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

[2022] AATA 213

Taulani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 213 (11 February 2022)

Division:GENERAL DIVISION

File Number:          2021/9063

Re:Kim Taulani

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:11 February 2022

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 23 November 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

....................................[sgd]....................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community –  other considerations – extent of impediments if removed – Impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501E

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

11 February 2022

1.       The Applicant is a 24-year-old citizen of New Zealand, born in 1997. The Applicant first came to Australia in 2007, later returning in 2012, and married his wife in 2017. There are two children of that union.

2. Discussed and analysed below are a series of offences which the Applicant committed which led to the mandatory revocation of his Class TY Subclass 444 Special Category (Temporary) Visa (visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).

3.       A delegate of the Minister refused to revoke the mandatory cancellation of that visa on 23 November 2021. The Applicant seeks review of that decision before this Tribunal. All relevant timeframes have been complied with.

The offending history

4.       Set out below is a convenient table describing in reverse chronological order the Applicant’s offending which has been prepared by the Respondent and is not contested.

Court	Date	Offence	Result
Downing Centre District Court	22/09/2020	Common assault (DV)-T2	Order varied on appeal Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 8 months
Downing Centre District Court	22/09/2020	Assault occasioning actual bodily harm-T2	Order varied on appeal Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 8 months
Downing Centre District Court	22/09/2020	Common assault- T2	Order varied on appeal Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 8 months
Downing Centre District Court	22/09/2020	Common assault- T2	Order varied on appeal Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 8 months
Burwood Local Court	03/08/2020	Common assault (DV)-T2	Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 12 months
Burwood Local Court	03/08/2020	Assault occasioning actual bodily harm-T2	Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 12 months
Burwood Local Court	03/08/2020	Common assault-T2	Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 12 months
Burwood Local Court	03/08/2020	Common assault-T2	Imprisonment (aggregate): 16 months Commencing: 02/08/2020 Concluding: 01/12/2021 Non-parole period: 12 months
Burwood Local Court	25/03/2020	Affray-T1	Taken into account on form 1
Burwood Local Court	25/03/2020	Excluded person fail to leave premises when required	Taken into account on form 1
Bankstown Local Court	26/09/2018	Common assault (DV)-T2	Conditional release order Conviction: 12 months Commencing: 26/09/2018 Concluding: 25/09/2019
Bankstown Local Court	26/09/2018	Common assault (DV)-T2	Conditional release order Conviction: 12 months Commencing: 26/09/2018 Concluding: 25/09/2019
Bankstown Local Court	26/09/2018	Common assault (DV)-T2	Conditional release order Conviction: 12 months Commencing: 26/09/2018 Concluding: 25/09/2019
Bankstown Local Court	26/09/2018	Stalk/intimidate intend fear physical etc harm (domestic)-T2	Conditional release order Conviction: 12 months Commencing: 26/09/2018 Concluding: 25/09/2019
Bankstown Local Court	01/03/2018	Never licensed person drive vehicle on road- first offence	Fine: $200
Bankstown Local Court	01/03/2018	Drive with low range PCA- 1st offence	Fine: $400 Disqualification- Driver: 6 months
Burwood Local Court	19/09/2017	Destroy or damage property	Fine: $500

ISSUES

5.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

6. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

7.       Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

8. Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

9.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

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.

10.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

11.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

12. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

13. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)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 (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)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 measureable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)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 non­citizens 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 non­citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)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 measureable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

14.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

15.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

16.     These principles are of course dependent upon the facts and circumstances of each case.

17.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

18.     The Tribunal must also take into account other considerations insofar as they are relevant.

19.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.

THE CHARACTER TEST

20.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

21.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

22.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

23. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

24.     Paragraph 8.1 of Direction No. 90 provides:

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

25.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

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

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

THE NATURE AND SERIOUSNESS OF THE APPLICANT'S CONDUCT TO DATE

26.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences 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 (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)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 (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party 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;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

THE RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT

27.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the 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.

(2)In assessing the risk that may be posed 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; and

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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

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.

Seriousness of offending and future risk 

28.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

29.     A review of the Applicant’s offending discloses appropriately, in accordance with Direction No. 90, that the offending is very serious, involving as it does, two separate periods of offending; one which involves assault in the company of another in 2019 which attracted ultimately an imprisonment sentence of 16 months with a non-parole period of eight months and offending in 2017 involving the Applicant’s wife which are properly regarded as domestic violence offences. In relation to that offending, the Applicant received a conditional release order of 12 months imprisonment. The Tribunal finds that the Applicant’s violence to his wife included hitting his wife on numerous occasions and hair-pulling in September 2017. This will be discussed in more detail below as an issue arose during the hearing in relation to what the Applicant’s actual behaviour was to his wife.

30.     There is some other relatively minor offending which the Tribunal notes but does not regard as carrying any particular significance or weight.

31.     Although the Applicant’s offending is to be regarded as very serious, it is also necessary to look in some detail at that offending. That offending was carried out on two separate occasions and was apparently alcohol-fuelled by an Applicant who the Courts determined had issues with anger management, particularly under the influence of alcohol. The offending itself involved assault, including assault occasioning bodily harm, and cannot be regarded at the lower end of the offending spectrum. The offending, however, should be regarded as two separate effective incidents, separated by more than 2 years.

32.     The original Sentencing Magistrate in Burwood Local Court, in August 2020, referred to the Applicant’s offending in January 2020 in the following way:[1]

(i)     the Applicant called the victim “A fucking Lebanese dog” and Magistrate Stapleton expressed “that is a racist motivation for violence and is an aggravating feature. It makes it worse. There is no place in our community for racist remarks like that;” and

(ii)      the Applicant “…hits [the victim] to the right-hand side of his face with a closed fist. That is the sequence 1 common assault. It was then that his friend…came over and punched [the victim] on the back of his head….". When a bystander comes to intervene in the situation, the Applicant "hit [the bystander] to the left side of his, assault occasioning actual bodily harm".

[1] Respondent’s Statement of Facts Issues and Contentions dated 17 January 2022. See also G2/38-40.

33.     As to the domestic violence related offences, the New South Wales Police Factsheet describes the offending in the following way (reproduced from the Respondent’s outline and not contentious):

(i) "At about 4:30am on Saturday the 23rd of September 2017, [the Applicant] and victim were laying in a bed within one of the bedrooms of the residence. Also present laying on a mattress on the floor was [a witness] with a friend of [the Applicant]. At some stage [the Applicant] has questioned the victim for sex, however, the victim has denied [the Applicant] and his advances and said 'No'. [The Applicant] reached out and slapped the victim to the face with his right hand, to the left side of her face. [The Applicant] then turned his back on the victim and faced away from her";

(ii)"The victim said 'you said you would never hit me again, and you just did'. At this point in time [the Applicant] has turned over and slapped the victim to the face with his right hand, to the left side of her face again. The victim exited the bed and walked to the doorway of the bedroom, and stated she was leaving the premises, and that she would never return again";

(iii) "[The Applicant] continued through the doorway and towards the Victim. [The Applicant] immediately grabbed the [victim] by her hair with his left hand and commenced punching the victim to the head and facial area with a closed right fist. [The Applicant] punched the victim and, approximately four of the punches connected with the victims facial area and head;"

(iv) "[The Applicant] continued to lash out and punch the Victim over the top of his family members and friends attempting to stop the assault. [The Applicant] threw numerous punches towards the Victim at this time, however it is believed approximately 6 - 8 punches again connected with the facial area and head of the Victim. During the Assault the Victim tried to defend herself by striking back at [the Applicant] by punching and scratching [him]"; and

(v) "At this point in time, [the Applicant] has ran from the end of the house down the hallway to the front door, and commenced punching the Victim to the facial area and head again, with approximately three to four punches connecting again."

34.     As to the facts and circumstances of the domestic violence offending in 2017, the Applicant and his wife both gave evidence as to their recollections.

35.     The Applicant, in his evidence, said that he could remember effectively nothing of the events which occurred during the entire transaction on 23 September 2017 and furthermore, the version which he provided to the psychologist, Ms Durkin, was a fabrication, in the sense that he made up the version in order to answer the psychologist’s questions as to his recollection of events. As will become evident from what is said below on the Applicant’s testimony and that of his wife, the Tribunal simply does not accept that as an explanation and regards his evidence as being deliberately untruthful on this topic.

36.     The wife gave evidence about the events of 23 September 2017 and effectively retracted what had, in the Tribunal’s opinion, become the basis for the Police Factsheet of the incident. The wife gave a video-recorded interview with police and, in the Tribunals opinion, it cannot be doubted that that version formed a substantial part of the description of events placed into that formal Factsheet document by the police.

37.     The Applicant’s wife gave evidence on this topic during this hearing that was inconsistent, teary and, in the Tribunals opinion, inherently incredible. The wife denied saying words to the effect that after she had described being assaulted by her husband, he had promised not to assault her again and yet he had done so. The wife’s explanation for her change in evidence in denying making the statement to her husband was also inherently incredible.

38.     The Applicant’s wife accepted in evidence that she had spoken to her husband about her giving evidence and the Tribunal infers that both parties spoke with each other about the contents of the earlier statement made to the police and contained in the Police Factsheet.

39.     The Tribunal is satisfied, upon analysing the evidence of both the Applicant and the wife on this topic, that the parties colluded in an attempt to diminish the seriousness of the Applicant’s offending by attempting to promote a very different and far less aggressive behaviour of the Applicant on this occasion. In fact, as an example, the wife eventually said in evidence that she was to blame for her husband’s behaviour. This, the Tribunal regards, as a ludicrous explanation and rejects it entirely.

40.     The Tribunal also notes the compelling fact that the Applicant was sentenced on the basis of the material and allegations contained in the Police Factsheet.

41.     The effect of all of this is that little regard, if any, can be given to the wife’s evidence on what she says on numerous topics, including the intention to re-establish a co-habiting relationship with her husband and the children, and her intentions, generally, with the Applicant for the future.

42.     The view the Tribunal has formed is that both parties have deliberately lied to promote a false version of events of 23 September 2017 which reflect badly on both parties, on the acceptability of much of their evidence, and reflects specifically badly on the Applicant and the acceptability of his evidence in all its dimensions.

43.     The Tribunal accepts the relatively contemporaneous account that must have been given, at least in part, by the Applicant’s wife and is contained in the Police Factsheet.

44.     As this decision proceeds, it will be obvious what aspects of the Applicant’s evidence and the wife’s evidence are accepted by the Tribunal.

45.     The Tribunal has accepted some oral evidence of both the Applicant and his wife where, in the Tribunal’s opinion, it is supported or corroborated by other acceptable evidence. The Tribunal is unable to make a finding as to whether the wife would follow the Applicant with their children to New Zealand.

46.     Although that brief summary disposes of the issue of the seriousness of the Applicant’s offending, it is relevant to also consider the likelihood of his re-offending and associated risk to the Australian community.

47.     The Tribunal is prepared to accept, on the Applicant’s oral evidence together with other evidence before the Tribunal, that the Applicant has made attempts at rehabilitation. It is incorrect, in the Tribunal’s opinion, that the Respondent refers to frequency of offending as if there has been an almost continuous history since the Applicant first offended with the offence of destroying or damaging property for which he received a $500 fine in the Burwood Local Court in 2017. That is not to say, however, that the two periods of offending referred to above should not be regarded seriously.

48.     The Respondent points to the psychological assessment report by the clinical and forensic psychologist, Ms Durkin, dated 15 July 2020, noting that the Applicant at that time appeared to lack insight into what constitutes aggressive conduct, and that while generally acknowledging that violence is inappropriate, the Applicant seemed to possess a permissiveness in his thinking about the use of force. Unsurprisingly, the report continues that when the Applicant is affected by alcohol, he appears less able to consider the consequences of his conduct and moderate his actions.

49.     The psychologist suggests and recommends targeted anger management programs and drug and alcohol counselling.

50.     As far as the evidence before the Tribunal appears, the Applicant has not successfully completed any such program, although recognising that the Applicant has made some attempts at rehabilitation in these areas.

51.     A recent, and therefore contemporary report by the psychologist, Mr Cinar, deals with a wide-ranging consideration of the Applicant’s case and makes various positive assertions on behalf of the Applicant, all of which the Tribunal is prepared to accept.

52.     Furthermore, the Tribunal takes into account the opinion expressed by the writer as to future risk of the Applicant re-offending, which views the Tribunal has analysed and synthesised with other evidence that the Tribunal has accepted.

53.     Ultimately, the Tribunal is of opinion that the Applicant, untested as he is in the community in terms of his conduct, is likely to remain at some identifiable risk of committing offences of the past kind in the future. The Tribunal also accepts that this risk is somewhat moderated by the influence of family and associates, a genuine offer of post-detention work and also by the recognition by the Applicant of the likelihood of deportation in the future.

54.     Taking all the matters urged upon the Tribunal into account by both Applicant and Respondent, the Tribunal is satisfied that this consideration weighs against the Applicant.

PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

55.     Paragraph 8.2(1) of Direction No. 90 provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.

56.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).

57.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

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 (sub-paragraph 8.2(2)(a)); 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 has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

58.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

59.     This consideration must be regarded separately by the Tribunal. The facts relating to this consideration have been referred to above and are properly regarded according to Direction No. 90 as very serious. There is some evidence which the Tribunal accepts that the Applicant has at least a modest appreciation of his past behaviour and its consequences and the risk of him offending in the future has also been discussed above.

60.     The plea on behalf of the Applicant by the Applicant’s wife is, the Tribunal considers, not a relevant consideration under this heading but will be referred to at a later appropriate consideration and will be discussed further at that point.

61.     This consideration undoubtedly weighs against the Applicant, however the Tribunal recognises that this behaviour was limited to a single set of circumstances, although the Tribunal also finds that earlier non-specific violent behaviour was indulged in by the Applicant against his wife. That matter is relevant to the weight the Tribunal will ultimately give, overall, to this particular consideration.

PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

62.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

63.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

64.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

65.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

66.     There are two minor children relevant to this consideration, born in 2017 and 2019. The Respondent argues that the Applicant will not necessarily play a positive role in the children’s lives should he remain in Australia, particularly given his history of family violence against their mother. The Tribunal rejects this submission as being based excessively on possible future conduct by the Applicant.

67.     The Applicant has played a role in the lives of his very young children and in the Tribunal’s opinion, it cannot be said that he will not be able to support an appropriate parental role in the future. Nor does the Tribunal accept that mere communication by electronic devices is a satisfactory substitute for face-to-face contact between children and a parent.

68.     There is evidence before the Tribunal concerning nieces, a nephew, and perhaps other minor children. There was very little information provided by the Applicant in oral evidence to establish any detailed analysis of the interests of these minor children in relation to the Applicant. However, the Tribunal is prepared to accept, even on this limited evidential basis, that their interests will be affected should be the Applicant be removed from Australia and this adds slightly to the powerful weight in the Applicant’s favour in relation to the best interests of his own children.

69.     Furthermore, it appears that the Applicant and his wife are proposing to resume a relationship that, on the evidence, the Tribunal is prepared to accept, however, not without some reservations as discussed above.

70.     For those brief reasons, this consideration carries weight in the Applicant’s favour, and the Tribunal accepts the Applicant’s submissions in relation to this consideration that proper weight should be given to this consideration for the Applicant.

71.     The Tribunal gives considerable weight to this consideration.

PRIMARY CONSIDERATION 4 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

72.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

73.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is 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.

74.     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 (sub- paragraph 8.4(3)).

75.     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 (sub-paragraph 8.4(4)).

76.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

77.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

78.     The Applicant urges in written submissions the Tribunal to depart from the decision effectively in FYBR. The submission of the Applicant misunderstands that decision.

79.     Even allowing for an acceptance of other relevant factors, this consideration must, in the Tribunal’s opinion, weigh against the Applicant.

OTHER CONSIDERATIONS

80.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

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

(ii)impact on Australian business interests.

INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

81.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

82.     There is no evidence to indicate that this consideration is relevant to this review.

EXTENT OF IMPEDIMENTS IF REMOVED

83.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

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

c)     any social, medical and/or economic support available to them in that country.

84.     The Applicant has resided in Australia since 2012, during his formative years. Should the Applicant be returned to New Zealand, the Applicant would undoubtedly experience social, financial and emotional difficulties re-establishing himself, although the Applicant will have no language difficulties or health issues, nor insurmountable problems finding work, having regard to evidence before this Tribunal about various background matters concerning the Applicant. The Applicant’s mother, step-father and sister reside in New Zealand and would provide assistance to the Applicant.

85.     This consideration bears limited weight in the Applicant’s favour.

IMPACT ON VICTIMS

86.     Paragraph 9.3(1) of Direction No. 90 provides:

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…

87.     The Tribunal accepts the Respondent’s submissions that there should be no double accounting under this consideration where positive views have been expressed towards an Applicant which should be relevantly considered under a different consideration.

88.     Further, the Tribunal is prepared to accept, in this case, that there is evidence from the Applicant’s wife in her guise independently as a former victim of the Applicant’s behaviour. In fact, in this matter, the Applicant’s wife, as a victim, asserts that she is prepared to forgive the Applicant’s past domestically violent behaviour towards her. Although that counts as a separate factor to be considered under this consideration, it is somewhat difficult to tease out views similarly expressed by a wife who is also a victim. Such practical factual matters should not be weighed in some sort of mathematical balance however.

89.     The Tribunal places little weight on the wife’s evidence in this matter having regard to the view formed concerning the wife’s credibility which has been discussed above.

90.     The effect of all of this is that whilst the Tribunal acknowledges the wife/victim’s statement, its weight is considerably minimal.

Links to the Australian community

91.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

92.     The Respondent accepts that this consideration weighs in favour of revocation. The Tribunal regards this as an appropriate recognition of many factors that weigh in the Applicant’s favour. These factors include the Applicant’s residency in Australia since 2012, his support network of extended family and friends, all of whom speak well of the Applicant and who seek for him to remain in Australia on the basis of their view of his perceived reform, amongst other things.

93.     The Applicant has been involved in the Australian community in a positive way in sport, with his church and has also contributed to Australia generally by a good history of employment.

94.     Importantly, the Applicant’s wife is an Australian citizen, as are his two children. This last matter is particularly significant, in the Tribunal’s opinion.

95.     It is also clear that those who support and love the Applicant would suffer various levels of distress should he be returned to New Zealand.

96.     This consideration therefore weighs in the Applicant’s favour.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

97.     There is no evidence to indicate that this consideration is relevant to this review.

CONCLUSION

98.     As discussed above, a number of considerations, including primary considerations, carry substantial weight against the Applicant. However, in this case, the Tribunal places a great deal of importance, and therefore weight, on the best interests of minor children and to a rather lesser extent, the ties of the Applicant to Australia.

99.     In the event, the Tribunal has come to the conclusion, not without considerable hesitation, that there is another reason, that is, the best interests of the minor children particularly outweigh all other considerations to the contrary against the Applicant, and the mandatory cancellation of the Applicant’s visa should be revoked.

Order

100.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 23 November 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

....................................[sgd]....................................

Associate

Dated: 11 February 2022

Date of hearing:	1 February 2022
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers