Toki and Minister for Home Affairs (Migration) - [2019] AATA 742

Toki and Minister for Home Affairs (Migration) [2019] AATA 742 (17 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0435
GENERAL DIVISION  )
Re: Codee Bryan Toki
Applicant

And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL:  Member S Burford
DATE OF CORRIGENDUM:            17 April 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for the decision in this application to the following:

Reference to “Ms Macdonald” and “Ms McDonald” in paragraphs [51] and [53] are deleted and replaced with “Ms Jackson”;

In paragraph [138] “bare” should read “bear”; and

In paragraph [189] “fasciliated” should read “facilitated”.

...................................................................
Member

Division:GENERAL DIVISION
File Number(s): 2019/0435
Re:Codee Bryan Toki
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:17 April 2019
Place:Perth

The Reviewable Decision, being the decision of the Respondent’s delegate dated
20 January 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
............................[sgd]...........................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – capacity of Tribunal to go behind conviction - character test – substantial criminal record – Applicant convicted of unlawful assault – bodily harm against women in a short time period after arriving in – Australia Direction no. 79 – weighing up of primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(3A), s 501(6), s 501(6)(a), s 501(7), s 501(7)(c),
s 501CA, s 501CA(4), s 501G(1)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 9
Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981)
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v the Minister for Immigration (2018) FCA 1803
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Margach and Minister for Home Affairs [2019] AATA 353
Minister for Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
QSBL and Minister for Home Affairs [2018] AATA 2074
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 65 – Migration Act 1958 – Direction under section 499 visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 8, 12, 13, 14, Part C
REASONS FOR DECISION
Member S Burford
17 April 2019
THE APPLICATION

This is an application for review of a decision made on 21 January 2019 under

s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa (the visa) (R1, G2).
The visa was cancelled on 9 March 2018 under s 501(3A) of the Act on the basis that the Applicant had a substantial criminal record and was at the time serving a sentence for imprisonment (R1, G34).
THE ISSUE
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Act), having regard to the primary and other considerations in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 79).[1]
[1] Minister for Immigration and Border Protection,
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision dated 21 January 2019 was delivered to the Applicant by hand under cover of a letter 21 January 2019 (R1, G2). The Applicant signed confirming receipt of the decision on 23 January 2019 (R1, G40).
The Applicant lodged his application for review in the Tribunal on 25 January 2019

(R1, G1). The Applicant is in immigration detention and is in the migration zone.

He therefore lodged his application for review by the Tribunal within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the Act.
The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Act, the Tribunal must comply with the

84 day timeframe for handing down a decision in this matter. Accordingly, the decision must be handed down by 17 April 2019.
Direction no. 79 is applicable due to the date of this decision by the Tribunal. This is discussed in further detail below in the section headed “Direction no. 79”.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 26 March 2019. The Applicant appeared in person and was self-represented. The Respondent was represented by Ms Jackson, Australian Government Solicitor, who appeared in person.
The Applicant gave oral evidence and was cross-examined. Both the Applicant and the Respondent made oral submissions.
The Applicant called several witnesses in support of his application. In addition to the Applicant, the following witnesses appeared before the Tribunal:
·Britney Jane McKenna, the Applicant’s fiancé;
·Cheryle McKenna, the Applicant’s fiancé’s mother;
·Shari Lu, a friend of the Applicant; and
·Raniera Stewart, a former employer of the Applicant.
Each of these witnesses gave of oral evidence and was cross-examined.
The Tribunal admitted the following documents into evidence at the hearing:
·statement of Codee Bryan Toki received by the Tribunal on 20 March 2019 (Exhibit A1);
·attachments to the statement of Codee Bryan Toki including witness list (Exhibit A2);
·G documents (Exhibit R1);
·
the Respondent’s Statement of Facts, Issues and Contentions dated

5 March 2019 including amended and next to the statement of facts issues and contentions receipt but the Tribunal on 24 March 2019 (Exhibit R2); and
·the Respondent’s Supplementary Relevant Documents received by the Tribunal on 22 March 2019 (Exhibit R3);
BACKGROUND
The Applicant is a 30-year-old New Zealand national. The Applicant commenced residence in Australia on 24 January 2014,[2] when he was 25 years of age. The visa was granted to him on 19 July 2015 (R1, G34, page 108).
[2] The applicant spent one day in Australia on 7 May 2009 and four months in Australia arriving 16 February 2012 (R2, Annexure A).
The Applicant was notified by letter dated 9 March 2018, and delivered by hand to the Applicant at Acacia Prison, from the Department of Home Affairs (Department) advising him that his visa was cancelled under s 501(3A) of the Act (R1, G34, pages 108-112).
The letter from the Department advised the Applicant that he could make representations about revoking the decision to cancel his visa (R1, G34, pages 109-110). The Applicant did so (R1, G35, pages 116-119; G14; G15; G16).
On the copy of the document before the Tribunal the Applicant did not sign the acknowledgement of receipt of the letter nor did the corrective service officer confirm delivery (R1, G34, page 112). However, the Applicant responded to that letter in his declaration requesting that the Minister revoke the mandatory visa cancellation of his visa which he signed (but did not date) (R1, G35, pages 115-116).
By letters dated 19 July 2018 and 12 September 2018 the Applicant was invited to comment on particular information before the decision-maker (R1, G36, pages 120-122; R1, G37, pages 123-125). It is not clear from the material before the Tribunal whether the Applicant responded individually to both letters, however it appears he did respond specifically to the matters raised in the letter of 12 September 2018 in an undated statement to the Department (R1, G16, page 71).[3] The Applicant also submitted a further undated statement which may have been in response to one of the letters

(R1, G15, page 70). In any event the Applicant made submissions to the Department including providing material and third-party statements in support of his request for revocation.
[3] The letters indicate that they were delivered by hand to the Applicant in Acacia Prison, however the ‘Acknowledgement of Receipt Forms’ on the copies before the Tribunal are not signed.
The Applicant was notified by letter dated 21 January 2019, and delivered by hand to the Applicant at Yongah Hill Immigration Detention Centre Hill on 23 January 2019, from the Department of Home Affairs (Department) notifying him of the decision not to revoke the visa cancellation decision (R1, G2, pages 7-9 and G39, pages 159-163). The Applicant signed acknowledging receipt of the notice on 23 January 2009. The delivery was also confirmed by a witness (R1, G40, page 164).
On 25 January 2019 the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal to review the Reviewable Decision (R1, G1, pages 1-6).
The Applicant’s criminal history
The Applicant’s criminal history, as disclosed in the National Police Certificate dated

23 May 2018 (R1, G6, page 24), the History for Court – Criminal and Traffic, West Australian Police compiled 18 March 2019 (R2, SG1, pages 200-201) and New Zealand Police record produced 17 April 2018 (R1, G8, page 39) follows:

Jurisdiction Offence date Result date Offence Result

New Zealand

Palmerston North DC 15 November 2006 28 November 2006 Drove while licence suspended or revoked
Community work 40 hours

Disqualification from driving 6 months

Australia

District Court of WA 20 December 2017 Unlawfully assault and thereby did bodily harm with circumstances of aggravation Imprisonment: 18 months cumulative from 9 June 2017

District Court of WA 20 December 2017 Criminal damage or destruction of property Imprisonment: 3 months concurrent from 9 June 2017

District Court of WA 20 December 2017 Criminal damage or destruction of property Imprisonment: 3 months concurrent from 9 June 2017

District Court of WA 20 December 2017 Deprivation of liberty Imprisonment: 18 months concurrent from 9 June 2017

District Court of WA 5 June 2016 20 December 2017 Unlawfully assault and thereby did bodily harm with circumstances of aggravation Imprisonment: 12 months cumulative from 9 June 2017

District Court of WA 5 June 2016 20 December 2017 Creating false belief Imprisonment: 3 months concurrent from 9 June 2017
LEGISLATIVE FRAMEWORK

Section 501(3A) of the Act provides that:
(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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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.
Section 501(6) of the Act provides that:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7));
…
(Original emphasis.)
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Act further provides:
(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.
(Original emphasis.)
Direction no. 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that ‘[a] person or body must comply with a direction under subsection (1)’.
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Act. The direction commenced operation on

28 February 2019, replacing the previous direction, Direction no. 65.[4] Consequently, as the Tribunal is handing down this decision on 17 April 2019, the Tribunal must apply

Direction no. 79. The Tribunal proceedings were conducted on the basis that

Direction no. 79 applied.
[4] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).
As the delegate’s decision was made under the previous direction, Direction no. 65, at the commencement of the hearing the Tribunal highlighted for the parties that it would be considering the application applying Direction no. 79. As the Applicant was

self-represented, the Tribunal provided a copy of Direction no. 79 to both parties which marked-up the changes from the earlier direction, according to which the delegate’s decision was made.
The Tribunal drew attention to the sections of the direction relevant to consideration in such an application (Sections 1 and 2 and Part C) and noted that the changes made in Direction no. 79 related primarily to the treatment of offences against women and children. The Tribunal noted that, having regard to the conviction history of the Applicant, these changes may be relevant to the Tribunal’s consideration of his application and he would be invited to make submissions on how the Tribunal should apply the direction at the end of the hearing.
Paragraph 6.1 of Direction no. 79 sets out the “Objectives” of the Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 20 December 2017, the Applicant was convicted in the District Court of Western Australia of one count of “unlawfully assault and thereby did bodily harm with the circumstances of aggravation” for which he received a cumulative sentence of 18 months imprisonment. On the same date he was also convicted of one count of “depravation of liberty” and sentenced to a concurrent term of 18 months imprisonment and a further count of “unlawfully assault and thereby did bodily harm with circumstances of aggravation” for which he received a 12 month cumulative sentence of imprisonment.
He was also convicted of two counts “criminal damage or destruction of property” for which he received concurrent sentence of three months for each offence, and one count of “creating false belief” for which he received a concurrent sentence of three months.
As the Applicant has been sentenced to a term of imprisonment of 12 months (on three occasions) he does not pass the character test under s 501(6)(a) and s 501(7)(c) of the Migration Act.
The issue of the Applicant’s offending history is considered further below in consideration of the Applicant’s submissions and evidence that he did not, in fact, commit some of the offences for which he was convicted, including some of those giving rise to the mandatory cancellation of his visa.
The other issue remaining for determination is whether the Tribunal is satisfied that there is another reason, pursuant to s 501CA(4) of the Act, why the decision to cancel the Applicant’s visa should be revoked.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
The Applicant did not submit a Statement of Fact, Issues and Contentions. However, having regard to the submissions made by the Applicant at the hearing and the matters raised in his statements and submissions to the Tribunal and to the Department, his submissions regarding the ‘other reasons’ why the cancellation decision should be revoked may be summarised as follows:
·The Applicant takes full responsibility for his actions. However, the offences for which he was charged do not reflect a violent nature. He was not responsible for some of the offences but made the wrong decision to plead not guilty and not testify in his own defence at the trial. Further, his offences arose in disputes which were specific to his relationship at the time and as such do not reflect a broader tendency to violence or a threat to the Australian community;
·The Applicant presents a low risk of reoffending:
othe Applicant’s offences were caused by alcohol consumption. He has given up alcohol and has maintained his sobriety for an extended period. This has included time spent on bail in the community;
oPsychological assessment of the Applicant pre-sentencing, assessed him to be a low risk of reoffending.
·The Applicant recognises the effect that offending has had on his life and this makes him a low risk of reoffending in the future;
·The Applicant has rehabilitated including through undertaking courses while in prison which better equip him to avoid alcohol and reoffending.
·The Applicant wants to contribute to the community by assisting others ‘overcome the crippling grasp of alcohol’ and to provide guidance to others in a similar situation to his;
·The Applicant has good employment prospects in Australia and a supportive ‘adoptive’ family. These protective factors should be given weight in terms of the Applicant’s likelihood of reoffending;
·The Applicant has strong ties in Australia and his removal would have a profound impact on his fiancé and her family, including potentially limiting her family’s contact with future children of the relationship; and
·The Applicant does not have a support network in New Zealand or similar job prospects there. This will make it difficult for him to resettle in New Zealand.
These submissions, and those of the Respondent, will be dealt with in more detail below.
The question of the Applicant’s convictions
As noted above, the Applicant did not submit a Statement of Fact, Issues and Contentions. The hearing commenced on the assumption that the factual circumstances of the convictions which formed the basis for the mandatory cancellation of the Applicant’s visa were not at issue. However, during the hearing it was evident that the Applicant sought to establish through his evidence that he was not responsible for some of the offences but made the wrong decision to plead not guilty and not testify in his own defence at the trial. Further, his offences arose in disputes which were specific to a mutually physically violent relationship.
The Applicant explained his position to the Tribunal as follows:
As for the some of the evidence and material facts, yes, I do but I believe the right thing was what – you know, I’ve said in the past, I’m not going to stand next to something that I don’t believe in. I don’t put it past the fact that yes, I did lay my hands on a woman but it goes across my values and morals that I’ve learnt whilst been, how would you say, in the navy as being taught not to do things as such, and I’ve gone against it. Again, I say that not light heartedly but as something that’s gone against me and I’m going to have to live with all the time.
(Transcript, page 75)
The facts of the Applicant’s offending which led to the mandatory cancellation of the visa are set out in the Sentencing Remarks of the District Court Judge Stavrianou. His Honour describes the facts of the first set of offences on 21 June 2015 as follows:
…the complainant, [Name omitted], is now aged 26. She first met you in December 2014 when you are working in the North West of Western Australia, and she was working there as well.
You formed a relationship. That relationship was not always harmonious. There were arguments on other occasions as well as on the dates which form the basis of the charges in this matter. There was often alcohol consumed. But by April 2015 which is before the first offence occurred, you had moved in together at to a property in Canning Vale.
Counts one and two occurred on same day in June 2015, namely, on or about

21 June. You’d been to a party with her earlier in the evening. She wanted to leave the party as she was not enjoying herself. You both left the party and you went back to the Canning Vale property.
When you arrived home an argument began about her wish to leave the party. You began arguing about it. You became angry with her, and pushed over the fish tank. It smashed to the ground. It is that conduct which constituted count number two of the indictment.
[Name omitted], the housemate, saw the smashed fish tank on the floor. He didn’t see the incident we saw the smashed fish tank on the floor
You grabbed [Name omitted] around the shoulders and forcibly pushed her to the ground. She landed on her left shoulder which was very sore as a result. Now, as a result of that ultimately she ended up going to Fiona Stanley Hospital and she had a plate inserted in her shoulder area to deal with the fractured clavicle which she sustained in the incident.
(R1, G7, page 28)
His Honour describes the facts of the second set of events which occurred on

5 June 2016 as follows:
In April 2016 [Name omitted] moved from the Canning Vale address in Gosnells. You and her remained in touch notwithstanding that by this time your relationship had culminated in a separation.
You were working as a FIFO in June 2016, fly in/fly out worker, when counts three to six occurred. You and [Name omitted] had jointly owned a dog and on

3 June 2016 you wanted to see the dog.
It was a Friday. You went to dinner with [Name omitted] that night and the events, the subject of counts 3 to 6 occurred on the Sunday of that particular weekend. On the Friday night you had stayed there. On the Saturday night there was an interaction between you and [Name omitted] and again on the Saturday night you stayed at the house and slept in her bed.
On the Sunday morning you and [Name omitted] went for breakfast and then had returned to her home. Now, during the course of the breakfast a notification came up on her phone from the dating site known as Tinder and you saw that particular notification.
When you got home you started talking to her. You were at her house all day. Her plan was to go out at about five o’clock with her friends. During the course of the day you were drinking alcohol.
Subsequently she told you that she would drop you off at home because you’d been drinking. There had been a chat about the message you’d seen on her phone. You left the house in your car and she then messaged you to come back because you’d been drinking.
You then returned to her house and began arguing with her. This was at some time between about 5.00-6.00 pm. In the course of arguing you pulled the TV down onto her head and the screen had cracked.
There was a lot of yelling. You picked her up and threw her into a coffee table. You were strangling her at one stage when she was on the ground and you had your hands around her throat and were squeezing on her windpipe. As I said there was a lot of yelling.
You went and got a knife from the kitchen and came out to her. I accept you didn’t stab her with the knife. I accept that as a fact. The front door was locked and she could not make an escape from her house, hence the deprivation of liberty.
During the course of the incident she jumped out of the lounge room window, she tried to run away, she didn’t get very far when you caught her. You’d bitten her on the cheek and her head was being pushed into the sand.
You asked for the PIN code to her phone which she ultimately gave [sic] you. You went through the phone and when you found something you didn’t like you became more angry. She was yelling to the neighbours. She heard someone yelling from outside.
You were yelling to the neighbours to call the police. [Name’s omitted] evidence was that she and her husband had returned home at about 7.00pm and it was about this time or shortly thereafter that the conversations with the neighbours occurred. Other neighbours gave evidence as well at trial establishing the time when this is happening at about 7.00pm-7.30pm.
Now, she jumped out of the window. She had cuts from the knife. She had cuts on her hand. She went back through the window to put a top on. When she went back into the house at one stage she saw you were cutting your arms and this was captured by her on the camera of her phone.
Now, I accept that she didn’t shove you or push you in the back or chest. She didn’t threaten you at any stage with the [sic] knife. She didn’t scratch your face. She was not striking you. She didn’t have a knife in her hand and all of that is consistent, all of those findings are consistent with the rejection of your defence at trial of self-defence which the jury clearly rejected.
When the police arrived and told them that you’d been cut by the complainant and that’s count six on the indictment. The jury clearly were satisfied as to the truthfulness, accuracy and reliability of the account given by [Name omitted] which I also accept.
Now, the injuries that she suffered in relation to the second occasion, she had bruises on the left side of the neck when she presented to hospital, laceration of the right finger approximately three centimetres in length and otherwise she was discharged on the basis that she was to be followed up with her general practitioner.
She was given some advice in relation to her sutures and she was given a sutures advice sheet. Now, the injuries that she suffered on the second occasion were unlikely to be life-threatening, I accept that to be the case.
The injuries, however, did interfere with her comfort on that particular occasion. They were unlikely again I accept to result in permanent injury to health. The events would clearly have been traumatic for the complainant.
(R1, G7, pages 29-31)
In relation to the facts of the first set of offences, committed on 21 June 2015, the Applicant denied having committed the offences. The extent of Mr Toki’s challenge to the factual findings with respect to the convictions is evident in the exchange between the Respondent and the Applicant in cross-examination:
Ms McDONALD: Can you explain what happened when you got home?
MR TOKI: We were arguing.
MS McDONALD: Have you read the statement of what the sentencing judge said had happened about you pulling the fridge and the fish tank and all that kind of thing, you've read what the judge said about that and do you agree that what the judge found is correct?
MR TOKI: No because that's why I went to trial and then we had a disagreement, we were arguing, we were chasing around the house.
…..
MS McDONALD: And then you decided to throw the fish tank on the floor; is that right?
MR TOKI: No, I didn't decide to throw the fish tank on the floor.
MS MCDONALD: How did the fish tank get on the floor?
MR TOKI: I tripped over it so I grabbed it on the way down.
…….
MS MCDONALD: The sentencing judge and the police records indicate that you grabbed her and then they used the word "slung her"?
MR TOKI: Threw her to the ground.
MS McDONALD: So threw her to the ground; is that right?
MR TOKI: Yes, I do remember that.
MS MCDONALD: And do you remember how she fell?
MR TOKI: Yes, she fell when were out on the town or a club, I think.
MS MCDONALD: Sorry, when you threw her to the ground how did she fall, did she fall on her head?
MR TOKI: I didn't throw her to the ground.
MS MCDONALD: So you don't agree that you threw her to the ground?
MR TOKI: No. These were the facts that I was taken to trial.
MS MCDONALD: The sentencing judge says that her left shoulder struck the ground hard and that's how she sustained the broken collar bone?
MR TOKI: Yes.
MS MCDONALD: Do you agree with that?
MR TOKI: No.
…….
MS McDONALD: And how did you feel after this incident? What did you think about what had happened? How did you feel about this argument and how things had happened?
MR TOKI: I just didn't like it at all. Like, there's no way people who fall in love should be arguing at all. That was the first biggest thing we've ever had in that relationship prior to you saying that we were arguing and all that stuff up until before then, we weren't - we were happy.
MS MCDONALD: Did you know you had committed a crime?
MR TOKI: No, because we argued. I didn't assault her then although she claims to have.
(Transcript, pages 16-17)

It was evident from this exchange and the submissions of the Applicant that he did not accept the factual findings on which the first conviction for ‘Unlawfully assault and thereby did bodily harm in circumstances of aggravation’ was based. He received a sentence of 12 months imprisonment for this charge. Further he did not accept the factual findings on which the convictions for “Criminal damage and destruction of property” was based a crime for which he received a concurrent sentence of 3 months imprisonment. He denied the evidence of his then flatmate which was used in part as a basis for the factual findings of the Court (Transcript, pages 19-20).
In relation to the facts of the second set of offences, committed on 5 June 2016, the Applicant denied having committed several of the offences. The extent of Mr Toki’s challenge to the factual findings with respect to the convictions on this date is also evident in the exchanges between the Respondent and the Applicant in cross-examination:
MS MCDONALD: And do you want to describe what you say happens that night?
MR TOKI: Pretty much we argued, we fought, yes I did hit her. That's what I'm saying, like, I did hit her and that's something that I've got to live with. Yes, we fought and it was bad.
MS MCDONALD: When you say you did hit her, what did you hit her with?
MR TOKI: The backhand of my hand.
……
MS MCDONALD: You might turn to the statement of material facts just so we're on the same page. It's at page 206 of the bundle closest to the start. So the police statement of material facts records that the argument started some time in that afternoon, 6 pm or 4 pm, it doesn't really matter exactly what time. The police record records that:
During the argument and whilst in the lounge room, the accused grabbed the victim and slung her to the ground
MS MCDONALD: Did you throw her to the ground; do you say that's correct?
MR TOKI: No.
MS MCDONALD: Then that you grabbed hold of a 65" flat screen television sitting on a low cabinet and threw it on top of her head?
MR TOKI: Threw it on top of her, yes I remember.
MS MCDONALD: Yes, did you do that?
MR TOKI: No.
……
MS MCDONALD: And you say you didn't pull the TV onto her head?
MR TOKI: No, it just got knocked off.
…….
MS MCDONALD: The next paragraph, this is what the police describe as charge 2, this is described as you choking or strangling her on the floor with both your hands?

MR TOKI: Yes.
MS MCDONALD: Did you strangle her?
MR TOKI: Not when she - when she had the knife I tried to, yes.
……
MS MCDONALD: So the record of police - well, the statement of material facts, the record of what the police believe happened and submitted for trial, so the police record goes on to say that you grabbed her by her hair and pulled her along the floor?
MR TOKI: Yes, I do remember that, yes.
MS MCDONALD: As in you did do that?
MR TOKI: No, I didn't do that.
…….
MS MACDONALD: So you say she had a knife?
MR TOKI: She had a knife too, yes.
MS MCDONALD: Who picked up the knife first?
MR TOKI: She did.
MS MCDONALD: That's not anywhere in the statement of material facts?
MR TOKI: Yes, because you've got all of hers - all of her material facts and none of mine. That's why I went to trial.
MS MCDONALD: I have to put this to you because the sentencing judge found that these facts had occurred in sentencing you and in convicting you the jury found these facts and the sentencing judge sentenced you on that basis?
MR TOKI: Because at the time I was pleading not guilty to the assault and all that sort of stuff when I took the ill advisement from a lawyer that, you know, "We'll just go with that. Leave that at that" and I left it all in his hands. That's what I paid money for so I left it all in his hands and then it didn't come out as such so I did - I did say to him, "I want to plead guilty to the physical assault" because I did. There's no way in hell that, you know, someone just gets bruises just for the hell of it. Like, yes I did lay my hands on her which was bad and that's something I have to live with now.
MS MCDONALD: But you pleaded not guilty because you didn't believe that you did any of these other things?
MR TOKI: The material facts that were put out, no.
….
MS MCDONALD: And during this argument the front door of the house was locked; is that right?
MR TOKI: I can't remember.
MS MCDONALD: Why would it have been locked?
MR TOKI: I don't know. Because I don't have a key for that door anything like that. You can open it from the inside.
…….
MS MCDONALD: The police record that she used the opportunity, and that's their language, to run to a nearby unlocked window, slide it open and jump into the backyard?

MR TOKI: I jumped through that window first. I jumped out when she had the knife because I literally ran straight through the window. Just bang, bang, bang, over the couch straight through the window. I took it all with me. All my blood's on it.
MS MCDONALD: Was she outside as well in your ‑ ‑ ‑ ?
MR TOKI: Yes, she ran out the sliding door if I can remember correctly. She ran out the sliding door and then we started arguing in the back because I grabbed Tyson - I picked him up and I was to walk out and then we struggled over him because she was grabbing him by the collar and that's my dog, man, like ‑ ‑ ‑
…..
MS MCDOANLD: The police record says that you pushed her head into the soft sand?
MR TOKI: Her head into the ground, yes I know.
MS MCDONALD: Did you push her head into the sand?
MR TOKI: No.
MS MCDONALD: You also put the knife to her throat telling her to be quiet?
MR TOKI: That's also what they said, yes.
MS MCDONALD: So you say that none of this happened?
MR TOKI: No. We had a fight and that was it. That was the large majority of it; fisticuffs, the knife came out, I tried to take it off her, I got cut as well, she got cut as well, we rolled around on the bed and that's when our neighbours came out.
……
MS McDONALD: Part of the judge finding that you had not only assaulted her but imprisoned her was the fact that she was trapped in the house or she couldn't leave the house or the backyard area?
MR TOKI: Well, originally they tried to do me for the deprivation and liberty on a door that we had both broken because I tried to shut the door and then my hand was in the door, it's still broken now so I tried to rip the door open and that's when the doorhandle broke off and they're saying that because the doorhandle was broken off, I tried to keep her inside when really I was just trying to get my hand outside of the door.
MS MCDONALD: That was actually one of the more serious offences in terms of the imprisonment, you were given 18 months for the deprivation of liberty?

MR TOKI: Yes, of course I remember that.
MS MCDONALD: But you say you never stopped her from leaving the house or ‑ ‑ ‑ ?
MR TOKI: No, she was - she had two of her - she had one cell phone there that I took off her when she didn't give me my one back. She had her original one and she had the opportunity to leave. The door I'm guessing, because we were both behind the door, wasn't locked. Like, I'm pretty sure it was the deadbolt so that's - in any house I'm pretty sure she didn't have a doorhandle, she just had a deadbolt and that's how they're saying that it was a deprivation of liberty because that was locked.
MS MCDONALD: Well, this is not the police saying it, this is what the court found, that it was a deprivation?
MR TOKI: Yes, because the police found that the door was locked but it's a deadbolt.
….…
MS MCDONALD: I was asking you about when you picked up the knife and then you started cutting yourself. Did you start cutting yourself with the knife?
MR TOKI: That's what they said that I did. In the videos it's got me washing my hands.
MS MCDONALD: Well, the police looked at those videos and record in the material facts that you were cutting your forearms with the knife?
MR TOKI: Yes, because I said, "If you can cut me, I can cut myself too" just to show that I wasn't scared of being cut but then at the same time, like, I didn't want to be so it was just a scare tactic.
MS MCDONALD: So your evidence is you were cutting yourself?
MR TOKI: Just on the one - I just did it once.
….
MS MCDONALD: So we've discussed that before, you pleaded not guilty because you didn't accept - well, really most of what had happened?
Mr TOKI: Yes, like, I do accept the assault and I said to them - I was like, "Yeah" but on advisement from my lawyer, I took his - I took his - because I don't know any of this.
…
MS MCDONALD: Do you accept that you've committed these offences now?
MR TOKI: Like, it's something that I've just had to deal with. Yes, okay cool, I'll just deal with it. I was - that's the reason why I took it to trial. I was questioning the deprivation of liberty because I thought that was pretty sour. Like, that wasn't, you know, I didn't have her tied up or I didn't have her mangled up anywhere, she could leave. You know, after all that I said to him - like, you know, within myself, "Yeah I do know that I have to (indistinct)" and that's wrong. Like, the remorse for that is just - you can't even talk about that, you know, I can't because that's something I'm going to have to live with for the rest of my life.
MS MCDONALD: But for all the other offences: the deprivation of liberty, the first assault injury in 2015, you don't accept any of that?
MR TOKI: No because it was on both parties. We were both arguing, we both fought, she hit me, I hit her, yes I'm not going to sit there and say "A girl hit me".
(Transcript, pages 24-34)
The Respondent submitted that:
The Tribunal cannot impugn the conviction and the sentence that is a pre-condition to the mandatory cancellation…
(Transcript, page 64)
The Respondent submitted that all of the convictions involving sentences of more than

12 months involve circumstances which would trigger the mandatory cancellation: in this instance the two convictions for unlawful assault and the conviction for depravation of liberty (Transcript, page 64). Each of those meets the criteria for a ‘substantial criminal record’ and is a basis on which the Applicant fails the character test. The Respondent referred the Tribunal to the decision of Bromberg J in HZCP v the Minister for Immigration (2018) FCA 1803 (HZCP) where his Honour provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction.
The Tribunal’s assessment of the circumstances of an applicant’s offending will be an important part of its consideration as to whether to exercise its discretion to revoke the mandatory cancellation of an applicant’s visa. As the discussion in HZCP demonstrates, the question of whether and to what degree to the Tribunal can investigate the facts underlying the Applicant’s convictions is an important one and has been the subject of detailed judicial consideration.[5]
[5] Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135 (Daniele); Minister for Ethnic Affairs v Gungor (1982) 4 ALD 575 (Gungor); Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 (Ali); Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (SRT); Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981) (Degerli); Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 (Beckner); Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (LLF).
The challenge presented by the Tribunal considering the factual circumstances of an applicant’s offending have been carefully considered by the courts. In Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981) (Degerli) the full Court noted (at 4-5):
…The fact that the conviction stands conclusively as the source of the jurisdiction of the Minister to make a deportation order and as affecting the standing or credit in the community of an applicant as a convicted person. Moreover, the correctness of the conviction and the fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. That the concern of the Criminal Appeal Courts and of the prerogative of the Crown. If the Tribunal were to ignore the conviction or merely to act upon its own view as to the form of the indictment, the course of the trial, the correctness of the summing up and the propriety and consistency of the verdict and the penalty, it will take into account irrelevant considerations.
In Minister for Ethnic Affairs v Gungor (1982) 4 ALD 575 (Gungor), Fox J described the broad policy considerations applicable as follows at 578-579:
What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive, so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (SRT) the Full Court noted with respect to the relevant policy considerations [at 45]:
…It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of the conviction and of the resulting evidence. The policy must be that a conviction, and a sentence imposed as a result of that conviction, are matters for the criminal law and its procedures.
As the authorities demonstrated, however the Tribunal’s examination of the full circumstances of an applicant’s conduct may involve an investigation as to the applicant’s criminal behaviour. Thus it is necessary to define the degree to which the Tribunal may take account of evidence that challenges factual findings on which the applicant’s convictions are based.
In SRT the Full Court observed at [40]:
where the decision to be reached [by the Tribunal] depends on their having been a sentence that satisfies section 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
While the Full Court in SRT were considering an earlier version of the Act (section 201 of the Act as it then was) the analysis is equally applicable to the exercise of statutory powers under section 501.
In Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 (Beckner), Davies J considered the decisions in Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135 (Daniele), Degerli and Gungor and noted

[at 50] that the cases did not annunciate a principle that no evidence could be called to deal with matters in respect of which the sentencing judge had made comment, rather:
…in a case where the conviction was the foundation for the exercise of the discretionary power, no challenge could be made to the fact of the conviction or to the essential facts on which it was based.
His Honour went on to state (at 50-51):
The administrative appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by sentencing judge in the course of giving it his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether [the applicant]’s crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The Tribunal had to form a view as to whether [the applicant] was such a person as should be allowed to remain in Australia.
However a distinction has been made between the approach to be adopted with respect to convictions on which the exercise of discretionary power is based and other convictions forming part of the applicant’s offending history. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [38], Branson J considered the authorities and outlined the following principles in relation to how decision-makers should treat evidence of criminal convictions:
[41] First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily.
[42] Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence.
[43] Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals.
As a consequence, in my view, the Act should be construed as requiring a decision maker under s200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
[44] Fourthly, although a decision maker under s200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted.
[45] Fifthly, the above limitations on the matters to which a decision maker under s200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
While her Honour was considering an earlier version of the Act (section 200 of the Act as it then was) the Tribunal considers that the principles articulated are applicable to the exercise of statutory powers under section 501.

In HZCP, Bromberg J’s detailed consideration of the authorities[6], summarised the principles to be applied as follows [at 78]:
(1) Where a previous conviction is the foundation for the exercise of power by the decision maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.
(Emphasis added.)
[6] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Applying the principles expressed in the authorities and summarised by Bromberg J, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However with respect to the conviction and sentence upon which the power to deport is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions there is a “heavy onus” on the Applicant where they seek to challenge the facts upon which those convictions are based.
At the hearing the Tribunal explained to the Applicant the submissions made by the Respondent regarding his evidence challenging the factual circumstances of his convictions and sentencing. The Tribunal explained that the Respondent maintained that the Tribunal could not go behind the convictions on which the mandatory Visa cancellation was based. The Tribunal also explained that the Respondent submitted that the Applicant’s denial of the facts as found by the jury and the sentencing judge raised doubt about the degree to which the Applicant accepted responsibility and was remorseful for those acts. Further, the respondent suggested that the failure of the Applicant to recognise the full extent of his criminal conduct may increase the likelihood that he may reoffend in a similar way in the future (Transcript, pages 76-77).
In response, the Applicant stated:
Well, the – well, this is a character test after all, so my character’s to be that of truth, I say. So I really do think that there was some facts in there that were

over-exaggerated. As for the physical violence, I don’t deny that. I said – I said that. Yeah, there’s just – there’s definitely things in there where – that – that just don’t sit right with me. And to just say that I – that I accept it is just to lie. And I don’t want to lie to you. Or else I wouldn’t have taken it to trial.
(Transcript, page 77)
The Tribunal accepts that it is bound by the principles espoused in the authorities and summarised by Bromberg J in HZCP. One difficulty in applying such principles in the present case, and one which may arise in many cases where the exercise of the power under section 501 is being reviewed is that it may not always be evident on which particular conviction the exercise of power is based. This is because it is not uncommon for an Applicant to be convicted on one occasion of a number of offences in respect of several of which he/she may have been sentenced to terms of imprisonment of more than 12 months. The Respondent’s submitted that this was such a case because the Applicant was convicted on the same date of three offences for which he received a sentence of imprisonment of more than 12 months, each of which would trigger the mandatory cancellation.
While the Tribunal accepts that there may be circumstances where it is unclear from the delegate’s decision which conviction is identified as giving rise to the mandatory cancellation. In this case the delegate’s decision refers to the applicant’s conviction on

20 December 2017 for the offence of “unlawfully assault and thereby did bodily harm with circumstances of aggravation”, for which the Applicant was sentenced to 18 months imprisonment (R1, G3, page 11). That was the unlawful assault offence which occurred on 5 June 2016. On 20 December 2017 the Applicant was also convicted of “deprivation of liberty” for which he was sentenced to 18 months imprisonment to be served concurrently. This was the conviction referred to in the cancellation decision on 9 March 2018 (R1, G34, page 109). That offence also occurred on 5 June 2016. He was also convicted at the same time of “unlawful assault and thereby did bodily harm with circumstances of aggravation” arising from the events on 21 June 2015. He received a 12 month cumulative sentence for that offence.
As noted above, section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Act). The Minister must cancel a visa that has been granted to a person who does not pass the character test because they have a substantial criminal record on the basis of section 501(7)(c) and 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 (By operation of section 501(3A) and sections 501(6)(a) and 501(7)(c)).
In the Tribunal’s view it follows that while the decision makes reference to one of the three offences for which the Applicant was convicted of 12 or more months in prison (the mandatory cancellation offences), each and any of those offences met the definition of substantial criminal record under the act and as such was the basis for mandatory cancellation of the visa and subsequent exercise of discretionary power under

s 501CA(4). In such circumstances, applying the authorities, the Tribunal accepts the Respondent’s submission that it should not go behind or impugn any of these three convictions.
Accordingly the Tribunal accepts that the Applicant was convicted of two separate counts of “unlawfully assault and thereby did bodily harm with circumstances of aggravation” (one occurring on 21 June 2015 and another on 5 June 2016) and one count of “deprivation of liberty” (occurring on 5 June 2016). The Applicant was also convicted on the same occasion of two counts of “criminal damage or destruction of property” (one count occurring on 21 June 2015 and another on 5 June 2016). He was convicted with a further count of “Creating false belief” which arose from the events which occurred on

5 June 2016. For each of those further offences he received a sentence of three month’s imprisonment with each to be served concurrently. The Tribunal accepts these convictions as “highly probative of the truth of the factual matters essential to the conviction”.[7]
[7] As per Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [38].
As noted above, the Applicant was found guilty by a jury and at the sentencing hearing his Honour gave a detailed account of the findings of fact on which the conviction and sentence was based. Some of these findings are specific to particular offences on the indictment and are expressed as such. However many of the findings are in more general terms about the circumstances of the events which have unfolded and during which the offences were committed. As such it may be difficult to distinguish between the “essential facts” on which the convictions giving rise to cancellation of the visa are based (those facts which cannot be challenged) and those which relate to other convictions or more broadly the circumstances of offending (those which may be open to greater scrutiny).
In the Tribunal’s opinion, having regard to the three mandatory cancellation offences, a large number of the facts denied by the Applicant in testimony must be regarded as “essential facts”. These would include that on or about 21 June 2015 the Applicant “grabbed [his partner] around the shoulders and forcefully pushed her to the ground” as a result of which she fractured her clavicle (R1, G7, page 28) giving rise to the conviction for unlawful assault. Further, that on 3 June 2016, the Applicant strangled his then partner, threw her against a coffee table, pulled a television set down on her head, bit her and pushed her head into the sand and threatened her with a knife. As a result the victim received bruises on her neck and a laceration of the right finger thereby giving rise to the second conviction for unlawful assault. Further the victim could not escape from the house as the front door to the house was locked giving rise to the depravation of liberty charge. The Tribunal must also accept as fact that circumstances of self-defence as claimed by the Applicant and rejected by the jury who were not present. As the sentencing judge found:
I accept that she didn’t shove you or push you in the back or chest. She didn’t threaten you at any stage with the knife. She didn’t scratch your face. She was not striking you. She didn’t have the knife in her hand and all of that is consistent, all of those findings are consistent with the rejection of your defence at trial of

self-defence which the jury clearly rejected.
(R1, G7, page 31)
The Respondent submitted, and the Tribunal accepts, that a rejection of the Applicant’s defence of self-defence must be an essential fact on which the conviction is based. Accordingly, large parts of the Applicant’s evidence seeking to establish that he was himself the victim of assault and defending himself from his partner during a domestic argument must also be rejected.
In any event, the Tribunal notes that the Applicant did not offer any corroborating evidence to support his account of the events in challenging the convictions or the factual findings of the sentencing judge. The Tribunal notes that the Applicant testified that he elected not to give evidence at the trial on the advice of his then lawyer. That he elected not to do so was an appropriate exercise of his rights as a defendant and the Tribunal draws no negative inference from that decision. However, the account the Applicant gave of the events of 21 June 2015 and 5 June 2016 was markedly at odds with the findings of the jury and sentencing judge. His account of events was directly contrary to a third party witness (the Applicant’s former flatmate) who testified at the hearing and was cited by the sentencing judge and to the statements of material facts provided by the police. It was significantly at odds with the testimony of the victim as reflected in her statements to police and comments of the sentencing judge. It was also inconsistent in at least one respect with the testimony of his now partner,

Ms McKenna, who when asked what she knew about the first set of offences “I know he pushed the fish tank just out of anger” (Transcript, page 49). The Applicant denied having pushed the tank, claiming to have tripped and fell, grabbing the fish tank as he did so (Transcript, page 16).
Having regard to all the evidence, the Tribunal is unable to accept the Applicant’s version of events as credible, even where it is open to the Tribunal to do so. This is because the evidence falls well short of discharging the “heavy onus” which falls on an Applicant seeking to challenge the facts upon which the conviction is necessarily based. The Tribunal is not satisfied on the Applicant’s evidence that there is any basis for going behind the convictions giving rise to lesser terms of imprisonment, or to reject the facts as found by the sentencing judge.
In this regard the extent of the Applicant’s denial of the facts of the offences gave rise to a concern for the Tribunal both with regard to his credibility as a witness but also to the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences. These matters are dealt with further below.
First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction no. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Paragraph 13.1(2) of Direction no. 79 then provides:
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
As noted above the he Applicant made a number of submissions in relation to his offending and the protection of the Australian community. In summary, these submissions were that:
·
His offences were caused by alcohol consumption. He has taken steps to become, and to remain sober, and rehabilitated and as a result is a low risk for

reoffending;
·
He takes responsibility for his past actions and the devastating effect they have had on his life and that of his friends and family and as a result is a low risk of

reoffending;
·His offences were specific to a difficult personal relationship he was in at the time and his actions do not present a risk to the Australian community;
·His partner and her family and his friends will provide a support network for him on re-entry to the community which will reduce the risk he will offend or resume consumption of alcohol.
The Applicant submitted that, as a result of these factors, if the Reviewable Decision was revoked, his risk of reoffending would be low and the protection of the Australian community would not require that his visa remained cancelled.
The Respondent contended that the protection of the Australian community weighed heavily against revocation (R2, [35], page 10).
The Respondent submitted that the Applicant’s offending should be viewed as very serious having regard to the following factors:
(a)the Applicant’s offences involved significant acts of violence against his then partner, offences which were identified in the direction as serious and which were committed against persons identified in the direction has vulnerable members of the community;
(b)the seriousness of the offences is also reflected in the comments of the sentencing judge and the sentence imposed by the court. The fact that the Applicant received a lengthy sentence in his first time before the court indicates the gravity of the offending:
(c)the domestic violence nature of the assault convictions presents particular concerns given the risk such offences pose to vulnerable members of the community.
The Respondent submitted that the Applicant represented an unacceptable risk of harm to the Australian community having regard to:
(a)the nature of the offences and the nature of the harm to individuals, including vulnerable persons should the applicant engage in further criminal conduct of this nature the Australian community should not be expected to tolerate any rick of recidivism.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction no. 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Tribunal notes that the Applicant has travelled to twice to Australia prior to his current arrival when he commenced residence in Australia. One of those visits was for one day and one was for four months. The Tribunal notes that there is no evidence of the Applicant having committed any offences on either of those visits.
As noted above, the Applicant arrived in Australia to commence residence in January 2014. The offences for which he was convicted on 20 December 2017 related to two separate incidents. One of these was on 21 June 2015, around 18 months after the Applicant arrived in Australia. The other was on 5 June 2016. The victim of the Applicant’s offences on both occasions was the Applicant’s then partner.
The events of 21 June 2015 gave rise to 2 charges:
·unlawfully assault and thereby did bodily harm with circumstances of aggravation; and
·criminal damage or destruction of property.
The Applicant received a 12 month cumulative sentence for the unlawful assault offence and a three-month concurrent sentence for the criminal damage offence.
The events of 5 June 2016 the gave rise to four charges:
·unlawful assault and thereby did bodily harm with circumstances of aggravation;
·criminal damage and destruction of property;
·deprivation of liberty; and
·creating false belief.
The Applicant received an 18 month cumulative sentence for the unlawful assault offence, a three-month concurrent sentence for the criminal damage offence, an 18 month concurrent sentence for the deprivation of liberty offence, and a three-month concurrent sentence for creating false belief.
The Applicant’s first offences in Australia, were committed only 18 months after arriving in Australia. The Applicant does not have a long history of frequent offending, nor has his offending history increased in seriousness since his arrival (paragraph 13.1.1(1)(e)).
The Respondent also referred the Tribunal to the comments of Deputy President Kendall (as His Honour then was) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (XFKR) (discussed further below), where Deputy President Kendall noted the serious impacts of domestic violence.[8]
[8] See also QGMJ and the Minister for Immigration and Border Protection [2017] AATA 1537 (QGMJ), QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99].

Deputy President Forgie goes on to state (at [86]):
Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1)…
Further, she goes on to highlight that in applying the principles the Tribunal must have regard to the evidence (at [86]):
Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.
Member Eteuati, in Doan and Minister for Home Affairs [2019] AATA 169 (Doan) at [153] to [154], stated the principles which emerge from the case law as follows:
153.… First, the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of the community.
154.Secondly, the government’s views in relation to community expectations are to be found in Direction 65 itself. It is open to the Minister to make a statement of the Government’s [sic] views as to the expectations of the Australian community as it has in direction 65 for the Tribunal to act on that statement.
Member Eteuati goes on to note, at [155]:
In order to ascertain the government’s views on community expectations one must consider the direction closely.
On 11 April 2019 the Federal Court delivered two separate judgments which highlight some of the complexities facing the Tribunal in applying the direction as it relates to the primary consideration of the expectations of the Australian community. In DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY), Griffiths J, having cited [76] and [77] of Mortimer J’s decision in YNQY (see [146] above), supported a broad approach to the application of the direction stating, at [32], that it was not “inevitable” that the primary consideration of the expectations of the Australian community would always weigh against revocation. His Honour explained, at [31], that:
Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction…
(Emphasis in original.)
In summary, His Honour was of the view that: “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]).
However, Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR), delivered on the same day as DKXY, preferred the narrow approach finding:
[39] There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant’s commission of serious criminal offences.
…
[41] In the applicant’s submission, this clause [paragraph 6.3(5) of Direction 65] expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as “other considerations” in cl 12.
[42] It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases….
[Emphasis added.]
It is not clear to this Tribunal what the effect is of the qualifying final words in [42] of the above decision. However, having regard to the context of the comments, in the Tribunal’s view, they go some way to bridging the gap between the extreme versions of the broad and narrow approaches. Having found that the “norm” is that the expectations of the Australian community are that where paragraph 11.3 applies to an Applicant’s circumstances, that is by reason or the applicant’s commission of serious criminal offences it may be appropriate that the applicant not hold a visa. His Honour leaves open the possibility that that may not be so in all cases.
In practical terms and having regard to the authorities, the Tribunal broadly agrees with the approach articulated by Member Eteuati, in Doan. The Tribunal notes that with respect to determining whether “the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa” (the third sentence of paragraph 13.3(1) of Direction 79) close consideration of the direction indicates that where a non-citizen has committed a ‘serious crime’ the expectation is that their visa will be cancelled. This is the import of paragraph 6.3(2) of

Direction no. 79 which was cited in the passage of Uelese to which Mortimer J was referring in YNQY. Further, Direction no. 79 provides that particular crimes or those committed against particular victims will be regarded as ‘serious’,[15] or are to be ‘viewed very seriously’.[16] In circumstances where the relevant non-citizen has committed a ‘serious crime’ the government’s view on the expectation of the community has been expressed to be that they expect the non-citizen’s visa to be cancelled.
[15] See for example Direction No.79 paragraph 13.1.1(1)(c).
[16] See for example Direction No.79 paragraph 13.1.1(1)(a) and (b).
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine whether “the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa” having particular regard to the direction and to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
As noted above, Direction no. 79 provides that certain crimes are to be considered ‘serious crimes’. Applying paragraph 13.1.1(1)(b) of Direction no. 79, the Applicant’s violent crimes against a woman are to be viewed ‘very seriously’. The Australian community expects that the Applicant’s visa can and should be cancelled in such circumstances. In the Tribunal’s view, the offences in the present case, which by operation of Direction no 79 are to be viewed as very serious, are such that the Australian community would expect that the Applicant not hold a visa. Accordingly, even adopting the very broad approach it is the Tribunal’s view that the expectations of the Australian community would be against the revocation of the cancellation of the visa.
The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s visa. Paragraph 6.3(3) of Direction no. 79 makes it clear that the Applicant, as a non-citizen who has committed a serious crime of a violent nature against a woman, should expect to be denied the privilege of remaining in Australia. While this principle is expressed in terms of the consequences an offending non-citizen should generally expect, in the Tribunal’s view when read in the context of paragraph 6.3(2) and 13.3(1) the principle expressed in paragraph 6.3(3) directs the Tribunal to view these crimes in a particular way – crimes with respect to which there is generally an expectation that the offender will forfeit the right to remain in Australia. In any event, it follows from the direction in paragraph 13.1.1(1)(b) that violent crimes against women are to be viewed as serious regardless of the sentence imposed and as such should be considered in light of the expectation expressed in paragraph 6.3(2) of Direction no. 79.
Having regard to the relevant authorities and applying the direction in this way, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the cancellation decision.
The Tribunal finds that the expectations of the Australian community would be that the decision to cancel the Applicant’s visa should not be revoked. The Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s visa.
Although the expectations of the Australian community will weigh against an applicant with respect to serious crimes the Tribunal must, in the exercise of its discretion, decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations.
The weight to be applied to this consideration in view of all the circumstances of the Applicant’s case is considered further below.
Other considerations
Paragraph 14 of Direction no. 79:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the Principles section of Direction no. 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Applicant is now 30 years of age, having arrived in Australia in January 2014 when he was 25 years of age. While the Applicant has lived in Australia a number of years he arrived as an adult. His first offence in Australia, was committed in June 2015 around 18 months after his arrival. The Respondent submitted in applying paragraph 14.2(1) of Direction no. 79 as his offending commenced shortly after he arrived in Australia less weight should be given to the strength, nature and duration of ties to Australia

(R2, page 12, para 45). The Tribunal accepts this submission as the Applicant was in Australia for a relatively small amount of time prior to offending and while he does not have a long list of offences the seriousness of the offences and the sentences he received for them means that he has spent a significant amount of his time in Australia in prison or under supervision orders in the community. However, while this may lessen the strength of his ties to the community or the weight to be applied to those ties, the Tribunal regards that his ties to the Australian community should not be disregarded simply on the basis of when he commenced offending.
Prior to his offending, the Tribunal finds that the Applicant has positively contributed to the community working as an operator, poly welder and boiler maker and living in the Australian community. His former employer testified that he has mentored Indigenous employees he works with (Transcript, page 62). He expressed a commitment to doing so again if he remains in Australia.
If he is returned, he may be separated from his partner for an extended period. Once she relocates her own family will have restricted physical contact with them.
The Tribunal finds that the Applicant’s has ties to the Australian community. On balance the Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. However, the Tribunal also notes that the Applicant came to Australia as an adult. He and his fiancé commenced a relationship several years ago while he was on bail for the offences for which he was convicted and imprisoned. He does not have immediate family members in Australia but is undoubtedly close to his fiancé and her family and to friends he has relied on here and who have provided statements in his support.
There is no evidence before the Tribunal that suggests that the Applicant and his fiancé would be unable to resettle in New Zealand together as a family. In the Tribunal’s view this lessens the weight to be afforded to this consideration.
Impact on Australian business interests
It is also not relevant to consider whether a decision not to revoke the cancellation of the visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79). One of the Applicant’s employers gave evidence that the Applicant was a valued employee and would be reemployed if the cancellation is revoked. While the Applicant worked in the mining industry there was no evidence that the Applicant was involved in the delivery of any major projects, or the delivery of an important service in Australia such as may give rise to his visa cancellation impacting on Australian business interests. Although he has worked in Australia his employment in Australia would not fall within this ‘business interests’ other consideration.
The Tribunal does not place weight on this consideration.
Impact on victims
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victim of his offending or the family members of the victim (paragraph 14.4(1) of Direction no. 79).
The Applicant indicated he has no contact with the victim. The Respondent admitted that while there was no evidence from the victims regarding the impact of non-revocation of the visa, there was material before the Tribunal from which it could infer from what the victim has said in the past that they would not want the wouldn’t want the visa cancellation revoked. (Transcript, page 72).
The Tribunal does not accept this submission and does not believe it is open to it on the evidence to make such an inference. In any event, paragraph 14.4(1) refers to the ‘impact of a decision not to revoke’ and members of the Australian community including victims of the non-citizen’s criminal behaviour. While evidence of the impact of the Applicant’s offending on his victim at the time of the offending or sentencing may be relevant to considering the seriousness of the offence and other considerations in the context of a decision regarding revocation, it does not assist the Tribunal in assessing the impact of a decision not to revoke the Applicant’s visa on the victim, or on the Australian community more generally. Further the direction talks about the impact of non-revocation on the victim and not about the victim’s opinion about whether the visa cancellation should be revoked.
There is no evidence as to how other the victim of the Applicant’s offending would be impacted by a decision not to cancel the Applicant’s visa. There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community of which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa. Accordingly, the Tribunal places no weight on this factor.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant arrived to reside in Australia in 2014 when he was 25 years old. The Tribunal accepts he is likely to face some social and emotional difficulties if he is returned to New Zealand. The Applicant submitted that he would face difficulties re-establishing himself in New Zealand as he has built his life here and no longer has ties in New Zealand (Transcript, page 43). He regards his friends and his fiancé’s family to be his family and they all reside in Australia. He is estranged from his own family members who are in New Zealand and Singapore.
The Tribunal notes that the Applicant’s 6 year old daughter resides in New Zealand and that the Applicant indicated he is desirous of having contact with her. The Tribunal finds on the evidence that this would likely be fasciliated by the Applicant being in New Zealand.

The Applicant also gave evidence, as was noted above, that his fiancé plans to move with him to New Zealand if he is removed, however she may not be able to join him immediately. She testified that she has some experience in New Zealand payroll work (for her Australian based company) and has been exploring employment options. She is concerned moving will impact on her career but is committed to the relationship and to the Applicant. The Tribunal finds on the evidence that the Applicant is close to, and emotionally reliant on, his friends and his fiancé and her family in Australia. The Tribunal finds that the lack of family and other social supports are likely to be impediments to the Applicant in adjusting to life in New Zealand, particularly if his fiancé’s relocation is delayed while she finds work.
There is no medical evidence before the Tribunal that the Applicant suffers from any physical or mental health issues which might give rise to an impediment on his return to New Zealand. The Applicant did not accept that the health system in New Zealand was similar to Australia, however he offered no evidence to suggest how his access to services would be different or how this would be an impediment to him. He suggested that his own employment prospects and earning capacity were greater in Australia and the Tribunal accepts that they may be. However, the Applicant testified that he has worked in New Zealand in skilled trades and has also travelled to other countries to work as a security contractor following his service in the New Zealand navy.
The Applicant came to Australia as an adult and as such would not face any language or cultural barriers if he were to return to New Zealand. He has family members in New Zealand though the Tribunal accepts that he is estranged from them and they are unlikely to offer support to him on relocation.
The Applicant has skills and experience in the security and mining industries. He was working in New Zealand prior to moving to Australia (Transcript, page 42). The Tribunal finds his skills and work experience would likely assist him to find employment if he is returned to New Zealand. The third party statements include positive statements regarding his experience and work ethic, particularly the testimony of Mr Stewart, his former employer who flew to Perth for the hearing (Transcript, pages 58-62 ; R1, G30, page 103). The Tribunal finds that he is unlikely to face any particular barriers to finding employment in New Zealand.
The principal impediments identified by the Applicant were the separation from his support network, the need to re-establish himself in New Zealand, and the impact his relocation would have on his fiancé and her family which has been addressed above. The Tribunal accepts that these are challenges which would be faced by the Applicant and those close to him if he were removed to New Zealand. However, such challenges do not, in the Tribunal’s view and taking into account the evidence available, amount to impediments to his return to New Zealand.
On balance, the Tribunal finds that the Applicant is likely to experience some challenges in re-establishing himself in New Zealand. The Tribunal accepts that he may face social and emotional difficulties because his support network is in Australia. If he is returned, he may be separated from his partner for an extended period. Once she relocates her own family will have restricted physical contact with them.
In summary, the Tribunal finds that Applicant would suffer some hardship if he were returned to the New Zealand, which weighs in favour of the revocation of the decision to cancel the visa. However, the Tribunal does not regard the challenges faced by the Applicant as significant impediments to his return and accordingly places limited weight on this consideration.
WEIGHING THE PRIMARY AND OTHER CONSIDERATIONS
Direction no. 79 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
The treatment of primary and other considerations has been subject to judicial consideration.[17]
[17] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (HSKJ).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the weighing exercise as considered by the Courts as follows:
The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.[18]
[18] Although Senior Member Evans was considering Direction no.65 the relevant provisions were materially the same as those under Direction no. 79 and her comments remain applicable under the later direction.
The Tribunal agrees with this statement of the principles to be applied in the weighing exercise and has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant’s circumstances, including his limited history of offending and his attempts at rehabilitation. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has had particular regard to the nature of the Applicant’s violent offending against a woman with whom he was in a relationship. The Tribunal has also had regard to the Applicant’s demonstration of remorse, commitment to rehabilitation and sobriety.
The Tribunal has had regard to the relevant other considerations, including the strength, nature and duration of the Applicant’s ties to Australia and the challenges the Applicant would face if he was returned to New Zealand, which weigh in the Applicant’s favour.
In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community and the expectations of the Australian community weigh in favour of the Tribunal refusing to revoke the cancellation of the visa (that is, affirming the Reviewable Decision).
The other considerations of the Applicant’s strength, nature and duration of ties to Australia, and the extent of impediments if returned to New Zealand weigh in favour of the Applicant. However, having regard to all the circumstances of the Applicant’s case, and in particular the short amount of time Applicant has spent in Australia prior to and since the offences were committed and the relatively limited nature of his ties to the community and the limited impediments to his removal to New Zealand where he grew up and commenced his life as an adult, the Tribunal places less weight on these considerations.
The Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations that are in favour of the revocation of the decision to cancel the visa.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION

The Reviewable Decision, being the decision of the Respondent’s delegate dated

20 January 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

xsxszxzx

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

Associate

Dated: 12 April 2019

Date of hearing:

3 April 2019

Solicitors for the Applicant:

Counsel for the Respondent:

Self-represented

Mr Arran Gerrard

Solicitors for the Respondent:

The Australian Government Solicitor

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

Associate

Dated: 17 April 2019

Date of hearing:
26 March 2019

Solicitors for the Applicant:

Counsel for the Respondent:

Self-represented

Mr Arran Gerrard

Solicitors for the Respondent:

The Australian Government Solicitor

Direction no. 79 – Visa refusal and cancellation under
s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018)

Jurisdiction	Offence date	Result date	Offence	Result
New Zealand
Palmerston North DC	15 November 2006	28 November 2006	Drove while licence suspended or revoked	Community work 40 hours Disqualification from driving 6 months
Australia
District Court of WA	20 December 2017	Unlawfully assault and thereby did bodily harm with circumstances of aggravation	Imprisonment: 18 months cumulative from 9 June 2017
District Court of WA	20 December 2017	Criminal damage or destruction of property	Imprisonment: 3 months concurrent from 9 June 2017
District Court of WA	20 December 2017	Criminal damage or destruction of property	Imprisonment: 3 months concurrent from 9 June 2017
District Court of WA	20 December 2017	Deprivation of liberty	Imprisonment: 18 months concurrent from 9 June 2017
District Court of WA	5 June 2016	20 December 2017	Unlawfully assault and thereby did bodily harm with circumstances of aggravation	Imprisonment: 12 months cumulative from 9 June 2017
District Court of WA	5 June 2016	20 December 2017	Creating false belief	Imprisonment: 3 months concurrent from 9 June 2017