Thompson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Thompson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4076 (5 December 2023)
Division:GENERAL DIVISION
File Number: 2021/5869
Re:Ashley Thompson
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:5 December 2023
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision dated 29 September 2020 be revoked.
..................[sgd]......................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION - mandatory cancellation of applicant's visa - applicant has substantial criminal record including dangerous driving and family violence - whether there is 'another reason' to revoke mandatory cancellation decision - where applicant accepted as a Yorta Yorta man by an Elder of that community - the countervailing considerations of ties to Australia and best interests of minor children outweigh the primary considerations of protection and expectations of the Australian community and family violence - decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
5 December 2023
INTRODUCTION

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 29 September 2020 the applicant was notified that his visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 27 October 2020 the applicant sought revocation of the cancellation decision and made representations in support of revocation.
On 24 August 2021 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 25 August 2021, the applicant applied to the Tribunal for review of the non-revocation decision. The Tribunal affirmed the non-revocation decision, but the Federal Court quashed the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration.
The Tribunal heard the matter again on 23 November 2023.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Section 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Part of those representations were made in a letter from the applicant dated 29 October 2021. In that document he said, amongst other things:
My children identify as Aboriginal and need to stay in their country and build that connection with their land. I understand that I did not meet the legal test for being recognised as an Aboriginal because I cannot prove whether or not I am biologically descended from an Aboriginal Australian. As mentioned before, I was adopted at birth so I do not know anything about my biological lineage. However, me and my daughters are officially recognised by the Yorta Yorta community as indigenous. My children are registered with the DHS as being Aboriginal Australians. [Redacted] attends Koori first steps kindergarten in Wodonga. Their mother, [redacted], is also in the process of being official [sic] recognised by her Aboriginal community. She believes she is biologically descended from an Aboriginal Australian through her father, however she had a very troubled childhood and strained relationship with him.
…
Please, I ask the Tribunal, if not for [me], but for my children, please revoke the decision to cancel my visa and give me this one last chance to prove to those who I’ve hurt and those who need me in their life that I can and will be the better man/father I know I can be.
…
I have lived in Australia for nearly all of my life and consider Australia to be my only home. I am only a New Zealand citizen because my birth mother, who gave me up for adoption before I was even born, was a New Zealand citizen. I am the father of three Australian children who are very young and two of whom identify as indigenous Australians. I hope the Tribunal takes this into consideration when considering the impact of removing from [sic] to New Zealand. To allow me to be returned to New Zealand, I fear this will have serious consequences for my family, but particularly my three young children. My children will not be able to come live with me in New Zealand, and my parental relationship with my children will deteriorate significantly if not disintegrate completely.
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
The applicant provided other documentation in support of his application including an undated hand written letter from an Elder of the Yorta Yorta community.[4] That letter stated that the applicant was known to the Elder for ‘some 10 years’ and continued:
In this time Luke has been a respected Yorta Yorta man helping in the community with Elders and children of all ages. Luke was learning culture and ethics. He is a great father to his three children. Lots of love and respect as he shows his community.… As I have said Luke is missed by his mob. Luke has two daughters to an Aboriginal girl in Albury which he adores.
[4] Exhibit 7 at p 337.
In his reasons finding jurisdictional error in the first decision of the Tribunal, McElwaine J said:
[26] What clearly emerges from this reasoning is that the Tribunal did not expressly, and I infer implicitly, give consideration to the applicant’s self-identification as an Aboriginal Australian, his recognition as such by members of the Aboriginal community or, in particular, his connection with the Yorta Yorta community which claims were explicitly made in his statement of 29 October 2021.
…
[30] Objectively in my view the applicant articulated his self-identification as an Aboriginal Australian, his acceptance as a Yorta Yorta man by an Elder of that community and his consequential association with members of the Aboriginal community in his written statement to the Tribunal. It was significant and clearly expressed and maintained in his oral evidence to the Tribunal. Although these matters were mentioned in dismissing his claim to be biologically descended from Aboriginal Australians, they were not considered by the Tribunal in assessing satisfaction as to whether there was another reason to revoke the cancellation decision. The explicit failure to assess these claims when addressing the mandatory considerations at paragraph 9.4.1(2) of Direction 90 bespeaks of material jurisdictional error by the Tribunal. Although the Tribunal was aware of these claims in assessing the jurisdictional question, it failed to return to them in considering the broader question of another reason as required by s 501CA(4)(b)(ii) of the Act. The error, adopting the formulation from M1, is the failure of the Tribunal to understand and evaluate how these claims were also relevant to the applicant’s strength, duration and ties to the Aboriginal community of Australia.
Further, with respect to the issue of the applicant’s aboriginality, I note that the applicant’s lawyers in a letter dated 31 July 2023 said that the applicant’s revocation request does not require a decision-maker to determine his aboriginality pursuant to section 51(xix) of the Constitution. This constitutional point was not pressed at the hearing in the Federal Court before McElwaine J nor was it pressed before me. Accordingly, the issue for the Tribunal to determine is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[5]
[5] Direction 99 at 7.
BACKGROUND
The applicant was born in New Zealand and adopted by John and Barbara Robin. He does not know his biological parents. He goes by the name of Luke Robin. He came to Australia with his adoptive parents in November 1998 when he was four years old and has not left since. He had a good upbringing with his adoptive parents for which he is very grateful, but at around the age of 12 problems began with drugs and alcohol associated with a bad peer group. He moved away from his family home to Brisbane, then Perth and then Victoria where he lived with his sister. He was kicked out from his sister’s family when he was suspended from school. He ended up on the street and was eventually taken in by a carer in Shepparton. The applicant then developed a strong relationship with the Yorta Yorta people of north-eastern Victoria and he identifies as an Aboriginal. He partner was an Aboriginal woman with whom he had two daughters. The applicant also has an older son from a different mother.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below 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 non-citizen’s conduct – 8.1.1 of Direction 99
As a youth, the applicant committed offences relating to theft, property damage and driving. In 2012 he was ordered to be detained in a youth justice centre for five months. In April 2013 when 19 years old he was sentenced to 18 months imprisonment by the Wodonga Magistrates Court for offences including theft, arson, possess a firearm and aggravated burglary.
There were further offences dealt with by the Albury Local Court in 2015 and 2016 relating to police pursuits for which he received custodial sentences. Sentencing remarks dated 30 November 2016 noted that there were four separate and discrete matters that occurred on 27 December 2015 and 3 January 2016 all with a common theme of driving in a manner dangerous, whilst disqualified or on drugs. During this period he was regularly using cannabis and methamphetamine.
There was a period of no serious offending of about 18 months from March 2017.
The applicant’s most recent charges were heard in the Moorabbin Magistrates Court on 8 October 2019. There were originally 66 charges relating to events in February 2015, January 2016 and November 2018. The sentencing remarks reveal outrageously dangerous driving involving police pursuits in suburban areas one of which occurred after an episode of domestic violence when he violently assaulted his pregnant wife and took their 10 month old baby in the car during a police pursuit. The convictions included unlawful assault, theft, dangerous driving while pursued by police, traffick methamphetamine, make threat to kill and resist emergency worker on duty. The applicant was sentenced to an aggregate 27 months imprisonment and the sentencing magistrate described the offending as very, very serious. The act of family violence is viewed very seriously by the Australian Government and I will give further consideration to this under paragraph 8.2 of Direction 99.

The repeated and significant custodial sentences reflect the seriousness of the applicant’s offending.
There are outstanding charges in New South Wales relating to other dangerous driving during a police pursuit on 3 March 2017. This conduct is the subject of an alleged breach of parole.
The applicant’s conviction for resisting an emergency worker on duty is considered by the Australian government and community to be serious. The frequency and trend of increasing seriousness of the applicant’s offending is of great concern and so too the cumulative effect of repeated offending especially the dangerous driving and police pursuits. The applicant’s criminal conduct is viewed very seriously by the Australian government and is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The applicant through his lawyers by letter dated 31 July 2023 made a submission that I should consider the protection of the Australian community by specifically considering the protection of the Yorta Yorta community including the applicant’s daughters. I note that the primary consideration in paragraph 8.1 of Direction 99 relates to protection of the Australian community from harm as a result of criminal activity or other serious conduct by a non-citizen.[6] I am not aware of any particular conduct of the applicant that resulted in harm to the Yorta Yorta people including the applicant’s daughters other than the family violence to which I have referred.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
[6] Direction 99 at 8.1(1).
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[7] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[7] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[8] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[8] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious in particular because of the risk to life and property of the police and other road users arising from dangerous driving. Some offences involved weapons, theft and drug trafficking which all have serious consequences to the community.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
There is an expert report dated 25 September 2023 from an experienced forensic psychologist, Mr Geoffrey Cummins (Cummins Report). He diagnosed the applicant with complex post traumatic stress disorder and a major depressive disorder which he considered played a role in his offending behaviour. He assessed the applicant’s risk of reoffending in any manner as moderate and trending towards low-moderate. The key risk factors are a return to any form of illicit drug use and/or a deterioration of his mental health.
I note that when remanded in custody in early 2016, the applicant was a very disruptive influence. More recently, there are numerous incident reports from detention which include violent, aggressive and abusive behaviour. However, he has shown that he is capable of working and avoiding trouble because there was a period of about 18 months from March 2017 when he lived with his former partner and started a family with her whilst he worked at several companies that manufacture roof trusses. He worked very hard and he was drug free during that period. He was taking the antipsychotic, Seroquel, and his mental health stabilised. His daughter was then born and, faced with the pressures of looking after the baby, he made the mistake of taking himself off the Seroquel and starting to self-medicate using cannabis and then ice. This led to the most recent episode of offending in November 2018.
The applicant gave oral evidence that he feels disgusted by his offending which he said was appalling behaviour. He is motivated to do better because he wants to be a good father to his son and two daughters. He said he has matured and learnt from his mistakes and that he has more reasons now to avoid drugs and crime. He has participated in Narcotics Anonymous and done some other drug and alcohol programs. He said that he last took drugs about four years ago. He said that if released he would work hard and stay away from drugs and bad influences.
The applicant has a very positive reference from his employer at City Wide Scaffolding who said that he was an exceptional asset whose reliability and strong work ethic significantly contributed to the success of his organisation. He has offered him a job as a leading hand if he is released from detention. Whilst in prison the applicant has completed numerous training programs which indicates a desire to improve himself and to get a job.
The applicant has support from his current partner who visits him twice a week. She has an apartment where he can live until they find a larger place which can accommodate their children. She has one child who gets on very well with the applicant.
The applicant would also have support from the Yorta Yorta community including its elders. This support would benefit the applicant.
The applicant’s stated intentions are very positive and indicate a genuine desire to stay out of trouble if released. However, it is likely that the applicant will face significant stress in the community because of his ongoing mental health issues and because he still has to deal with some outstanding charges from New South Wales plus there may be issues getting access to his children. There is a risk that the applicant may not respond appropriately to the stressful situations he may face. I take into account that he has made similar positive statements of intention in the past but gone on to re-offend. If he relapses into drug use then the chances of re-offending will increase.
In conclusion on the question of risk of re-offending, I accept that the applicant has shown genuine remorse and that he is dedicated to living a better life with his new partner and, hopefully, his children. It appears that his life will be relatively stable if released because he will have steady employment, accommodation and support from a loving partner. The applicant has been in prison or detention for about five years and he has had time to reflect on his past mistakes and to mature. In these circumstances I consider it likely that he will cope with the hurdles he will face and that he will not re-offend. In my view the risk of re-offending is low to moderate.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[9] The applicant has committed serious crimes, but most of his offending did not involve actual physical violence, and was related to property, dishonesty and serious driving offences. His children provide a significant incentive to not relapse into drug use and to not re-offend. He has the added benefit of a loving partner, an offer of stable employment and a period of abstinence from drugs. There remains a risk of re-offending, albeit low to moderate, and therefore, the protection of the Australian community is a factor that weighs moderately against the applicant.
[9] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
The applicant has engaged in family violence which is defined as including violent or threatening behaviour against a member of the person’s family. A member of the person’s family is defined to include a person who has, or has had, an intimate personal relationship with the relevant person. In November 2018, the applicant physically assaulted his partner. Their relationship of 12 months had ended approximately three months before this incident but at the time of the incident he had been staying at her house for about a week.[10] There is no doubt that she was a member of the applicant’s family for the purposes of the definition in Direction 99. She was pregnant at the time with his baby and it caused her to fear the unborn baby would be hurt. The applicant then drove away with their 10 month old baby in the car. The incident involved physical abuse and property damage and would have been terrifying for his former partner who feared for her own safety and that of her unborn child and her 10 month old child.
[10] See Exhibit 7, p 47: Transcript of Magistrates Court proceedings dated 8 October 2019 .
In considering the seriousness of the family violence engaged in by the applicant, the following factors in paragraph 8.2(3) are relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The applicant’s former partner (and mother to his two daughters) wrote a letter of support for the applicant which was provided to the Tribunal in about October 2021. She said that she has seen a change in his personality, his mental health and his actions and that she honestly believes he is remorseful to those he hurt. I also note that when the applicant was sentenced on 8 October 2019 she was in the court room supporting him and that his counsel described how they had been close friends for 11 or 12 years and in a relationship in the past three years.
In a letter dated 29 October 2021, the applicant wrote:
I will forever regret the day that I pushed, harmed and frightened the mother of my children. Until this time, my criminal offending was lengthy but I had never hurt anyone. I had mostly been charged with theft and traffic offences and skipping bail. The most recent offending, however, was obviously my worst and most serious offending. It was this conviction that led to my Visa being cancelled and me facing deportation to New Zealand.
I take some solace in the fact that [my former partner] has forgiven me and continues to support me as a co-parent and best friend. She only does this because she knows how out of character that incident was and she knows for a fact how much I have grown since that time. I do not condone family violence and I will never forgive myself the way that [my former partner] has forgiven me.
The evidence discloses one episode of family violence with no repeated offending. The applicant has expressed appropriate remorse before the Tribunal. He has not engaged in any formal rehabilitative program addressing family violence but he has engaged in more general programs such as a Certificate 1 in General Education for Adults. The Cummins Report noted his insight into his offending history which had improved over time due to ongoing maturation. Mr Cummins assessed the applicant’s risk of committing a further act of family violence as low-moderate and trending towards low. Having heard the oral evidence from the applicant, it is my view that he is a low risk of further family violence.
The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. The government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen. It would appear from the evidence that the family violence engaged by the applicant was an isolated incident and did not result in any significant physical injuries. However, his conduct caused the victim to be fearful and would no doubt have had a psychological impact on her. I note that the applicant has expressed appropriate remorse. The victim of the family violence has forgiven him and supports his release from detention. Nevertheless, the applicant’s behaviour towards his partner was very serious and in addition he put the life of their 10 month old baby in danger. In all of these circumstances, I find that the applicant’s family violence is a factor that weighs against the applicant and I give it moderate weight.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
This decision will have a very significant impact on the applicant’s former partner with whom he has maintained a good relationship, but she has her own problems. She would benefit from the applicant’s release because he could help look after their daughters. Another relevant consideration is that she and her daughters are Aboriginal and their lives would be enhanced by the applicant in the community because he has been educated in the ways of the Yorta Yorta people. Together the family are members of the Yorta Yorta community and this bond between them should not be broken by his removal to New Zealand.
The applicant’s adoptive parents have recently provided statutory declarations which show that they would be devastated if he is not released. There is a similar statutory declaration from the applicant’s sister. In the applicant’s request for revocation dated 27 October 2020, he named his adoptive parents and his three adoptive siblings as his family. He described how his parents are saddened by his visa cancellation. I take into account that his parents and his sisters, as members of his family, would be greatly upset by a decision to not revoke the cancellation decision.
I give weight to the applicant’s ties to his three children noting that they have mostly been cared for by others because he has been absent for most of their lives.
Paragraph 8.3(4)(a)(i) of Direction 99 requires me to have regard to the length of time the applicant has resided in the Australian community noting that considerable weight should be given to the fact that he has resided in Australia during and since his formative years, regardless of when his offending commenced and the level of that offending. Accordingly, I give considerable weight to the applicant being in Australia since he was 4 years old including his formative years. The applicant has been in Australia for about 25 years and his ties to Australia through his children are very significant. In contrast, his ties to New Zealand are almost non-existent.
The applicant also has significant ties to the Australian community because of his self-identification as an Aboriginal Australian, his acceptance as a Yorta Yorta man by an Elder of that community and his consequential association with members of the Aboriginal community. These strong ties were developed during his formative years when he spent time in the Yorta Yorta community. The ties remain very significant to him. The applicant explained his cultural education and adoption into the Yorta Yorta community in his most recent written statement:[11]
[11] Exhibit 1.
[29] Through [the applicant’s carer], I met members of the local Aboriginal community in and around Shepparton, especially Yorta Yorta people, including [an Elder].
[30] I was causing a lot of trouble at this time and [the Uncle], along with other members of the Yorta Yorta community, took me under their wing and tried to look after me.
[31] I would go to country with [the Uncle] and other Yorta Yorta boys. The boys I would go with were a little younger than me. We would often go camping and stay on country in the bush around Shepparton for a week or so at a time. I went out quite a few times but can’t remember exactly how many times. Sometimes it would be for the weekend, sometimes a few more days and sometimes for a week or so. Whenever the Elders organised a trip to learn on country, [the applicant’s carer] would ensure I knew about the plan.
[32] Even though I was struggling at the time and struggling to engage with school and things, I always went on the trips to country because it felt like home. I really wanted to talk to the younger boys about my experiences and make sure they didn’t go down the same path. I really didn’t like staying at home or going to school and so going to country with the Elders was a good experience for me. I felt like I belong to something and I felt safe.
[33] [The Uncle] or [the applicant’s carer] would drive me out and I would spend time on country with the boys and the Elders. All the boys were Yorta Yorta. There were no women or girls because we were learning Men’s Business. I was always treated the same as the other boys. The boys considered me to be a part of their community. People did not look on me as an outsider and I think this is why it felt like home. There are a lot of similarities between Māori culture and Aboriginal culture and so it felt familiar to me.
[34] [The Uncle] and the Elders came down to our level and understood where I was coming from. Other people just judge, but [the Uncle] and the Elders, they understood. I have a rough history and instead of telling me that I was behaving badly or what I was doing was wrong, they tried to lead and teach, instead of all the usual stuff other adults would do. They had rough histories as well which is why I could relate to them and why they understood me. It was like the first time I felt like I wasn’t being patronised.
[35] [The Uncle] and other Elders would teach us about the land; how to live off the land; about the plants and about the history of the places. They taught me and the boys how to cook Aboriginal food; how to forage and hunt off the land; how to make spears and boomerangs; we learned about the significance of ochre on the body; I did not go hunting but was taught about hunting; the boys and I would sit around the fire with the Elders, including [the Uncle], and listen to the stories of the Yorta Yorta people and about how the land was created. A lot of the information, skills and stories we learned are special and cannot be shared with outsiders.
[36] I made some good friends during this time. I have lost touch with many of them. Some of them have passed away, including my best friend. And some of them are in jail. I have tried to contact my friends…both Yorta Yorta men, however I have not been able to locate with (sic) them in time for my Tribunal hearing.
[37] I am still learning, but that period was an important period. The Elders had been down my path and it felt like home. I felt like I had a family and this was really important because I could not settle down anywhere.
[38] I have a connection to Yorta Yorta country. Like I say, it is my home. I belong to it. I felt like I was part of a family again. I honestly don’t know how to explain my connection, it is a really hard thing to describe. Going through the education with the Elders turned me into a different person in lots of ways. Spiritually I felt like a different person. Even though I kept getting into trouble, I felt changed and felt like I had a home.
[39] I have identified as Yorta Yorta since around this time when I was educated on country by the Elders. I am recognised as Aboriginal by [the Uncle].
[40] When I was 15, I went back to Wadonga. In Shepparton, I had been living with [the applicant’s carer], his then wife…and their daughter…([the applicant’s son’s] mum). I just got to a point where I felt like I could not stay with them anymore. A large part of the reason for this is because I think I did not want to be in a relationship with [the daughter] anymore.

The applicant’s connection to Yorta Yorta country represents a very significant tie to Australia. The applicant’s time spent with the Yorta Yorta community represents a very positive contribution to the Australian community. His ties to the Yorta Yorta community including the Elders are very strong. I do not accept the respondent’s submission that no more than marginal weight should be given to these ties because he was only in their community for a relatively short period of time. Those ties are even stronger because they were developed during his formative years and because his former partner and his two daughters are Aboriginal. The applicant’s connection to the land and its people and his Aboriginal family should be given very significant weight under paragraphs 8.3(3) and (4) of Direction 99. If the applicant were to be forcibly removed from his land and his people then there would be a devastating impact on him, his Aboriginal family and those Yorta Yorta people with whom he identifies.
I take into account that there was a limited period of less than 12 months’ positive contribution to the Australian community when the applicant’s daughter was born and he was working.
In conclusion with respect to ties to Australia, I place significant weight on the fact that the applicant has spent the majority of his life in Australia including those formative years which he spent with the Yorta Yorta people. His ties to the Yorta Yorta country and community add significant weight to this primary consideration. This is a factor that weighs very heavily in favour of revocation of the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child affected by the decision. The following factors that I must consider where relevant to this application include:[12]
(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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[12] Direction 99 at 8.4(4).
The applicant has a son and two daughters. The son is 13 years old. The daughters are aged 4 and 5. The applicant’s former partner and mother of his daughters is an Aboriginal woman from the Yorta Yorta community. The 4 year old daughter was born after the applicant was taken into custody for the family violence offending in November 2018.
The son has been brought up by his great grandparents on his mother’s side. They wrote a letter describing how the applicant and his son talk most days and have a great relationship and how the son’s mother has left him and does not see him very much. The applicant did not live with his son except for a period of about one month in Wodonga. For the last eight months the son has been cared for by his uncle (his mother’s brother) in Melbourne as his great grandparents became unwell and were too old to care for him. The applicant appreciates the care being provided for by the uncle with whom he recently spoke but if he was released he would like his son to come and live with him. The applicant has concerns that his son’s mother does nothing for him and he does not want his son to feel abandoned as he has felt abandoned by his biological parents. The applicant speaks with his son almost every day and is very close to him. The son wrote a letter pleading that his father is not sent back to New Zealand and saying that he needs him because he is the only parent that really loves him.
Despite the applicant being absent for most of his son’s childhood, I am prepared to accept that the applicant would likely play a positive parental role if released. The evidence suggests that the son’s mother has her own problems which have prevented her from providing care to her son. The applicant’s current partner hopes that the son will come to live with her and the applicant. The son has expressed his view that he wants to be with his father. The son is currently being well cared for, but I consider it would be best for the son if the applicant were released so he could spend time with his father. Non-revocation of the cancellation decision would therefore not be in the son’s best interest.
The applicant’s two daughters are of Aboriginal descent and have been at an Aboriginal kindergarten. Their mother is struggling with drug addiction issues. The applicant has concerns that his daughters are not being properly looked after by their mother. The children were also being supported by their maternal grandmother but she has health issues and cannot be relied upon.
The applicant played a parental role with his older daughter after she was born and until he went into custody in November 2018. However, he did expose her at a young age to family violence and he endangered her life when driving dangerously. If released the applicant would like to take steps towards obtaining some access to the daughters. That would require dealing with the Department of Human Services but the applicant is prepared to do whatever is required to help with and be with his daughters. I believe it would be in the daughters’ best interests if the applicant was to be released.
The applicant has learnt the ways of the Yorta Yorta people and it is important that he has a better opportunity to pass on his people’s culture to his children. Being together with family is a very significant part of that culture and it is devastating for the children to be separated from their father. Being forcibly removed to New Zealand would have a traumatic effect on the applicant’s Aboriginal children. They have a connection with the land and their community and would therefore not go with the applicant to New Zealand. It is important for the children and the maintenance of their culture that the applicant is released so that he can help support and educate them about their culture. The applicant has expressed his love for his daughters and said he would do anything for them. He wants to be a good father and I consider it likely that he will be. Non-revocation of the cancellation decision would not be in their best interests.
The best interests of these three children is a most significant factor in favour of revoking the cancellation decision and I give it very significant weight when determining whether there is another reason to set aside the cancellation decision.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13]
[13] Direction 99 at 8.5(1).
Paragraph 8.5(4) of Direction 99 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. It is not for me, as a decision maker, to make my own assessment of community expectations. However, in the weighing up exercise by which I evaluate whether there is another reason to set aside the cancellation decision, I am still entitled, and indeed should where appropriate, give weight to the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[14] remain apposite to the expectations of the Australian community under Direction 99:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[14] (2019) 272 FCR 454; [2019] FCAFC 185.
In considering the weight to be attached to the expectations of the Australian community as part of the evaluative exercise in determining whether there is another reason to revoke the cancellation decision, I take into account that the applicant has Aboriginal children and his self-identification as an Aboriginal Australian, his acceptance as a Yorta Yorta man by an Elder of that community and his consequential association with members of the Aboriginal community.
I also take into account that he has been in Australia since he was four years old and that he spent his formative years here including amongst the Yorta Yorta people when he was learning their ways and culture. One of the principles which provide the framework within which I, as a decision-maker, should approach my task of deciding whether to revoke the mandatory cancellation decision is found at paragraph 5.2(5) of Direction 99. It says that Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. This applies to the applicant who came to Australia at the age of four and has never left. It follows from the application of that principle that I afford the applicant a significant level of tolerance with respect to his past criminal activity.
In conclusion with respect to the expectations of the Australian community, whilst I find that this is a factor that weighs in favour of non-revocation, I would not give it significant weight in my final determination as to whether there is another reason to revoke the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[15] The applicant has raised his connections to the Yorta Yorta land and its community as another reason to revoke the cancellation decision. I have taken the approach of dealing with this representation under the specific headings in Direction 99. It would be apparent from that approach that I give very significant weight to this representation in favour of revocation.
[15] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
The applicant is not a non-citizen covered by a protection finding for the purposes of paragraph 9.1.1 of Direction 99. He does not raise any claims which may give rise to non-refoulement obligations for the purposes of paragraph 9.1.2 of Direction 99. I find that this consideration is not relevant to my decision and give it neutral weight.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is 30 years old. He has some back pain and some mental health issues but they could be treated if he was removed to New Zealand. There would be no substantial language or cultural barriers and he would have medical and economic supports available to him. As a member of the Yorta Yorta community he would face the added impediment of being taken away from that land and its community. This would have a devastating impact on him and would no doubt cause his mental health to deteriorate. It follows that he would face a period of adjustment if he were removed to New Zealand made worse because he left there at the age of four and has no known family there. However, I do not consider that period of adjustment to be a significant impediment to the applicant establishing himself and maintaining basic living standards. I give this consideration no material weight.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The three primary considerations of the protection and expectations of the Australian community and family violence weigh against revoking the cancellation decision. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. The countervailing considerations are his ties to Australia and the best interests of his children. I have reached the view that the countervailing considerations outweigh the three primary considerations.
This is not a case where there is an unacceptable risk of harm to the Australian community if the applicant is released. His act of family violence was an isolated incident and the risk of further offending is low to moderate. The most significant countervailing factor is the interests of his three children. The applicant has expressed a genuine intention to play a significant parental role with his son and two daughters. They are young and deserve to have a father in the community whilst they grow up. The son is 13 years old and has expressed a very strong desire for his father to come home. Both the mother of the son and the mother of the daughters have issues of their own which prevent them from assuming a strong parental role. In these circumstances it is in the best interests of the children for the father to assume that role. Other important considerations are the applicant’s length of time in Australia and his ties to the Australian community because of his self-identification as an Aboriginal Australian, his acceptance as a Yorta Yorta man by an Elder of that community and his consequential association with members of the Aboriginal community. This presents as a very strong factor in favour of revoking the cancellation decision because of the impact on the applicant, his former partner, his daughters and the wider Yorta Yorta community if that connection is severed by removing him away from his land and community permanently.
I am satisfied that there is another reason to revoke the cancellation decision so that the applicant can be reunited with his children and his community.
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision be revoked.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

......................[sgd]..................................................
Associate
Dated: 5 December 2023

Date of hearing: 23 November 2023

Applicant: Self-represented, by telephone

Counsel for the Respondent: Jonathan Barrington

Solicitors for the Respondent: Australian Government Solicitor

[2023] AATA 4076

5 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Appeal

Date of hearing:	23 November 2023
Applicant:	Self-represented, by telephone
Counsel for the Respondent:	Jonathan Barrington
Solicitors for the Respondent:	Australian Government Solicitor