Te Oka and Minister for Home Affairs (Migration)

[2019] AATA 245

Te Oka and Minister for Home Affairs (Migration) [2019] AATA 245 (27 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7327

Re:Tyrone Te Oka

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:27 February 2019

Place:Sydney

The decision under review is affirmed.

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

The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 65 – primary considerations –- protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community - other considerations – decision affirmed

LEGISLATION

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

CASES

Ahori And Minister for Immigration and Border Protection [2017]

Divane And Minister for Immigration and Border Protection [2016] AATA 728

DND v Minister for Home Affairs (Migration) [2018] AATA 2716

Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918

Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

27 February 2019

1. The applicant seeks review of a decision of a delegate of the respondent made on 4 December 2018. Such decision found that the applicant did not pass the character test as defined by section 501 of the Migration Act 1958 (Cth) (“the act”), nor was the power in section 501CA of the act enlivened with the consequence that the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”) remained cancelled.

   FACTS

2. The applicant was born on 16 August 1979 in New Zealand. He first arrived in Australia in 1988 when he was aged approximately eight years, in the company of his mother and father and also a brother. He was educated in primary and secondary schools in Sydney, and has lived all of his life in Australia since his first arrival in this country.

   CRIMINAL HISTORY

3. Since arriving in Australia the applicant has been convicted of numerous crimes, the most serious of which resulted in convictions on 26 November 2002, 20 February 2003, 21 November 2003, 5 May 2014, 28 September 2015 and 29 May 2017. During his criminal history, there have been breaches of parole orders and Intensive Correction Orders. In addition he has been convicted on 31 October 2000, on 22 November 2012, and on 1 October 2015 with driving whilst having the prescribed concentration of alcohol (PCA). The second of these offences related to middle range PCA while in the first and third instances the applicant was driving with a high range PCA.

4. A summary of the National Police Certificate (“NPC”) recording such convictions detailed the following offences:

Court	Court Date	Offence	Court Result
Sutherland Local Court	29 May 2017	Assault occasioning  actual bodily harm – t2	18 months imprisonment, 9 months non parole period
Sutherland Local Court	1 October 2015	Drive with high range prescribed concentration of alcohol – 2nd offence	50 years community service order
Downing Centre District Court	28 September 2015	Assault occasioning actual bodily harm –t2	2 years intensive correction order
Downing Centre District Court	27 August 2014	Assault occasioning actual bodily harm –t2	Conviction confirmed – 2 years suspended sentence on entering bond in lieu of imprisonment
Sutherland Local Court	5 May 2014	Assault occasioning actual bodily harm –t2	16 months imprisonment, 10 months non parole period (appeal lodged)
Sutherland Local Court	22 November 2012	Drive with middle range prescribed concentration of alcohol	$800 costs, 12 months disqualification
Court of Criminal Appeal	1 November 2004	Aggravated robbery with wounding/gbh	Leave to appeal granted; Sentences confirmed
Sydney District Court	21 November 2003	Aggravated robbery with wounding/gbh	10 years imprisonment, 6 years non parole period (appeal lodged)
Sydney District Court	20 February 2003	Common assault –t2	Leave to appeal granted, conviction confirmed, 6 months imprisonment
Sutherland Local Court	26 November 2002	Common assault –t2	8 months imprisonment (appeal lodged)
Sutherland Local Court	21 February 2001	Common assault –t2	$250 costs
Newtown Local Court	31 October 2000	Drive with high range prescribed concentration of alcohol	$800 costs, 12 months disqualification

DIRECTION 65

1. Direction 65, made pursuant to section 499 of the act, provides guidance to decision-makers in assessing the exercise of powers under section 501 of the act. As provided by clause 6.2, the first consideration under the heading of “General Guidance” is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens.”

2. Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:

   “Being able to come to or remain in Australia is a privilege Australia confers on non- citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.”

3. The Principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “harm that would be caused if it were to be repeated, maybe so serious, that any risk of similar conduct in the future is unacceptable.”

4. The principles also state that Australia has a low tolerance of any “criminal or other serious conduct.” And a low tolerance of any “criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”

5. It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations identify the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part C of the Direction. Pursuant to clause 13.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of non-citizens offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.

6. The Primary Considerations in Part C of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1(2) (a) and (b). In assessing the nature and seriousness of the conduct, the Tribunal must consider, inter alia, “the cumulative effect of repeated offending”: see clause 13.1.1(1)(e).

7. Clause 13.3 makes provision for consideration of the expectations of the Australian Community. Clause 13.3(1) provides inter alia:

   “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.”

8. Direction 65 does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (2014 FCR 562) Perry J [80]. See also DND v Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].

9. It is also established the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

10. Part C relates specifically to revocation of a visa.  In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes.  Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(e).  Sentences of imprisonment imposed by courts for a crime or crimes is also to be considered in viewing the seriousness of a conduct: see clause 13.1.1(1)(c).

11. Section 501(2) empowers the Minister to cancel a visa which had been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.

12. The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7) provides that a person has a “substantial criminal record” if:

    “The person has been sentenced to a term of imprisonment of 12 months or more”.

13. The applicant proffers the explanation that alcohol and possibly drugs have been the cause of his violent offending. He claims that he is now aware of his vulnerability to alcohol. He pleads for a second chance.

14. The record shows that the applicant has a propensity for violence, as demonstrated by the above history of criminal offending. Such violence has extended to domestic matters. On 18 February 2001 an Apprehended Violence Order (AVO) was taken out by his then de facto partner following a violent incident. The matter came before Sutherland Local Court on 21 February 2001. It has been held that domestic violence itself constitutes a serious matter: see Ahori And Minister for Immigration and Border Protection [2017] AATA 601 at [53]; Leau and Minister for immigration and Border Protection (Migration) [2017] AATA 918 at [48]; Divane And Minister for Immigration and Border Protection [2016] AATA 728 at [57].

15. By virtue of the offences, the applicant does not pass the character test prescribed in section 506(1) of the act. Accordingly the Tribunal now addresses the other considerations referred to in Direction 65.

    PROTECTION OF THE AUSTRALIAN COMMUNITY – CL 13.1

16. The offences which have resulted in gaol sentences resulting from the applicant’s conduct have been especially serious. In respect of the first such offence, which occurred on 26 May 2002, the applicant and his father entered into a taxi at King’s Cross at approximately 8 PM. The applicant was believed to be slightly affected by alcohol. During the course of the journey the applicant became hostile and aggressive to the taxi driver (the victim) and made death threats. The taxi driver sought assistance from a vehicle which had flashing lights, but found it was a road service vehicle and not the police. The applicant punched the victim and attempted to stamp on the victim’s forehead. As recorded in the NPC the applicant was convicted and sentenced to eight months imprisonment. On appeal a sentence of six months imprisonment was substituted.

17. Prior to this offence the applicant had been convicted of other offences. On 31 October 2000 he was convicted of driving having high range PCA; in Sutherland Local Court on 21 February 2001 he was convicted of common assault.

18. On 26 July 2002 the applicant committed the offence of aggravated robbery with wounding. In this instance the applicant, in the company of others, made an unprovoked attack upon a citizen who was walking across an oval. The victim offered the applicant and his assailants his wallet. In response the applicant punched the victim resulting in him falling to the ground. The applicant and his co-offenders then repeatedly punched and kicked the victim until he lost consciousness, before stealing his wallet and running away, leaving the victim in a pool of blood. The victim suffered serious injuries including fractures to the skull under and between his eyes leaving him with permanent effects including a sunken left eye socket, double vision, teeth sensitivity, difficulties with reading and psychological issues. The applicant was sentenced to ten years imprisonment and the sentencing judge observed that the attack was “very high on the scale of seriousness” and a “particularly savage one” which involved “a high level of gratuitous violence and cruelty”.

19. On 17 August 2013 the applicant, without provocation, punched a person who was unknown to him who was eating pizza in Cronulla Mall. The punch caused the victim’s eyebrow area and underneath the eye to split open and bleed. The victim fell to the ground whereupon the applicant stepped over the victim. Another person then pulled the applicant away. The records show that the applicant contested the charges against him before the Local Court in Sutherland on 5 May 2014. At the conclusion of the hearing the presiding Magistrate observed that the applicant had pleaded “not guilty at every turn” he continued:

    “why they proceeded in that way I am simply at a loss to know because you [the applicant] effectively raised no case against them. I do not know why that took place”.

20. The applicant was sentenced to gaol for sixteen months with a non-parole period of ten months. The applicant appealed such conviction and sentence but the conviction was confirmed. However, the period of imprisonment was quashed and instead a two-year suspended sentence upon the applicant entering into a bond was imposed.

21. On 7 March 2015 the applicant committed the offence of driving with a high range PCA. At the time of this offence the applicant was subject to the previously mentioned suspended two-year sentence of imprisonment, subject to a good behaviour bond. On 28 September 2015 that matter was “called up” for resentencing and he was subjected to a two-year intensive correction order. This order was also breached.

22. On 12 February 2017 the applicant, without warning, attacked a patron at a nightclub. The victim had his head down looking at his phone when the applicant, who was unknown to the victim, initiated a short argument before “head-butting” the victim. The applicant then attempted to punch the victim once and when that punch did not strike the victim, the applicant struck the victim in his head with his arm. The applicant then struck the victim with two further punches. As a consequence the victim sustained a fractured septum requiring surgery and has been left with a permanent disability.

23. This matter came before Sutherland Local Court on 29 May 2017. The applicant was convicted of assault occasioning actual bodily harm and was sentenced to eighteen months imprisonment and nine months non-parole.

24. At the conclusion of such sentence the applicant was detained at Villawood detention centre where he has been this until the hearing of this application for review.

25. There is no doubt that on the basis of his offending, the Australian community will be at risk if the applicant remains in Australia.

    BEST INTERESTS OF MINOR CHILDREN – CL 13.2

26. Direction 65 requires decision-makers to have regard to the question of whether revocation of the cancellation of the visa is in the best interest of any child: see clause 13.2 (1); or where there is more than one child, the best interest of each child is to be given individual consideration: clause 13.2 (3). The particular matters to be considered are set out in clause 13.2 (4).

27. The applicant has a son residing in New Zealand about which no evidence has been offered. The applicant has an adult son, Corey, who has recently turned eighteen. He does not live with the applicant but resides with his mother in a suburb of Sydney. It seems that there has been no meaningful relationship between the applicant and Corey, at least in recent years and the relationship between them seems distant according to the evidence.

28. The applicant has a daughter, Phoenix who is now eight years old. She is the daughter of a former partner of the applicant. It appears that the de facto relationship, having totally broken down, has become a difficult one with a consequence that the applicant has been denied access to Phoenix. Attempts to contact her both by the applicant and by other members of the family, especially his brother, appear to have had limited success. It is not possible, on the evidence, to state whether the applicant has played or is likely to play a positive parental role in the future, taking into consideration the difficulties with access and the lack of contact over many years whilst the applicant has been incarcerated in prison or whilst in detention over the past fifteen months at Villawood. There is no evidence of any visits to the applicant by Phoenix during these periods.

29. Taking into consideration the offending of the applicant, it is highly questionable whether he would be able to play a positive role in the upbringing or be a positive influence to his daughter. The parental role has been and is currently undertaken by Phoenix’s mother. Despite these difficulties, the Tribunal accepts that if the applicant were permitted access to his daughter, it would be in Phoenix’s best interest that the applicant be able to remain in Australia.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY – CL 13.3

30. Part C of Direction No. 65 requires consideration of the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see clause 13(2) (a), (b) and (c).

31. In regards to the expectations of the Australian community as set out in clause 13.3, the Tribunal observes the many years of violent crimes engaged in by the applicant. The chronology, in outline, is as follows: the applicant was imprisoned between 2002 to 2009; was not in gaol between 2009 to 2011; was incarcerated in 2011 to 2012 resulting from a  breach of a parole order; was imprisoned in approximately February 2017 until paroled on 11 November 2017; and thereafter has been detained in immigration detention.

32. The applicant, his brother, and a psychologist, Professor Ian R Coyle who has provided two reports, all attributed the offending to the consumption of alcohol, and recreational drugs such as cannabis, cocaine and methamphetamine. According to Professor Coyle, the applicant has been an “extremely heavy binge drinker for years”.

33. The final AVO issued on 21 February 2001 imposed a condition upon the applicant as follows:

    “the defendant must not approach the protected person within twelve hours of consuming intoxicating liquor or drugs.”

34. However the Tribunal cannot be satisfied that it is the use of alcohol alone which has been the cause of the violent behaviour demonstrated by the applicant. Such violence has been directed at strangers, and as the evidence establishes, the violence was unprovoked. The assaults committed by the applicant have been most serious. For example, in one case the victim suffered a fractured skull and in another case permanent eye socket damage has resulted. There has been no evidence of remorse toward such victims.

1. Professor Coyle, at paragraph 57 of his report dated 17 November 2017 states, inter alia:

   “all things considered the fundamental problem over the years has been Mr Te Oka’s loutish behaviour when binge drinking. If he avoids going out with his so-called mates and binge drinking his prospects of recidivism are minimal and remote”.

2. The facts demonstrate that attempts have been made to rehabilitate the applicant from an early date. The sentencing remarks of Judge GS Hosking SC on 21 November 2003 record that Ms Carline Ryder, psychologist, provided a report in which she expressed the view:

   “Mr Te Oka has a real motivation for change, as can be observed in his completion of a number of development programs whilst in custody “.

3. His Honour continued:

   “She notes that he has recognised some of his issues and as a result has sought out course such as anger management and drug and alcohol counselling.”

4. His Honour stated:

   “In her view, with continued perseverance in those matters, and with adequate supervision and support on his release, his chances of successfully reintegrating into the community will be improved.”

5. His Honour noted that the applicant acknowledged that he had an alcohol problem.

6. Following the release of the applicant from his term of imprisonment, he was given parole subject to conditions. Condition (2) provided “that the offender must not, whilst on release on parole, commit any offence” and condition (15) provided: “the offender must totally abstain from alcohol”. The applicant signed a written instruction on 27 February 2012 which included a prohibition as follows:

   “… Nor is he to attend any licensed premises whilst on parole”.

7. Such prohibition on absence of alcohol was breached. A report entitled “Balance of Parole Report” records that the applicant would need to undergo a program known as “Smart”, more recently called “EQUIPS”.

8. The applicant was placed on a good behaviour bond on 27 August 2014. Such bond was in lieu of a two-year term of imprisonment resulting from a serious assault. One of the conditions required the applicant to obey all directions, participating courses as directed re-alcohol abuse. A report of Corrective Services dated 16 March 2015 records:

   “Mr Te Oka completed the Life on Track program with Mission Australia and six sessions with a psychologist focusing on anger and drug and alcohol issues. Mr Te Oka was recently referred to the local drug and alcohol services, and no further intervention was required, however the offender was offered relapse prevention counselling if he felt the need in the future… Mr Te Oka is assessed as a medium risk in terms of the probability for further offending behaviour. There do not appear to be any further issues which could be addressed through ongoing supervision by Community Corrections”.

9. Despite such predictions, the applicant was found to have breached the provisions of the suspended sentence resulting from his driving a motor vehicle with high PCA on 2 April 2015.

10. An Intensive Correction Order assessment was prepared and dated 16 September 2015. It recorded that the applicant had commenced counselling at St George and Sutherland Alcohol and Other Drug Service, and that the applicants psychologist from the service considered that the applicant:

    “…appeared to have achieved alcohol abstinence and it was therefore considered that he did not require further intervention”….

11. Since ceasing counselling, the applicant reported that he had recommenced consuming alcohol on a recreational basis. Despite his awareness of the correlation between his alcohol consumption and related offending, the applicant stated that he did not consider ceasing his alcohol consumption in entirety was warranted.

12. On 12 February 2017 the final assault committed by the applicant took place. The applicant blames alcohol for his conduct. This was despite the report provided to the local Court of Sutherland on 20 February 2014 by Life on Track which stated:

    “There are protective factors in Mr Te Oka’s life which now serve to mitigate his risk of reoffending which include ongoing participation in psychological counselling to assist in the management of his alcohol consumption and anger as well as ongoing support from his partner.”

13. The predictions for the applicant’s successful rehabilitation have proven to be ill-founded.

    OTHER CONSIDERATIONS – CL 14

14. Pursuant to clause 14 of Direction No. 65 the Tribunal is to take account other considerations where relevant, including but not limited to the strength, nature and duration of ties; the impact on Australian business interests; the impact on victims; and the extent of impediments if removed : see clauses 14(1)(b), (c), (d) and (e).

    Strength, nature and duration of ties – cl 14.2

15. Clause 14.2 of the direction requires the Tribunal to consider the length of time that the non-citizen has resided in Australia, and whether he arrived as a young child, including considerations as to whether the offending followed soon after arriving in Australia and whether a positive contribution has been made by the person to the Australian Community: see clause 14.2(1)(a).  Further, the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and with persons who have an indefinite right to remain in Australia, is also to be considered: see clause 14.2(1)(b).

    Impact on Family Members

16. As already referred to, the applicant arrived in this country when he was eight years old. He attended school in Sydney. He has an adult brother residing in Sydney and a stepbrother both of whom are New Zealand citizens. He has four uncles/aunts, seven nephews, two nieces and six cousins in Australia. His mother resides in New Zealand. The brother of the applicant, who provided oral evidence, suggests that the family are a close knit unit. The applicant and his brother are particularly close.

17. The applicant is currently in a de facto relationship which commenced approximately three years ago. His partner is an Australian citizen who resided with the applicant prior to his latest imprisonment. They have known one another for approximately five years and they plan to build a house together if his visa is reinstated, and to marry. The partner gave evidence of her relationship with the applicant. She also stated that she is suffering from depression. She is employed but is in receipt of anti-depressant medication. Her family resides in Australia and she testified that if they were separated, it would be devastating for her.

18. The Tribunal accepts that the non-revocation of the visa would have a very significant impact upon the applicant’s partner, brother, stepbrother and his extended family. Such family members, and the applicant’s current partner, would be greatly disadvantaged by the applicant’s removal from Australia.

    Community involvement

19. The applicant has contributed to the community. The evidence establishes both the applicant and his brother had been active in supporting worthwhile community activities, namely football. The applicant has assisted in coaching young men in local teams. According to the sentencing remarks of Judge GS Hosking SC delivered on 21 November 2003 the applicant appeared to be not an unintelligent man; he received his school certificate and was a very good sportsman, playing rugby league just below first grade and sometimes at first grade level.

20. Because of the similarity of culture between Australia and New Zealand, the applicant should be able to assimilate in his country of birth. Accordingly, there are no non-refoulement issues relevant to this applicant.

    Impact on Australian business interests – cl 14.3

21. The applicant has been, when not in prison, in steady employment working as a boilermaker and factory floor manager over a ten year period, commencing approximately fifteen to twenty years ago. His employer gave evidence that the business, which is involved in steel fabrication, is owned by the employer and employs approximately twenty persons. During periods of imprisonment, the role which the applicant undertook as a day-to-day manager was performed by the employer himself. The employer spoke highly of the applicant’s work ethic. He acknowledged that the applicant had a problem with alcohol. The employer stated that if the non-revocation order was set aside, he would offer him employment again.

    Impact on victims – cl 14.4

22. The Tribunal must consider the impact of non-revocation of his visa upon victims of his criminal behaviour. There is no material before the Tribunal which suggests that any victim will be advantaged nor disadvantaged by non-revocation of the applicant’s visa.

    Extent of impediments if removed – cl 14.5

23. The applicant is now thirty-nine years of age. During his lifetime in Australia he has had three de facto relationships, one of which is current. His eighteen year old son, Corey, is the product of his first relationship and his eight-year-old daughter, Phoenix is a product of the second relationship. There are no children of the current relationship. As already referred to, his mother and his eldest son reside in New Zealand.

24. There is no evidence that the applicant does not enjoy good health. There are no language or cultural barriers which would operate against removal. The applicant has shown that he can hold a steady job and has had significant experience in steel fabrication. The respondent stated there should be no impediment to the applicant obtaining similar employment in New Zealand.

25. There are no social, medical or similar facilities which are not available to the applicant if he were removed from Australia.

    CONCLUSION

26. It is apparent that the applicant has the propensity to engage in violent conduct, especially having consumed alcohol. The intensive efforts made to rehabilitate the applicant have been unsuccessful, as is clearly demonstrated by his criminal history. There is every prospect that the applicant will reoffend. If he does so, the Australian public will be at risk, as has been proven in the past.

27. The Tribunal notes that the offending continued after the applicant received a written warning that his visa was at risk. On 23 January 2009 the applicant was notified of a decision by a delegate of the Minister to not cancel his visa, and was given the following formal warning:

    “Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds.”

28. On 2 February 2009 the applicant signed a written acknowledgement that he had received and understood that notice. This is a relevant consideration under clause 13.1.1(g). The applicant has continued to offend despite the formal warning.

29. Professor Coyle has provided his opinion which confidently asserts that the applicant is unlikely to reoffend. However it is qualified by a critical consideration, namely that the applicant abstain from alcohol and illicit drugs. It should be noted that Professor Coyle has never met the applicant, and provided such opinion following a telephone conversation of one hour and twenty-two minutes.

30. The Tribunal has taken into consideration the best interests of Phoenix. It notes that the applicant has had minimal contact with such child in recent years. The applicant also takes into consideration the impact on the applicant’s partner and brother, stepbrother and other persons who have provided references in support of the applicant. The Tribunal has also taken into consideration the good work which the applicant has undertaken in the community by his participation in assisting the local football team. The Tribunal has also taken into consideration the fact that, absent periods in gaol, the applicant has been a good worker.

31. Despite these considerations, the Tribunal is satisfied that the expectation of the Australian community is that his visa cancellation should not be revoked. The ongoing history of criminal convictions in respect of serious assaults on strangers, which were unprovoked, renders him a threat to the safety of the Australian community. Such threat will remain whilst the applicant at least consumes alcohol and/or recreational drugs. All attempts to rehabilitate the applicant in respect of these substances have failed. The applicant has demonstrated that he is a risk to the Australian community.

32. For the reasons outlined above, the Tribunal finds that the factors in support of revocation presented by the applicant do not singularly or cumulatively outweigh the Primary Considerations and the factors weighing against the exercise of discretion under section 501CA(4) of the act to revoke the applicant’s mandatory visa cancellation.

33. For these reasons the Tribunal considers that the decision under review is the correct and preferable decision. The mandatory visa cancellation decision should not be revoked.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

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

Associate

Dated: 27 February 2019

Date(s) of hearing:	15 February 2019
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers