21 September 2018
INTRODUCTION

On 7 March 2017 the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa was subject to mandatory cancellation under s.501(3A)(b) of the Migration Act 1958 (the Act).
On 28 June 2018 a delegate of the Minister for Home Affairs (the Minister) decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s.501CA(4) of the Act. The Applicant was notified of the delegate’s decision on 2 July 2018.
The Applicant sought a review of the delegate’s decision on 3 July 2018.
The Tribunal conducted a review hearing on 13 September 2018. The Applicant appeared in person. The Respondent was represented by Ms Ashlee Briffa, solicitor of the Australian Government Solicitor.
For the reasons that follow, I have decided to affirm the decision of the delegate.
EVIDENCE
In conducting the review I have had regard to:
·the documents produced to the Tribunal by the Respondent pursuant to s.500(6F) of the Act, being two bundles of documents sequentially numbered from 1 to 411 (the G Documents)[1]; and
·the oral evidence and written statements of the Applicant and Ms Bobbi Ross (the Applicant’s former de facto partner).
[1] In referring to the G Documents in this decision the relevant page numbers are cited, for example, G343 refers to the document at page 343 of the G Documents as filed.
BACKGROUND
The Applicant is 36 years old and a citizen of New Zealand.
The Applicant visited Australia on a tourist visa in 2001 and in 2002/2004. He then entered Australia and was granted a Class TY Subclass 444 Special Category (Temporary) visa on 1 February 2005. He has resided in Australia continuously since that date.
The Applicant worked in Australia in the construction industry. He commenced a de facto relationship with Ms Bobbi Ross in about 2007. They had a son together in 2012. The relationship continued with some periods of separation until 2016.
In November 2007 the Applicant was convicted of driving while disqualified and sentenced to 2 months’ imprisonment wholly suspended.
In December 2007, police attended at the home of Ms Ross. The Applicant confirmed in his evidence the substance of a police report that he assaulted Ms Ross by continually holding her down on the ground, using his knee and body weight to restrain her. He pushed her face into the ground causing her lip to bleed. He prevented Ms Ross from trying to escape from her home by preventing her from opening a door and then later put his hand over her mouth and dragged her off her balcony when she called for police assistance. The Applicant subsequently pleaded guilty to making a threat to kill, recklessly causing injury and hindering police and was fined $800.
In September 2014 the Applicant was charged with driving without a licence and speeding.
In February 2015 police again attended at the home of Ms Ross. The Applicant confirmed in his evidence the substance of a police report that when asked to leave the premises by Ms Ross, the Applicant refused and during an ensuing argument he slapped Ms Ross across the neck. The Applicant then smashed Ms Ross’ car keys and the windscreen of her car. In trying to re-enter the house he ripped a mesh security screen from a window and damaged a roller shutter on another window. The Applicant made a full admission to police and was arrested. He was bailed to appear in the Sunshine Magistrates’ Court on 30 March 2015. He subsequently failed to appear in Court in accordance with his bail undertakings.
In February 2015 a family violence intervention order (IVO) was granted against the Applicant with Ms Ross being listed as the ‘affected family member’. The Applicant was in attendance when the IVO was granted and he was given a copy of it.
In May 2015, in breach of the IVO issued in February, the Applicant attended Ms Ross’ home. The Applicant confirmed in his evidence the substance of a police report, that during an argument with Ms Ross he twice struck a door she had locked with his open palm, causing it to break away from the door frame. The Applicant made full admissions to the police and was charged with breaching the IVO, failing to answer bail and committing an indictable offence while on bail. He was again released on bail to attend the Court on 13 August 2015. Again the Applicant failed to appear at Court in accordance with his bail conditions.
In October 2015 police again attended at the home of Ms Ross. The Applicant confirmed in his evidence the substance of a police report that he verbally abused Ms Ross and slapped her twice across the face using considerable force. He continued the verbal abuse and slapped Ms Ross again. He threw her against a wall and she sustained a significant head injury. He then dragged Ms Ross across the floor, walked into the kitchen and opened the knife draw. Ms Ross ran out of the house in fear for her life. The Applicant was arrested and charged with intentionally causing injury, recklessly causing injury, unlawful assault, breaching the February IVO and failing to answer bail. The Applicant made a full admission to police and said that he had been using ice at the time.
In October 2015 a broader IVO was issued against the Applicant with his consent. On the same day, the Applicant was convicted of various offences related to the incidents in September 2014, February 2015 and May 2015 and was sentenced to a 12-month community corrections order (CCO).
In December 2015 the Applicant stayed at the home of Ms Ross in breach of the IVO issued in October.
On the night of 13 January 2016, at the home of Ms Ross, the Applicant and Ms Ross argued and Ms Ross left because she felt unsafe. The Applicant became enraged and put his fist through a window, punched holes in two doors, kicked in a hallway grate and tipped over a kitchen table. Ms Ross returned home in the early hours of 14 January 2016 to collect some possessions. The Applicant grabbed her by the hair and pushed her to the ground, punched her in the face and kicked her in the back. He said to Ms Ross that he would kill her if she called the police. The Applicant was subsequently arrested and made some admissions. He confirmed in his evidence to the Tribunal the substance of a police report into the incident. He was released on bail to attend court on 19 April 2016. The Applicant subsequently failed to appear on 19 April 2016 and a warrant was issued for his arrest.
On 22 June 2016 another warrant was issued for the arrest of the Applicant for failure to comply with the reporting, supervision and monitoring conditions of his CCO.
In August 2016 the Applicant again argued with Ms Ross at her home. Ms Ross called ‘000’ when the Applicant refused to leave. The Applicant snatched her phone and left, taking her car. The Applicant was subsequently arrested. After he was charged the police opposed bail and the Applicant was remanded in custody.
In October 2016 the Applicant came before the Melbourne Magistrates’ Court for sentencing. On this occasion the CCO was cancelled. The Applicant was sentenced to an aggregate 9 months’ imprisonment and fined $900 in relation to the incidents in September 2014, February 2015 and May 2015 and the first and second bail breaches. He was convicted of various offences arising out of the incident in January 2016, including threats to kill, and was sentenced to 12 months’ imprisonment. He was fined $1,000 in relation to the third bail breach. He was convicted of contravening the IVO and theft arising from the incident in August 2016 and sentenced to an aggregate 6 months in prison. He was convicted of unlicensed driving in relation to the incident in August and fined $1,000.
The Applicant subsequently appealed these sentences. In November 2016 the County Court set aside the previous sentences and sentenced the Applicant to a total of 1 year and 9 months imprisonment and imposed $1,900 in fines.
The Applicant was initially assessed by prison authorities as at medium risk of reoffending and deemed suitable for placement in a medium security prison. In November 2016 drugs were found in the Applicant’s cell. In July 2017 he was caught swallowing 6 or 7 balloons handed to him by a visitor. The Applicant claimed in his evidence that he was ingesting the balloons for another inmate and he believed they contained tobacco. As a result of the incident the Applicant was transferred to a maximum security facility. In September 2017 tobacco and ‘white pills’ were found in the Applicant’s cell and the following day the Applicant returned a positive urine drug test. He admitted in evidence that he had taken a methadone replacement for which he did not have a prescription, but denied that the pills were his.
The Applicant was released from prison in May 2018 and taken into immigration detention.
LEGISLATIVE FRAMEWORK
The Applicant seeks a review of the decision of the delegate of the Minister not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s.501CA(4) of the Act.
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation if it is satisfied that:
(i) the Applicant passes the character test as defined in s.501; or
(ii) there is another reason why the cancellation should be revoked.
The Applicant, having been sentenced to a term of imprisonment of 12 months or more, does not pass the character test in s.501[2]. Accordingly, the sole issue before the Tribunal in these proceedings is whether under s.501CA(4)(b)(ii) there is another reason why the mandatory cancellation should be revoked.
[2] S.501(6)(a) and s.501(7)(c) of the Act
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities[3].
[3] Re Gordon v Minister for Immigration and Border Protection [2018] AATA 39 at [57].
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions[4].
[4] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
Direction 65
The relevant direction under s.499 of the Act, which applies to the revocation of mandatory visa cancellation, is Ministerial Direction No. 65 (the Direction). The relevant part of Direction 65 is Part C, which identifies the considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
General Guidance
The Preamble to the Direction sets out objectives and general guidance for the

decision-maker and relevantly provides as follows:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
(1) 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.
2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA ...
The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Part A, B, or C of the Direction:
6.3 Principles
(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 vulnerable members of the community such as minors, 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.
Part C
Part C of the Direction (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s.501CA(4) of the Act.
The primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa are set out in paragraph 13(2) of Part C of the Direction. They are:
(a) protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia; and
(c) the expectations of the Australian community.
Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant, including (but not limited to):
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties;
(c) impact on Australian business interests;
(d) impact on victims;
(e) extent of impediments if removed.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In considering the protection of the Australian community I have had regard to the matters set out in paragraphs13.1.1 and 13.1.2 of Part C.
Paragraph 13.1.1 - nature and seriousness of the Applicant’s conduct
In assessing the nature and seriousness of the Applicant’s conduct I have had regard to the matters set out in paragraph 13.1.1 of the Direction. This paragraph gives a
non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Of those matters the most relevant to the Applicant’s application are those in paragraphs (a),(b),(c), (d) and (e). The Applicant’s offences are viewed as serious by the Australian community as they involved violence and were committed against a member of the community in a vulnerable position. The sentence imposed by the court of 1 year and 9 months in prison was a significant sentence. The applicant’s offending was frequent and escalating. The cumulative effect of the offending was to cause distress to Ms Ross and potential harm to the Applicant’s son who was a witness to the violence and property damage.
Paragraph 13.1.2 - risk to the Australian community should the Applicant re-offend
Paragraph 13.1.2(2) requires decision-makers to have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm

The harm inflicted on Ms Ross by the Applicant has been considerable, both physically and mentally. On 21 December 2007 the applicant forced Ms Ross to the ground and used his knee and body weight to restrain her. He pushed her face and head into the ground, causing her lip to bleed. The police reported that Ms Ross was crying and yelling and said she was scared of the escalating violence[5]. On 1 February 2015 the Applicant slapped Ms Ross across the neck[6]. On 11 October 2015 the Applicant struck Ms Ross on the face several times while verbally abusing her. He grabbed her and threw her against a wall, causing her to sustain a significant head injury and dragged her across the floor, injuring her knee. Ms Ross reported to police that she feared for her life when the Applicant opened a knife draw in the kitchen and she fled the premises[7].
[5] G257-258
[6] G263
[7] G381-390
I accept the submissions of the Respondent that domestic violence is a serious matter that is of great community concern. If the Applicant was to engage in any repetition of such conduct in relation to Ms Ross or any other person, it would represent a serious risk of harm to Ms Ross (or the other person) and to the welfare of the Australian community.
The likelihood of re-offending
The evidence shows that prior to his imprisonment the Applicant had established a pattern of domestic violence, inflicted on his partner Ms Ross. The nature of the conduct was overbearing and intimidating. The Applicant inflicted significant injuries on Ms Ross and wilfully damaged her property. Much of the Applicant’s conduct took place in the presence of their young son. Although there was no evidence that the Applicant had acted violently towards his son, the nature of his offences clearly represented a traumatic threat to such a young child. I am well satisfied that the Applicant would have continued this pattern of behaviour and possibly escalated its seriousness had he not been imprisoned.
The Applicant asserted in his evidence and submission that he has changed as a result of his imprisonment and that he is now not at risk of re-offending. He said that he had participated in rehabilitation programs while in prison and that his incarceration had made him realise the seriousness of what he had done and the importance of his family. He expressed remorse for his offending.
The Applicant presented in the witness box as a genuinely remorseful person and he made no attempt to excuse his behaviour. While it is positive that the Applicant is genuinely remorseful, the nature of his offending indicates that it resulted from rage and a loss of control. The evidence does not suggest that he lacked remorse in the past. Police reports indicate that he was candid with the police on each occasion he was arrested and admitting his conduct. He pleaded guilty when charged. Ms Ross confirmed that he had apologised to her in the past. I conclude from this that the fact the Applicant is now remorseful does not necessarily mean that he will not re-offend if returned to the community.
The Applicant called Ms Ross to give evidence in support of his claim that he was not at risk of re-offending. Ms Ross gave evidence that the Applicant had repeatedly apologised to her for his conduct and that she believed that he was genuinely remorseful. She stated she has forgiven him for his past abuse. Nevertheless, Ms Ross, while supporting the Applicant, made it clear that she did not intend to resume living with the Applicant whether he remains in Australia or is deported to New Zealand. She expressed a desire that they have a break. I regard this as indicative of a qualified endorsement of the Applicant’s claim not to be at risk of re-offending.
The evidence shows that alcohol and drugs played a significant part in the Applicant’s offending. This was openly acknowledged by the Applicant. He expressed his intention not to continue with such behaviour. I accept that the Applicant recognises his problem with alcohol and drugs and he has completed a drug and alcohol treatment program while in prison[8]. However, I am not convinced that he will not resume the consumption of alcohol and drugs if he is released. The evidence regarding his time in prison shows a continuing association with illicit drugs. I make no specific findings in relation to the incidents involving drugs raised by the Respondent in its submissions. There was insufficient evidence to make any findings. However, the Applicant admitted that while in prison he took a methadone replacement for which he did not have a prescription and returned a positive urine sample. The Applicant also admitted that he was transferred to a maximum security facility following the incident where he was alleged to have swallowed balloons provided to him by a visitor. In the face of this, I am not satisfied that the Applicant has the resolve required to enable him to refrain from drug and alcohol use if he is released into the community.
[8] G50
The Applicant also gave evidence that he had been exposed to personal trauma growing up, including witnessing domestic violence at home and experiencing the death of friends. Unfortunately, I was not assisted in this case by any expert assessment of the Applicant’s psychological state or the appropriateness of the rehabilitation steps undertaken while he was in prison. The Applicant’s own evidence raises a concern that the Applicant’s behaviour has its origins in some deep seated issues from his childhood. Without expert evidence that those issues have been resolved, I do not have a basis to accept that his past pattern of behaviour would not continue if he were returned to the community.
I am satisfied that there is a risk that the Applicant would re-offend if returned to the community.
Paragraph 13.1.2(1) states that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
The potential harm which may result from a continuation of domestic violence by the Applicant is very serious. In the past he has inflicted significant injuries on Ms Ross. He exposed her to the risk of life-threatening injury, particularly by striking her forcefully in the head and kicking her in the back. In addition, the evidence is that the Applicant has by words[9] and deeds[10] raised the prospects of increasing the level of violence and even killing Ms Ross.
[9] On 14 January 2016 he said to Ms Ross “If you go to the police, I will kill you” – G290-291 and 300-304
[10] On 11 October 2015, after assaulting Ms Ross the Applicant went to the kitchen and opened a knife and fork drawer which the Applicant admitted in evidence was intended to frighten Ms Ross into thinking he would attack her will a knife (or fork) – G374, 382-390
I am also mindful of the Applicant’s repeated failure to attend court when on bail and his continuous breach of IVOs and CCOs. Together, these breaches demonstrate a disregard for and disrespect of Australian laws generally.
Having regard to the evidence and paragraph 13.1.2(1) I am satisfied that the Applicant represents an unacceptable risk of harm to Ms Ross and potentially other members of the Australian community.
Paragraph 13.1(1) of Part C of the Direction provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct.
Bearing in mind paragraph 13.1(1) and the risk of harm to the community represented by the Applicant, I accord significant weight to this factor.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2 of Part C of the Direction requires the Tribunal to determine whether revocation is, or is not, in the best interests of minor children as one of the primary considerations.
In this case, the category of ‘minor children’ is limited to the Applicant’s son. He is currently 5 years of age and lives with his mother, Ms Ross. The Applicant asserts that it is in the best interests of his son to have contact with his father and that this will be denied to the child if the Applicant is deported. Ms Ross has stated that she would not relocate to New Zealand.
The Respondent has conceded in submissions that this consideration weighs in favour of the Applicant.
I have considered the best interests of the Applicant’s son having regard to the factors in paragraph 13.2(4) of the Direction. The Applicant is the child’s biological father and had regular contact with him prior to November 2016 when he was imprisoned, but he has had little contact over the last 2 years while in prison and detention. The child is only 5 years old, therefore the Applicant has an opportunity to play a significant role in his development. Ms Ross’ evidence was that the Applicant had not inflicted violence on his son, although the child was witness to his acts of violence toward her and her property. While there is no objective evidence of the effect of the Applicant’s conduct on the child, it is reasonable to assume that the Applicant’s violence has had a detrimental effect on the child. A police report into the incident on 14 January 2016 notes that the police were concerned for the welfare of the child as many family violence incidents had occurred in front of him[11]. It is likely that the child will be adversely affected by separation from the Applicant, although contact could be maintained by telephone and social media and air travel to New Zealand is relatively inexpensive. The child is under the care and protection of his mother who has been his permanent parental support since birth.
[11] G349
Taking all of these matters into account, I find that the best interests of the Applicant’s son would be served by revoking the cancellation of his visa. However, I give this factor only limited weight. The child is well looked after by his mother. There will be opportunities for the child to maintain a relationship with his father. Separation, while having negative effects, will ensure that the child is removed from the risk of further offending by the Applicant.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The third consideration listed in the Direction is the expectations of the Australian community. In this regard, 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.
In YNQY v Minister for Immigration and Border Protection[12], Mortimer J said in relation to this direction that:
...this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
[12] [2017] FCA 1466 at [76].
In addition, the Tribunal is required to take into account the general principles stated in paragraph 6.3 of the Direction. These include:
(a)the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (6.3(2));
(b)non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia (6.3(3)); and
(c)in some circumstances, the consequences of repeated criminal offending may be so serious that any risk of reoffending is unacceptable (6.3(4)).
The expectation of the Australian community is to be ascertained by considering the views of reasonable members of that community, when fully apprised of the relevant facts.[13] Such members would not be vengeful and want to see visa cancellation misused to inflict further punishment[14].
[13] Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36], see also Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
[14] ReDo and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
I have no doubt that reasonable members of the Australian community would regard domestic violence as a very serious matter. Taking account of the attributed expectations in paragraph 6.3 and in particular paragraph 13.3(1) of the Direction, I am satisfied that the expectation of the Australian community would be that a person with the criminal record of the Applicant should have their visa cancelled.
However, paragraph 6.3(5) of the Direction recognises that 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. The Applicant came to Australia to live in 2005 when he was around 23 and has lived here continuously for 13 years. I am satisfied that the Applicant’s time in Australia would attract some level of tolerance. However, putting this against his extended criminal history and violent conduct, I am not satisfied that reasonable members of the community would regard the length of time he has lived in Australia as a significant mitigating factor.
In addition, paragraph 6.3(7) recognises that the length of time a non-citizen has been making a positive contribution to the Australian community is a consideration in the context of determining whether that non-citizen’s visa should be cancelled.
The evidence does not establish that the Applicant has made a significant contribution to the Australian community. His evidence is that he has been in regular employment, played rugby for a local team and purchased some raffle tickets. I am not satisfied that reasonable members of the community would regard these matters as being a contribution to the community worthy of consideration under paragraph 6.3(7).
Finally paragraph 8(1) further explains that the considerations in Part A and Part C for existing visa holders, and in Part B for visa applicants, are different:
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.
The expectation that the Applicant could reasonably have entertained is that he would retain his visa, provided he did not commit offences requiring mandatory cancellation of his visa under s.501(3A)(b) of the Act. He could have no legitimate expectation that he would thereafter retain a visa except as a result of a favourable decision to revoke the cancellation under s.501CA(4).
Considering all relevant matters, I am satisfied that the expectation of the Australian community is that the mandatory cancellation of the Applicant’s visa should not be revoked and I give this factor considerable weight.
OTHER CONSIDERATIONS
Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant.
International non-refoulement obligations
This case does not raise issues of Australia’s non-refoulement obligations and there was no evidence or submissions provided in this respect.
The strength, nature and duration of ties
The Applicant has a limited connection with Australia. He has lived here since 2005 but apart from his relationship with Ms Ross, his son and his employment connections, there is little evidence that he has any broader current connections. Similarly he has limited ties to New Zealand. However, it can be expected that the Applicant will not suffer any undue hardship by returning to New Zealand. There are no language issues. His employment skills are transferrable. He is familiar with the country. The economy is robust and there are reasonable employment prospects for him. New Zealand has a comparable social welfare safety net, including a minimum wage requirement.
Impact on Australian business interests
This factor is not relevant.
Impact on victims
While the immediate effect of the Applicant’s conduct on Ms Ross was serious, there is no evidence that she has suffered lasting physical or psychological harm. Similarly, it is possible that the Applicant’s son has been adversely affected by having witnessed the Applicant’s conduct, but there is no objective evidence to establish that to be the case. Ms Ross has given evidence that she has forgiven the Applicant for his previous conduct and her preference is for him to remain in Australia, albeit living apart from her and her son.
In the circumstances I can see no compelling reason to accord any weight to this factor separate from the consideration of the impact on family members discussed below.
Impact on family members
The interests of family are not a primary consideration under the Direction, but I accept that a refusal to revoke the cancellation of the Applicant’s visa would be disadvantageous for Ms Ross and the Applicant’s son. Ms Ross made it clear in her evidence that she would not re-locate to New Zealand if the Applicant is deported. Therefore, a refusal to revoke the cancellation of the visa will inevitably split up the family unit. Ms Ross explained that this separation would deny her the opportunity to gain assistance from the Applicant in looking after their son and discharging their parental responsibilities. However, this is in reality a loss of opportunity rather than the loss of an actual benefit. There is little evidence that the Applicant was a significant support for Ms Ross before he was imprisoned. It would require him to make a significant change in his behaviour to be of any material support to her.
In addition, the opportunity for the Applicant to provide support for Ms Ross and his son is likely to be limited. Ms Ross made it clear in her evidence that she does not intend to live with the Applicant if he is released into the community. She said that she would like him to live close by but she wanted them to have ‘time apart’. As for financial support, I note that the Applicant has expressed his intention to make a greater financial contribution to his son in the future but this is not dependent on the Applicant being in Australia. He can still do so if he returns to New Zealand.
I accept that it would be to Ms Ross’ advantage for the Applicant to remain in Australia but taking these matters into account, I give this consideration little weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection[15], North ACJ elaborated on how to approach the exercise of the discretion under s.501CA(4)(b)(ii):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
[15] [2016] FCA 1166 at [38].

Paragraph 8(1) of the Direction requires decision-makers to take account of the primary and other considerations relevant to an individual case. Paragraph 8(4) of the Direction states that “...Primary considerations should generally be given greater weight than the other considerations.” Paragraph 8(5) states that “...One or more primary considerations may outweigh other primary considerations.”
I am satisfied that the primary considerations of protecting the Australian community and the expectations of the Australian community weigh strongly in favour of exercising the discretion under s.501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa. Of the factors favouring revocation, the interests of the Applicant’s son are the strongest, but for the reasons stated in [58] above, I do not give this factor more than moderate weight. The other considerations in favour of revocation are relatively weak. Weighing each of the factors for and against revoking the cancellation, I am satisfied that the cancellation of the Applicant’s visa should not be revoked. Accordingly, I am not satisfied that there is another reason why cancellation should be revoked as contemplated by s.501CA(4)(b)(ii).
DECISION
The Tribunal affirms the decision under review.

84. I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member R. West

.......................[sgd]......................................
Associate
Dated: 21 September 2018

Date of hearing: 13 September 2018

Solicitors for the Respondent: Ashlee Briffa - Australian Government Solicitor

[2018] AATA 3599

21 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	13 September 2018
Solicitors for the Respondent:	Ashlee Briffa - Australian Government Solicitor