TPTN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 262

TPTN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 262 (4 February 2022)
Division:GENERAL DIVISION
File Number(s):2021/8650
Re:TPTN
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Tribunal:Senior Member B J Illingworth
Date:4 February 2022
Date of written reasons: 14 February 2022
Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 4 FEBRUARY 2022 NAMELY:
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
...................[Sgnd].....................
Senior Member B J Illingworth
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Class TY) (subclass 444) visa – where Applicant does not pass the character test – serious criminal record - whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1623
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B J Illingworth
14 February 2022
INTRODUCTION

The Applicant is seeking review of a decision of a delegate of the Respondent dated 15 November 2021 not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (the Act) to revoke the original decision made under s 501(3A) on 15 November 2021, to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
At the hearing the Applicant appeared by video via Microsoft Teams and was self-represented. The Respondent was represented by Ms Strugnell of Minter Ellison.
The Tribunal received into evidence the various documents filed with the Tribunal contained within the G-Documents[1], character reference of Ms LO dated 11 September 2021[2], character reference from the Applicant’s parents dated 13 January 2022[3], Domestic Violence 101 – Course Completion Certificate dated 16 January 2022,[4] statement of the Applicant undated and received 19 January 2022[5], and Bundle of Summons Material[6], and Respondent’s Supplementary Bundle of Evidence.[7] The Tribunal received oral evidence from the Applicant and his father.
[1] Exhibit A.
[2] Exhibit B.
[3] Exhibit C.
[4] Exhibit D.
[5] Exhibit E.
[6] Exhibit F.
[7] Exhibit G.
BACKGROUND
The Applicant is currently 31 years of age and was born in the Cook Islands where he resided until he arrived in Australia on 26 October 1998 aged eight years of age. Save for a period of three weeks, he has continuously resided in Australia. The Applicant is a citizen of New Zealand.
The Applicant’s father explained in evidence that he was a New Zealand citizen and the Applicant’s mother was from the Cook Islands. By virtue of the father’s citizenship the Applicant automatically attained New Zealand citizenship, but the family never resided in New Zealand.
The Applicant’s parents, brother, grandmother, and extended family all live in Australia.
Offender history
The Applicant’s first offending was as a juvenile. On 31 October 2005, he appeared before the Children’s Court and was dealt with for the offences of assault occasioning actual bodily harm and affray. He received on each offence, a six-month bond to be under the supervision of juvenile justice for such time as deemed necessary.
The Applicant was first dealt with as an adult on 28 August 2008 when he appeared in the Liverpool Local Court for three road traffic offences, namely fail to display “L” on car as required, drive with middle ranged PCA (prescribed concentration of alcohol), and Learner not accompanied by driver/police officer/tester. He was fined and placed on a bond.
1 April 2011 sentencing (date of offence – 2 May 2010)
On 1 April 2011, the Applicant appeared before the District Court and was sentenced for the offence of robbery. The court also took into account the offence of demand property with menaces with intent to steal which occurred at or about the same time. The Applicant was sentenced to imprisonment for two years and six months with a non-parole period of 12 months. Upon release he was to be placed under supervision and was recommended for the young offender’s program and to have access to programs for the treatment of alcohol abuse.
Sentencing remarks of Judge Charteris[8]
[8] Exhibit A, G11, pp 58-65.
The relevant offending occurred at about 3:30am on 2 May 2010. The two male victims were walking in a Sydney street. The Applicant was in the company of other males including Mr GP. As the males passed the victims the Applicant took hold of victim 1 by his shirt and pushed the collar up into the victim’s throat and said, “Got any money, have you got two bucks?”. The victim replied that he had no money. The Applicant then said, “Surely you have a phone, or something”. The victim pushed the Applicant away. These were the facts in relation to the offence of demand money with menaces with intent to steal.
The Applicant turned his attention to victim 2 and took hold of him by the shirt and pushed him into a wall. The Applicant said, “give me money, you must have something”. The victim opened his wallet so the Applicant could see he had no cash. The Applicant then said, “What about a phone”. The victim repeatedly said, “I have nothing.” The Applicant was seen to lift his shirt upwards, and the victim perceived he had a knife tucked in the waistband of his pants. The victim handed over his iPhone. These were the facts in relation to the offence of robbery.
The police were called and half an hour later located the Applicant and the other males. The Applicant denied he had a phone but when he stood up police saw a phone on the ground under his feet. The Applicant initially said it was his phone. The Applicant denied that he had a knife and when searched, police did not locate one. The Applicant was dealt with on the basis that he did not have a knife at the time he committed the offence.
In sentencing Judge Charteris said[9];
One only needs to state the facts to understand how serious this behaviour has been. This was a cowardly and thuggish attack on citizens who were lawfully going about their business on the streets of Sydney around 3am. The streets of Sydney are the possession, generally speaking, of the citizens of the city. The citizens of the city are not going to surrender the streets of this great city to thuggish behaviour such as that exhibited by this offender on that night.[10]
[9] Sentencing Remarks of Judge Charteris in the District Court of New South Wales Criminal Jurisdiction, 1 April 2011, Exhibit A, G11, pp 58-65.
[10] Ibid, pp 60-61.
The Learned Sentencing Judge said that the Applicant was at the time of the commission of the offence 19 years and seven months of age. He was contrite. His Honour noted that the Applicant spent one month and 13 days in custody after his arrest before being granted bail. He then worked for Aldi and thereafter casually with a family friend. His bail conditions included he abstained from alcohol, obey a curfew, remain at home between 9pm and 6am and not associate with Mr GP. He breached bail and was arrested on 19 March 2011. He was in the company of Mr GP at a railway station around 4am that morning. The Applicant was affected by alcohol. Further bail was refused, and the Applicant remained in custody until sentenced by the New South Wales District Court on 1 April 2011.
The Learned Sentencing Judge strongly recommended the Applicant be classified in the Young Offenders Program and have access to programs addressing his alcohol abuse. Further it was recommended that he go to a young offender’s prison.
Warning consequent upon the sentence of imprisonment
On 28 November 2011, the Applicant was advised that his visa may be liable for cancellation under section 501 of the Act on character grounds because of his offending.
The Applicant was sent a Notice of Decision Not to Cancel Visa dated 13 January 2012.[11] Within that document he received the following warning:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”
[11] Exhibit A, G14, pp 79-80.
The Applicant signed an acknowledgment of receipt of that Notice not to cancel his visa dated 18 January 2012. That signed acknowledgement reads in part “I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”
Further offending
In 2016, the Applicant was dealt with for the offences of drive while license was suspended, drive vehicle with illicit drug present in blood, drive motor vehicle during disqualification period, and possess a prohibited substance. He received fines and further periods of licence disqualification. The Applicant confirmed in evidence that the drugs were methylamphetamine and cannabis.
In 2017, the Applicant was again convicted for possess prohibited drug and was fined.
Between 11 March 2019 and 1 May 2019, he was again before the New South Wales Local Court and dealt with for the offences of Unlicensed for Class, and possess prohibited drug (two counts).
16 August 2019 sentence
On 16 August 2019, the Applicant was sentenced by the New South Wales Local Court for the offences of demand with menaces with intent to obtain gain/cause loss, and assault occasioning actual bodily harm, which offences were incidents of domestic violence. The New South Wales Police Facts Sheet[12] summarised the details of those offences, which occurred on 27 April 2019, namely:
·The victim was Ms BW. The Applicant moved into Ms BW’s apartment six months earlier. She had a two-year-old daughter from a previous relationship who resided with them.
·The Applicant and Ms BW were in the bedroom. They had a heated argument relating to messages left on the Applicant’s telephone by a previous partner. Ms BW left the bedroom to de-escalate the situation and calm down. She returned to the bedroom to collect her car keys. She intended to take her daughter and stay at a friend’s home. The Applicant was asleep on the bed and lying on top of the car keys. Ms BW telephoned her mother to come and collect her and her daughter. When the mother arrived, she sent Ms BW a text message that she was waiting downstairs. Ms BW picked up her daughter and went to the bedroom to collect her car keys. The Applicant woke up, became aggressive and verbally abused Ms BW.
·The Applicant prevented Ms BW from leaving her apartment by blocking the door. He continued yelling at her. She managed to exit the apartment, with her daughter in her arms. The Applicant followed her downstairs jumped in front of her and at the bottom of the stairs, and prevented her and her daughter from leaving the building. The Applicant “was holding the victim’s mobile phone in his hand and was leaning forward towards the victim with his forehead against hers. Every time the victim tried to pull the door open [the Applicant] would lean back and close the door with his body.” This continued for two minutes. The Applicant then head-butted Ms BW to the right side of her head.
·Ms BW was crying and scared. The Applicant grabbed her by the throat and pushed her up against the wall near the front door entrance to the apartment. He asked to borrow $50, then demanded the victim give up her pin code for her bank account so he could transfer the money. The Applicant said, “you’re not leaving until you give me the pin” and continued to prevent her leaving the premises. Ms BW gave the Applicant her PIN code. Ms BW then left with her daughter.
·Police were called and observed a large bump on the right side of Ms BW’s forehead. When cautioned and arrested the Applicant said: “I head-butted her, I just lost it”. A check of Ms BW’s bank records indicated the Applicant transferred $300 from her bank account to his own account.
·An Apprehended Violence Order was issued which prohibited the Applicant from contacting Ms BW.
[12] Ibid, G10, pp 55-56.
In relation to the offence of assault occasioning actual bodily harm, the Applicant was sentenced to an intensive correction order of 16 months commencing 16 August 2019 and concluding on 15 December 2020. He was to be supervised by a community corrections service treatment program and to engage with EQUIPS – Domestic Abuse, and engage with a community-based psychologist and obtain treatment in respect of mental health issues.
In respect of the offence of demand with menaces, the Applicant was sentenced to a community corrections order of 14 months commencing on 16 August 2019 and to be supervised by a community corrections service treatment program in similar terms.
On 10 November 2020, the Applicant was convicted in the Local Court of New South Wales with contravene prohibition/restriction in AVO (domestic) in respect of Ms BW. A New South Wales Police Facts Sheet[13] indicates that the Applicant was seen in the driver seat of the motor vehicle parked at a premises. When the Applicant saw the police, he immediately dropped his head. Ms BW was in the passenger seat of the vehicle. When police approached and questioned the Applicant, he was considerably nervous, shaking and questioning the police. He asked police to let him go. He became argumentative, swearing and demonstrating that he was still nervous. Following a police check, it was determined the Applicant was still the subject of an AVO in relation to Ms BW. He was arrested and charged. The Applicant was sentenced to a community correction order of 15 months to be supervised by community corrections service treatment program.
[13] Ibid, G9, pp 51-53.
The Sentence That Enlivened the Mandatory Cancellation
On 31 March 2021, the Applicant was sentenced by the Local Court of New South Wales for the offences of assault occasioning actual bodily harm (DV), and two counts of contravene prohibition/restriction in AVO (Domestic). He had been taken into custody for the relevant offending on 17 November 2020, 7 days after he last appeared in court on 10 November 2020 for breaching the AVO. He had been in custody for 4 months 14 days at the time of being sentenced. The victim was again Ms BW.
The Learned Magistrate heard that in recent times the Applicant had lost ties with his family and friends and isolated himself from them. It was submitted amongst other things that he had difficulties at work and sustaining employment, started taking drugs, was in a toxic relationship, and had lost his way. More recently he had re-engaged with his family particularly his parents who were assisting him. At the time of the offending the Applicant was subject to a community corrections order and an intensive corrections order. The circumstances of this offending are referred to in the sentencing remark of Magistrate Humphreys dated 31 March 2021.[14] The Learned Magistrate said:
“These events that occurred on 16 November of last year were serious. These were serious examples of domestic violence, aggravated by the fact that they occurred at [Ms BW’s] home in circumstances where she was to be protected by an AVO not just in the standard conditions but one not to approach, not try and find, not go into where she lived. It is pleasing to not hear the submission that he was invited over because of course she cannot change that order and I am pleased that that is not being relied on today.
What I can see from the facts was that there was an engagement by both of them in screaming and knocking over random items of furniture around the apartment, and the nearby residents have contacted the police. What is concerning to the Court in relation to the objective seriousness of this matter is that when [Ms BW] was protected by an AVO, [the Applicant] has picked her up, thrown her on the lounge, pinned her on the lounge, struck her several times around the face with a closed fist causing bruising to her eyes, red marks around her cheeks and ears, grabbing her around the throat with both hands, with that grip causing abrasions. It was so severe, causing abrasions around her neck.
It must be said that this is at least mid-range of objective seriousness for an assault occasioning actual bodily harm in circumstances where the victim was protected by an AVO and in her home. I take into account that this was something that was occurring at the time of conflict between the two in context of drug fuelled behaviour but that is of course no excuse.”
[14] Ibid, G6, pp 42-43.
The Learned Magistrate received a sentencing assessment report dated 29 March 2021 which was referred to during sentencing.[15] The author said that the Applicant was residing between his former partner’s address and his parents and he accepted he was knowingly contravening the AVO. The Applicant continued to have the support of his parents and would reside with them if released back to the community. The Applicant’s last period of consistent employment was 2018. The Applicant disagreed with the severity of his offending as outlined in the police facts and he attempted to deflect responsibility and blame the victim for his offending. At the time he frequently took methylamphetamine and abused alcohol.
[15] Exhibit G, SB1, pp 159-163.
The Learned Magistrate observed that the Applicant was, at the time offending, on an intensive corrections order for an assault occasioning actual bodily harm against the same victim, with one month still to run on that order.
The Applicant was first dealt with for the breach of the community corrections order. Having found the breach proved, the court imposed a community corrections order for a period of 15 months from the date of sentencing (31 March 2021), and directed that upon his release from custody, he enrolled in, and complete the EQUIPS foundation and domestic violence course. In relation to the offences of contravene AVO and assault occasioning actual bodily harm, the Applicant was convicted and sentenced to a term of imprisonment of 18 months on each count to be served concurrently with a non-parole period of six months commencing from 17 November 2020 when he was taken into custody. He was eligible for release on 16 May 2021. The AVO was extended for 5 years.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides that:
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.
The Tribunal is satisfied that the Applicant made the representations required by s501CA(4)(a) of the Act. Accordingly, there are two issues before the Tribunal namely (a) whether the Applicant passes the character test; and (b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
It is conceded by the Applicant that he does not pass the character test. I am satisfied that having regard to the sentence imposed by the New South Wales Local Court on 31 March 2021, that the Applicant does not pass the character test. He has “a substantial criminal record”, within the meaning of s 501(7)(c) of the Act and therefore does not pass the character test on account of s 501(6)(a) of the Act.

The Applicant cannot rely on s 501(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s501CA(4)(b)(ii) of the Act there is another reason why the original decision should be revoked.
When considering the exercise of the discretion in s 501CA(4) of the Act the Tribunal is bound by subsection 499(2A) of the Act to comply with any direction made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (the Direction) applies[16].
[16] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
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.
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(iii)strength, nature and duration of ties to Australia; and
(iv)impact on Australian business interests.
I will now deal with each of those Primary and Other Considerations in turn.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers keep in mind 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation 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 8.1(2) of the direction requires decision-makers 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.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department, and whether the non-citizen has reoffended since been formally warned, or otherwise made aware in writing about the consequence of further offending.
The Applicant’s offending commenced when he was a child. He was dealt with by the Children’s Court in October 2005 for offences of violence namely affray and assault occasioning actual bodily harm. He was then 15 years of age and had been in Australia for about 7 years.
The Applicant in evidence could not remember the circumstances of his offending as a youth. He described himself as young and stupid.
The Applicant first appeared in an adult court in August 2008. He was then approximately 18 years of age. He failed to comply with the obligations of a learner driver by displaying “L” on his car and was unaccompanied by a licensed driver. However, he was also driving with middle range prescribed concentration of alcohol in his blood system. This offending demonstrated lack of regard for Australian road rules, and placed members of the community at risk including other road users, as an inexperienced unaccompanied learner driver and with excessive alcohol in his system.
The Applicant in evidence could not explain why he committed those offences. At the time he was still living with his parents but was unemployed.
To his credit the Applicant was not again before a court for nearly 3 years, however he was dealt with on 1 April 2011 by the New South Wales District Court for serious street offences of robbery and violence. The sentencing comments of Judge Charteris referred to above, clearly indicate the seriousness with which the court regarded the Applicant’s behaviour. This offending he described as cowardly and a thuggish attacked on citizens lawfully going about their business.
The Applicant was 19 years and seven months of age and his conduct demonstrated a lack of respect for others and the laws of Australia.
After the Applicant was charged with those offences but before being sentenced by the court the Applicant was extended the privilege of being granted bail with conditions and was permitted to return to the community. A further aggravating feature of his conduct was that he was arrested on 19 March 2011 breaching the conditions of bail by disobeying the curfew, consuming alcohol from which he was affected, and being in the presence of Mr GP in whose company he committed the subject offences of violence. By his conduct in breaching the conditions of bail he further demonstrated contempt for the laws of Australia, and for the order of the court granting him bail and permitting him to remain in the community under conditions.
As a consequence of his sentence of imprisonment the Applicant received a formal warning on 13 January 2012 which he acknowledged and understood. To his credit the Applicant was not again before the courts for nearly 5 years.
However, the Applicant’s offending in 2016 which included drive whilst disqualified from holding or obtaining a driver’s licence, and drive whilst under licence suspension again demonstrated his continuing contempt for court ordered disqualification, and the suspension of his driver’s licence. Of further concern was that he drove a vehicle with an illicit drug present in his blood which placed members of the public and other road users at risk.
The Applicant said in evidence, and I accept, that for a time he was working, and in a relationship. However, that relationship ended, and he reconnected with his previous associates and returned to drug and alcohol abuse.
It is apparent that in 2017 the Applicant was continuing to use drugs with the offence of possess prohibited substance. This was also the case with similar offending in early 2019.
However, it was the Applicant’s domestic violence offences for which he was before the court on 16 August 2019 (for offences committed on 27 April 2019), his offending 15 months later for breach of AVO committed on 10 November 2020, and his domestic violence offending committed 7 days later on 17 November 2020 (for which he was sentenced on 31 March 2021) that demonstrated an escalating level of seriousness, disregard for the victim Ms BW, and once again a contempt for the laws of Australia.
His offending on 16 August 2019 which included the head-butting of his former partner was further aggravated because the violent behaviour was in the presence of Ms BW’s 2-year-old daughter whom Ms BW was holding in her arms at the time.
The Applicant could not explain why he transferred $300 from Ms BW’s account. He said he had intended to only transfer $30. The fact that he transferred any money was unacceptable.
The offence committed on 17 November, 7 days after he was before the court for contravene prohibition/restriction in AVO (for which he was sentenced on 31 March 2020), was brutal. As the Learned Sentencing Magistrate observed, the offending occurred at a time when Ms BW was protected by an AVO. The offending occurred in her home and the circumstances of the offending namely “has picked her up, thrown her on the lounge, pinned her on the lounge, struck her several times around the face with a closed fist causing bruising to her eyes, red marks around her cheeks and ears, grabbing her around the throat with both hands, with that grip causing abrasions. It was so severe, causing abrasions around her neck”, were particularly violent.
I also note from the Sentencing Assessment Report[17] that the Applicant accepted that he was at the time living between his parents and Ms BW’s home, knowingly in contravention of the AVO which further demonstrated his contempt for court orders. In evidence he conceded that he knowingly disobeyed the AVO. His final offending was committed at a time when the Applicant was under an intensive corrections order for Assault Occasioning Actual Bodily Harm involving the same victim.
[17] Exhibit G, SB1, pp 159-163.
His offending and in particular his domestic violence offences, were very serious. He was sentenced to a period of imprisonment, which is recognised as a sentence of last resort, and the AVO was extended by five years which clearly indicated the Court regarded his offending as very serious.
Insofar as the Applicant reoffended after receiving a formal warning, he said in evidence that he did not have regard to the warning. He regarded it as a piece of paper. Only now, when facing the current visa cancellation and its consequence, does he appreciate the importance of the formal warning.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending to date, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
The Applicant undertook the EQUIPS drug and alcohol program when he was first imprisoned. He also undertook as part of a condition of his parole further counselling, namely a 3-month course which he completed. Plainly, over time it did not deter the Applicant from renewing his abuse of drugs and alcohol and reoffending.
The Applicant said, in respect of his most recent sentence of imprisonment, that the opportunity to engage in further counselling was impeded by the COVID-19 pandemic. However, he completed the Domestic Violence 101 course and was issued with a certificate dated 16 January 2022 which is to his credit. It was an on-line course of 11 sessions and included behaviour related to domestic violence, how to react, to breath before reacting, and learning tools to avoid engaging in conflict. In his undated statement received 19 January 2022[18] the Applicant said:
“Being in the detention centre and away from my family has really been a wakeup call for me. Whilst residing in the detention centre I actively engaged with the activities that they provide such as gym, art class and education to help boost with my mental health. I have also completed the domestic violence course and have started the anger management course which has really helped me look at situations that high have been in and educated me on how to respond appropriately. Reflecting and working on my self-awareness has made a massive difference in my life.”
[18] Exhibit E.
The Applicant also said in reference to courses in anger management, that he has never done such courses before and he intends to engage in ongoing courses, if he were to be released back to the community.
The Applicant explained that drugs and alcohol had been his problem which gave rise to his offending and he repeatedly said that he would not return to that way of life. He was now healthy and drug and alcohol free, and he is “done with that former life”.
Nonetheless, the Applicant’s resolve not to reoffend and the impact that the Domestic Violence 101 and anger management course has not been tested in the community. Given his antecedent history, including violent offending, disregard for court-imposed orders, and having completed the EQUIPS foundation and domestic violence course, the Tribunal has very little confidence that the Applicant will not offend in the future. There is a real and significant risk that he may return to the use of drugs and or alcohol, which will also likely impact on the Applicant’s propensity for violence.
The Applicant was given the benefit of a community correction order, supervised community corrections service treatment plan, and intensive corrections order, but he continued to offend. He was given the privilege of returning to the community whilst on bail which conditions, he breached. He offended, in a very serious manner in respect of his last offence when he was particularly violent towards Ms BW. He blatantly disregarded the AVO which was in place to protect Ms BW. He had been dealt with by the Liverpool Local Court 7 days earlier for breaching the AVO which did not deter him from reoffending.
The Tribunal is satisfied that the incidences of family violence are very serious and that even a low risk of reoffending is unacceptable. A risk of future offending would not be tolerated by the community. Family violence is plainly abhorrent, and the Australian community would have no tolerance of a person being exposed even to a low risk that such offending might be repeated.
The Tribunal notes that the Applicant and Ms BW are no longer in a relationship but given his propensity for violence there remains a real risk that violent offending may occur in the future. The Applicant has shown a disregard for and contempt of court orders and the principles of law that underpin Australian society. That he committed various driving offences including alcohol and drug related driving offences is also evidence of this.
Finding on Primary Consideration 1
Given the factors discussed above, the Tribunal is satisfied that Primary Consideration 1 weighs heavily against the Applicant and in favour of the non-revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Paragraph 8.2 (3) provides that when having regard to the seriousness of the family violence the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence; and
(c)rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.

Paragraph 8.2(3)(d) also requires the Tribunal to have regard to whether the non-citizen has reoffended since formally being warned or made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence; including warnings about the non-citizen’s migration status should he or she engage in further acts of family violence.
I have discussed at length above the circumstances of family violence and that his offending occurred after being formally warned, which I will not repeat.
The Direction makes very clear the Government’s serious concern about conferring on noncitizens who commit family violence the privilege of remaining in Australia.
The incidents of family violence are very serious including the nature of the violence, and that the Applicant knowingly and wilfully disobeyed AVOs particularly with regards to his last offence when he reoffended 7 days after appearing in court for contravening the AVO. The court in dealing with his last offending, clearly regarded his offending as very serious having regard to the sentence of imprisonment imposed and the extension of the AVO for a period of 5 years.
The Applicant referred to his most recent offending having occurred when he and his partner were both using drugs and in particular methylamphetamine, but that does not excuse his violent offending.
The Applicant also referred to suffering mental health issues and being depressed at the time of offending which condition he has now overcome due to his abstinence from drugs and alcohol. He said that he would bottle things up. He referred to a period some years earlier when his parents and brother were living in a hotel and he was “couch surfing”; only returning home to get changed and then leave. He described his mental health “like a roller coaster”.
However, the Applicant was not receiving treatment from a medical practitioner or mental health professional and he has not been diagnosed with any mental health condition.
The Tribunal accepts that drugs and alcohol were having a significant impact on the Applicant at the time he committed offences including the domestic violence offences and that he felt depressed at times. But those factors do not mitigate the serious concern about those offences of domestic violence.
As the Tribunal correctly observed in Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1623 at [106] prior to the Direction which places special emphasis on the issue of family violence, the Tribunal has regarded domestic violence, violence against women[19], and threats to children, or acts of violence committed in their presence[20] as serious matters which generally weigh heavily against applications for citizenship or appeals for revocation of visa cancellation decisions. Those observations are apposite to this matter.
[19] Miller, p 31 at [14].
[20] Ibid at [15].
Finding on Primary Consideration 2
The Applicant’s domestic violence offending is properly regarded as very serious. The Tribunal finds that Primary Consideration 2 weighs heavily against the Applicant and in favour of the non-revocation of his visa cancellation.
PRIMARY CONSIDERATION 3 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
At the time of the Applicant’s offending for domestic violence he was in a relationship with Ms BW who had a two-year-old daughter. That child was present for and witness to the domestic violence for which the Applicant was sentenced in 2019. That relationship has since ended, and the Applicant does not play any role or have any contact with that child and is not expected to do so in the future. I am satisfied that child is not a child to whom this Primary Consideration applies.
The Applicant does not have any children but there are a number of children to whom he referred in evidence that formed part of his immediate and extended family.
The Applicant’s aunt Ms LB provided a handwritten statement[21]. She said she had three boys, one daughter, and four granddaughters all of all whom the Applicant loves and adores, and they love and adore him in return. She described them all as being very close. The children call themselves brothers and sisters and the Applicant will refer to them as his children. She did not identify their ages.
[21] Exhibit A, G20, p 124.
The Applicant’s evidence about those children, their ages, and his relationship with them was initially vague. He said that all of Ms LB’s grandchildren were under 18 years of age. He referred to Ms AP who was five to seven years of age and that Ms LB has had two recent grandchildren, but he has not met them. He also referred to two of Ms LBs children, namely Mr PF who was approximately 14 years of age, and there was another child whose name he could not remember.
The Applicant’s brother and his former partner have two children namely Ms AT approximately seven years of age, and Ms KT who was approximately 16 years of age. The Applicant also referred to his cousin’s son Mr AP who was 13 years of age.
The Applicant in evidence said that when he and his immediate family came to Australia in 1998, they lived in Cairns with their cousins until 2002. The Applicant and his family then moved to Sydney where he lived with his parents, brother, aunt, uncle, and grandmother. He described his family as close, and they will have a large family get-together from time to time.
The Applicant also referred to a son and daughter to his aunt and uncle.
The Tribunal asked the Applicant further details about children under the age of 18 years to whom this Primary Consideration might apply. He again referred to his two nieces Ms AT and Ms KT. They were his brother’s daughters, however his brother and former partner did not get along and are now separated.
Ms KT
In respect of Ms KT the Applicant said he tried to be involved in her life such as taking her shopping, however he had difficulty maintaining contact through his brother’s former partner. When asked when he last saw Ms KT, he said that he spoke to her in October 2021 from custody. His brother’s former partner passed away due to a drug overdose and he does not now know where Ms KT is residing. She is approximately 16 years of age. He last saw her approximately 7 to 9 years ago.
The Applicant said he was not sure about the impact his visa cancellation would have upon Ms KT but he thought she would be upset. He would like to reconnect with her and agreed he will be able to do so by electronic means from New Zealand. It is his intention to reconnect with her when released and was sorry that Ms KT had been locked out of both he and his parent’s lives.
Ms AT
Ms AT is approximately six to seven years of age and is his brother’s youngest daughter. He has not been involved with Ms AT. She has been in foster care since birth. He last saw her when she was approximately two years of age when he attended with his brother and former partner when they had a supervised meeting with Ms AT.
The Applicant said that insofar as his visa cancellation will have an impact upon Ms AT, it was that she would not have the opportunity to get to know him.
Ms AP
Ms AP is approximately five to seven years of age and the daughter of the Applicant’s cousin. He described himself as a “sort of uncle”. He said that he hardly sees her but when he does, he would take her lollies which she enjoyed. He last saw her when she was approximately four years of age. The family moved to Melbourne approximately two years ago because she had cancer and required treatment in Melbourne.
The Applicant said that she will be upset should his visa remain cancelled, and he returned to New Zealand.
Mr JP
Mr JP is the 13-year-old all son of his aunt Ms LB. The Applicant last saw him when he was seven years of age because Mr JP and his family then moved to a new home approximately one hour’s drive from where the Applicant lived.
The Applicant said that Mr JP was “like my little twin”. People said that they had similar features and acted the same way. He was like his little brother when they would get together.
The Applicant said that Mr JP would not be happy if his visa remained cancelled and he returned to New Zealand. He said that the JP would be more upset than the other children.
Mr PF
Mr PF is 14 years of age and the son of his aunt. The Applicant described him as a big boy and that he and the Applicant were “pretty tight, close”. He was not sure when they last saw each other.
The Applicant said that Mr PF would be upset if the Applicant’s visa remained cancelled and he returned to New Zealand but not as upset as Mr JP.
The Tribunal asked the Applicant if there was any other child under the age of 18 years in respect of whom he had a relationship. He said there were no other children.
The Applicant has a very large family. I do not criticise the Applicant for initially being vague about referring to children to whom this Primary Consideration applies, but it does indicate the very limited engagement he has had with each child in recent years. He did his best when giving evidence to assisted Tribunal.
The Tribunal also referred the Applicant’s father Mr GT to those children identified by the Applicant, and he confirmed that they were the only children with whom the Applicant had a relationship and to whom this Primary Consideration applied.
I am satisfied that the Applicant cares for and has a genuine affection for those children to whom he has referred. He has not, nor is it likely that he would play a parenting role in relation to any one of the children. He has also not seen any one of those children for some significant time. He will be able to renew and maintain contact with each child through the benefit of the internet and various other forms of communication should he return to New Zealand.
However, the Tribunal is satisfied that taking into account the interests of each child it is in their interest that the Applicant’s visa cancellation be revoked and that he remains in Australia to enable his relationship with those children to be renewed and continue in person.
Finding on Primary Consideration 3
Taking into account all of the circumstances to which I have referred and noting that the Applicant has had little contact or engagement with most of those children for a number of years, and also taking into account their respective ages until they each turn 18 years of age, I am satisfied that moderate weight is to be given to this Primary Consideration in favour of the Applicant and the revocation of his visa cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction[22].
[22] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Consistent with the Direction, the Australian community would expect the Applicant’s visa to remain cancelled. It is a matter of weight that the Tribunal ascribes to this Primary Consideration.
The Applicant has spent the majority of his life in Australia. He has been employed from time to time. He volunteered at the Ted Noffs Foundation[23] helping to support the community and disadvantaged and disconnected youths, including from the indigenous community. He has strong family ties. Matters personal to the Applicant are relevant in considering the weight to be given to the Primary Consideration.
[23] Exhibit A, G20, p 122.
However, the Applicant commenced offending as a youth and has a history of violence including domestic violence, disregard for court orders including AVOs, and demonstrated contempt and disregard for Australia’s laws. The Tribunal accepts that drugs and alcohol played a significant part in contributing to the Applicant’s offending and in particular his offences of domestic violence, but this is no excuse.
His final offence occurred in breach of an AVO, having appeared in court seven days earlier for a breach of that same AVO and at a time when he was on an intensive corrections order for assault occasioning actual bodily harm against the same victim with a month still to run on that order.
Finding on Primary Consideration 4
The expectation of the Australian community is that the Applicant’s visa remains cancelled. His history of violence raises serious character concerns. When taking into account matters personal to the Applicant and weighing those factors against his offender history, the Tribunal finds that some reduction in the weight is appropriately given to Primary Consideration 4. Accordingly, Primary Consideration 4 weighs significantly against the Applicant and the non-revocation of his visa cancellation. Absent of matters personal this Primary Consideration would otherwise weigh heavily against the Applicant.
OTHER CONSIDERATIONS
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
Other Consideration (a) - International non-refoulement obligations
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. Neutral weight is given to Other Consideration (a).
Other Consideration (b) - Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is approximately 31 years of age. He has referred to suffering anxiety and depression particularly in association with drug and alcohol abuse. He has not sought treatment from a medical practitioner or mental health practitioner and has not been diagnosed with any particular mental health condition.

The Applicant said that he has been drug and alcohol free since being imprisoned and that his health has significantly improved and is generally good.
The Applicant was born in the Cook Islands and his father was a New Zealand citizen and as a consequence the Applicant acquired his New Zealand citizenship. However, the Applicant has never resided in New Zealand having travelled to Australia directly from the Cook Islands. I am advised and accept the Respondent’s submission that the Applicant may choose whether he is relocated to New Zealand or the Cook Islands.
Should the Applicant choose to return to New Zealand, it is a country in which he has never resided and where he has no relatives or friends. If he were to return to the Cook Islands, he left there when he was aged eight years of age, and he would effectively be returning to a country in relation to which he has very little knowledge and again no relatives or friends.
The Applicant has spent the majority of his life in Australia, and I am satisfied that initially he will have some difficulty in integrating into the community of that country to which he returns. I accept that this will be a difficult time for him and that it may re-enliven feelings of depression and anxiety. However, the Applicant has worked in a variety of jobs including as a labourer for his uncle working on facias and guttering, at Centrelink, as a labourer assisting in the construction and building of air-conditioners, at a supermarket, as a delivery driver, and as a cabinetmaker helping to install kitchens. If released back into the community, the Applicant said he would like to go back to kitchen cabinet making. He would also like to study at TAFE and work with juveniles in the juvenile justice system to help young people not make the same mistakes that he has made. That is commendable.
The Applicant acknowledged that he should be able to find work within New Zealand or the Cook Islands, albeit at the moment he does not know where to start. He has generally been able to turn his hand to a number of forms of employment in the past and should be able to do so in the future.
The Applicant will not suffer any language or significant cultural barriers should he return to New Zealand or the Cook Islands. Health services and medical services would be generally available to him comparable to those in Australia.
Albeit in the short term the Applicant may have some difficulty upon his return those impediments to which I have referred should not prevent him in the medium to longer term in establishing himself and maintaining basic living standards commensurate with other citizens of New Zealand or the Cook Islands.
Finding on Other Consideration (b)
Having regard to those impediments to which I have referred I am satisfied that Other Consideration (b) weighs slightly in favour of the Applicant and the revocation of his visa cancellation.
Other Consideration (c) – Impact on Victims
This Other Consideration (c) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where information in this regard is available and the non-citizen is being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. Accordingly, neutral weight is given to Other Consideration (c).
Other Consideration (d) - Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must reflect on the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction details those matters that the Tribunal must consider as follows:
9.4.1. The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, 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.
The Applicant in his Personal Circumstances Form[24] and in evidence detailed his extensive family members all of whom reside in and will continue to reside in Australia. He referred to 29 uncles and aunts, two nieces and nephews, his grandmother, numerous cousins, various children to whom I have referred, and his brother and parents.
[24] Ibid, G18, pp 106-120.
The Tribunal accepts that the Applicant has very strong links to the Australian community and no links to the New Zealand or the Cook Islands community.
The Applicant provided a statement of his parents dated 13 January 2022[25], of his aunt Ms LB dated 28 May 2021[26], and his grandmother dated 20 May 2021[27], all of whom confirm his strong family relationships, speak glowingly of him as a person, and expressed preparedness to provide continuing support for the Applicant. They expressed concern for him should he be relocated to New Zealand or the Cook Islands.
[25] Exhibit C.
[26] Exhibit A, G20, p 124.
[27] Ibid, p 125.
The Applicant’s parents referred to the Applicant’s membership of the Ted Noffs Foundation which assists socially disadvantaged and disconnected young people and those from indigenous communities and culturally and linguistically diverse backgrounds. His father, Mr GT, said in evidence that the Applicant was involved in the Ted Noffs Foundation for 2-4 years. The foundation assists young people with drug and alcohol and mental health issues. They describe the Applicant as a valued member of the Noffs community who assisted youths and would rise to such challenges that he encountered with them. Mr GT also noted the Applicant’s contribution to the Ted Noffs Foundation by helping children engaging in music, art, and their employment. The Applicant’s brother was also involved in the foundation. The family was also involved in feeding the homeless. I accept the parents’ evidence.
The Tribunal received a letter from Mr MN, CEO of the Ted Noffs Foundation. He has known the Applicant since adolescence. The Applicant and his brother were the first young people to walk into the first Street University in Liverpool. He spoke glowingly of the Applicant, described him as a good person who despite his own struggles, always tried to help the community. Mr Noff expressed his support for the Applicant generally and more particularly that he remains in Australia. I accept Mr Noffs’ evidence.
The Tribunal also received a character statement from Ms LO, registered nurse, who has known the Applicant since childhood and attended school with him. She too spoke glowingly of him as a gentleman, was a soft-spoken and genuine person who has dedicated selfless time within community programs including the church and charity fundraising. I accept Ms Brooks’ evidence
The Tribunal also received evidence with respect to the Applicant’s mother’s current health. The Applicant indicated he believed her to be suffering from cancer although he was not sure about her diagnosis. He said his father has now taken time off work to care for her because she was so unwell. He said her condition started some years ago before he was taken into custody. He wanted to continue to help in the care of his mother and he has in the past and will in the future give his parents help. He was previously giving them $100-$200 per fortnight when he could.
Mr GT confirmed that his wife has been unwell for approximately three years. He said in reference to the Applicant “he was taken away from us, that’s when she became unwell”. Her condition has not yet been diagnosed and she was in coming days to have a brain scan. He said that he had come home on an occasion to find his wife on the floor unconscious. Her kidneys and liver have been shutting down. He now has to help shower her and does all of the cooking and household duties. He has ceased his employment where he worked for 20 years and now is her full-time carer.
Mr GT said that the Applicant and his wife are very close, “he is the baby”. He said the Applicant’s return to New Zealand would devastate his wife and hurt him as well. It would also impact upon the Applicant’s grandmother who also resides in Australia.
The Impact on Australian business interests
The Applicant has from time to time engaged in various forms of employment to which I have referred above. He has not been employed since about 2018 when he last worked as a kitchen cabinetmaker.
However, the Applicant’s employment should not be given any weight as the Direction states that “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.” This is not the case with respect to the Applicant. I am satisfied that the Applicant was not involved in the delivery of a major project, or important service in Australia and that this criterion should be given no weight either way in assessing this Other Consideration.
Finding on Other Consideration (d)
That Tribunal accepts that the Applicant has significant links to the Australian community and that the whole of his immediate and extended family resides in Australia. His links with his mother are particularly significant at the time when she is dealing with a debilitating illness. His father will also be assisted by the Applicant’s help in the care of his mother. His parents will be particularly upset and distressed should the Applicant’s visa cancellation not be revoked. The Applicant has also demonstrated in the past a significant contribution to the youth of Australia in his volunteer work within the Ted Noffs Foundation, which weighs in his favour.
The Applicant arrived in Australia in 1998 when he was eight years of age and has remained a resident of Australia since. The Applicant began offending as a juvenile approximately seven years after arriving in Australia. I do not regard this passage of if time as enlivening the obligation on the Tribunal to give less weight to this Other Consideration are provided in Direction 9.4.1(2)(a)(i).
Taking all relevant factors into consideration, Other Consideration (d) and the strengths, nature and duration of ties to Australia weigh heavily in favour of the Applicant and the revocation of his visa cancellation.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction.
The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in family violence as reflected in the Direction, in addition to his failure to pass the “character test”.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – weighs heavily against revocation of the Applicant’s visa cancellation;
(b)Primary Consideration 2 – Family violence – weighs heavily against revocation of the Applicant’s visa cancellation;
(c)Primary Consideration 3 – Best interests of minor children – weighs moderately in favour of revocation of the Applicant’s visa cancellation;
(d)Primary Consideration 4 – Expectations of the Australian community – weighs significantly against revocation of the Applicant’s visa cancellation;
(e)Other Consideration (a) – International non-refoulement obligations – is neutral;
(f)Other Consideration (b) – Extent of impediments if removed – weighs slightly in favour of revocation of the Applicant’s visa cancellation;
(g)Other Consideration (c) – Impact on victims – is neutral; and
(h)Other Consideration (d) – Links to the Australian community – weighs heavily in favour of revocation of the Applicant’s visa cancellation.
The combined weight of Primary Considerations 1, 2, and 4 is such that they outweigh all other Primary and Other Considerations.
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh against the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

.

...........[Sgnd]............
Associate
Dated: 14 February 2022

Date of hearing:      24 January 2022

      Advocate for the Applicant:      Self-Represented

      Advocate for the Respondent:      Jennifer Strugnell, Minter Ellison

Date of hearing:	24 January 2022
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Jennifer Strugnell, Minter Ellison