Te Hau and Minister for Immigration and Border Protection (Migration)

Te Hau and Minister for Immigration and Border Protection (Migration) [2018] AATA 4283 (16 November 2018)
Division:GENERAL DIVISION
File Number:2017/7317
Re:Peter Netana Mickel Te Hau
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:16 November 2018
Place:Brisbane

The decision under review is affirmed.
...................[sgd].....................................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory visa cancellation decision – non-expedited matter – where Applicant is a New Zealand citizen – where Applicant’s visa cancelled under s 501(3A) because Applicant did not pass character test – whether there is a reason discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – risk of re-offending – risk of harm to Australian community – minor children – expectations of the Australian community – ties to Australia – extent of impediments if removed – decision under review affirmed
CASES
Allan and Minister for Immigration and Border Protection
[2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228

Minister for Home Affairs v Buardomo
[2018] FCAFC 151

Tera Euna and Minister for Immigration and Border Protection
[2016] AATA 301

Waits and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 1336
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Queensland Criminal Code, s 39
SECONDARY MATERIALS
Ministerial Direction No. 65
REASONS FOR DECISION
Senior Member Theodore Tavoularis
16 November 2018
INTRODUCTION

This matter relates to an application made by Mr Peter Netana Mickel Te Hau (“the Applicant”), for review of a decision of a delegate of the then-Minister for Immigration and Border Protection (“the Minister”) not to revoke the cancellation of his visa.[1]
[1] I note that this Ministry has now changed to be the Minister for Home Affairs. I will, however, use the nomenclature that was current at the time of the decision under review for the purposes of this decision.
The Applicant is a citizen of New Zealand who arrived in Australia in 1993 aged seven years, and has lived and worked in Australia since that time. On 5 July 2017, the Applicant’s visa was cancelled by a delegate of the Minister. The Applicant returned to New Zealand on 24 October 2017. He subsequently applied for this cancellation to be revoked. On 9 November 2017, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa. Seeking to return to Australia, the Applicant appealed this decision to the Tribunal on 7 December 2017.
After the usual pre-hearing process, this matter came before me at a hearing on 6 April 2018. For the reasons below, I have found that the delegate’s decision was correct. The cancellation of the Applicant’s visa should not be revoked.
ISSUES
The Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he did not pass the character test as defined in s 501(6)(a). Under s 501CA(4), the Tribunal may revoke the mandatory cancellation of a person’s visa where:
(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.
Notably, this is not a true discretion: if the Tribunal is satisfied of either ss 501CA(4)(b)(i) or (b)(ii), it must revoke cancellation.[2]
[2] Minister for Home Affairs v Buardomo [2018] FCAFC 151.
Thus, I must address two issues:
(a)Whether the Applicant passes the character test as defined in s 501 of the Act; and
(b)Whether there is another reason for the cancellation of the Applicant’s visa to be revoked.
I will address each of these issues in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The representative of the Minister contends that the Applicant does not pass the character test because he has a “substantial criminal record”, as defined in ss 501(6)(a) and 501(7)(c) of the Act.[3] The Applicant does not contest this, but it is nevertheless necessary to consider this issue.
[3] See Exhibit 2, Minister’s Statement of Facts, Issues and Contentions (“SFIC”), [2] and [10].
It is helpful to set the relevant provisions out.
501 Refusal or cancellation of visa on character grounds
…
6For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
7For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Thus, the Applicant will be taken to have a substantial criminal record if he has either been sentenced to a single term of imprisonment of 12 months or more, or if he has been sentenced to multiple terms of imprisonment where the sum of those terms is 12 months or more.
Offending history
The Applicant was first dealt with by lawful authority in January 2002, whilst he was still in his mid-teens. He had been in this country for under 10 years. The totality of his criminal history appears in the material.[4] An initial observation is that the history is both remarkable and serious. Remarkable for the fact that it does not begin with what may be loosely termed “low level” offending with the usual trajectory and graduations into more serious or “high end” offending. It is serious from its commencement and remains consistently so throughout its 15 year duration. It portrays the Applicant as an offender who (1) has never developed any modicum or respect for the personal or property rights of others; and (2) has never developed any semblance of respect or deference to lawful authority of the very type he now approaches as an Applicant seeking to overturn a decision that removes him from the Australian community.
[4] See Exhibit 7, T-Documents, T15, pp 147 – 152.
In short, the Applicant has appeared consistently before the criminal courts from the age of 15 until the middle of 2017 when he was aged 31 years. He was before the criminal courts or was otherwise the subject of attention from the Minister as a direct consequence of his offending on:
·January 2002
·May 2003;
·June 2003;
·April 2004;
·October 2005;
·June 2006;
·August 2006;
·September 2007;
·January 2008;
·May 2008;
·September 2009;
·May 2013;
·March 2014;
·May 2014; and
·December 2016.
There is no question that the Applicant’s history of offending is a serious one. Indeed, it caused the Courts to issue him with a number of sentences to serve terms of imprisonment, the longest of which was for four years and six months. On the basis of the Applicant’s history of offending, I am satisfied he has a substantial criminal record for the purposes of s 501(7) of the Act, as he was sentenced to a term of imprisonment of more than 12 months. The time actually served by the Applicant is not material for present purposes. Consequently, pursuant to s 501(6) of the Act, the Applicant does not pass the character test. Thus, this ground cannot be used to enliven the Tribunal’s discretion to revoke the cancellation of the Applicant’s visa.
I will turn now to whether there is another reason to revoke this cancellation.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
Introduction: the legal framework
Section 501CA(4) of the Act provides for a discretion to revoke the mandatory cancellation of a visa. In considering whether to exercise that discretion, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Ministerial Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that a decision-maker:
must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[5]
[5] Direction No 65, paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further 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.
I address each of these elements in turn.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly includes the following:
(a) The principle that… violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) The sentence imposed by the court for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(e) The cumulative effect of repeated offending;
(f) …
(g) Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status…;
The contention made by the Minister is that the Applicant’s conduct and criminal history to date is very serious. I think that contention is well made. While his offending began at a relatively young age (mid-teens), it consistently continued and recurred throughout his 20s and became progressively more serious as he aged.
Offences committed during a “wild” or “bad” period are one thing. Such offending can be isolated as having occurred during a given phase of an applicant’s life. That is not what has occurred here. The Applicant’s offending history cannot be isolated to just a bad phase of his life as a late-teen or in his early-adult years. The history demonstrates that for approximately the last 15 years, his offending conduct has been dominated by themes of violence, drug offences, a demonstrated failure to respect and submit to lawful authority, the property rights of others, the safety of other road users and participation in high-level fraud against the state.
Such a history cannot be played down. One’s initial impulse is to categorize the offending as serious. Upon (1) further reflection; and (2) the application of the above listed factors in paragraph 13.1.1 of the Direction, the Applicant’s offending – certainly in cumulative terms – must be categorised as very serious.
Sub-paragraph (a) of paragraph 13.1.1 of the Direction provides that crimes of violence – which must surely include both the commission of acts of domestic violence and breaches of domestic violence orders – are to be viewed seriously. It is also surely beyond argument that assaults occasioning bodily harm and the dangerous operation of a motor vehicle are also within the ambit of sub-paragraph (a) as matters to be viewed “very seriously”. The Applicant’s offending history confirms he is no stranger to any of these categories of offending.
There are, variously, under each relevant category of offending, the following recorded offences and convictions:
·     Motor vehicle offending:
o   29 May 2003: Two charges of unlawful use of motor vehicles;
o   24 June 2003: Two charges of unlawful use of motor vehicles;
o   18 September 2007: One charge of dangerous operation of a vehicle; and
o   6 December 2016: One charge of unlawful possession of motor vehicles, with intent to deprive.
·     Offences of violence:
o24 June 2003: Assaults occasioning bodily harm;
o1 August 2006: Assaults occasioning bodily harm (this charge involved the Defendant physically removing the Complainant from her car and punching her in the head with a closed fist);
o12 May 2014: Unlawful assault occasioning bodily harm whilst in company; and
o6 December 2016: Two charges of possession of a knife in a public place or school.
·     Domestic violence:
o23 June 2006: Breach of domestic violence order; and
o1 August 2006: Two charges of breaching a domestic violence order.
·     Offences against the personal and property rights of others:
o29 May 2003: Attempted to enter premises and commit an indictable offence and break in the night time and in company;
o29 May 2003: Wilful damage (two charges);
o24 June 2003: Stealing from the person;
o8 April 2004: Enter dwelling and commit indictable offence;
o8 April 2004: Wilful damage;
o1 August 2006: Unlawful entry of vehicle for committing indictable offence; and
o1 August 2006: Wilful damage.
·     Drug offences:
o6 December 2016: Three charges of possessing dangerous drugs;
o6 December 2016: Three charges of possessing utensils or pipes etc that had been used;
o6 December 2016: Three charges of possession tainted property;
o6 December 2016: Two charges of possession of property suspected of having been used in the commission of a drug offence; and
o6 December 2016: Possessing dangerous drugs.
·     Offences indicating a refusal to submit to lawful authority:
o29 May 2003: Three charges of contravening a direction or requirement;
o8 April 2004: Contravening a direction or requirement of a police officer;
o3 October 2005: Breach of Undertaking as to Bail;
o18 September 2007: Failure to appear in accordance with Undertaking;
o18 January 2008: Obstructing Police officer;
o19 May 2008: Breach of probation order imposed on 1 August 2006;
o7 May 2013: Breach of bail condition;
o6 March 2014: Breach of bail condition;
o12 May 2014: Breach of suspended sentence imposed on 4 September 2009; and
o6 December 2016: Breach of bail condition.
Even a cursory review of the above schedule of offences must lead a decision-maker to the conclusion that the Applicant’s offending can only be placed in the very serious category. I will, later in these reasons, discuss the sentences imposed by the Courts for his offending but in terms of the nature of the offences, their repeated and consistent occurrences and the obvious refusal to either respect or fear lawful authority can lead to no other conclusion that the nature of this Applicant’s offending is, indeed, very serious.
On 4 September 2009, the Applicant was convicted of a very significant fraud offence involving the dishonest obtaining of some $311,000 from a Queensland State Government Department. In particular, the Applicant’s role in the fraud involved the provision of assistance to his friend (an employee of the Queensland Government). The fraudulently obtained funds were transferred by his friend’s employer to the Applicant and, in this way, the Applicant played an integral role in assisting his friend to breach the trust that his employer placed in that friend.
Initially, the Applicant denied any involvement in the fraudulent activity. His starting position was to deny any knowledge of how the subject funds came to be in his account. As well, he denied knowing any person who worked in the relevant Queensland State Government Department who was ultimately intended to benefit in a significant way from the fraud.[6]
[6] See Exhibit 7 Supplementary T-Documents, Volume 2 of 2, p 638, lines 10 – 20.
The Applicant eventually altered his position and entered his own plea of guilty and agreed to be sentenced on the basis of an ex officio indictment. A summary of the factual circumstances of this offending is instructive. The following extract appears from the Crown Prosecutor’s submissions upon sentencing:
MR SPINAZE: The Crown case - and I should say there is a co-accused who is not being dealt with today -----
HIS HONOUR: So, he has not yet been dealt with?
MR SPINAZE: No. Both were listed for ex officio sentence yesterday, your Honour, however there has been a difficulty in locating Mr Green. As such, Mr Tehau is proceeding on his own at this stage.
HIS HONOUR: Right.
MR SPINAZE: Green, in some ways, is the principal offender, although in the Crown’s submissions, it is Tehau that receives the lion’s share of the money that was obtained by Green. The Crown case is that the two accused, Green and Tehau, were joint participants in a plan by them to dishonestly obtain sums of money from Green’s employer, and that employer was the Department of Communities in which he worked. He had been working there for some 10 months, as I understand it. The situation was that Green would transfer funds – legitimate funds – covertly, I should say – to Tehau’s account, and this he did on 3 separate occasions, and then either Tehau or Green, the Crown can’t say which - but I should say Tehau was the only holder of the accounts – money was drawn from the account via either the ATM or through electronic transfers.
The total amount of money transferred by Green from the Department of Communities into Tehau’s accounts comes to $311,184.50.
HIS HONOUR: Yes.
MR SPINAZE: Now, of that, a significant amount was withdrawn by Tehau, and police, when they spoke with Tehau, recovered some $148,000 – sorry, I should start again - $148,600 from Tehau and $20,000 from Green.
HIS HONOUR: Yes.
MR SPINAZE: That money has been returned to the Department of Communities, although I understand a forfeiture order will be made eventually in relation to some summary offences which aren’t before you today.
…
HIS HONOUR: So, given that my mathematics are not my strongest point, how much is outstanding?
MR SPINAZE: The amount outstanding is $162,584.50.
HIS HONOUR: Yes.
MR SPINAZE: Having said that, though, a part of that amount is comprised of some property that was bought by Tehau; that includes a plasma TV and cords, and some other electrical equipment, and also part of a motor vehicle, a Jaguar.[7]
[7] Exhibit 7, Supplementary T-Documents, Volume 2 of 2, p 631, lines 29 - 60 and p 632, lines 1 – 30.

There is no doubt the Applicant played a vital role in assisting his co-accused to defraud the Government. Similarly, there can be no question the Applicant did not know that these were public funds that did not belong to him, nor can it be reasonably accepted that he was somehow convinced or coerced by his co-accused that the position was any different or that either he or his co-accused had any entitlement to those funds. The Applicant was clearly aware he was involved in conduct involving nothing less than the deprivation of the public’s money from a component of the public purse.
The Applicant readily accepts that his participation in this fraud does constitute “very serious offending”. It is clear from the Statement of Facts, Issues and Contentions filed on his behalf that he “…accepts that the misappropriation of public funds is a significant breach of the public’s trust and is a serious offence”.[8]
[8] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, p 9, para 59.
Offences committed against vulnerable members of the community – domestic violence
Sub-paragraph (b) of paragraph 13.1.1 of the Direction points a decision-maker towards an enquiry of whether an Applicant’s crimes have been committed against either vulnerable members of the community or government representatives or officials.
At the hearing, four specific instances or circumstances of domestic violence offending were put to the Applicant.
The material discloses certain unsavoury facts confirming the Applicant has no hesitation in physically imposing himself into any domestic situation that he thinks requires resolution. The material discloses an incident of domestic violence that occurred on 23 January 2004 which was put to the Applicant at the hearing.[9] The circumstances of that incident are as follows:
[9] This offence was couched in terms of “assault occasioning bodily harm” in breach of section 39(3) of the Queensland Criminal Code.
The defendant in this matter is Netana Peter TE HAU.
At about 3:50 am on Friday the 23^rd of January 2004, Police from Beenleigh station received information via Police Communications Centre of a disturbance at [Redacted in original].
At about 4:00 am, Police arrived at residence [sic] and entered dwelling through an open front door. Police observed the front window next to main door was smashed with broken glass scattered and a quantity of blood spattered over front entry area. Police searched residence and found a large quantity of blood on bathroom floor, though no persons could be found.
A short time later the Comp [i.e. the complainant] arrived at the residence showing signs of distress. Police questioned Comp who stated that the Def [i.e. the defendant] had entered the dwelling through a closed unlocked front door without permission and a short time later started yelling abuse at the Comp which led to the Def [sic] runing [sic] out of the bedroom and locking herself in the bathroom.
The Def has used a kitchen knife to open the bathroom door and yelled abuse at the Comp. One [redacted in original] a boyfriend of the Comp’s Mother challenged the Def in the hallway. The Def has threatened to kill the boyfriend whilst holding the knife up to the boyfriend’s stomach. The Comp has run into the kitchen and called the Police.
The Def has come into the kitchen and then pushed the Comp down or on to the lounge suite. The Comp has then punched the Def in an attempt to break free from him which led to the Def punching the Comp several times in the legs and arms with closed fists.
The Comp has ran [sic] out of the residence to the front yard, quickly pursued by the Def. The Def has then punched the Comp in the left upper facial area under the left eye with a closed right fist knocking the Comp to the ground. The Comp has hurt her right wrist as she impacted the ground.
The Comp has ran [sic] inside locking the front door. The Def has ran up to the front door realised it was locked and punched the window next to front door with his closed right fist and cutting himself in the process. The Def has then reached around through the broken window and unlocked the front door. The Def has then entered the house running after the Comp.
The Comp has locked herself in the bathroom and the Def has used a kitchen knife to open the bathroom door. The Def has entered the bathroom yelling abuse at the Comp. The Def has then pushed the Comp into the bath tub. The Comp has then thrown some bathroom articles at the Def’s face which allowed her to run out of the bathroom and out of the house to call police at the local phone box.
The Def decamped from the dwelling and probably headed up towards his residence at [redacted in original]. A second crew of Police attended this dwelling and found the Def...
Police then returned to offence location and requested the Def accompany police to Beenleigh Police Station for further inquires [sic]. The Def seemed agitated and reluctant to adhere to continual Police requests to come down to the station. The Def stated he did not want to go to the Police Station and was subsequently arrested and transported to the Beenleigh Watchhouse.
The Comp has bruises all over her legs and arms and has a swollen bruised area on her left upper face under her left eye.[10]
[10] Exhibit 7, Supplementary T-Documents, Volume 2 of 2, ST3, pages 362-363.
In his evidence before me, the Applicant agreed with the summary of the above facts by the Minister’s representative and conceded that he did strike the complainant in the face. He said that he did not remember “physically hurting her” and could not clearly recall the facts comprising the altercation. When the complainant’s specific injuries were put to him in cross-examination, the Applicant said “It’s the first I’ve heard of this…”.
The material further discloses another episode of domestic violence that occurred on 1 September 2005 involving a former partner and her two year old child.[11] This episode was put to the Applicant at the hearing. The facts surrounding the episode make for sombre reading:
Charge 1 of 1:
On Thursday the 1^st of September 2005, Police from Loganholme Police Station were detailed to attend a violent disturbance at [redacted in original].
Prior to arriving at the address, police conducted computer checks on the address which revealed that a current Domestic Violence Protection Order between an [redacted in original] (the Aggrieved Spouse on the Order) and Peter Netana TE HAU (the Respondent spouse). The order had been issued at the Beenleigh Magistrate’s Court on the 24/01/2005 and remained in effect until the 23/01/2007 with standard conditions only.
Police arrived at the address at approximately 7:30 am and were met at the front door by the informant in this matter, [redacted in original].
Police observed the informant to be visibly distressed and upset. She was crying and shaking. Police also observed the informant to have several injuries consisting of cuts to the side of her mouth, scratches across her chin and right cheek, bruising to her upper right and left arms and swelling to her left wrist.
The informant stated that she had a verbal argument with her de facto Peter Netana TE HAU, the defendant in this matter. The informant stated that the defendant arrived home at approximately 6:00 am in an intoxicated state after being out all night drinking down the Gold Coast. A verbal argument ensued and became physical. The informant attempted to run away from the defendant but was grabbed and held on the ground in an arm lock whilst being choked by the defendant. Eventually the defendant released the informant and she managed to run into an upstairs bedroom. The defendant followed the informant and pinned her against the wall. The informant has picked up a piece of glass and used it to cut the inside of the defendant’s hand causing him to release her. The defendant has become even more enraged and used his fingers to poke the informant in her throat and punched her several times in the legs. The defendant has then taken a pair of scissors and whilst pinning the informant down, has grazed her chin and cheek with the scissors.
The fighting has continued between the defendant and informant at which point the defendant has taken a steak knife from the kitchen and held it in front of the informant who was holding her two year old son and said “I’ll fucking kill you, you better call the cops before I kill you and [redacted in original].” The informant has then used her mobile phone and dialled ‘000’ before the defendant knocked it out of her hands. The defendant has then left the house and driven away.
…the defendant admitted to consuming approximately $500 worth of alcohol during the night and returning home some time that morning. The defendant stated that he recalled having a physical fight with the informant but was unable to remember the details of the fight due to his level of intoxication.[12]
[11] I presume this conduct involved a former partner of the Applicant and her child from another relationship, because the relationship with the mother of the Applicant’s three children began in January/February 2007. Further, the first child of the Applicant and that mother was born in December 2008.
[12] Exhibit 7, Supplementary T-Documents Volume 2 of 2, page 391.
The Applicant again found himself before lawful authority for domestic violence offending in relation to an incident that occurred on 22-23 September 2005. Specifically, this offending gave rise to two charges of breaching a domestic violence order. A summary of some of the factual circumstances surrounding these offences, yet again, makes for sombre reading:
The facts in relation to this matter are as follows:
…
Charge 2 of 6:
The defendant then went to [redacted in original] where he elicited the assistance of an associate to drive him around the Beenleigh area while searching for the complainant.
The complainant then went to Sunnyview Street, Beenleigh where she stopped an [sic] a male associates [sic] address who is the male cousin of the defendant.
While at the address the male associate got into the car and they drove away from the address for a short distance before they were turned back because of a vehicle which approached and began to follow her vehicle.
The complainant stopped outside [redacted in original] where her male cousin got out of the vehicle and entered the house while at the same time the defendant got out of his associates [sic] car and ran towards the compalainants [sic] car where he opened the drivers [sic] door and physically dragged the complainant from her car while punching her in the head with a closed fist twice and causing abrasions and bruising to her ankles and feet.
The defendant then grabbed the complainant by the throat with one hand squeezing her throat with sufficient force to bruise and cause abrasions to her throat and a large area of redness.
The assault stopped when the male cousin of the defendant returned and attempted to protect the complainant by physically intervening and exchanging blows with the defendant.
When interviewed thew [sic] defendant stated in explanation he was helping the complainant get out of her car and that he pushed her aside during the fight with his cousin.
…
Charge 4 of 6:
After damaging the vehicle the defendant left the scene in his associates [sic] Honda car and went to the address of [redacted in original].
Shortly after the defendant left the address and drove his vehcile [sic] to [redacted in original] where the complainant in this matter is temporarily residing with her parents and her 2 year old child.
The defendant picked up two large rocks from the garden path area close to the front door and threw one large rock through each of the front bedroom windows breaking them as they landed on beds normally used by the occupants and the complainant.
…
Of note is that the complainants [sic] 2 year old son was asleep in his cot with the rock narrowly missing the cot but spraying the room with glass fragments and waking the sleeping infant immediately.
When interviewed, the defendant denied the facts as alleged.[13]
[13] Ibid, pages 395 – 396.
In cross-examination, the Applicant appeared vague about the circumstances of this incident and added that he did not recall it.
There is a further domestic violence incident that occurred on 15 April 2006:
The respondent, Peter Netana TE HAU, is the defendant in this matter.
At approximately 11:35 pm on the 15^th of April 2006 the aggrieved [redacted in original] attended the counter of Surfers Paradise Police Station in relation to an incident that occurred in the ANA Hotel Car park in Surfers Paradise earlier that evening. The aggrieved stated to Police that she has travelled with the respondent and 2 others to the Gold Coast in the respondent’s car from Beenleigh. The aggrieved stated to Police that an argument has begun with the respondent in the car park of the ANA Hotel Surfers Paradise. The aggrieved stated that the respondent then stopped the car in the middle of the car park and has come around and dragged the aggrieved from the car by her hair. The aggrieved landed on the concrete with her head and shoulder. The respondent has then punched the aggrieved in the face, cheek and mouth approximately 4 times using a closed fist. The aggrieved further stated that this caused cut lip and chin and swelling to her face. The aggrieved stated that the defendant than [sic] left in the car towards Beenleigh.[14]
[14] Ibid, ST3, page 375.
As best as I recall the Applicant’s evidence in cross-examination, he had no satisfactory explanation or excuse for the facts surrounding the two charges for breaching the subject domestic violence order.
A contention is made on behalf of the Applicant that these offences against vulnerable entities are historical and somehow of less moment. The difficulty with that submission is that the Applicant’s propensity towards violence recurs later in his criminal history in 2014, albeit not perpetrated against either a government or government officials or vulnerable members of the community. There can be no question that the Applicant’s offending in relation to serious fraud and domestic violence can and should be categorised as very serious pursuant to paragraph 13.1.1(b) of the Direction.
Sup-paragraph (c) of paragraph 13.1.1 of the Direction concerns itself with the sentence imposed by the Courts for a crime or crimes committed by an Applicant. An initial comment is this: sentencing involving the imposition of a custodial term which, in effect, removes an individual from mainstream society, is a measure of last resort in any reasonably applied sentencing process. A review of the penalties and sentences imposed on the Applicant is demonstrative of this. In the early phases of his offending, one can see how the sentencing Courts sought to treat him with leniency as an early or first-offender. Variously stated, he received penalties or sentences involving the non-recording of a conviction, the imposition of a regime of probation, moderate level fines together with orders for restitution. As his offending history maintained its consistency and increased in severity, the penalties and sentences imposed upon him became significantly more severe.
An example of a sentencing Court taking a lenient approach to the Applicant’s offending arises from the group of offences for which he was sentenced on 1 August 2006. Stated briefly, those offences comprise (1) unlawful entry of a vehicle for committing an indictable offence; (2) assaults occasioning bodily harm; (3) wilful damage; and (4) the abovementioned two charges for breaching a domestic violence order. For this offending, the Applicant was:
·for the breach of the domestic violence order, convicted and sentenced to a period of 3 months’ imprisonment, suspended for an operative period of 2 years;
·for the totality of the four charges, he was found guilty, but no conviction was recorded, an 18 month probation order was imposed with a requirement that he complete 120 hours of community service within one year of the date on which the sentence was imposed.
The Applicant experienced a more stringent sentencing outcome when before the Brisbane District Court on 4 September 2009. The sentence imposed for his role in the $311,000 fraud matter comprised a custodial term of four years and six months, suspended for an operative period of five years after serving 18 months in actual custody. The sentencing judge was in little or no doubt about the seriousness of the offending. His Honour’s sentencing remarks have a recurring theme of seriousness:
Mr Tehau… you come to court today having been advised … that you were not going to go home to your family and your wife and child today and that, because of the seriousness of the offending, that you were going to spend some period of time in prison. The issue is where I assess the seriousness of your offending…
The amount of money involved in this offence demonstrates how serious it is.[15]
[15] Ibid, page 648, lines 1-9 and 20-21.
Judge Irwin further observed:
…you were in possession of the lion’s share of these funds at the time that the matter came to light, so much so that you were ultimately found to have $146,000 and you’d spent $13,000 towards the purchase of a motor vehicle and also purchased a plasma TV and some associated electrical equipment. So you had benefitted significantly from this offence and that’s something that I must take into account in assessing how serious it is.
…
Because of the seriousness of the offence, however, I don’t find myself able to go right to the bottom of the range, but the order that I will make is that you are convicted, a conviction is recorded, you are sentenced to imprisonment…[16]
[16] Ibid, page 650, lines 40-52 and page 652, lines 28-32.
Arising from the same factual matrix, the Applicant was sentenced for two additional summary offences comprising (1) possession of tainted property (plasma television); and (2) possession of a motor vehicle. In convicting the Applicant for these two offences but not further punishing him, Judge Irwin said:
I’ve taken both of those matters into account in assessing the seriousness of your conduct because what you have obtained as a result of your unlawful conduct is part of the seriousness of your offending.[17]
[17] Ibid, page 654, lines 53-54 and page 655, lines 1-3.
On 12 May 2014, the Applicant was sentenced to a cumulative total of 21 months’ imprisonment for (1) unlawful assault occasioning bodily harm whilst in company (custodial term: 15 months); and (2) breach of the suspended sentence imposed on him for the abovementioned $311,000 fraud matter in April 2009 (6 months). Fortunately for the Applicant, both sentences were ordered to be served concurrently.
The factual circumstances of the offence occasioning bodily harm are both serious and disturbing. They leave no room for doubt that the sentencing Judge apprehended the gravity and seriousness of the conduct warranting punishment by way of a custodial term together with the activation of the operative period relating to the previous offending arising from the major fraud matter. The Applicant entered his own plea of guilty and had the benefit of legal advice when he was sentenced. I reproduce the Schedule of Facts as demonstrative of both the very serious nature of the Applicant’s conduct and that of his brother, Quincy, and to impress upon the reader that someone could quite conceivably have been killed in the circumstances of this conduct:
Schedule of Facts
R v Peter Netana Mickel TE HAU; Quincy TE HAU
…. The three complainants were part of a group of nine friends who knew each other from the United Kingdom and were staying in the Penthouse (on the 36^th floor) at the Grand Chancellor Resort in Surfers Paradise for the weekend. The group also included [two] witnesses… who, along with the three complainants, were all dentists. Those were the five members of the group who returned to the hotel together around 2:40 am on Sunday 18^th November, after going out in Surfers Paradise with the rest of their group the previous night.
Meanwhile, Saturday 17^th November 2012 was Quincy TE HAU’s wedding day. He was staying on the 34^th floor of the same hotel, along with family members that included his brother, co-offender Peter TE HAU, and his partner...
CCTV footage from the hotel depicts that at approximately 2:35 am on 18^th November Peter TE HAU entered the hotel lobby with [his patner], who was yelling and striking at her partner, Peter TE HAU. That defendant left in the lift and [the partner] walked away. Some minutes later, Quincy TE HAU is depicted entering the lobby and sitting down with a visibly upset and crying [partner].
At approximately 2:40 am defendant Quincy TE HAU and [the Applicant’s then-partner] entered the lift, pressing level 34. The group of five dentists followed the pair into the same lift and pressed level 36.
Both witnesses… asked [the then-partner] whether she was alright. Complainant Khanna offered for [her] to come up to the Penthouse, which defendant Quincy TE HAU took offence to. He asked whether Khanna was serious and whether he was ‘trying to hit on his girlfriend’, while moving toward him aggressively. Khanna was heard to reassure the defendant that he was not, and told him he did not mean any offence. The attempts by the other lift passengers to calm the defendant down were not successful, and when he pushed Khanna in the chest complainants Patton and Patel moved to position themselves between the pair to try and defuse the situation.
Instead, as the lift was slowing to level 34, or around the same time the lift doors opened, Quincy TE HAU punched complainant Patton to the left side of his face and nose with extreme force, causing him to stagger backward against the side of the elevator. He briefly lost consciousness and when he moved from the wall of the elevator was struck again, this time to the right side of his face around his eye and nose. The force caused him to fall to the ground. He crawled to the far right corner of the lift and covered his now bleeding face, while listening to the fight continue and Smith yelling ‘stop’.
Complainant Patel was also struck with force to the left side of his face around the eye and nose. He was struck a second time, but that blow he described as more of a glancing blow to the back of his head. Patel also lost consciousness. When he regained consciousness he was outside the lift.
Quincy TE HAU falls to be sentenced on the basis of Counts 1 and 2 that he reacted with excessive force to a perceived insult and threat.
When the lift did reach level 34 [the Applicant’s then-partner] had exited and fetched… Peter TE HAU to assist his brother.
Peter TE HAU, in only his boxer shorts, and one or two other unidentified males became involved in the fight and Patel and Khanna were dragged out of the lift and onto level 34, with Baptista following.
…
Khanna was being punched against the wall opposite the lifts by two of the offenders, and trying to fight back, kicking and punching at Quincy and Peter TE HAU. While that occurred, a third unknown offender held Baptista’s arms down and forced her eyes open, saying “You’re going to watch your mate die”.
Khanna was thrown to the ground with Quincy TE HAU punching his face while another offender kicked him to the back of the head. He begged the men to stop, telling them they were going to kill him. Quincy TE HAU replied “Yeah, I am going to kill you.”
The assault on Khanna continued by both brothers for a further minute or so, until Baptista freed herself from her attacker and went to Khanna’s aid, trying to pull him into a lift. The defendant’s followed as she dragged Khanna into a lift and tried pressing buttons. The offenders started punching Khanna again and when Baptista intervened one of the men threw her across the other side of the lift into the wall.
The next thing she recalls is the lift went down and stopped at a floor. She does not remember when or where the defendants exited the lift. Eventually Baptista was assisted on an unknown level and managed to make her way to the ground floor with Khanna while the others searched for Patel. The sentencing basis in relation to Peter TE HAU on Count 3 is that he used excessive force in defending his brother.
INJURIES:
The complainant for Count 1… suffered fractured nasal bones with significant left peri-orbital swelling. He was discharged the same day and was to be re-assessed after the swelling had improved.
The complainant for Count 2… suffered bilateral nasal bone fractures, with displacement to the left. He was treated with antibiotics and pain relief. He was to receive follow-up care and possible surgery in the UK. Without treatment, his fracture would likely have healed with some misalignment causing minor difficulty in breathing through one nostril and some minor cosmetic change to his face.
The complainant for Count 3 was mildly tachycardic upon transport to the hospital and was later found to have suffered an undisclosed left frontal bone fracture with a small amount of subdural blood and pneumociphalus; a left nasal bone fracture; a tripod fracture of the maxilla; numbness to his left lateral hip and philtrum; and extensive facial bruising. He was admitted to the neurosurgical ward and underwent a period of close observation, analgesia and review by an occupational therapist. He was discharged on 21 November 2012.
ARREST:
Both brothers were located by police at the hotel the morning of the offending, some of their bloody clothing seized, and were detained for a short time. They both declined interviews at that stage and were released pending statements from the complainants.
On 20^th November police located Quincy TE HAU at his residence. He voluntarily accompanied police to the Runaway Bay station and participated in an interview…
…
Peter TE HAU was located at Beenleigh on the 21^st November and was arrested after declining to participate in an interview with police.[18]
[18] Ibid, pages 620-622.

Suffice it to say that the circumstances of this offending were not just serious; they were genuinely dangerous for the victims. Aside from immediate physical danger, there is the broader risk that the victims may well have been injured in such a way as to render them wholly or partly unfit to ever work again as dentists. This was no idle disagreement with a bit of “shirt-fronting” or “push and shove”. There was no momentary lapse of reason on the part of both the Applicant and his brother. These victims were deliberately and intentionally set upon and systematically beaten without concern for their safety or wellbeing. The victims could quite conceivably have been injured in such a way as to deny them the opportunity of ever again working as dentists and thus depriving them of being able to provide their oral healthcare services to their local community of patients.
On 6 December 2016, the Applicant came before the Beenleigh Magistrate’s Court for sentencing for a litany of drug-related offences. The charges for which he was sentenced on that day have been summarised earlier in these Reasons. They are diverse but convincingly demonstrative of the Applicant’s disdain for lawful authority and for the property rights of others while at the same time being oblivious to the adverse consequences for both himself and other members of the community resulting from his possession of illicit drugs and paraphernalia associated with that.
In summary, the Applicant was sentenced for six criminal charges and six driving or traffic offences. The sentencing remarks of the presiding Magistrate are instructive:
BENCH: Mr Te Hau, you are pleading guilty to six police charges and six driving charges. I take into account those pleas. The worst charges, the ones of the most serious levels of criminality, are the stealing of the motorbike and the possession of the cannabis in substantial quantities on 9^th February 2016, here at Beenleigh. For those two matters you are sentenced to a term of imprisonment of 15 months, with a parole release date of today, the 6^th of December. I declare time served under that sentence and the number of days 171, convictions are recorded for those two matters and additionally, you are ordered to pay restitution of $960 to the complainant for the motorbike matter.
For the other charges, variously drug possession and possess [sic] of tainted property, possess utensils, breaching bail, I intend, with your permission, to place you on an order for probation for 12 months.[19]
[my underlining]
[19] Ibid, T-Documents, page 119, lines 1-14.
While stopping short of sentencing the Applicant on the basis of being in possession of “commercial” quantities, the sentencing Magistrate was clearly of the view that the Applicant was in possession of a “substantial quantity” of cannabis. The escalating level of the severity of the sentences progressively imposed on the Applicant in the course of his history of offending leave me in no doubt about the very serious nature of his criminal offending. Viewed another way, the Applicant has received custodial terms as follows:
·On 4 September 2009:   54 months
·On 12 May 2014:            15 months
·On 6 December 2016:    15 months
Total: 84 months
84 months equates to seven years. His criminal history runs for a period of 12 years, from 8 April 2004 to 6 December 2016. The sentencing Courts have seen fit to impose a cumulative ‘head’ custodial period of seven years (i.e. the abovementioned 84 months) across the totality of the 12 year criminal history. Such is the seriousness of his offending that the authorities have considered his offending worthy of custodial punishment for about 60% of that 12 year criminal history, were it not for sentences being imposed concurrently.
Sub-paragraph (d) of Paragraph 13.1.1 of the Direction compels a decision maker to look at the frequency of the non-citizen offending and whether there is any trend of increasing seriousness. As observed by the Minister, the Applicant has committed offences each year for the period 2002-2009 and again in 2013, 2014 and 2016.[20] There is obvious consistency in the recurring nature of the conduct. The Applicant’s history is not one pointing towards an isolated and bad phase of his life where it could be said that, for a time, he “fell in with the wrong crowd”. Nor does the history indicate a propensity to offend derived from – say – an addiction to illicit substances. Rather, the consistent nature of the history can, I think, be best understood by reference to the sheer breadth of punishable things this Applicant has done.
[20] Exhibit 2: Minister’s statement of facts, issues and contentions, page 9, paragraph 18(d).
The history points to someone who has a much lower level of respect for both the personal and property rights of others. It is indicative of someone who is used to getting his own way. There is next to no tolerance for the views of others. Disagreement with his views is met with a violent imposition of what the Applicant thinks is right. There is similarly a low threshold of fear or respect for governmental authority, be it in the form of being part of a deliberate scheme to steal from the public purse or if it is imposed upon him in the form of an undertaking as to bail. Thus the primary reason for the frequency of the offending lies, I think, in the broad range of punishable things the Applicant has done over a 12 year period of offending.
Is there any trend of increasing seriousness? To deny such a trend would be to deny the obvious. As I mentioned earlier, I consider this Applicant’s conduct giving rise to his criminal history to be somewhat unique. It can be objectively viewed as serious to very serious from its inception. As early as May and June 2003, one can see offences that significantly cross the threshold of any modicum of respect for things that belong to other people in the community or for their own personal space. Neither, it would seem, has there ever been any detectable respect for the lawful authority of those charged with responsibility to protect the community from harm.
The Applicant’s offending history remains largely consistent – both in terms of frequency and seriousness – throughout 2004-2009, albeit with the significant addition of the imposition and breach (twice in 2006) of domestic violence orders. The significant escalation in the seriousness of the offending occurs in 2009 comprising the major fraud involving some $311,000 of public funds for which the Applicant received a custodial sentence of four years and six months. There then followed the appalling circumstances of the grievous assault on the holidaying British dentists on the Gold Coast in 2014 by the Applicant and his brother, for which the Applicant received a custodial term of 15 months. The trend is manifested in 2016 when the Applicant was convicted of possession of a “substantial quantity” of cannabis together with additional counts relating to (1) possession of drug paraphernalia, possession of tainted property, breaching his bail; and (2) six driving offences.
I am therefore of the view that the frequency of the Applicant’s offending and its increasing trend of seriousness clearly renders the Applicant’s offending as very serious.
Sub-paragraph (e) of paragraph 13.1.1 of the Direction requires me to consider whether the cumulative effect of the Applicant’s repeated offending is such as to render it serious. Largely for reasons already stated, I think it does. Having regard to the history as a 12-13 year whole, it is very difficult to understand how one can reasonably find the Applicant has somehow turned a corner and is no longer subject to the propensities giving rise to his offending history. The history:
·does not provide any indication he has developed any measure of respect for lawful authority, there being offences directly relating to or comprising a refusal to accept lawful authority in 2003, 2004, 2005 and 2006;
·seems to have a general consistency of the Applicant resorting to violence in his dealings with other members of the community, there being offences in this regard in 2003, 2006 and 2014;
·contains an identifiable trend in both the seriousness and sophistication of the offending “graduating” as it seems to do towards possession of dangerous drugs in “substantial” quantities together with paraphernalia associated with such activity; demonstrates an inability in the Applicant to distinguish right from wrong. The history demonstrates he is prepared to turn his hand to a diverse range of unlawful things ranging from the unlawful use of motor vehicles, wilfully damaging or stealing other people’s property, participation in a major fraud on the public purse and, most recently, offences in relation to drugs;
·also demonstrates an unresolved inclination to resort to violence in a domestic setting. As mentioned above, there are at least two recorded breaches of a domestic violence order (in June 2006 and August 2006 respectively). The Applicant has three children aged 9, 8 and 6. His demonstrated lack of respect for lawful authority in other areas, such as bail, and his propensity to address differences of opinion between his own and that of others’ by way of violence, cannot bode well that the Applicant will behave in a harmonious fashion in a future domestic setting.
It is thus clear that the cumulative effect of the Applicant’s repeated offending is demonstrative of offences that are serious and, further, that the totality of his offending does not inspire any confidence that he has somehow turned a corner or will not otherwise yield to inducements and/or temptations to further offend in the future.
Sub-paragraph (f) of paragraph 13.1.1 of the Direction is not relevant to my consideration of this matter. Sup-paragraph (g) of paragraph 13.1.1 of the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor is clearly not favourable to the Applicant. He was warned not once, but twice, about the adverse consequences to his migration status arising from his offending.
First, by letter dated 14 January 2011,[21] the Minister notified the Applicant that the visa authorising his continued stay in Australia could be liable for cancelation on character grounds. He was given the benefit of the doubt on that occasion, while at the same time, the Minister made his position abundantly clear to him:
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501
OF THE MIGRATION ACT 1958
…
After taking into account all relevant considerations, a delegate of Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current…visa will continue to provide you with permission to remain in Australia. However, the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[21] Ibid, T-Documents, T16, pages 175-176.
This letter was forwarded by pre-paid registered post and the Applicant signed a confirmation of his acceptance of it on 20 January 2011.[22] There can be no question the Applicant did not receive this letter. There is no contention that he did not understand its contents.
[22] Ibid, page 178.
Despite receiving this letter, the Applicant continued to offend. The pattern of offending is such as to confirm a total obliviousness to the warning contained in that letter. From the date he received this first letter of warning until the date he received a second similar letter on 17 August 2015, the Applicant contrived to commit the following offences:
·May 2013 – breach of bail
·March 2014 – breach of bail
·May 2014 – unlawful assault occasioning bodily harm whilst in company
·May 2014 – breach of suspended sentence
Second, by letter dated 17 August 2015,[23] the Minister again notified and warned the Applicant in virtually identical terms to those appearing in the first letter of warning. This second letter was also sent by way of prepaid registered post and it contains a similar acknowledgement of receipt for signing and dating by the Applicant. While the material does not contain a signed and dated copy of that acknowledgement of receipt, I understand there is no contention that the Applicant did not receive this letter or otherwise that he did not understand its contents.
[23] Ibid, pages 172-173.
Following his receipt of this second letter of warning, the Applicant contrived to commit the following further offences, all of which came before the sentencing court on 6 December 2016. There are two groups of charges for which he was sentenced on that day. The first group comprises:
·possession of dangerous drugs (three charges);
·unlawful possession of a motor vehicles, aircraft or vessels with intent to deprive;
·possession of drug-related paraphernalia (three charges);
·possession of a knife in a public place or a school (two charges);
·possession of property suspected of having been used in connection with the commission of a drug offence (two charges);
·breach of bail.
The second group of charges for which he was sentenced on 6 December 2016 comprise:
·Possession of dangerous drugs;
·Unlawful possession of motor vehicles, aircraft or vessels with intent to deprive.
The content and terms of the two letters of warning issued by the Minister to the Applicant could not have been clearer. His blatant disregard of these warnings, despite receiving the benefit of the doubt following the first letter, is palpable and beyond excuse. The reality that the Applicant has not once, but twice, ignored duly issued warnings by the Minister about the adverse impact his offending conduct would have on his migration status in this country is confirmatory of the nature and seriousness of the conduct itself as very serious. He was given an opportunity to modify and ameliorate his conduct. He has failed to do so after two warnings and, indeed, has persistently offended after each warning. This refusal to heed either or both warnings is a factor that lends an element of “very serious” to the Applicant’s offending.
Sub-paragraph (h) of paragraph 13.1.1 of the Direction is not relevant to my consideration of this matter. Having regard to the sub-paragraphs of 13.1.1 of the Direction that are relevant to this Decision, I am of the view that the Applicant’s conduct is readily capable of characterisation as “serious”. Being generous to the Applicant, that is the best possible characterisation that can be applied to the early phase of his offending during the period May 2003 to May 2009.
However, the threshold in characterisation of the Applicant’s conduct can be readily raised from “serious” to “very serious” on and from September 2009 when he received a four and a half year custodial term for his role in a $311,000 fraud perpetrated on the public purse. That, plus (1) the circumstances of his role in the appalling and dangerous assault on the British tourists for which he received a custodial term of 15 months in May 2014; and (2) the, inter alia, drug offences involving him being in possession of a “substantial” quantity of cannabis for which another custodial term of 15 months was imposed in December 2016, can only serve to characterise the totality of the offending as “very serious”.
One is hard-pressed to find any trend in the history militating in favour of any different or lower characterisation of the history. There is an undeniably consistent theme of a refusal to submit to lawful authority. That conduct can be traced back to 2002 and persists throughout his offending history until December 2016. It is also to be found – most fatally for the Applicant – in his failure to modify his behaviour despite the Minister’s not one, but two, written warnings about the adverse consequences of his continued offending on his migration status.
Upon (1) an application of the relevant sub-paragraphs of paragraph 13.1.1 of the Direction to the Applicant’s conduct giving rise to his criminal history; and (2) taking a longitudinal view of that history with its inherent silence about any amelioration or modification of the Applicant’s behavioural patterns giving rise to his offending, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Consideration of this component of Primary Consideration A requires me to make an assessment of whether the Applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. Logically to my mind, the Direction stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Further, the Direction says that certain conduct, if it were to be repeated, ought to be regarded as sufficiently serious such as to give rise to an unacceptable risk to the safety and wellbeing of the Australian community.
The assessment of this risk requires me to consider two specific paragraphs of the direction:
(a)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the Applicant behave in further criminal or other serious conduct.
(b)Paragraph 13.1.2(2)(b) requires me to have regard to the likelihood of the Applicant engaging in further criminal conduct, including evidence of reoffending and rehabilitation.
The nature of the harm to individuals or the Australian community should the person engage in further criminal or serious conduct
The Applicant has committed a number of offences across a 13 year period, involving significant transgressions against the personal and property rights of others. As I have found, this offending, taken in totality, can only be viewed as very serious.
The totality of the Applicant’s conduct giving rise to his history of offending is, to my mind, indicative of several things: (1) he has a demonstrated lack of insight into both the actual and potential catastrophic effect on other people when he automatically resorts to violent means of making his point or imposing his opinion in a given context; (2) his readiness to repeatedly take the easy option (or, at least, what he sees as the easy option) of behaving unlawfully to achieve a desired outcome; (3) his demonstrated refusal to accept and defer to the lawful authority represented by police officers giving him a lawful direction or a court of law imposing either a bail undertaking or a suspended sentence; and (4) his abject failure to moderate his behaviour in circumstances where (a) he has significant parental and familial responsibilities for a spouse and their three infant children; and (b) he has received a double warning from the Minister to stop offending or there would otherwise be adverse consequences for his migration status.
The circumstances giving rise to the domestic violence order are similarly very serious and disrespectful of the personal rights of his then-partner and his then-two year old child, who, as can be noted from the quoted factual summary surrounding the incident of domestic violence on 1 September 2005, was being held by his mother at the height of the Applicant’s violent conduct. One should perhaps never be ‘thankful’ for a person’s incarceration. However, to the extent that his relatively frequent periods of incarceration have caused him to be physically removed from his family unit, it has at least ruled out any possibility of further conduct constituting domestic violence.

There is no evidence from any independently appointed medical or other expert identifying psychological factors giving rise to any propensities in the Applicant that may have caused (and continue to cause) or be the reason behind his offending. Worryingly, there is nothing from any such expert indicating such factors (if they exist or are diagnosable) are under control or are the subject of an accepted form of remedial therapy.
There are two exhibits which should be discussed in this regard. The first, Exhibit 4, is a letter from the Department of Corrections in New Zealand to which the Applicant returned in October 2017. The letter says this:
I am the supervising Probation Officer for Peter Te Hau. I am writing this letter to confirm that his compliance while subject to Probation requirements as a result of his Returning Offender Order has been exemplary. Should you wish to contact me further to discuss Mr Te Hau I have provided my contact details below.
On the assumption that the contents of the letter are accurate, the Applicant deserves a measure of credit. But to my mind, a relatively short letter from a Probation Officer would not convince the Australian community that any future offences committed by the Applicant would not be serious. Put another way, such a letter cannot lower the extent of any potential harm resulting from future offending by the Applicant, nor can such a letter convince a decision maker that any identifiable propensity or propensities causing the behaviour are now under control or otherwise resolved. This letter confirms the Applicant has met some requirements relating to probation and nothing more.
Exhibit 5 comprises two drug tests undertaken by the Applicant on 9 and 27 March 2018, shortly before the hearing of this matter. As I comprehend both testing results, the Applicant provided urine samples and he was tested for the presence of amphetamines, benzodiazepines, cannabis, cocaine, methamphetamine, opiates and synthetic cannabis. The “Screening Test results” in both tests were “Negative”. Again, on the assumption that these results are accurate and correct, they go to the credit of the Applicant. However, in and of themselves, these test results – completed during the month prior to the hearing of this matter – cannot provide any comfort or assurance that any role played by the Applicant’s consumption of illicit substances in the course of his offending, has now been resolved to the extent that were he to offend in future, the potential harm of such offending would somehow be lowered. These are two tests in one given month which have proved clear. They are indicative of nothing more than that.
A holistic review and understanding of the criminal history, to my mind, is strongly indicative of an Applicant who refuses to respect and submit to lawful authority and who will not hesitate to impose his version of right and wrong on others – often by violent means – in a given context, including a domestic context involving his spouse and their child.
I have previously mentioned the apparent lack of insight of the Applicant into the nature and effect of his offending behaviour. When one has regard to the consistent and escalating seriousness of the criminal history, a conclusion can readily be drawn that were he to reoffend, the consequences would be serious. Or, put another way, the consequences would present no lower risk of future harm than the harm already apparent in the history. The Applicant can no longer be said to be a young man who is new to offending. He is an experienced offender. That “experience” is to be found in the consistency and escalating seriousness of his offending. In other words, the “experience” can only be viewed in negative terms. The history confirms that the “experience” has not worked in such a way as to cause the Applicant to modify his behaviour and cease offending.
The Applicant’s criminal history is suggestive of an overall demeanour orienting him towards feeling he can automatically get his own way. He has too often in the past taken the easy option of achieving an objective or resolved outcome by unlawful means instead of giving thought to adverse consequences of unlawful conduct. Sometimes this compulsion has manifested in circumstances where there is a level of forethought to the proposed illegal conduct (e.g. the $311,000 fraud in 2009). On other occasions in his history it has been spontaneous with no forethought (e.g. the attack on the British tourists in 2012).
Having regard to the nature of this past conduct, should he re-offend in a similar manner, I am of the view that the Applicant would pose a very significant risk to individuals in the Australian community. The risk of harm to victims of his unlawful conduct, be they law enforcement officers or members of the Australian community – if repeated – could result in members of the Australian community suffering anything from financial loss to serious physical or psychological injuries or, conceivably, death. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the person engaging in further criminal or other serious conduct
Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
At the hearing, the Applicant sought to express remorse and said that his offending days were behind him and that he wanted to devote himself to being a responsible father and citizen. He said that he was mindful of the impact of his offending on his capacity to play a parenting role for his children. While the previous relationship with his former partner (and mother of his three children) may be at an end, he says she and he remain on good terms and that she is receptive to him playing a positive and involved fatherly role for the children.
Having listened to the Applicant at the hearing, I accept that he does feel significant regret about his past pattern of behaviour, and that he acknowledges the impact his behaviour has had on those close to him. Is this remorse and stated intention to re-orient his life sufficient to lower or remove any likelihood that he will engage in further criminal or other serious conduct? Such contrition alone cannot justify any assessment of a lowered likelihood of re-offending and serious conduct. While there is a letter from a Probation Officer and a couple of negative drug tests, they are not a sufficient basis for reaching a definitive conclusion that his likelihood of re-offending is now lower than what it was.
In the absence of an independent expert report about (a) diagnosis or identification of factors giving rise to a propensity in this Applicant to offend; and (b) the management, control and treatment of those factors, the likelihood of the Applicant engaging in further criminal or other serious conduct can only be realistically gauged by reference to the level of deterrent effect previous measures have had on his propensity to offend.
First, there is the longitudinal nature of the history itself. The seriousness of the offending is not abating. The Applicant’s propensity to take the easy option in the form of unlawful conduct remains consistent throughout his 13 year offending history. As is often seen in applications such as this, involving a longitudinal investigation of an Applicant’s criminal history, the latter stages of that history often involve recourse to what is wrongly seen to be the more lucrative and “easy money” opportunities to be found in the drug trade. It seems that this Applicant, like so many others before him, has turned his hand to a range of criminal activity spanning from break-and-enter offences, to fraud and then almost inevitably, to offences involving illicit drugs. While not convicted of supplying or trafficking in dangerous drugs, the Applicant was, in December 2016, convicted on the basis of being in possession of a “substantial quantity” of such substances. It is not, to my mind, too much of a stretch to assume that if he were to re-offend, such re-offending would involve illicit drugs and could very well graduate to activity giving rise to supply or trafficking charges.
Secondly, deterrent measures in the form of (1) probation orders; (2) immediate release on parole; (3) suspended sentences; (4) the threat of imprisonment; or (5) actual imprisonment have not prevented the Applicant from reoffending. He has received the benefit of, for example, a suspended sentence but continues to offend at the same or greater level of seriousness during the period for which the original sentence is suspended. Similarly, not once, but twice, he received a warning letter from the Minister and following his receipt of each warning letter, he continued to offend at the same or greater level of seriousness as prior to his receipt the letters. Thus, there is nothing to suggest that any further deterrent measures imposed upon the Applicant will have any greater deterrent effect now than they have in the past.
Thirdly, the Applicant points to an intention to re-enter the workforce as indicating a lowered likelihood of a risk that he would engage in further criminal or other serious conduct. Two Exhibits were tendered in support of that contention. Exhibit 6(i) comprises a form of reference from a former employer, namely, Stomp Workforce Solutions Ltd. This reference confirmed the Applicant worked with that concern (after he left Australia in October 2017) from 13 November 2017 until 23 January 2018 as a labourer. The reference speaks well of the Applicant and concludes by the referee saying “I would not hesitate to employ Peter into any of our companies should he wish to rejoin the construction industry.” There is no explanation of why the Applicant’s employment lasted for little more than two months, neither is there any credible explanation for how the referee reaches such a positive view of the Applicant’s work performance in such a relatively short period of time, traversing, as it did, the inevitable time off for the Christmas/New Year statutory holidays.
Exhibit 6(ii) comprises a further work reference from a Project Manager from the concern known as Thermal Mechanical NZ Ltd. It is dated 20 February 2018 and says the Applicant commenced work with them on 24 January 2018 as a labourer on a full time basis. The referee says “In the time I have known Peter I have found him to be polite, self-motivated, punctual, hardworking and completes tasks with minimal supervision. He is also a well-respected team player who has strong work ethics.” Again, the relative brevity of the Applicant’s time with this employer makes it difficult to lend much credence to the reference. It is indicative of the Applicant commencing work with a new employer at the end of January/beginning of February of this year, and little more than that. It is not and cannot be determinative of any likelihood that the Applicant will not engage in further criminal or other serious conduct.
On the specific question of the Applicant’s employment history, it can be noted that the Applicant does have a demonstrated good work ethic. Having regard to the submissions made by his Counsel during his sentencing for the major fraud matter, it can be noted that the Applicant has a demonstrated capacity to work. At the abovementioned sentencing hearing, the Applicant’s Counsel said these things:
MR RICHARDS: …He has got three siblings, three brothers, 29, 30 and 32, all live here in Australia, and all are working. His mother is employed as a cleaner. His father was working at the abattoirs in Beenleigh, but he is on sick leave because he suffers from bowel cancer. Parents have been married for 35 years, so he comes from a stable family environment, and he has role models in the sense that the family work, and he himself has a good work history which I will go into in a minute.
HIS HONOUR: Yes.
MR RICHARDS: He was educated at Windaroo Primary School, and did grade 11 at Beenleigh State High School.
After he left grade 11, he worked as a fruit packer at a factory for Home Fresh. He then started an apprenticeship with Yarpow Building and Plumbing as a carpenter for about nine to 10 months. That didn’t work out. He then went and worked for a painting company for nine to 10 months. He then seems for the next three or four years after those jobs, to have worked on construction sites in the city and around Beenleigh, obtaining his work through an employment company known as Heron. Significantly, he worked for some six months up at Mt Isa at George Fisher Mine, two weeks on, one week off. He was working as a diamond driller and doing 12 hour shifts.
…
After these offences came to light, he’s worked again in subcontracting, if you like, from Heron as a labourer, but for the last two or so months prior to this sentence [4 September 2009] he hasn’t been working. Now, as I understand it, that’s the only period of unemployment he’s had since he’s left school.
…
HIS HONOUR: He’s got a good work history.
MR RICHARDS: Yes, and that’s – and that’s why I am saying towards the end of that scale, and that your Honour would consider a partial suspension after something like 12 months.[24]
[24] Exhibit 7, Supplementary T-Documents, Volume 2 of 2, page 643, lines 41-60 and page 544, lines 1-33.
Thus, it can be said that the Applicant does have a propensity for engaging in paid, legitimate and remunerative employment. The difficulty with that contention is that it has not deterred him from maintaining the frequency and pattern of his offending. As can be gleaned from the above-quoted portion of his sentencing hearing for the major fraud matter in September 2009, even though the sentencing judge was convinced of the Applicant’s good work history, that history ran parallel to his unlawful conduct culminating, as it did, in him receiving (in September 2009) a head sentence of four years and six months for his role in the major fraud. Further to that, the offending history continues and escalates in seriousness beyond 2009 in circumstances where the Applicant now contends that the reality of legitimate and paid employment will make it less likely that he will engage in further criminal or other serious conduct.
Based upon the Applicant’s criminal history, generously littered as it is with offences across a 13 year period, I cannot accept a contention that the introduction of full time and legitimate employment will somehow result in a lowered likelihood of the Applicant returning to his offending ways.
Fourthly, the hearing received evidence from the Applicant’s mother (Ms Rangi Te Hau) and the Chairman of the Queensland Maori Society Inc., Mr Tu Thompson Tawha. The Applicant’s mother spoke of a “tight-knit family”, of the Applicant being the youngest of four brothers and of the relative difficulty in the Applicant having the closest of bonds with his father because of the father’s severe hearing and speaking impairment. She spoke of the Applicant being “respectful” and that she has travelled to New Zealand to see the Applicant and, indeed, on the very evening following the hearing, she said she would be taking the Applicant’s three children to see him in New Zealand. I have two concerns with Ms Rangi Te Hau’s evidence. In her evidence in chief, when questioned about the Applicant’s criminal activity, she said, “…I know of his criminal history, from what he’s told me… I don’t know the details… I know about the first one… when his dad was around.” In cross-examination, when pressed about what the Applicant had told her and her late husband about his offending (noting her late husband passed away in 2009), she said the Applicant told her and her late husband, “Mum and Dad – you will never have to work again – but if I get caught…”.
Mr Thompson Tawha is a pillar of the Maori community in Queensland. He spoke of the Applicant being part of a safety officer group called “Maori Wardens” whose role it is to provide support to Maori cultural events supporting initiatives against Domestic Violence and supporting other initiatives involving fundraising endeavours for worthy causes. Mr Thompson Tawha says the Applicant is aware of the seriousness of his offending history but added that the community he represents was taken by surprise when the Applicant’s migration status was adversely affected by the repetitive nature of his criminal and other serious conduct. When questioned about the Applicant’s offending, Mr Thompson Tawha said, “…I know Peter is respectful… I don’t know what he’s done…”
I have difficulty in accepting that the evidence of the mother or the community leader is somehow supportive of a finding that there is a lowered likelihood of the Applicant returning to his offending ways were he to be released back into the Australian community. While obviously supportive of her immediate and extended family, the evidence of the Applicant’s mother points to an Applicant who, in the course of his serious offending, knew exactly what he was doing and how he intended to achieve a specifically lucrative outcome from that criminal activity. The community leader’s evidence is of little weight because he knows little or nothing of the Applicant’s criminal history.
In summary, I find that the Applicant’s inability or unwillingness to control or moderate his behaviour, or to otherwise comprehend its consequences means he is likely to engage in further serious conduct if he were to return to Australia. The harm that would be occasioned were he to re-offend would be both substantial and serious, as indeed is the conduct the Applicant has already engaged in. In consideration of the above factors, I consider that Primary Consideration A weighs heavily in favour of the Applicant’s visa being refused.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels decision-makers to determine whether revocation is, or is not, in the best interests of any children who may be affected by cancellation of an applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years old at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has three minor children with his former partner. The children are three sons respectively aged nine, eight and six years old. Thus, the provisions of paragraphs 13.2(1)-(3) are activated such that I am required to make a determination about whether a refusal to revoke the mandatory cancelation of the Applicant’s visa, is or is not in the best interests of the three relevant infant children.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children for present purposes. Those factors comprise:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

There is a ready acknowledgement of the reality that in a difficult and sad case such as this, there is a genuine possibility that those children will be impacted by this decision. However, that possibility must be tempered by the reality that the Applicant’s time with the children has been impacted by his absence while in custody and as a result of the end of the de facto relationship with the children’s mother.
In September 2009, the Applicant received a head sentence of four years and six months for his role in the major fraud matter. He was specifically ordered to serve a period of 18 months in actual custody, with the balance three years to be suspended for an operating period of five years. In May 2014, for his role in the serious assault matter perpetrated on the British tourists at the Gold Coast, the Applicant received a head sentence of 15 months imprisonment, but was released on immediate parole after serving 22 days in actual custody. In December 2016, the Applicant received a head sentence of 15 months imprisonment for the drug possession (and other) matters. He was released on parole after serving 172 days (almost six months) in actual custody. On 1 June 2017, the Applicant’s parole was cancelled due to a further criminal conviction and he was returned to custody on 15 June 2017. He remained in correctional detention until 14 October 2017 and was then taken into immigration detention. The Applicant elected to leave Australia for New Zealand on 24 October 2017 and has resided in New Zealand since that time. It is clear that the Applicant has been absent from the lives of the children for a significant portion of their lives.
I turn now to an application of the factors appearing at paragraph 13.2(4) of the Direction. Sub-paragraph (a) refers to the nature and duration of the relationship between the children and the Applicant. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children. As stated, the Applicant has spent a not-inconsiderable amount of time in either corrective detention or immigration detention. This is not to say he has been absent from the lives of his children. According to his former partner, their relationship “…has been over for quite sometime…” and “…even though he hasn’t been there as much as he would have liked due to different circumstances, I cannot fault his love and devotion for them.”[25] It is, to my mind, notable that the previous relationship between the children’s mother and the Applicant is at an end. This is clearly an impost to him spending a greater amount of time with the children than if they were still together.
[25] Exhibit 6(iii).
Sub-paragraph (b) of paragraph 13.2(4) of the Direction points a decision maker to an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time until the children turn 18. While the material discloses an apparent love and devotion of the children by the Applicant, it is relatively quiet in terms of exactly what sort of role he has played in their lives thus far, especially since the end of the de facto relationship with their mother that, “…has been over for quite sometime…”. Stated in cumulative terms, the children have, between them, another 31 years before they are each over 18 years of age. Given the significant disruptions in the Applicant’s life due to his persistent history of offending and given also the conclusion of the former de facto relationship with their mother, it is difficult to glean the extent of any role the Applicant is likely to play in the lives of his children until they attain the age of 18 years. In the earlier of her two statements, the mother speaks of her and the Applicant having “have put our differences aside so we can co-parent amicable [sic] together.”[26] In her oral evidence, the mother of the children said that it was difficult for her to raise the three children on her own. She said “…he would assist me, he would have the kids, and give me a rest. He would see the kids every week or every couple of weeks, usually at their footy games.”
[26] Ibid.
Apart from this evidence, there is little else in the evidentiary material demonstrating any consistent parenting role performed by the Applicant. There is no reference, for example, to him spending time with the children on an overnight basis, nor is there any reference to him spending “block periods” of school holiday time with them or that he has taken them away on weekends, for example. Similarly, there are no court orders in relation to the children, nor any parenting plan relating to agreed care arrangements between their mother and the Applicant. In these circumstances, it is difficult for me to apply this factor (b) to any consideration of whether restoration of the Applicant’s migration status is in the best interests of the children.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the children. According to the mother of the children, “The three boys absolutely adore him and are continually asking when their father is coming back. They talk and message each other as much as possible but it is hard with him working, school and time difference” [i.e. between Australia and New Zealand]. In terms of the impact his prior conduct has had on the children, their mother says “The last few months have been very hard on our children”. She says the two youngest children “…have been acting out more at home…” and that “All three have been seeing the school guidance counsellor on a regular basis to help them cope.”[27] In addition, the material also contains letters from the children written to the Applicant while he has been away from them in either corrective or immigration detention.[28]
[27] Ibid.
[28] Exhibit 7, T-Documents, T5, pages 99-101.
In her later statement, the mother of the children notes “Our sons know that Peter was deported, but I don’t think that they comprehend that it’s possible that he’ll never be allowed back into Australia.” She adds, “If Peter is not allowed to return to Australia, our sons and I will remain in Australia. There is no possibility that our sons will move to New Zealand fulltime. The most they would get to see their father would be during school holidays when we have the money available.”[29]
[29] Exhibit 8.
It is clear that it would be in the best interests of the children for the Applicant to remain in Australia. It is likewise clear that separating the children from him would have a detrimental effect on them. Both of these concessions are duly made by the Minister.[30] It is difficult to apply this factor (c) to any assessment of the impact of non-revocation on the best interests of the children in the absence of some sort of statement or assessment to this effect from an independent third party. The mother speaks of the children seeing the “school guidance counsellor” but there is nothing from that counsellor confirming that the children have seen him, nor is there any material from the counsellor recording what he has observed. For the purposes of this decision, I think the concession of the Minister is well made and I accordingly endorse it.
[30] Exhibit 2, Minister’s Statement of Facts, Issues and Contentions, page 10, paragraph 24.
Sub-paragraph (d) of paragraph 13.2(4) of the Declaration refers to an assessment of the likely effect that any separation of the children from the Applicant would have on them, taking into account the children’s or Applicant’s ability to maintain contact in other ways.
The mother has said that the children message their father, presumably by SMS or social media. A logical extension of this would involve the introduction and maintenance of visual and real-time contact with the children via Skype and other digital platforms. The extent of such contact may, in future, be conditioned by the terms of any Court orders governing parenting arrangements for the children. As mentioned, there is nothing in the material from an independent expert assessing the impact on the children were the current regime of separation between them and the Applicant to be maintained. Again, consistent with the Applicant’s abovementioned concession, I think it is reasonable to conclude that in the circumstances of the current regime of separation, there are certain effects on the children and that this factor (d) would militate in favour of revocation of the decision to cancel the Applicant’s visa.
Factor (e) of paragraph 13.2(4) of the Direction asks the question of whether there are persons who already fulfil a parental role in relation to the children. Clearly, there are. I have slight misgivings about the evidence of the children’s mother regarding her assertion that she and the Applicant have “put aside” their differences so that they can co-parent. My misgivings derive from (1) the quite significant distance of forgiveness that the Applicant would need to travel to again find favour with his former de facto partner/mother of the children, having particular regard to the quite dreadful domestic violence incidents he perpetrated upon her and at least one of their children; and (2) the mother’s evidence that, at its highest, the Applicant’s time with the children was either weekly or bi-weekly when he saw them “at their footy matches”.
That said, it is understandable for the children’s mother to say that “I’m a single mother and raising three boys without their father is a very daunting task.” While I do not doubt the truthfulness of this statement, I am hard-pressed to understand exactly what kind of substantive role the father/Applicant has played in the lives of the children to date. Weekly or bi-weekly short and recreational meetings “at their footy matches” is not indicative of the Applicant having played any positive parental role to date. For the purposes of this factor (e) I find that other persons already fulfil a parental role in relation to the children. First, according to the mother of the children, the Applicant’s mother “…is usually a big help looking after the kids.”[31] Indeed, on the very day of the hearing the Applicant’s mother was to fly to New Zealand with the children so that they could spend time with him. Similarly, the mother of the children’s mother has provided a statement[32] where she speaks of being “very close to my grandchildren.”
[31] Exhibit 8.
[32] See Exhibit 6(iv).
There are clearly “other persons” who already fulfil a parental role in relation to the children. Accordingly, this factor (e) does not, either at all or to any appreciable degree, militate against the best interests of the children if the Minister’s decision remains undisturbed.
Factor (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to the age and maturity of the children. There is nothing before the Tribunal by way of independent evidence detailing those views. As mentioned earlier, the children’s mother has referred to an involvement of a school guidance counsellor, but there is nothing in writing from that counsellor before the Tribunal. The only “known views” of the children comprise (1) their abovementioned letters to the Applicant while he was in corrective or immigration detention; and (2) hearsay evidence from both their mother, her mother and the Applicant’s mother. Further, I am of the view that the children are of such a young age (aged nine, eight and six years old) that any view they were to express now cannot be relied upon with any level of certainty.
Factor (g) of paragraph 13.2(4) of the Direction looks for evidence that the Applicant has abused or neglected the children in any way, including physical, sexual and/or mental abuse or neglect. While there is evidence of domestic violence conduct and breaches by the Applicant at a time before he commenced the relationship with the mother of his children, there is no evidence of deliberate, intentional or wanton abuse of any of his children by the Applicant. This factor therefore has no weight.
Factor (h) of paragraph 13.2(4) of the Direction looks for evidence that the children have suffered or experienced any physical or emotional trauma arising the Applicant’s conduct. Again, despite the evidence comprising the children’s letters and the hearsay evidence their mother and both grandmothers, and given the absence of any independent evidence, I cannot ascertain with any certainty whether the children have experienced physical or emotional trauma as a result of the Applicant’s conduct. Accordingly, this factor (h) is of little or no weight and is not determinative of any finding about Primary Consideration B.
Having regard to (1) the evidence as a whole, particularly any independent expert or other evidence about the effect on the children of endorsing the Minister’s decision; (2) my earlier findings as to the seriousness of the Applicant’s conduct and the resulting risk to the community were he to reoffend; and (3) an application of the factors at paragraph 13.2(4) of the Direction, I am of the view that the best interests of the Applicant’s minor children in Australia does not weigh in favour of revocation of the decision to cancel the subject visa. Primary Consideration B, at best, weighs marginally in favour of the Applicant.
Primary Consideration C: Expectations of the Australian community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of the considering the present matter, the essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
To my mind, the question may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in 1993 aged seven years and has found himself before the criminal courts from the age of 15 years virtually until his return to New Zealand in October 2017;
·The frequency and pattern of his offending has caused him to be the subject of the imposition of lawful authority almost every year since 2002;
·He has committed offences in the following areas:
oMotor vehicle offending (six offences);
oOffences of violence (five offences);
oDomestic violence (three offences);
oOffences against the personal and property rights of others (eight offences);
oDrug offences (twelve offences);
oOffences indicating a refusal to submit to lawful authority (twelve offences).
·He was in custody on a continuous basis from 15 June 2017, as a result of cancellation of his parole. He remained in correctional detention until 14 October 2017 and was then taken into immigration detention and remained there until he elected to leave Australia for New Zealand on 24 October 2017;
·Viewed in totality, for the 13 year period of his criminal history, the sentencing courts have seen fit to impose a cumulative custodial period of seven years. As mentioned earlier, the seriousness of his offending has been such that the authorities have considered his offending worthy of head sentences of custodial punishment for about 60% of his 12-13 year criminal history;
·The Applicant has received not one, but two letters of warning telling him that his continued offending conduct would adversely impact upon his migration status in this country, yet chose to ignore both of those letters of warning and indeed continue his serious offending; and
·There is no reliable medical or other independent evidence either (1) providing a cogent or rational reason behind his demonstrated propensity to offend; or (2) giving this Tribunal any measure of confidence that the factors causing him to offend have been addressed or are otherwise under control. Put simply, the drug tests done contemporaneously with the hearing of this matter give little or no comfort that any factors in the Applicant’s psychological constitution giving rise to a propensity to offend have been either identified or are the subject of some kind of remedial treatment.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. One must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[33]
[33] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 (“ETWK”) at [102] and [103]:
102. …I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving repeated custodial terms for his lengthy record of serious offending, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The serious nature of his offending to date and its trend of increasing seriousness. As I have noted earlier, his offending was of a significantly serious nature from its commencement;
(ii)His demonstrated refusal to accept, respect and submit to lawful authority. This is evident from several aspects of his offending profile:
·         the numerous offences relating to a failure to meet lawful requirements imposed on him. Disappointingly, the Applicant’s final liaison with lawful authority in this country involved him, yet again, breaching his bail which in turn returned him to corrective custody, which, in turn, placed him into immigration detention;
·         his refusal to take heed of not one, but two, reasonably worded letters of warning from the Minister about the adverse impact his offending conduct would have on his migration status in this country;
·         his readiness to resort to violence be it in the form of a gratuitous attack on tourists enjoying a holiday or in a domestic/family setting;
·         his apparent impulsivity in taking the “fast money” or easy option, often presented by a criminal enterprise, be it in the form of:
·participation in a very serious fraud on the public purse; and
·being in possession of a “substantial quantity” of illegal drugs.
(iii)My assessment of a significant risk of substantial harm to the Australian community were this Applicant to re-offend;
(iv)An absence of independent and expert medical or other opinion (1) identifying any factors giving rise to propensity or impulsivity to offend; and (2) that such factors are under active management and remedial control; and
(v)The comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.

Having regard to the totality of the Applicant’s very serious history of offending, together with the undiagnosed and unresolved nature of any factors motivating that offending, I find that the Australian community would be of the view that the Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that this Applicant would continue to hold a visa.
As often occurs in hearings like this, the Applicant spoke of being given a second chance to resume his life in Australia. Does he deserve it? The answer to this question depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[34]
[34] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant has been offending for virtually all of his adult life. There is no indication that he has developed any insight into his offending, or that he has taken active steps to bring it under control. Looked at longitudinally, his criminal history does not inspire any confidence that he has overcome his impulsivity and readiness to resort to criminal conduct as a primary means of making his way in the world. I am of the view that a significant majority of the Australian community would think likewise. I cannot accept that the Applicant was not aware, for example, of consistent government and local community campaigning against the scourge of domestic violence. Similarly, I cannot accept he was not aware of the seriousness and unlawfulness of what he was doing as his criminal activities gradually evolved into offences involving illegal drugs. I take no comfort from his mother’s evidence about his extraordinary statement to his parents that they “…will never have to work again…but if I get caught...”. There is no indication that his offending days are behind him.
I have examined the material to find some measure of positive contribution to the Australian community. While there is some commentary in his favour contained in the evidence of Mr Tu Thompson Tahwa, that evidence is significantly outweighed by (1) Mr Tahwa’s lack of detailed knowledge of the Applicant’s criminal history; and (2) the gross disproportion between the unlawful things the Applicant has done compared to the positive things he has done as described by Mr Tu Thompson Tahwa.
His offending in this country is clearly of a very serious nature. Were he to re-offend, the risk of harm he would present to the Australian community would be quite significant. I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it reposed in him when he first came here. The Australian community has afforded him, as it were, two “extra chances” in the forms of written warnings from the Minister. The Applicant has ignored both and, indeed, did some of his most serious offending in the respective periods after each warning. There is little more the Australian community can do for him.
I therefore do not consider that the Australian community would be prepared to give this Applicant a second chance to return to Australia and resume his life here.
Having regard to this primary consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation. Accordingly, I find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
It is necessary to look at the other considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This other consideration is not relevant in this case.
(b) Strength, nature and duration of ties
There is a readily made concession by the Minister that both the Applicant and his former partner have a number of immediate family members in Australia. It is further conceded by the Minister “...that non-revocation of the cancelation of the Applicant’s visa will have a detrimental effect upon his family and [his former partner] in particular.”[35]
[35] Exhibit 2, Minister’s Statement of Facts, Issues and Contentions, page 12, paragraph 31.
In addition to his immediate family (excepting the one brother who resides in New Zealand), the Applicant has seven aunts, one uncle, 68 nieces/nephews, 38 cousins, one grandparent and one great-nephew who all reside in Australia.[36] It is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties favour the Applicant.
[36] Exhibit 7, T-Documents, T5, page 91.
That observation must be tempered by the factors appearing at 14.2(1)(a) of the Direction. Although the Applicant arrived here as a seven year old, and did not begin offending until his mid-late teens, his offending conduct spans virtually the entirety of his adult life. It culminates, as late as mid-2017, in him breaching a bail condition, which breach triggered the imposition of custodial correction which, in turn, led to immigration detention, which, in turn, led to the Applicant’s election to depart Australia in October 2017. Thus while it cannot be said he commenced offending soon after arriving here, he has nevertheless consistently offended (and very seriously so) for virtually the entirety of his adult life.
While I accept the evidence of Mr Tu Thompson Tahwa, there remains limited evidence of any positive contribution made by the Applicant to the Australian community. The most regretful aspect of this Other Consideration (b) is, of course, the physical removal of the Applicant from the lives of his three children. It is clear that, since his voluntary return to New Zealand in October 2017, the children have twice visited him in that country. Indeed, on the very evening of the day of this hearing his mother was scheduled to take the children to see him in New Zealand. Cost issues aside, there is little or no evidence as to why his family would not be able to continue visiting him in New Zealand. Alternatively, the Applicant can (and has been able to) maintain contact with his family members via telephone or other electronic/digital means.
While this Other Consideration (b) may weigh in favour of revocation, it is outweighed by the primary considerations and the other considerations which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
Whilst in the material we find (1) sentencing remarks from Judicial officers who imposed various sentences upon the Applicant; (2) statements from both victims of and witnesses to the appalling attacks on the British tourists at the Gold Coast; and (3) “at the scene” contemporaneous reporting of the events comprising the Applicant’s offending in various police briefs/charge sheets, there are no actual victim impact statements (or equivalent) for any of the people who fell afoul of the Applicant’s very serious conduct.
Sometimes such victim impact statements are difficult to obtain because of the nature of the victim. For example, one is hard pressed to conceive of a singular victim impact statement from the State of Queensland detailing the nature and effect of the Applicant’s role in the serious fraud perpetrated against it. On other occasions, victims understandably want to put a dreadful experience behind them and try to do their best to recover from whatever physical and/or emotional trauma they have suffered as a result of conduct of the type exhibited by this Applicant. The British tourists, for example, were all dentists who returned to Britain and got on with their dental careers.
There are no victim impact statements (or equivalent) from any of the parties affected by the Applicant’s domestic violence conduct, serious as the factual circumstances of that offending clearly are. That said, I cannot envisage a situation where any of the victims of any part of the spectrum of the Applicant’s offending would be welcoming of or receptive towards the Applicant’s return to the Australian community.
There can be no question the Applicant has been afforded due procedural fairness when dealt with by all aspects of Australian lawful authority. I do not consider this Other Consideration assists the Applicant. If anything, it weighs slightly against the revocation of the cancelation of his visa.
(e) Extent of impediments if removed
Some time has passed since the Applicant resided in New Zealand. After all, he arrived in Australia as a seven year old and has resided here on a constant basis until electing to return to New Zealand in October 2017. He will inevitably experience some short-term hardship in re-establishing himself in New Zealand. However, he has already been living there for some months. That hardship will not be assisted by his ex-partner’s intention to not relocate to New Zealand with the children if his visa cancellation is not revoked.
That said, there are, as summarised earlier, references from employers who say the Applicant has made a quite satisfactory start to re-commencing his life in New Zealand. I do not consider that any of the factors appearing in Paragraph 14.5(1) of the Direction assist the Applicant. He would suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand… (He has previously lived there…) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[37]
[37] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As well, the Applicant is a relatively young man of 31 years who is in good health and there is nothing in the material to indicate any adverse health or wellbeing outcomes were he to remain there. He has demonstrated an ability to derive income such as to maintain a basic standard of living in New Zealand. It should also be noted that he has a brother who resides in New Zealand.[38]
[38] See Exhibit 7, T-Documents, T5, page 91.
I therefore agree with the contention of the Minister regarding this Other Consideration to the effect that it does not weigh in the Applicant’s favour with regard to revocation of the decision to cancel his visa.
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)International non-refoulement obligations: not relevant
(b)Strength nature and duration of ties: slightly, if at all, favours the Applicant
(c)Impact on Australian business interests: not relevant
(d)Impact on victims: slightly, if at all[39], weighs against the Applicant
(e)Extent of impediments if removed: does not favour the Applicant.
[39] Based on the absence of victim impact statements (or equivalent) in the material.
CONCLUSION
There can be no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction.
Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh Primary Consideration B to which I have assigned neutral weight. I do not consider that any of the Other Considerations, alone or combined, assist the Applicant to any sufficient degree, certainly not to the extent that they would outweigh the Primary and Other Considerations which favour non-revocation.
Accordingly, I find that there is not another reason why the cancellation of the Applicant’s visa should be revoked. It follows that I should not make an order revoking the cancellation of his visa.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

..............................[sgd]..........................................
Associate
Dated: 16 November 2018

Date of hearing: 6 April 2018

Advocate for the Applicant: Ms J Samuta

Solicitors for the Applicant: Samuta McComber Lawyers

Advocate for the Respondent: Mr T Aviram

Solicitors for the Respondent: Clayton Utz

[2018] AATA 4283

16 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	6 April 2018
Advocate for the Applicant:	Ms J Samuta
Solicitors for the Applicant:	Samuta McComber Lawyers
Advocate for the Respondent:	Mr T Aviram
Solicitors for the Respondent:	Clayton Utz