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

Thornton and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 470 (23 March 2023)
Division:GENERAL DIVISION
File Number:2023/0030
Re:Billy Thornton
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:23 March 2023
Place:Melbourne

The Tribunal affirms the decision under review.
.........................[sgd].........................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – failure to pass good character test – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 99 applied – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Dr L Bygrave, Member
23 March 2023
INTRODUCTION

The Applicant, Mr Billy Thornton, is 43 years old. He is a citizen of New Zealand who has resided in Australia since 7 March 2000 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa (visa).
On 16 September 2021, the Department of Home Affairs (the Department) notified the Applicant in writing that his visa was mandatorily cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (the original decision).
Pursuant to section 501CA of the Act, the Applicant lodged a ‘Request for Revocation of a Mandatory Visa Cancellation under S501(3A)’ form dated 16 September 2021. He also filed a ‘Personal Circumstances Form’ dated 16 September 2021.
On 21 December 2022, a delegate of the Minister[1] decided not to revoke the decision to cancel the Applicant’s visa; in particular, the delegate was not satisfied that the Applicant passes the character test as defined in section 501 of the Act and was not satisfied that there is another reason why the cancellation decision should be revoked.
[1] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
On 4 January 2023, the Applicant lodged an application for review with the General Division of the Administrative Appeals Tribunal (the Tribunal).[2]
[2] The Minister’s legal representative filed the following submissions with the Tribunal regarding the process of notifying the Applicant of the decision made on 21 December 2022 by a delegate of the Minister and the applicability of the 84 day rule outlined in section 500(6L) of the Migration Act 1958 (Cth):
The matter was heard by the Tribunal in Melbourne on 14 March 2023. The Applicant did not have legal representation; he attended the hearing and gave oral evidence in person.
RELEVANT LEGISLATION
Subsection 501(3A) of the Act states:
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:
(i) 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. [emphasis added]
The character test is described in subsection 501(6) of the Act: paragraph 501(6)(a) states that a person does not pass the character test if they have ‘a substantial criminal record (as defined by subsection (7))’ and paragraph 501(7)(c) defines a ‘substantial criminal record’ as a person who has been ‘sentenced to a term of imprisonment of 12 months or more’.
Section 501CA of the Act sets out the provisions that apply if the Minister makes a decision (the original decision) under subsection 501(3A) to cancel a person’s visa; subsection 501CA(4) sets out the Minister’s discretion to revoke the original decision as follows:
The Minister may revoke the original decision if:
(a) the person makes representations…; and
(b) the Minister is satisfied:
(i) 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. [emphasis added]
The power of the Tribunal to review the decision to cancel the Applicant’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.
The relevant direction is ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 99), which commenced on 3 March 2023.
CONSIDERATION
I am satisfied the Applicant has made representations pursuant to paragraph 501CA(4)(a) of the Act; consequently, the issues for determination by the Tribunal are:
(a)whether the Applicant passes the character test in section 501 of the Act; and
(b)if not, whether there is another reason to revoke the original decision to mandatorily cancel the Applicant’s visa.
A. DOES THE APPLICANT PASS THE CHARACTER TEST IN SECTION 501 OF THE ACT?
The Applicant’s criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 18 May 2022 and includes the following conviction in the Moorabbin Magistrates Court on 4 August 2016:
Offence: RECKLESSLY CAUSE INJURY
Result: 18 MONTHS imprisonment[3]
[3] Exhibit G-G4, 27.
I am therefore satisfied that the Applicant does not pass the character test in subsection 501(6) of the Act on the basis that he has a substantial criminal record because he has been ‘sentenced to a term of imprisonment of 12 months or more’.
B. IS THERE IS ANOTHER REASON TO REVOKE THE DECISION TO MANDATORILY CANCEL THE APPLICANT’S VISA?
Pursuant to subsection 501CA(4) of the Act, I now consider whether there is another reason to revoke the decision to mandatorily cancel the Applicant’s visa under subsection 501(3A) of the Act.
DIRECTION NO. 99
Direction no. 99 provides the following guidance on how the discretion is to be exercised:
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These principles are:
(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 measurable 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. However, Australia may 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.
(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 noncitizens 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 8.55(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.
Primary considerations are listed in section 8 of Direction no. 99 as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Other considerations are set out at section 9 of Direction no. 99. These include (but are not limited to):
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Section 7 of Direction no. 99 states that in applying the primary and other considerations: 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; and one or more primary considerations ‘may outweigh other primary considerations’.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 8.1 of Direction no. 99 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s family and personal circumstances
The Applicant was born in 1979 in Papakura, New Zealand. He grew up in New Zealand with his parents and younger sister, although he told the Tribunal that he also spent time as a child living with his grandparents in Australia.
The Applicant’s immigration records show he came to Australia for four days in May 1999. He subsequently arrived in Australia on 7 March 2000 and has not returned to New Zealand.
At the Tribunal hearing, the Applicant said that his father is deceased, and all remaining members of his family reside in Australia. This includes his mother and sister, three uncles, three aunts, ten cousins and his 15-year-old daughter who lives with her mother, a previous partner of the Applicant.
The Applicant has been in a relationship with Ms ‘A’ since approximately 2012–2013. In oral evidence at the hearing, he said Ms ‘A’ was about 12 years younger than him, they did not have any children together, and police reports describing their relationship as ‘toxic’ and ‘on and off’ were accurate.[4] He said that Ms ‘A’ has not visited him in prison or immigration detention, but they remain in a relationship although he is unsure about the future of their relationship.
[4] For example, see report at Exhibit SG-G4, 139.
The Applicant told the Tribunal that, during his 23 years in Australia, he has worked for about half this period as a cabinet maker, renderer, builder and carpenter. He also said that he has spent time ‘going in and out of psychiatric’ wards in hospital and has periodically been in receipt of disability support pension and newstart allowance.
I note the Applicant has provided limited written and oral evidence about his childhood, his family and his personal experiences in New Zealand and Australia. There were no written statements, apart from the Personal Circumstances Form dated 16 September 2021, and he was not forthcoming in his oral evidence at the hearing. Despite reminders from the Tribunal by telephone and email prior to the hearing, and repeatedly stating his intention to do so, the Applicant lodged no written statements from members of his family, friends or Ms ‘A’.
For completeness, some of the documentation before the Tribunal, including proceedings in the Magistrates’ Court on 28 July 2021, referred to the Applicant as an Aboriginal person. At the hearing, the Applicant said his mother is Māori and he is neither Aboriginal nor Torres Strait Islander.
The Applicant’s criminal history – New Zealand and Australia
A New Zealand Police report dated 1 October 2021 detailed 12 offences committed by the Applicant in New Zealand in the period between August 1995 and December 1998. He was convicted and sentenced for seven of these offences, which included offending described as burglary, property theft and ‘assault person with blunt instrument’.[5]
[5] Exhibit G-G4, 32.
The Applicant’s criminal record in Australia is set out in an ACIC report dated 18 May 2022 that listed over 100 criminal offences in the period between May 2001 and March 2022. I consider that most of these offences can be categorised as:
·property offences (for example, theft, burglary, proceeds of crime offences, carjacking);
·drug offences (for example, possession or use of amphetamine and cannabis, possession of ecstasy);
·violent offences (for example, recklessly cause injury, unlawful assault, assault in company);
·vehicle/ traffic/ driving offences (for example, use unregistered vehicle, drive while disqualified, unlicensed driving); and
·failure to comply with judicial and police directions and orders (for example, failing to comply with community-based order conditions, breach of suspended sentence order, contravening family violence intervention orders, resist police).[6]
[6] Exhibit G-G4, 26-31.
The following convictions, as detailed in the ACIC report and Victorian Police records, include the Applicant’s most serious offending in Australia.
·Moorabbin Magistrates Court, 9 September 2010. Offence: burglary, theft, possess a drug of dependence. Result: sentenced to an aggregate nine months’ imprisonment to be served by way of an intensive correction order.[7]
[7] Exhibit G-G4, 29.
oThe facts of this conviction are set out in a ‘Victorian Police Sub Incident Summary Report’ as follows. On 24 October 2009, the Applicant entered a person’s home while they were not present and stole a laptop, an Xbox, a fender squire guitar, a digital camera and a pair of spare keys. The Applicant was also found in possession of a drug of dependence, Xanax, when he was arrested.[8]
[8] Exhibit SG-G6, 178-180.
·Moorabbin Magistrates Court, 29 June 2012. Offences: fail to answer bail (three charges), contravene family violence safety notice (two charges), resist police, wilfully damage property (plus other offending). Result: sentenced to an aggregate three months’ imprisonment concurrent.[9]
[9] Exhibit G-G4, 28.
oThe facts of the conviction ‘contravene family violence safety notice’ are outlined in a ‘Victorian Police Sub Incident Summary Report’, which recorded the offence as it related to the Applicant being subject to a family violence safety notice in respect of a former partner. On 13 March 2012, the Applicant attended his former partner’s flat, banged on the front of the flat and broke a window.[10]
[10] Exhibit SG-G6, 174-175.
·Moorabbin Magistrates Court, 27 October 2015. Offences: contravene family violence final intervention order, resist police officer, deal property suspected proceed of crime, go equipped to steal/cheat. Result: sentenced to an aggregate six months’ imprisonment.[11]
[11] Exhibit G-G4, 27.
oThe facts of this conviction are detailed in a ‘Victorian Police Preliminary Brief – Statement Made By Informant’ as follows. The Applicant was subject to a family violence final intervention order granted on 8 July 2015 in relation to Ms ‘A’ (this related to events that occurred on 4 July 2015 and are described below). On 28 September 2015, the Applicant and Ms ‘A’ attended a grocery store, got into a fight with another person and the police were called. The Applicant resisted police arrest by violently throwing his arms around at a police officer and a bystander who attempted to restrain him; he then fled but was later found and arrested.[12]
[12] Exhibit G-G4, 78.
·Moorabbin Magistrates Court, 4 August 2016. Offence: recklessly cause injury. Result: sentenced to 18 months’ imprisonment concurrent.[13]
[13] Exhibit G-G4, 27.
oThe facts of this conviction are described in a ‘Victorian Police Preliminary Brief – Statement Made By Informant’ as follows. On 4 July 2015, the Applicant and his de facto partner, Ms ‘A’, were at their apartment. The Applicant was verbally abusive and yelling at Ms ‘A’, demanding his drugs and money. He then became physically abusive to Ms ‘A’, grabbing her throat so that she could not breathe properly, hitting her over the head with a nearby stereo, and throwing a television at her connecting with the right side of her body. Ms ‘A’ tried to run out the front door, but the Applicant blocked her path and grabbed her around the neck so that she could not leave. Ms ‘A’ attempted to open a window, but the Applicant pulled her away and began punching her all over her body. He then forced Ms ‘A’ to remove her pants and underwear. Ms ‘A’ attempted to reason with the Applicant for five minutes, but his rage continued. She opened a bedroom window and jumped out landing in a rose bush. Ms ‘A’ took refuge with a neighbour who called the police.[14]
[14] Exhibit G-G4, 81.
·Sunshine Magistrates Court, 12 August 2016. Offences: unlawful assault, behave in insulting manner – public place. Result: sentenced to an aggregate three months imprisonment.[15]
[15] Exhibit G-G4, 27.
oThe facts of these offences are recorded in a ‘Victorian Police Sub Incident Summary Report’ as follows. On 28 May 2015, the Applicant and Ms ‘A’ were at a store and verbally abused two females of African heritage (one who was pregnant) and then, outside the store, Ms ‘A’ pulled one of the women by the hair and the Applicant pushed one of the women, causing ‘her to fall over and graze her knee’.[16]
[16] Exhibit SG-G4, 160-162.
·Moorabbin Magistrates Court, 14 June 2019. Offences: unlawful assault, carjacking (use force steal vehicle). Result: sentenced to aggregate six months’ imprisonment concurrent. Convicted and a community corrections order for 12 months, condition commenced on release from imprisonment for period of 12 months.[17]
[17] Exhibit G-G4, 27.
oThe facts of these offences are recorded in a ‘Victorian Police Preliminary Brief – Statement Made By Informant’ as follows. On 12 March 2019, a 54-year-old woman (the victim) parked her vehicle on the street outside a store, got out of her vehicle and left the keys in the ignition. The Applicant approached the victim and began a conversation to distract her, while the co-accused accomplice entered the driver’s side of the vehicle and started the vehicle. When the victim noticed, she attempted to stop the incident by entering the front passenger side of the car. The Applicant punched the victim and pushed her to the ground, and he and the co-accused accomplice drove off, leaving the victim stranded.[18]
·Dandenong Magistrates Court, 28 July 2021. Offence: resist contravene family violence order, contravene conduct condition of bail, assault in company. Result: sentenced to an aggregate nine months imprisonment.[19]
oThe facts of these offences are described in a ‘Victorian Police Preliminary Brief – Statement Made By Informant’ as follows. On 30 March 2021, the Applicant and another male entered a shop via the back door; the shop attendant confronted them about entering the shop by the back door and the Applicant stated he was looking for the phone shop next door. The Applicant became aggressive and racially abusive towards the shop attendant before leaving. Approximately five minutes later, while the shop attendant was standing near the back door of the shop, the Applicant and the other male again began shouting at him. The Applicant then walked up to the shop attendant and spat in his face.[20]
·Dandenong Magistrates Court, 15 March 2022. Offence: unlawful assault. Result: conviction and fined $200.[21]
oThe facts of this conviction are outlined in a ‘Victorian Police Preliminary Brief – Statement Made By Informant’ as following. On 21 May 2020, the Applicant was negotiating the purchase of comic books from another male (the victim) in the kitchen of his home. The Applicant and the victim could not agree on the value of the comic books and the Applicant demanded the victim let him keep the comics temporarily. The victim refused and the Applicant became aggressive and began punching and kicking the victim. Ms ‘A’ then joined the fight, using a black garden stake to stab the victim on the nose, ear and abdomen.[22]
[18] Exhibit SG-G6, 239.
[19] Exhibit G-G4, 27.
[20] Exhibit SG-G6, 185.
[21] Exhibit G-G4, 27.
[22] Exhibit SG-G6, 368-369.

The transcript of the Magistrates’ Court proceedings dated 28 July 2021 included the following sentencing remarks about the Applicant’s history of criminal offending:
You have been imprisoned seven times and there have been limited times that you have been in the community drug free. You breached … the last community corrections order in 2019, which you received on the back of six months’ imprisonment…
I am finding you unsuitable for a drug and alcohol treatment order.
In sentencing you though today Mr Thornton, I do take into account your mental health issues and they are serious and debilitating…
You have a very long history of conflict with people who are either family members or intimate partners. I think you need to work out a way in which you remain compliant with your medication, but also seek the help assistance that is available to you in the community, to develop, perhaps a more consequential style of approach to conflict management and what you’ve done up until now.[23]
[23] Exhibit G-G4, 48-49.
At the Tribunal hearing, the Applicant was given an opportunity to review the ACIC report dated 18 May 2022 and he agreed the report accurately reflected the history of his criminal offending. However, when taken to the facts of the offences outlined in paragraph 31 above, the Applicant disputed what happened, alternately saying that ‘he could not remember what happened’ or that ‘it was bull*hit’ and it was ‘all on camera’. In relation to the incident with Ms ‘A’ on 4 July 2015, he said that Ms ‘A’ was ‘acting stupid’ after he said he ‘was leaving her’, he ‘did not hit or punch her’ and if he had, ‘why would [they] still be together?’.
The Applicant told the Tribunal that he commenced smoking marijuana at the age of 12–13 years, and has used cannabis, methamphetamine and GHB; however, he said he has not taken illicit drugs for the entirety of ‘his whole life’ but could not recall when there were periods where he was not using illicit drugs. He said he had last taken illicit drugs just before he went to prison in July 2021 and has now stopped because he is taking Olanzapine for his diagnosed schizophrenia.
Behaviour in immigration detention
At the Tribunal hearing, the Applicant was taken to reports of incidents that he was involved in at the Melbourne Immigration Transit Accommodation (MITA) between January 2022 and October 2022. These included incidents of aggressive behaviour and swearing at / verbally abusing staff, including medical staff.[24]
[24] Exhibit G-G4, 90-98.
The Applicant told the Tribunal that he was ‘well-behaved’ at MITA. He said he did not swear or abuse staff but acknowledged that he had kicked a watercooler because ‘the only way to get medical help’ is ‘to do something stupid’.
I acknowledge the reports about the Applicant’s behaviour at MITA but accept there may be extenuating circumstances that, while not excusing his behaviour, provide some context to the incidents and the stressful environment of an immigration detention centre.
False or misleading information to the Department
The Applicant’s incoming passenger cards on his arrival to Australia on 21 May 1999 and 7 March 2000 shows he ticked ‘no’ to the question, ‘Do you have any criminal conviction/s?’
At the hearing, the Applicant said he did not complete these incoming passenger cards and that he did not know who completed the card but thought it may have been the person sitting next to him on the plane. He also said that he could ‘not remember getting into trouble with the law in New Zealand’.
Consideration of the nature and seriousness of the Applicant’s conduct
Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction no. 99, I make the following findings about the nature and seriousness of the Applicant’s conduct to date:
·The Applicant’s criminal history in Australia, as set out in paragraphs 30–34, comprises over 100 offences from May 2001 to March 2022 and is characterised by property offences, drug offences, violent offences (including against women), vehicle/ traffic/ driving offences, and failure to comply with judicial and police directions and orders. I am satisfied the Applicant’s offending includes ‘violent crimes’ and ‘crimes of a violent nature against women’ and these are ‘viewed very seriously by the Australian Government and the Australian community’.
·Despite the Applicant stating in his oral evidence that he has never committed acts of family violence, I am satisfied there is evidence of incidents between the Applicant and his partner/s in 2012 and 2015 as set out in paragraph 31. I am also satisfied the ACIC report shows the Applicant has been convicted of offences for ‘contravene family violence safety notice’ and ‘contravene family violence orders’ between June 2012 to July 2021.[25] I am satisfied these offences comprise an ‘act of family violence’ as defined in subparagraph 4(1) of Direction no. 99, which ‘regardless of whether there is a conviction for an offence or a sentence imposed’ are ‘viewed very seriously by the Australian Government and the Australian community’.
[25] Exhibit G-G4, 27-28.
·The Courts have imposed sentences of imprisonment on the Applicant for offences, notably:
o28 July 2021 – aggregate nine months imprisonment concurrent;
o24 June 2019 – aggregate one month imprisonment concurrent;
o14 June 2019 – aggregate six months imprisonment concurrent;
o12 August 2016 – aggregate three months imprisonment concurrent;
o4 August 2016 – 18 months imprisonment concurrent;
o27 October 2015 – aggregate six months imprisonment cumulative;
o29 June 2012 – aggregate three months imprisonment concurrent.[26]
I am satisfied these sentences of imprisonment reflect the seriousness of the Applicant’s offending.
·The Applicant’s criminal offending commenced in 1996 when he was in New Zealand, although I am satisfied that his most serious offending (as shown by the sentences of imprisonment imposed by Australian Courts) has occurred since 2015. There is a cumulative effect of repeated offending, and the Applicant has continued to offend despite repeated directions and orders from the judicial system, and opportunities for rehabilitation.
·The Applicant did not declare his criminal record in New Zealand in his incoming passenger cards to Australia completed on 21 May 1999 and 7 March 2000; however, I accept his oral evidence that he cannot remember completing these forms.
·The Applicant’s criminal offences in New Zealand, summarised in paragraph 29 above, are also classified as offences in Australia and add to the nature and seriousness of his criminal offending.
[26] Exhibit G-G4, 27-28.
Based on the evidence before the Tribunal, I am satisfied that the nature and seriousness of the Applicant’s conduct weighs very strongly against exercising the discretion to revoke the mandatory cancellation of his visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(2) of Direction no. 99 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
·the likelihood of him engaging in further criminal or serious conduct, taking into account:
oinformation and evidence on the risk of him re-offending, and
oevidence of rehabilitation at this time, giving weight to time spent in the community since his most recent offence.
The Applicant’s criminal record shows he has been convicted for property offences, drug offences, violent offences (including against women and family violence offending), vehicle/ traffic/ driving offences, and failure to comply with judicial and police directions and orders. Based on the Applicant’s past offending, I am satisfied that if he engages in further criminal or serious conduct, the nature of any harm to individuals or the Australian community could include significant harm to people and property. I particularly have regard to the sentencing remarks of the Magistrate on 28 July 2021 that referred to the Applicant having ‘a very long history of conflict with people who are either family members or intimate partners’.[27]
[27] Exhibit G-G4, 49.
Documents summonsed from the Victorian Police include the following reports that contain information relevant to the Applicant’s risk of re-offending:
·A report by Dandenong Community Corrections Services dated 3 December 2020 that outlined:
othe history of the Applicant’s community corrections orders;
othe Applicant’s limited engagement with the requirements of his community correction order and his continued use of illicit drugs;
othe Applicant’s disclosure about his ‘sporadic use’ of Olanzapine for treatment of his schizophrenia and that he ‘did not want to be assessed’ in relation to his mental health;
othe Applicant’s failure to comply with judicial monitoring and that he had two further family violence related charges pending.[28]
·A summary report of the Applicant’s mental health dated 4 January 2021, which did not provide a mental health diagnosis and stated the Applicant last had contact with public mental health on 17 July 2012 in person.[29]
·A report for the Magistrates’ Court of Victoria dated 6 January 2021 that outlined the Applicant’s:
ohistorical poly-substance use of cannabis, heroin, methadone, methamphetamines, GHB, amphetamines and hallucinogens;
oreporting of a ‘childhood diagnosis of “paranoid schizophrenia”’ and ‘current prescribed medication of Olanzapine 25mg’;
oconfusion in relation to the conditions of the family violence intervention order, noting he ‘presented with nil accountability, insight or awareness in regards to family violence’.[30]
[28] Exhibit SG-G6,233-236.
[29] Exhibit SG-G6, 230.
[30] Exhibit SG-G6, 224-225.
On the basis of these reports, I find the Applicant has a significant history of illicit drug use from the age of 12–13 years, and serious and debilitating mental health that has been diagnosed as schizophrenia. I am also satisfied the Applicant has been inconsistent with accessing treatment for schizophrenia, has had limited engagement with the requirements of judicial orders, and has displayed minimal insight into his offending behaviour especially in relation to family violence.
In a ‘Personal Circumstances Form’ dated 16 September 2021, the Applicant wrote that his criminal offending was because he ‘wasn’t medicated and was hanging out with [the] wrong crowd of people’, he has now been diagnosed with schizophrenia and is ‘currently medicated’, and ‘if [he is] given [his] visa back’ he will ‘always take [his] medication’.[31]
[31] Exhibit G-G4, 70.
I observe that, at the Tribunal hearing, the Applicant initially accepted that the convictions set out in the ACIC report were an accurate reflection of his criminal offending. However, subsequently, when taken to the facts of his more serious offences in paragraph 31, he said ‘he could not remember what happened’, ‘it was bull*hit’ and captured ‘on camera’, or he significantly downplayed the seriousness of the offence or his behaviour / role in the offence. He said he is ‘not a violent person’ and was only violent ‘once or twice’ in the past, and he has not been ‘domestically violent to anyone’ so had not done any rehabilitation courses in relation to domestic violence. The Applicant said he completed drug rehabilitation courses in prison in 2021 but did not comply with community-based orders as directed by the Courts and has not attended drug rehabilitation courses in the community. He said he is not seeing a psychologist and the only medical assistance receives at MITA is his daily medication of Olanzapine as treatment for schizophrenia.
At the hearing, the Applicant named three people, a male cousin and two friends (one male and one female), who he could live with if he is released into the Australian community. He said that he is taking medication for his mental health and is ‘fine’; if released into the community he would ‘sort out’ his mental illness and ‘go back to work’.
In relation to the Applicant’s understanding of his criminal behaviour, I find a significant disconnect between the documentation before the Tribunal that described the history and serious nature of his convictions, and the Applicant’s oral evidence. The Applicant consistently disputed and downplayed the seriousness of his criminal offending and his role in and responsibility for his offending. The Applicant was, at times, evasive in answering questions at the hearing or blamed other people for his offending behaviour; consequently, I have placed less credibility on the Applicant’s oral evidence.
While I accept the Applicant may not intend to commit further offences, I cannot be satisfied he will not reoffend in the future if he is released into the Australian community. My view is based on the Applicant’s extensive criminal record in New Zealand and Australia between 1996 and 2022, his non-compliance with previous judicial orders and police directions, his minimal insight in relation to his past offending including his use of illicit drugs and violent behaviour, and his limited capacity to take responsibility for his actions.
In considering the harm and potential risk to the Australian community if the Applicant were to reoffend in the future, I am also mindful of the cumulative nature and seriousness of his offending behaviour which includes violence towards women and family violence. I view the harm that would occur if he engaged in further criminal conduct to be an unacceptable risk to the Australian community.
On balance, I am satisfied that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs very strongly against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE APPLICANT
Subparagraph 4(1) of Direction no. 99 defines family violence as meaning ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’. Examples of behaviour that may constitute family violence include an assault, a sexual assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, or unlawfully depriving the family member of their liberty. For the purpose of family violence, a member of a person’s family includes ‘a person who has, or has had, an intimate personal relationship with the relevant person’.
Direction no. 99, at subparagraph 8.2(1), states the ‘Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of … remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by the Applicant. These factors include:
·the frequency of the Applicant’s behaviour and whether there is any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence; and
·rehabilitation achieved at the time of my decision since the Applicant’s last known act of family violence, including:
othe extent to which he accepts responsibility for his conduct;
othe extent to which he understands the impact of his behaviour on his partner; and
oefforts to address factors which contributed to his conduct.
In paragraph 31 above, I have outlined the facts that resulted in convictions for the Applicant on 29 June 2012 and 4 August 2016. I am satisfied the facts of these offences comprise family violence committed by the Applicant that is consistent with the definition and examples of family violence in subparagraph 4(1) of Direction no. 99. I also find the ACIC report shows eight convictions for offences of contravening family violence safety notice, family violence interim orders or family violence final orders in the period from June 2012 to July 2021 and these offences are also consistent with the definition and examples of family violence in subparagraph 4(1) of Direction no. 99.
The Applicant told the Tribunal that he has never been domestically violent, a statement I find is implausible in view of his criminal record. I note, however, that this statement by the Applicant is consistent with the report of the Magistrates’ Court of Victoria dated 6 January 2021 that opined the Applicant ‘presented with nil accountability, insight or awareness’ in relation to family violence.[32]
[32] Exhibit SG-G6, 225.
At the hearing, the Applicant answered a question about whether he and Ms ‘A’ are in a relationship with the response ‘guess so’. He said that she does not visit him at MITA and is ‘not sure’ if he will stay with her in the future.
I note the Applicant did not lodge with the Tribunal any written statements from Ms ‘A’ in support of his application. I also note summonsed documents provided from the Victorian Police included statements from Ms ‘A’ and Ms ‘A’’s grandmother in relation to the Applicant breaching conditions of family violence interim and final intervention orders by coming to Ms ‘A’’s property in 2020 and 2021.[33]
[33] For example, see Exhibit SG-G6, 214-215, 251, 263-265, 297-301.
On balance, in considering the family violence committed by the Applicant in relation to the provisions in Direction no. 99, I find there is a cumulative effect of the Applicant engaging in repeated acts of family violence. I also find the Applicant’s oral evidence at the hearing shows he has neither accepted responsibility for, nor understood, the impact of the family violence he committed.
For these reasons, I am satisfied the primary consideration of family violence weighs very strongly against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
In considering the strength, nature and duration of the Applicant’s ties to Australia, paragraphs 8.3(1), (2) and (3) of Direction no. 99 stipulate that:
·I ‘must consider any impact of the decision’ on his ‘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’;
·I ‘should give more weight’ to the Applicant’s ties to his child who is an Australian citizen; and
·the ‘strength, nature and duration of any family or social links generally with Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely’. [emphasis added]
Paragraph 8.3(4) of Direction no. 99 states that I must have regard to how long the Applicant has resided in the Australian community, noting that:
·‘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 their offending;
·‘more weight should be given to time the non-citizen’ has spent contributing ‘positively to the Australian community’;
·‘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 ‘began offending soon after arriving in Australia’. [emphasis added]
The Applicant arrived in Australia on 7 March 2000 when he was 20 years old and has not since returned to New Zealand. I am satisfied that he has lived in Australia for approximately 23 years.

The Applicant’s evidence is that all his family members reside in Australia including his mother, younger sister, three uncles, three aunts, ten cousins and his 15-year-old daughter. While there is no supporting evidence, I accept that members of his family are ‘people who have a right to remain in Australia indefinitely’, and his daughter is an Australian citizen. I therefore place more weight on the impact of the decision to revoke the mandatory cancellation of the Applicant’s visa and, in particular, give weight to the Applicant’s ties to his daughter.
The Applicant provided oral evidence to the Tribunal that he spent several years living with his grandparents in Australia as a child; however, he gave no details about where he lived, what age he was when he lived in Australia, and/or whether he attended school. Further, there are no statements from any family members that could provide further information or corroborate the Applicant’s evidence.
In a ‘Personal Circumstances Form’ dated 16 September 2021, the Applicant wrote the following about the impact on his family members if the decision to cancel his visa were to be revoked: ‘Everyone will be sad don’t know what else to say’.[34] He provided little further information in his oral evidence to the Tribunal, stating that he speaks to his mother by mobile phone ‘whenever [he] wants to talk to her’, and she paid his administration fee to the Tribunal and gives him money for his phone and other expenses at MITA. He said that when he was living in the community, he would see his sister ‘whenever [he] catches up with her’.
[34] Exhibit G-G4, 69.
The Applicant described his relationship with his daughter in a ‘Personal Circumstances Form’ dated 16 September 2021. He wrote that he spends ‘every weekend’ with his daughter and the impact on her if his visa is cancelled is that ‘she will lose her father and will be very sad, she will be heart broken if [he] can’t see her’.[35] The Applicant told the Tribunal he speaks to his daughter weekly by mobile phone, but she is unaware that he is currently in immigration detention.
[35] Exhibit G-G4, 66.
I note the Applicant has provided no statements to the Tribunal from any members of his family, no character references from friends or social connections in the Australian community to verify his evidence, and called no witnesses to support his application.
The Applicant’s criminal offending set out in the ACIC report dated 18 May 2022 shows he was convicted of his first offence in Australia on 7 May 2001, only 14 months after he arrived in Australia aged 20 years. He has an extensive criminal record of more than 100 offences over a 22-year period in Australia and his only evidence about contributing ‘positively to the Australian community’ is that he was employed for about half the period he lived in Australia. Having regard to the factors in subparagraph 8(4) of Ministerial Direction no.99, I place less weight on the time the Applicant has resided in the Australian community.
Although the evidence before the Tribunal is limited, I am satisfied that the Applicant has significant immediate family ties to Australia, particularly in relation to his mother, sister and daughter. I therefore find the primary consideration of strength, nature and duration of ties to Australia weighs for exercising the discretion to revoke the decision to mandatorily cancel the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Subparagraph 8.4(4) of Direction no. 99 lists the factors I must consider in considering whether the cancellation of the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:
·the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);
·the extent to which the Applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;
·the impact of the Applicant’s prior and future conduct, and whether that will have a negative impact on the child;
·the likely effect any separation would have on the child; and
·whether there are other persons who already fulfil a parental role for the child.
As outlined at paragraph 67, the Applicant described his relationship with his 15-year-old daughter and the impact of the decision to cancel his visa on her in a ‘Personal Circumstances Form’ dated 16 September 2021.
The Applicant told the Tribunal that there are no court orders in place for the care of his daughter; she lives with her biological mother, who cares for her on a day-to-day basis. He said that he pays child support and his daughter used to stay with him ‘every second weekend’. He said he has not seen his daughter since April 2021 when he was imprisoned but he speaks to her by mobile phone weekly.
Although there is no supporting evidence before the Tribunal from either the Applicant’s daughter or her mother about the nature of the relationship between the Applicant and his daughter, I accept they have a parent-child relationship that will continue for another three years until the Applicant’s daughter is 18 years old. I also find the day-to-day parental role is fulfilled by the mother of the Applicant’s daughter, and observe that the Applicant would be able to continue his current relationship with his daughter via telephone if he is returned to New Zealand.
Considering the evidence in relation to the factors set out in subparagraph 8.4(4) of Direction no. 99, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs for exercising the discretion to revoke the decision to mandatorily cancel the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 8.5(1) of Direction no. 99 provides:
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 enter or remain in Australia.
In subparagraph 8.5(2) of Direction no. 99, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.5(3) of Direction no. 99.
Subparagraph 8.5(4) of Direction no. 99 states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Considering the requirement of paragraph 8.5 and the principles set out in paragraph 5.2 of Direction no. 99, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.
I have set out the nature and seriousness of the Applicant’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 21–52 and the family violence committed by the Applicant at paragraphs 53–60 above.
I am satisfied the Applicant’s criminal history commenced in New Zealand in 1996 and includes more than 100 offences in Australia between 2001 and 2022; the offences include property offences, drug offences, violent offences against women and family violence, vehicle/ traffic/ driving offences, and failure to comply with judicial and police directions and orders.
Based on the evidence and having regard to the principles and requirements in Direction no. 99, I find the Australian community would have a very low tolerance of the Applicant’s conduct and would expect the Government to not allow him to remain in Australia.
I am satisfied the primary consideration of expectations of the Australian community weighs very strongly against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS IN DIRECTION NO. 99
Section 9 of Direction no. 99 lists the other considerations that I must also take into account in deciding whether to revoke the mandatory cancellation of a visa.
I am satisfied the only other consideration that is relevant in this matter is the extent of impediments if the Applicant is removed from Australia. I find there is no evidence that the legal consequence of the decision, impact on victims or impact on Australian business interests are relevant to these proceedings, or that there are any other considerations that I should have regard to in these proceedings.
Other Consideration: Extent of impediments if the Applicant is removed from Australia
The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of New Zealand. Pursuant to subparagraph 9.2(1) of Direction no. 99, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in New Zealand.
The Applicant is 43 years old. He grew up in New Zealand and came to Australia at the age of 20 years. There is no evidence the Applicant would experience any language or cultural barriers to residing in New Zealand.
The Applicant has an extensive history of illicit drug use that began when he was about 12–13 years old and living in New Zealand, and has continued during his time living in Australia. He told the Tribunal that he attended a drug rehabilitation course while in prison in 2021 but has not complied with any judicial orders to undertake rehabilitation in the community.
The Applicant has been diagnosed with paranoid schizophrenia and, since 2021, he has been consistent in taking Olanzapine for this condition.
It is my view that the Applicant’s significant mental health issues and his extensive history of illicit drug use would substantially diminish his capacity to establish himself and reside in New Zealand. While I accept the Applicant would have access to medical and economic support in New Zealand, I note that all of his family members reside in Australia, and he has no social links to anyone in New Zealand.
On balance, I am satisfied that the consideration of the extent of impediments if the Applicant is removed from Australia weighs in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
CONCLUSION
Based on the evidence before the Tribunal, I am satisfied that:
·the first primary consideration (protection of the Australian community from criminal or other serious conduct), second primary consideration (family violence committed by the Applicant) and fifth primary consideration (expectations of the Australian community) weigh very strongly against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
·the third primary consideration (strength, nature and duration of ties to Australia) and fourth primary consideration (best interests of minor children in Australia) weigh for exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa; and
·the only relevant other consideration (extent of impediments if removed from Australia) weighs for exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Section 7 of Direction no. 99 states that primary considerations should generally be given greater weight than other considerations. I find no evidence before the Tribunal to suggest this weighting should not apply to the Applicant’s circumstances.
Weighing all the relevant primary and other considerations, I am satisfied there is not another reason to revoke the original decision to cancel the Applicant’s visa.
For these reasons, the decision made by a delegate of the Minister on 21 December 2022 to not revoke the mandatory cancellation of the Applicant’s visa is affirmed.
DECISION
The Tribunal affirms the decision under review.

97. I certify that the preceding ninety-six (96) paragraphs are a true copy of the written reasons for the decision of Member Dr L Bygrave

................[sgd]........................................................
Associate
Dated: 23 March 2023

Date of hearing: 14 March 2023

Advocate for the Applicant:
Applicant in Person

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Keith Sypott

Australian Government Solicitors

The Minister considers that the applicant was not notified of the delegate’s decision in accordance with the Act. That is so because:

- the applicant was emailed the notification package on 21 December 2022;

- the letter enclosing the notification referred to receipt of the notification package “by hand” and outlined the deemed date of receipt in circumstances where a person receives such a package by way of hand delivery;

- s 501G(1)(f)(ii) of the Migration Act 1958 (Cth) requires that the notification package must state the time in which an application for review may be made;

- the statement of the time in which an application for review may be made must be clear, and not inaccurate or inadequate: Wilson v Minister for Immigration and Citizenship (2012) 135 ALD 60 at [2], [32]; DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 at [1], [58], [67] and BMY18 v Minister for Home Affairs (2019) 271 FCR 517 at [30]; and

- in outlining the deemed receipt date for hand delivery, rather than email delivery, the notification package lacked the requisite clarity required by s 501G(1)(f)(ii).

The consequences of this defective notification for this proceeding are twofold:

1. notwithstanding the fact that the applicant sought review more than 9 days after he received the notification package, the Tribunal has jurisdiction in this proceeding; and
2. the 84 day time period has not commenced: see Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 at [31] and the authorities discussed in Khalil v Minister for Home Affairs (2019) 271 FCR 326 at [58].

I concur that the Tribunal has jurisdiction in this matter and note that, irrespective of the process of notifying the Applicant, the decision was made by the Tribunal by the 84^th day on 23 March 2023.

[2023] AATA 470

23 March 2023

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