Tenari and Minister for Home Affairs (Migration)

Tenari and Minister for Home Affairs (Migration) [2018] AATA 3036 (15 June 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1946
Re:Aufaatasi Tenari
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 June 2018
Date of written reasons: 24 August 2018
Place:Brisbane

The decision under review is affirmed.
........................[sgd]................................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – where Applicant had committed a number of domestic violence offences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
CASES
Allan and Minister for Immigration and Border Protection
[2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228

Negri v Secretary, Department of Social Services
(2016) 246 FCR 1
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666

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

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
SECONDARY MATERIALS
Ministerial Direction No 65
REASONS FOR DECISION
Senior Member Theodore Tavoularis
24 August 2018

These reasons reflect the reasons for decision given orally at the hearing. Some minor departures from the text of the oral decision have been made – and are allowed[1] – but I have not diverted from my reasoning in this case.
[1] Negri v Secretary, Department of Social Services (2016) 246 FCR 1.
INTRODUCTION
This matter relates to an application for review filed by Mr Aufaatasi Tenari (“the Applicant”) on 13 April 2018. The decision of which the Applicant seeks review is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 10 April 2018 not to revoke the mandatory cancellation of the Applicant’s visa.[2]
[2] NB: this was provided to the Applicant on 11 April 2018 (Exhibit 2, G-Documents, G 9, p 63).
The Applicant was born in Samoa in 1967 and first arrived in Australia in August 1997.[3] He retains his New Zealand citizenship but has never become a citizen of Australia. The Applicant has most recently been granted a Special Category (Temporary) (Class TY Subclass 444) visa in February 2014.
[3] Exhibit 2, G-Documents, G 29, p 122.
A delegate of the Respondent cancelled the Applicant’s visa on 18 October 2017, on the basis that the Applicant had a substantial criminal record and was at that time serving a full-time sentence of imprisonment.[4] In November 2017, the Applicant sought the revocation of this mandatory cancellation.[5] However, in a decision dated 10 April 2018, a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa.[6] It is this decision of which the Applicant seeks review.
[4].Ibid, PG 3, p 17.
[5] Ibid, PH5. P 39.
[6] Ibid, PG 8, p 50. I note that the decision was not received by the Applicant until 11 April 2018 (PG 9, p 65).
The Tribunal has jurisdiction to review the delegate’s decision pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (“the Act”).
OFFENDING HISTORY
The Applicant’s history of offending began well before he arrived in Australia. When he lived in New Zealand, he was twice sentenced to periodic detention for traffic offences, and twice breached the periodic detention orders.[7] In the same year as he arrived in Australia, he was convicted of burglary and sentenced to a further two months’ residential periodic detention.[8]
[7] Ibid, G11, p 71.
[8] Ibid.
Since arriving in Australia in 1997, the Applicant has committed a considerable number of offences. Broadly, the Applicant’s offending falls into three categories: first, domestic violence and threats against his partners and children; secondly, unlicensed, disqualified and drink-driving; and thirdly dishonesty, breaching court or police orders or directions or assaulting police.
The first offence for which the Applicant was convicted in Australia sets the tone for much of his other offending. In May 1999, when he was convicted of common assault. He assaulted his then-wife, hitting the side of her face with a closed fist. He also threatened to cut his then-wife’s throat with a steak knife. It appears that the Applicant’s then-wife sought an Apprehended Violence Order against him for this offence.[9]
[9] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), Annexure B, p 6.
The summons material provided by the Respondent as annexures to its Statement of Facts, Issues and Contentions (“SFIC”) discloses that the police have been involved in at least 12 instances of domestic violence or breaches of domestic violence orders perpetrated by the Applicant.[10] When the Applicant was cross-examined at the hearing, he accepted as correct the details of many of these reports.
[10] Ibid, pp 6-146.
Importantly, the Applicant was convicted of two significant breaches of domestic violence orders, in 2014 and in 2016. He was sentenced to 18 months’ imprisonment for each of these.[11] With respect to the 2014 breach, the Applicant tried to throw a hot cup of coffee at the face of his then-partner, who is the mother of his youngest child, and threw two bricks through a lounge room window before departing the scene on foot.[12]
[11] Exhibit 2, G-Documents, PG13, p 76.
[12] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), Annexure B, p 116.
For the 2016 breach, the Applicant and his former partner became involved in an argument in their home. During the argument, the Applicant took it upon himself to obtain a can of petrol and to commence pouring that petrol on the floor of the living room and down towards the hall of the house. While pouring the petrol, the Applicant threatened to burn the house down if his ex-partner did not leave the house and drive him somewhere. At the height of this argument, the Applicant’s then-16 year-old son forcibly pulled the Applicant out of the dwelling and man-handled him to the ground. There was a struggle between the Applicant and his son and the Applicant eventually calmed down. The police were called by the former partner during the physical struggle between the Applicant and the son.[13]
[13] Ibid, p 134.
On the basis of these breaches, the sentencing Magistrate determined that the Domestic Violence Protection Order should be extended by three years until September 2021.[14]
[14] Exhibit 2, G-Documents, PG13, pp 76-77.
Between 1998 and 2016, the significant offences in the Applicant’s traffic history can be summarised as follows:
(a)2 counts of unlicensed driving;
(b)2 counts of using an unregistered motor vehicle;
(c)11 counts of disqualified driving; and
(d)8 counts of driving or attempting to use a motor vehicle while under the influence of alcohol.[15]
[15] Exhibit 2, G-Documents, PG 34, pp 163-169.
ISSUES
The issue lying at the heart of this cases is whether the discretion contained in s 501CA(4) of the Act should be exercised, such that the cancellation of the Applicant’s visa is revoked. In essence, there are two issues to be considered in determining whether this discretion should be exercised:[16]
(a)Whether the Applicant passes the “Character Test”, contained in s 501 of the Act; and
(b)Whether there is another reason why the mandatory visa cancellation decision should be revoked.
[16] Migration Act 1958 (Cth), s 501CA(4)(b).
Each of these issues will be addressed in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The “character test” is set out in s 501(6) of the Act, as augmented by s 501(7):
(6) For 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
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(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
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
The Respondent, noting that whether or not someone fails the character test is a matter of law,[17] contends that the Applicant fails the character test. The Respondent relies on the Applicant’s conviction on 13 September 2017 where he was sentenced to 18 months’ imprisonment as the basis of this contention.[18]
[17] Exhibit 1, Respondent’s SFIC, [22], citing Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63].
[18] Ibid, [23].
I consider this contention to be well-made. Section 501(7)(c) is clear: if a person has been sentenced to a period of imprisonment of 12 months or more, that person fails the character test. I find that the Applicant was on 13 September 2017 sentenced to 18 months’ imprisonment. Consequently, there can be little doubt that the Applicant fails the character test; his visa was therefore appropriately cancelled.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
As the Applicant’s visa was appropriately cancelled on the grounds that he did not pass the character test, pursuant to s 501CA(4)(b)(ii) of the Act, I will now turn to discussing whether there is another reason to revoke the cancellation.
In considering whether to exercise the discretion in s 501CA(4) of the Act, 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.[19]
[19] 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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[20]
…Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[21]
[20] [2018] FCA 594.
[21] Ibid at [23].
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.
I will now turn to addressing these considerations.
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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable persons in the community (such as minors…), 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 courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;…
…
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware in writing, about the consequences of further offending in terms of the non-citizen’s migration status…
The Respondent contends that when considering the nature and seriousness of the Applicant’s conduct, the protection of the Australian community weighs heavily against a favourable exercise of the power in s 501CA(4). For reasons that follow, I agree with that contention.
The Applicant’s offending history in Australia since 2000 is both extensive and serious. There can be little doubt that he has failed to learn how to appreciate lawful authority or, indeed, to appreciate lawful authority at all. There have been more than 40 offences committed by the Applicant during his time here. As will be demonstrated below, the offending is both consistent in terms of chronological occurrence and of at least persistent or escalating seriousness.
Of perhaps greatest significance for present purposes are the two breaches of domestic violence orders by the Applicant against his former partner and the mother of his youngest children. To my mind, what is especially significant about the Applicant’s domestic violence offending is that his lack of restraint and control of himself has often brought quite innocent victims – into its orbit. The Magistrate who dealt with the domestic violence matters at the Beenleigh Magistrates Court left no room for doubt as to how serious he thought this offending was.
Regard must also be had to the numerous terms of imprisonment that have been imposed on the Applicant. Paragraph 13.1.1 of the Direction makes it abundantly clear that the imposition of terms of imprisonment is an indicia of very serious conduct by an applicant. This is because in our system of sentencing, terms of imprisonment are most often a last resort in the sentencing options available to a judicial officer. There can be no question about the maxim that a court imposes a custodial term only when it views the offending involved as objectively serious. The Applicant has been sentenced to a custodial term for 18 months as a result of his extraordinary and, indeed, dangerous, domestic violence offending.
His propensity towards violence is not just limited to those within his immediate or domestic circle. He has two convictions for assault occasioning bodily harm against third parties. He has several convictions for obstructing or assaulting police in the course of their duties. Two things arise from these further convictions. First, the Applicant has little or no hesitation in applying his idea of discipline or of making a point by way of violence against third parties. Secondly, he refuses to accept the lawful authority of the state – via its law-enforcement officials – in the maintenance of good order for the benefit of everyone in the community.
There is no question that both of these types of additional offending – that is, violence against third parties and the obstruction of government officials – must be viewed very seriously because this is clearly stipulated in paragraphs 13.1.1(1)(a) and (b) of the Direction.
It cannot be said by the Applicant that his offending history is limited to his time in Australia or that things have gone badly for him only during his time here. He has history in New Zealand. The history is both notable and, yet again, serious. There are respective convictions of burglary and dangerous driving, together with other offending involving, yet again, thumbing his nose at lawful authority by twice breaching a periodic detention order that the New Zealand courts had imposed upon him both for his own benefit and for the protection of that community.[22]
[22] Exhibit 2, G-Documents, G 11, p 71.

The upshot of the Applicant’s history of offending for present purposes is this: the Applicant’s offending is not episodic. It does not relate to a bad phase in his life where he fell in with the wrong crowd or, alternatively, reliance and dependence on illicit substances caused him, for a period, to offend. There is a longitudinal chronicity to his offending. In other words, he has been offending for the significant majority of his adult life.
Also worthy of mention is the Applicant’s lengthy traffic history in Australia. At first blush, decision-makers sitting where I am may regard traffic offending as perhaps on the lesser side of seriousness than the other aspects of an applicant’s offending. I cannot do so in relation to the Applicant where I see that he has no fewer than 11 convictions for disqualified driving – that is, for being in charge of a two-tonne projectile on a public road in circumstances where he had been legally prohibited from doing so. This is yet another example of the Applicant refusing to follow a lawfully-made order – in this case one prohibiting him from driving. His impulse to have his own way – by driving a car – took precedence over his low appreciation of the court order disqualifying him from driving.
I profess no expertise in the area of compulsory or licensed insurance for operators of motor vehicles. However, I would be very surprised to learn that driving whilst disqualified does not, to some extent at least, create a difficulty for coverage of the Applicant in circumstances where he – hypothetically – seriously injures an innocent road user, especially in circumstances where the accident is the Applicant’s fault. I find it very difficult to accept that this 50 year-old Applicant did not have the experience or maturity to apprehend that driving whilst disqualified was not just against the law, but could have dreadful adverse consequences for innocent third parties.
The theme of lack of regard for lawful authority can also be seen, in a crystal-clear way, from the Applicant’s failure to heed the terms of a formal warning issued to him by the Minister in July 2006.[23] The warning could not have been clearer or fairer. The Applicant was told: do not commit further offences or your visa may be cancelled. There is no question that the Applicant received, read and understood this letter; the Applicant accepted that he had in his evidence at the hearing.
[23] Ibid, G 30, pp 123-124.
Even so, the Applicant went on to commit approximately 19 additional offences after his receipt of this warning. The provisions of paragraph 13.1.1(1)(g) of the Direction must be applied: such offending as the Applicant has perpetrated – after the issuing of a formal warning by the Minister – indicates the very serious nature of the Applicant’s conduct.
Having regard to the totality of the above factors, I find that the nature of the Applicant’s conduct must be viewed as very serious indeed.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:
(i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending…
The Applicant’s offending history has run for a period of 25 years, both in Australia and in New Zealand. I again refer to the above-mentioned description of the Applicant’s offending. There is no question about the consistency (in terms of occurrence) and the seriousness of the offending. Neither aspect is levelling off or decreasing. There is no other finding but that, were the Applicant to reoffend in our community, there is every likelihood that such offending will be serious and that it could very well involve significant physical harm to both members of the general community and especially to those people charged with maintaining peace and good order within our community.
The risk to the Australian community can also be seen with regard to the following factors. The Applicant has been in Australia for some 21 years. He has been charged and convicted with at least 40 criminal offences during his time here, on top of some 37 traffic offences. We are talking about a total number of 77 criminal and traffic offences committed in Australia by the Applicant in the last 21 years. Expressed as a ratio, the Applicant has on average committed more than 7 criminal or traffic offences every two years since he arrived in Australia.
A similar ratio, applied in relation to the custodial time that has been imposed on him also makes for sombre reading. I accept that some of his custodial terms were ordered to be served together or concurrently, and others were suspended. Nevertheless, if one has regard to each individual criminal offence and the specific custodial time imposed for each such offence, one arrives at a total custodial time of more than 4 years being imposed on the Applicant.
Of perhaps most significant concern to the Tribunal for present purposes is that the Applicant has not put on any evidence in support of the argument that he no longer poses a risk to the Australian community. The highest he put it was that he has apparently found some solace and direction in God, via his local church community.
But such a submission can only go so far. On his own evidence, the Applicant has a history of illicit drug use – specifically in the form of marijuana which, he says, has been part of his life for at least the last five years. He also gave evidence at the hearing that he has issues controlling his intake of alcohol and that he does not manage it well. One does not need qualifications in the mental health sphere to glean that the Applicant has obvious difficulties with controlling his temper.
Both the Tribunal and the Respondent’s representative repeatedly asked the Applicant whether he had told any doctor or other expert or counsellor about his drug and alcohol issues or his anger management issues. The response from the Applicant was unclear and equivocal to the point where he made no reference to any such reporting to any such expert. Clearly, the Applicant’s issues with drugs, alcohol and self-control remain unaddressed, unregulated and uncontrolled. The only conclusion to be taken from this reality is that no reasonably-minded Tribunal could make a finding other than that the level of risk of the Applicant offending is great. And further, that if he were to reoffend, the consequences of such reoffending would be significantly harmful to the Australian community.
The Applicant seemed remorseful and said that with the benefit of hindsight, he may have handled himself differently. He told the hearing of the time he had spent while in custody thinking about his conduct and how wrong and silly it has been. He now claims to understand that such conduct has compromised his own relationship with his children. He fully appreciates that his conduct may well render him to be unfit to further participate in the Australian community. He said that he wants to engage in counselling which, in itself, is a positive indication, albeit one that goes nowhere because there is nothing from a counsellor on which the Tribunal can rely.
The Applicant’s circumstances – in terms of his offending history and his lack of rehabilitation – lead to the inevitable conclusion that there has simply been insufficient opportunity for his claims of rehabilitation and of having turned a corner to have been tested in any meaningful way. The Respondent’s contention is correct: sufficient time has not elapsed where the Applicant has not been in an unsupervised environment within the community since claiming to have been rehabilitated. The likelihood of his reoffending remains a real and live possibility.
There is clearly an absence of probative evidence of rehabilitation. The Tribunal is not convinced that the factors causing his offending are under control or that they are otherwise under a regime of active and effective regulation. He still represents a risk to the Australian community.
The balance of letters of support for the Applicant seem to fall into any one or all of these categories: they are from persons who are not independent of the Applicant; the makers of these statements are not readily identifiable; the makers of these statements do not confirm or indicate any awareness of the Applicant’s offending. Consequently, I accord them no weight.
Clearly, were he to reoffend in a similar manner to how he has offended in the past, the harm occasioned to members of the Australian community – especially law enforcement officials or his family – would be great. Similarly, I find that the risk of the Applicant reoffending would be great. I therefore determine that on the totality of the material available to me, primary consideration A weighs heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision
Paragraph 13.2(1) of the Direction provides that a decision maker must make a determination about whether revocation is, or is not, in the best interests of any minor children in Australia that may be effected by the decision. This consideration only applies if the child is under 18 years old at the time of the decision.[24] Clearly, this applies in the present case.
[24] See Direction No. 65 at paragraph 13.2(2).
However, I note that it does not apply to the three of the Applicant’s children from his first marriage, each of whom is over the age of 18 years. Two of these adult children have provided letters of support for their father.[25] Neither letter is signed. The following things can be said about the references:
·They are not from persons independent from the Applicant;
·As the children are adults, they cannot be taken into account in Primary Consideration B; and
·No contention was made (and there is in any event no evidence to support this contention) that the way the Applicant purportedly treated these children is the same way he treated his younger children.
I therefore accord them no weight with regards to this Primary Consideration.
[25] Exhibit 4.
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account where relevant when assigning weight to this consideration. Relevantly, some of the factors include:
·“(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where… there have been long periods of absence, or limited meaningful 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…”;
·“(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”.
There are nine children in the Applicant’s life. First, the abovementioned three adult children from his first marriage. Secondly, there are three minor children from a subsequent relationship, each of whom is under 18 years of age. Thirdly, there are three step-children.[26]
[26] Exhibit 2, G-Documents, PG 15, p 86.
The Applicant has previously contended that before his incarceration, he visited his minor children on a weekly basis and that he apparently played a role in the lives of his step-children.
Following receipt of the Applicant’s evidence at the hearing, I am of the view that this consideration in fact weighs against the revocation of the cancellation of the Applicant’s visa. There are a number of reasons for this view.
There is little or no evidence before the Tribunal revealing exactly what type of care and parental guidance the Applicant has provided to his children. Expressed in monetary terms, the answer is nil because there is evidence that his child support assessment notice for the period ending October 2017 indicates that his annual amount of child support paid for his children is $0.[27]
[27] Ibid, G 16, p 94.
There can be little or no debate with the stark reality that the respective mothers of each of the Applicant’s children more than adequately meet and fulfil the parenting role for them.
The Respondent puts forward a contention that the Applicant is unlikely to play a positive parenting role in the future, given his repeated commission of domestic violence and other violent offences. This contention is correct, not because it has been made by the Respondent, but because it is borne out by the nature of the Applicant’s offending, especially his violent offending of a domestic nature.
His behaviour at a domestic level has, to my mind, been so appalling and, frankly, dangerous, that he is best kept away from his children. Loathe as I am to say that, the circumstances of his domestic violence offending lead me to no other conclusion. How can the Applicant propound any suggestion of wanting to play a meaningful role in the lives of his children in circumstances where his offending conduct has put those children directly in harm’s way?
As outlined above, it required a crash-tackle intervention by one of the children to prevent the Applicant from setting fire to their home after he had poured petrol around most of that dwelling.[28] He took it upon himself on a given Christmas morning to bash down a door with such force as to remove it from its hinges in order to obtain forced entry into a dwelling where his children were situated.[29] He took it upon himself to mount a car chase of one of his former partners with at least one of his children in her car, waited until both cars were stopped at an intersection and then made some extraordinary and violent threats towards her while she was stationary at the intersection.[30] There is further evidence of his slapping one of his children in the face.[31] Thankfully no lasting physical harm was done. I shudder to think of the psychological harm he has occasioned to each of these children, however.
[28] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), Annexure B, p 134.
[29] Ibid, p 61.
[30] Ibid, p 31.
[31] Ibid.
As also noted by the Respondent, there is nothing in the form of independent evidence before the Tribunal that there will be any lasting or other negative effect on the children, were the Applicant to not play any more active role in their lives than he is currently playing. Put another way, the Tribunal does not know to what extent the children are even missing their father and what their views are, were he to be relocated to New Zealand. I also note that the terms of the domestic violence order, as imposed by the sentencing Magistrate in September 2017 had the practical effect of drastically reducing the Applicant’s access to the children he had with that particular ex-partner.
We live in an age of sophisticated electronic and similar communication. In the absence of any expertly measured impact of the Applicant’s absence from the lives of his children, regular contact can still be maintained via telephone, skype and other digital means.
Mention should also be made of the Applicant’s grandchildren. He says they will suffer the most if he is relocated to New Zealand because he has built strong bonds with them. Two things can be said about that. First, there is no evidence before the Tribunal of the nature of care and/or parental or grand-parental guidance the Applicant may have provided to those grandchildren. It is clear that the grandchildren have parents who are fulfilling that parenting role.
Having regard to the totality of the factors relating to this Primary Consideration B, I am of the view that this factor weighs against the revocation of the cancellation of the Applicant’s visa. Simply, his long history of domestic violence prevents him from having played – or continuing to play – a positive role in the lives of his children.
Frankly, it seems they are better off with their abusive father or step-father not remaining in Australia where he can continue to cause them, and their mothers, harm. While I do not say this lightly, the Applicant’s appalling history of domestic violence against and around his children can lead me to no other conclusion.
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 this Applicant’s offending is such that the Australian community would expect that he should not hold a visa.
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 should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is different. This broadly stated question must be broken down into a series of components so that it is properly understood.
The question may be stated thus - would the Australian community expect this Applicant to hold a visa to remain here in circumstances where:
·His domestic violence against former spouses and partners has been reported at least 12 times to lawful authority and has recently led to a domestic violence order against him being extended by a period of three years from 2018 to 2021. Clearly, the courts have seen no reason to accept that his domestic violence offending is at an end;
·Both his criminal and traffic history clearly demonstrates a refusal to respect the personal rights of others and the authority of the state to impose peace and good order on the community;
·The totality of his offending has remained consistent both in terms of its frequency and its seriousness. If anything, the seriousness is gradually escalating and affords a decision-maker absolutely no confidence that the factors giving rise to that offending are the subject of expert analysis, management and regulation;
·His domestic violence offending has not just made victims of his former partners. It has also brought his children into its dreadful orbit, including by direct physical violence against them;
·He has wilfully and repeatedly flouted road rules and lawful authority, including by being caught drink-driving on at least 8 occasions and driving whilst disqualified on 11 occasions.
I am mindful of the aspects required 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.”[32]
[32] 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.
[mu 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 a term of imprisonment of 18 months for his criminal offending (in Australia) 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 nature of the harm presented to the Australian community were this Applicant to re-offend;
(ii)his likelihood of re-offending; and
(iii)the comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.
I am therefore of the view that the Australian community, especially with reference to this Applicant’s horrendous criminal, domestic violence and traffic history:
(i)would expect that the Applicant will continue to disobey Australian laws while he is in Australia; and
(ii)would, in the circumstances of the Applicant’s very serious breaches of the trust behind that expectation, consider it appropriate that he does not continue to hold a visa.
At the hearing, the Applicant spoke of being given a “second chance”. Does he deserve it? This depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[33]
[33] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant arrived in Australia 21 years ago when he was about 30 years of age. He committed the first very serious offence less than two years after arriving here. It would be surprising for him not to be aware of consistent government and local community campaigning against domestic violence. He has had multiple domestic violence orders made out against him, yet his offending has continued unabated.
His offending in this country (and, indeed, in New Zealand) 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.
I therefore do not consider that the Australian community would be prepared to give this Applicant “a second chance”.
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 consideration weighs heavily in favour of non-revocation.
I will now turn to the other considerations.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(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.[34]
[34] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
International non-refoulement obligations
The Applicant contended that Australia’s international non-refoulement obligations are somehow activated because of a fear he has of being dealt with in a physical way by the brothers of his first wife and her father. He says he is fearful of returning to New Zealand because when he broke up with his first wife, he received physical threats from her brothers and her father.
I have misgivings about this contention in circumstances where the Applicant is an able-bodied man of 50 who, in physical terms, can surely look after himself. The other aspect is that such a factor cannot be regarded as a non-refoulement issue such as to lend weight to this consideration. Simply, non-refoulement obligations arise when a person has a well-founded fear of persecution in a country. There is no evidence that the Applicant’s fear is well-founded, or indeed that he would not be able to seek adequate protection from the New Zealand government. No such obligations therefore arise.
Thus, this other consideration neither weighs in favour, nor against, the revocation of the cancellation of the Applicant’s visa.
Strength, nature and duration of ties
It is clear that the Applicant has spent around 20 years in Australia. He has family here comprising his partner, two aunts, two uncles and a brother. Any weight that can be allocated on the basis of this other consideration is conditioned by paragraph 14.2(1)(b) of the Direction. Importantly, a decision-maker must have regard to the strength, duration and nature of any family or social link with Australian citizens or permanent residents. In addition to his children and step-children, the Applicant has listed two Aunts and one Uncle as being Australian citizens.[35]
[35] Exhibit 2, G-Documents, PG 15, pp 86-89.
Any relocation of the Applicant to New Zealand necessarily involves a physical separation from family members. However, there is nothing to suggest that his family would be unable to visit him in New Zealand, nor is there any impediment that he will be unable to maintain contact with them via telephone, skype or other digital means.
There is no other evidence of links or ties the Applicant has with the Australian community. While he has been here for some 21 years, it does not appear that he has laid down any meaningful roots.
I therefore agree with the Respondent’s contention that only limited weight should be given to this other consideration. Even so, it is not sufficiently compelling to outweigh the primary considerations which weigh heavily against revocation.
The further point that must be noted is that the Applicant commenced offending less than two years after arriving here. Paragraph 14.2(1)(a) of the Direction says that less weight should be given to this other consideration in circumstances such as this.
Impact on Australian business interests
There was no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.
Impact on victims
There is no specific evidence about the impact on any victims of the Applicant’s offending. However, I am mindful that the Applicant’s victims – his former partners and their children – reside in Australia. Consequently, while I cannot give it much weight, I do find that this consideration weighs against revocation.
Extent of impediments if removed
As noted by the Respondent, the Applicant may experience some short-term hardship in re-establishing himself in New Zealand. The Applicant has spent thirty of his fifty years in New Zealand and would almost certainly suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection,[36] 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… 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]
[36] [2016] AATA 301.
[37] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
I thus agree with the contention of the Respondent. To the extent that any of these other considerations 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.
Conclusion: Issue 2
There is 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 Direction No. 65.
Primary Considerations A and C weigh heavily in favour of non-revocation. Similarly, Primary Consideration B weighs in favour of non-revocation. 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 they would outweigh the Primary and Other Considerations which favour non-revocation.
DECISION
For the reasons outlined above, I affirm the decision under review.

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

.....................[sgd]...................................................
Associate
Dated: 24 August 2018

Date of hearing: 15 June 2018

Applicant: By video-link

Advocate for the Respondent: Mr Matthew Hawker

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 3036

15 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	15 June 2018
Applicant:	By video-link
Advocate for the Respondent:	Mr Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore