TRXW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

TRXW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 9 (12 January 2021)
Division:GENERAL DIVISION
File Number:2020/6609
Re:TRXW
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:12 January 2021
Place:Brisbane

The decision under review is affirmed.
.......................[sgd].................................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – domestic violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
12 January 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 28-year-old year old citizen of New Zealand. In August 2009, when he was 16 years old, he moved to Australia on a permanent basis.[1] The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).[2]
[1] Movement records at Exhibit G1, Section 501 G-documents, G15 show short visits to Australia in 2005, 2007 and 2008.
[2] Exhibit G1, Section 501 G-documents, G15, page 95 to 96.
On 22 April 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 14 May 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 20 October 2020, the Respondent decided not to revoke the cancellation.[5]
[3] Ibid, G13, page 87 to 89.
[4] Ibid, G9, pages 43 to 58.
[5] Ibid, G3, page 12.
The Applicant subsequently lodged an application for review in this Tribunal on 26 October 2020.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Ibid, G2, pages 3 to 8.
The hearing of this application proceeded on 14 and 15 December 2020. The Applicant gave evidence via videoconference. The Applicant’s partner, her brother, a family friend, the Applicant’s church minister and a psychologist (Mr K), gave evidence by telephone.
The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9]
[9] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 20 December 2019, the Applicant was sentenced to concurrent terms of imprisonment of two months, six months, and 14 months plus a cumulative term of one month, with an immediate release to parole. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[10] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
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.[11]
[11] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
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 or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[12] and “Other considerations”.[13] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[12] The Direction, paragraph 13.
[13] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[15]
[14] [2018] FCA 594.
[15] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in Samoa in August 1992. When he was nine months old, he moved to live with his paternal grandparents in New Zealand. He attended primary school and part of high school there. In August 2009, just before his seventeenth birthday he moved to Australia.
In the 11 years the Applicant has resided in Australia he has committed 22 criminal offences. He committed his first offence only two months after relocating to Australia.
Most of the Applicant’s offending relates to domestic violence, assaulting or obstructing police and breaches of bail and other undertakings including a domestic violence order.
The Applicant also has a history of traffic infringements spanning a ten year period, also starting only two months after relocating to Australia. He committed 14 infringements while on his learner and provisional (P1) licenses. His offences included driving under the influence of drugs, driving under the influence of alcohol, unlicensed driving and speeding. He has one recorded traffic offence in New Zealand, being drink driving, in October 2010[16] which he committed during a four month visit to New Zealand[17]. With respect to the drink driving offences, the Applicant said he was playing rugby at the time and having a few drinks after the game, and in New Zealand he had been drinking the night before the offence and went to get food the next morning.[18]
Early offending
[16] Exhibit G1, section 501 G Documents, G14 page 94.
[17] Ibid, G15, page 96.
[18] Ibid, G32.
In October 2009, the Applicant failed to display L-plates and drove without the supervision of a person holding an open or P license. He also contravened a direction or requirement. He received fines for these offences.
In 20 November 2012, at the age of twenty, the Applicant was charged with unlicensed driving and contravening a direction or requirement. According to the police facts, he was pulled over by the police for a random breath test, was not able to produce a driver’s license and was subsequently asked to provide his details. Later checks revealed the Applicant had provided a false name and date of birth, being those of his father, and that he did not hold a current driver’s license in Queensland.[19] In hearing the Applicant said he gave his own name to police and he attended a police station the following day with his New Zealand driver’s license as the police had asked him to do, although he was told it was no longer valid. He said he was not aware of any conviction arising from that incident.[20] I am satisfied that the Applicant drove without a valid licence. I make no finding about whether he gave false information to police.
[19] R2, page 37.
[20] Transcript, page 27.
On 23 August 2013 the Applicant contravened a direction/requirement. He had been issued with a notice to attend a police station within seven days so his fingerprints and photograph could be taken, and he failed to do so within seven days.[21]
[21] R2, page 34.
Between 16 June 2013 and 2 February 2017, the Applicant committed seven further traffic offences. The most serious traffic offending in this period was two instances of drink driving on 3 August 2013. Following these offences, the Applicant’s license was effectively disqualified for six months from 2 September 2013 until 1 March 2014. The other infringements included failure to display L plates and red P1 plates, driving while under a 24-hour suspension, driving as a learner driver under the direction of a person not holding an open license for more than a year, driving with an expired P1 license and speeding. He received fines for these offences. He was also subject to multiple periods of license suspension following the accumulation of demerit points and failure to pay his previous fines.
The Applicant’s next offending episode occurred on 12 February 2017. It involved an assault on police and contravention of a direction.
According to the police facts:[22]
[22] R2, page 30.
·     the Brisbane Rugby 10's competition was taking place at Suncorp Stadium;
·     police observed the Applicant exit the stadium. He appeared highly exuberant, unsteady on his feet and unduly intoxicated;
·     approximately 15 minutes later the Applicant attempted to re-enter the stadium. Security staff denied him entry due to his intoxication and when he became argumentative they referred him to the police;
·     the Applicant approached police who detected the strong smell of liquor on his breath and saw that his eyes were bloodshot. The police told him he was too intoxicated to re-enter the stadium;
·     the Applicant did not leave and talked over the top of the police, calling them “fucking arseholes’' and exaggerating the reasons he was refused entry by running from side to side and shouting to people that he was swaying on his feet and that was the reason he was refused;
·     the Applicant was asked to calm down and leave and warned that he could be arrested;
·     he refused to leave, and continued to abuse the police and cause concern for members of the public;
·     the police issued him with a direction to immediately leave the vicinity of Suncorp Stadium and not return for a period of four hours;
·     the Applicant continued to talk over police. He was given multiple warnings that if he did not leave he would be arrested. He used his phone to video police whilst he argued with them;
·     the police took a photo of the Applicant who became incensed and swiped at their Ipad, knocking it down whilst telling police they had no right to take his photo;
·     the police arrested and handcuffed the Applicant. While walking to the police van, the Applicant kept stopping and pushing his weight in the opposite direction. The police were required to use force to walk the Applicant; and
·     at the police Watchhouse, the Applicant refused to provide a specimen of breath or have his photo taken.
In the hearing the Applicant denied certain aspects of the police account.[23] He said it was police, not security that stopped him from re-entering the stadium, and that he had told them:
“I'm perfectly fine. If you are going to sell alcohol here of course I'm going to be drunk, people are drinking”.
[23] Transcript, pages 29 to 30.
He said he felt singled out due to his race and denied having sworn. He admitted that he acted out drunken swaying and argued with the police. He said everyone who he was with was drunk and they were all allowed back into the stadium. He said the police swore at him, telling him to “piss off” and he said:
“I'm not going. There's no reason for you guys to stop me, I'm not being an idiot, I'm not being a public nuisance, youse have singled me out”.
He admitted swearing as he walked away and refusing to be walked to the paddy wagon. He had asked to be allowed to walk by himself because he was embarrassed to be “locked up in front of all these people like this”. The Applicant said he was asked for ID and he told police he did not have any, then they took his photo with their Ipad which he objected to. He did not deny swiping the Ipad and knocking it down. He said that at the station he yelled at the police because he had not been given food or a blanket or jumper until around nine or ten o’clock at night. He did not deny refusing to have his photo and fingerprints taken.
I am satisfied that the Applicant was drunk, that he argued with police and swore at them, and that he continued to argue and disobey directions despite being warned that he could be arrested. I am further satisfied that he knocked their Ipad down, resisted when they walked him to the paddy wagon and, once at the Watchhouse, he refused to have his photograph or fingerprints taken.
The Applicant was sentenced on 28 February 2017 to fines and 40 hours of community service to be completed within six months. He did not complete the community service. He said this was due to work commitments.[24]
[24] Transcript, page 31, lines 17 to 18.
On 13 October 2017, due to his failure to complete his community service, he was sentenced for breaching the order and re-sentenced for the original offence of assault police. He received fines.
On 3 March 2018, the Applicant was caught drug driving in a vehicle that was identified as defective. He was fined and his license was disqualified for three months.
On 5 May 2018, while his license was disqualified the Applicant was caught driving a motor vehicle. He gave police a driver’s licence, insisting that it was his license. However, the police established that the photograph on the licence did not match the Applicant. They issued a formal direction to the Applicant to provide his full and correct details and he was warned that it was an offence to provide false or misleading information. He again said that the name on the licence was his, however he was unable to provide an age and date of birth consistent with the date of birth on the licence. He eventually provided his correct details. When the police asked him why he was driving, he said he and his passenger were going to a tavern to play the pokies.[25] The Applicant was arrested and released on bail. On 6 September 2018, he was convicted of contravene direction or requirement. He was fined and his license was disqualified for two years. Prior to being sentenced, he breached his bail conditions on two occasions.
[25] R2, page 25, Transcript, page 32, lines 1 to 2.

Between 21 January 2019 and 11 September 2019, the Applicant breached his bail conditions of four separate occasions.
Domestic Violence Offences
According to a police report of the incident[26], the Applicant and the victim, whom I will refer to as “Ms N”, had been in a relationship for around two years, were in in a de-facto relationship until a week ago, and had a five month old child together. On 25 August 2019, the police were called the Ms N told them that:
·     she and the Applicant were driving to dinner when she asked him about a woman who was messaging him[27] (with whom he had previously been unfaithful). He became angry, yelled at her and called her names. He kept yelling at her all the way to dinner;
·     when they arrived, he was still angry. Ms N said she wanted to go home which made him angrier. He continued to yell and call Ms N names as they drove home;
·     he started speeding and overtaking cars on the wrong side of the road. He then stopped in a side street and continued to yell at Ms N who did not say anything back as she was scared and did not know what he would do;
·     when they arrived home the Applicant was still very angry, yelling at Ms N and asking why she brought up the woman he cheated with;
·     Ms N did not want to stay at the house as she was afraid for herself and their baby. She ran to the car and started reversing out the driveway. The baby was in the car;
·     the Applicant jumped on the bonnet and yelled at her to stop and come back inside with the baby. Ms N did not stop. The Applicant hit the left side mirror, breaking it. He continued to yell and swear. He then started kicking the windscreen, continuing to kick it until it was all shattered. Ms N was covered in glass and her hands were cut;
·     Ms N drove back and forth, trying to get the Applicant off the bonnet but he did not. She stopped the car and started getting the baby out as the Applicant continued to yell at her; and
·     the police arrived and heard the Applicant yelling. Ms N was visibly upset and the Applicant was agitated. The Applicant did not give police his version but he did admit to smashing the windscreen, saying it was not domestic violence to smash the windscreen as he part owned it. Ms N told police that she was very fearful of the Applicant due to his violence then and on previous occasions.
[26] R2, page 23.
[27] In the hearing the Applicant said he had not been in contact with this person.
In the hearing, Ms N said she did not call the police and she thought one of her neighbours had done that. She said their baby daughter was in a rear-facing child seat at the time and was not injured. She described the cuts to her own hands as “minor”.[28]
[28] Transcript, page 93, lines 36 to 39; page 95, lines 8 to 31.
Following this incident, on 28 August 2019, a protection order was made. The conditions included the Applicant had to be of good behaviour toward Ms N and their daughter, and he was not to commit domestic violence against Ms N or their daughter or to expose their daughter to domestic violence. In addition, he was prohibited from remaining at or entering Ms N’s usual place of residence. The order was to remain in force for five years until 28 August 2024.[29]
[29] R2, page 14.
On four occasions in September and October 2019, the Applicant contravened the conditions of the order and committed further domestic violence offences against Ms N including assault and wilful damage. According to a police “Sentencing Schedule” that appears to have been provided to the court for the purpose of sentencing the Applicant:
·on 17 September 2019 the police attended Ms N’s address in response to a domestic violence incident;
owhen they arrived, the Applicant was at the front of the house while Ms N was locked inside, upset and emotional;
oMs N told police the Applicant had helped her move into the house two weeks earlier and had been staying at the address since that date;
oshe called the police after they had a loud argument where the Applicant wanted her to drive him to work and she refused. During the argument the Applicant had picked up a baseball bat and beaten up a cardboard moving box which was in the driveway in front of her car;
oMs N told the police that she did not see this but heard it and “got scared”; and
othe Applicant said he knew he was not allowed to be at the address, but he was there as he wanted a lift to work;
·on 21 September 2019, the Applicant returned to Ms N’s address;
ohe entered the property and had a verbal argument with Ms N;
othe argument escalated and became physical with pushing and shoving between both parties;
ohe pushed Ms N into a wall and the impact caused a large hole in the wall;
oMs N reported this incident to police on 15 October 2019; and
othe Applicant admitted to the police that he had been living there since the protection order was granted;
·on 12 October 2019;
oat around midnight, the Applicant again had an argument with Ms N at her address and entered into a verbal argument her which escalated;
ohe struck Ms N on the face with his hand causing immediate pain (and the material from the police includes a photograph of Ms N with what appears to be bruising on the side of her chin[30]); and
[30] R2, page 15.
ohe fled the address prior to the arrival of police;
·at around 11.00 am on 15 October 2019 the police received an urgent call regarding a male smashing up property at Ms N’s address;
othe police attended the address and spoke to Ms N. She identified the Applicant as her ex-partner and stated that he had returned to the house after attending court to ask for paperwork relating to his court matters;
oshe had given him the paperwork, and he began questioning her about financial matters and banking accounts;
oshe told him to leave and he got angry;
ohe left the house, destroyed the security door of the building and threw the remains of the door onto the ground next to Ms N’s car;
ohe then struck the panel lift garage door of the house, rendering the garage insecure and defective;
ohe also punched the back of Ms N’s car with his fist, destroying one of the taillight lenses rendering the taillight defective; and
ohe was located later that day and was arrested. He participated in an interview where he was questioned about the above domestic violence incident. He said he was paying the rent for the property and was angry he was not supposed to live there due to the court order and he “felt he was entitled to reside there”.
The Applicant was subsequently charged with four counts of contravening a domestic violence order, three counts of wilful damage and one count of assault occasioning bodily harm. He was remanded in custody.
In relation to the Applicant’s behaviour on 17 September 2019, the Applicant said that the children were not home as the two older children were at school and the youngest child was at daycare.[31] I note that the youngest child would have been six months old at this time which is unusually young for a child to be in daycare. I further note the applicant’s explanation for having lived with Ms N during December 2019 to February 2020 (detaled below) included that Ms N had just started back at work, which implies that she was not working in September 2019. I do not accept that the youngest child was at daycare. I accept that the older two children were not present.
[31] Transcript, page 32, lines 29 to 34.
In relation to the domestic violence episode four days later, the Applicant agreed that the police facts were accurate. He said Ms N did not suffer any injuries and no children were present although he did not say where the children were.[32] This incident occurred on a Saturday so the youngest child could not have been at day care. I do not accept that she was not in the home when this incident occurred. According to evidence that Ms N gave in the hearing about her two older children’s living arrangements, it does not seem likely that they were present. Ms N said that she and the Applicant were shoving each other, she grabbed onto a rail as she went backwards, and because her arms are strong her arm went into the wall. She said she was not injured.[33]
[32] Transcript, page 33, lines 1 to 11.
[33] Transcript, page 91, line 40 to page 92, line 4.
In relation to the domestic violence episode that occurred at around midnight on 12 October 2019, the Applicant claimed that the only child in the home was the youngest, and that the older two were staying with their grandparents that night.[34] The Applicant said:
“My partner and I had an argument where she started hitting me. I asked her to stop and I pushed her face away from me with an open palm.”[35].
[34] Transcript, page 33, lines 30 to 34.
[35] Exhibit G1, section 501 G Documents, G32, page 156.
Ms N said that the Applicant had struck her in the face. She referred to a “minor bruise” and a “bit of bruising” [36] which is quite different to police description of “very serious injuries” that was accepted by the sentencing court (see below). I do not accept that the Applicant merely pushed Ms N’s face with his hand and I am not impressed by Ms N’s efforts to understate the extent of her injury. I am satisfied that the Applicant hit Ms N hard enough in the face to cause clear bruising.
[36] Transcript, page 92, lines 9 to 11; page 93, lines 1 to 6.
In relation to the domestic violence episode on 15 October 2019, the Applicant agreed with the facts as alleged by the police, and said he thought the youngest child was at the home asleep while the elder two children were at school.[37]
[37] Transcript, page 34, lines 4 to 5.
The Applicant was sentenced for those offences on 20 December 2019, along with the breaches of bail from 25 May 2018 and 29 August 2019 and a fail to appear on 11 September 2019. He was sentenced to three concurrent terms of imprisonment – of two months, six months, and 14 months. For the fail to appear, he was sentenced to one month imprisonment to be served cumulatively. His total effective sentence was 15 months imprisonment. The court deemed 66 days of presentence custody as time served, and the Applicant was immediately released to parole.
In passing sentence on the Applicant for all of these offences, the learned Magistrate made the following remarks in relation to the domestic violence offences[38]:
“You have demonstrated that you are a highly bad-tempered, volatile and unpredictable person. And the Court has very serious concerns that if you are allowed back to that person’s house over the Christmas and New Year break, it could be a repetition of the unfortunate events which have unfolded in the past, leading to the grievous results - namely, the lady being seriously assaulted to the extent that a charge of assault occasioning bodily harm could be successfully brought by the police. So you will be getting out of custody today. You are not to go where that lady lives. I presume you are aware of the domestic violence order which is in place. I suggest you do not break that domestic violence order. If you do, you risk being imprisoned, because you will be in breach of your parole. You will simply go back to jail.
… Now, as I said a minute ago, the offending that you have been - that you pleaded guilty (sic) today is serious. It is repeated domestic violence offending. When sentencing is being carried out, obviously the Court looks at rehabilitation, the rehabilitative element of sentencing. That is always given the most serious of consideration, as is the deterrent element.
Repeat offending is something which, in the Court’s view, requires significant deterrent sentencing. The parliament has made it very clear by the head sentences that can be imposed for repeated offending that there is the wish of the legislature that the Court deal severely with people who repeatedly, repeatedly break the domestic violence legislation. It is all very well to say that some of those offences are contact offences. That might be so. But the legislature has recognised that it’s the contact which gives rise to serious offending and the prohibited act is the actual contact, because of the seriousness of unauthorised contact which can occur. And it’s not as simple a matter as saying, “Well, it’s only marginal contact.” It is the very mischief which the legislature has sought to have stamped out.
One of those offences resulted in very serious injuries to the lady, and the photos are - form exhibit 6 in the materials which have been put in front of the court. Why you would behave like that woman who is providing you with companionship is beyond the comprehension of the Court.”
[38] Exhibit G1, section 501 G Documents, G6, pages 34 to 35.
Only two months later, on 27 February 2020, the police discovered the Applicant at Ms N’s residence.[39] Ms N told the police that the Applicant had been living there since December 2019. She said they had an argument earlier in the day and the Applicant was still in the house. The police located the Applicant who confirmed he was aware of the conditions of the order. He was arrested, charged with contravention of the order and remanded in custody. In the hearing the Applicant admitted that immediately upon being released on parole, he had gone to live with Ms N.[40]
[39] R2, page 1.
[40] Transcript, page 34, lines 27 to 31.
The Applicant said that prior to the police discovering him at Ms N’s address, he and Ms N had, on three occasions, applied to the court to vary the order so that he could live with Ms N. He said:
“I kid you not, the Judge laughed at us every time we were there. He literally laughed at us. He did not believe anything in me. He did not believe that what we were wanting to do was genuine. It was very upsetting for us. We try to do everything the right way, go through court”[41].
[41] Transcript, page 17, lines 38 to 41.
The Applicant’s evidence about this is not consistent with what the learned Magistrate who sentenced him for breaching the protection order understood had occurred. As is apparent from the sentencing remarks quoted below, His Honour was only aware of one application to vary the order which was abandoned.
When asked why he lived with Ms N if the court had refused on three separate occasions to vary the order to allow him to do that, the Applicant said Ms N and the “children” needed him, stating that they had a newborn and Ms N had just started back at work.[42] I find this to be a rather weak and unconvincing reason for breaching a court order and a condition of parole, and I note that according to Ms N’s evidence only the youngest child lived with her at that time. I consider it far more likely that the Applicant lived with Ms N simply because he wanted to and felt entitled to as he had expressed he did on 15 October 2019.
[42] Transcript, page 18, lines 17 to 24.
Regardless of whether the Applicant and Ms N tried to vary the order so he could lawfully reside with her, the salient fact is that the Applicant knew that his parole conditions and the order required him to live elsewhere and he knowingly acted in breach of both. In fact, he has consistently breached the condition of the protection order prohibiting him from being at her usual place of residence.
On 17 April 2020 the Applicant was sentenced in relation to breaching the protection order. In passing sentence, the learned Magistrate made the following remarks[43]:
[43] Exhibit G1, section 501 G Documents, G5, pages 30 to 32.
“The Court… Cannot get past the fact that you have a very poor history where domestic violence is concerned, and, worst of all, you were only given Court-ordered parole just before Christmas, and within two months, you are out offending again. Now, it is all very well to say that this latest offending is more technical in its nature. That defies the point. This gouge of domestic violence is a dreadful reality.
The method by which the Parliament has sought to address that problem has been to give the Courts powers to order separation as between parties, no doubt for the reasons that when parties still have contact, dreadful consequences can occur. You are not being punished for speculation, but the reality is that the mischief that the Court has sought to stamp out is domestic violence, and that is sought to be achieved, as I said a minute ago, by giving the Court the powers to order separations. And when separations are ordered, then those separations have to be obeyed.
These pleadings that you had nowhere else to go a curious because when Mr Vilic from the parole authority spoke, it is obvious that you were giving an address at Forest Lake. You had somewhere else to go. You did not have to be at that address because you did have an alternative address, and this idea that you were just there peacefully in a cohabitation relationship is something the Court is not able to accept. It is a well-known in the domestic violence field that domestic violence cycles. One minute the woman is totally swept away by the enthusiasm of the relationship, and the next minute the woman is subject to very severe domestic violence form of offending.
…
Now, if you are not happy with the [order made on 28 August 2019], there was nothing to stop either the aggrieved or yourself bringing an application for variation. I am advised this morning that there was at least one application for a variation, which was subsequently abandoned for want of an appearance. I do not know what the Court is to make of that. The court cannot really make anything of that, other than to note the fact that an application for a variation was made, but it was not followed.
The Court cannot have the situation where people - where Courts make domestic violence orders, ordering people apart, and then people blatantly disregard the Court’s orders. The Court notes the heavy sentencing regime which was imposed in December last year, so it was obvious that the assault occasioning actual bodily harm - these must have been serious.
…
… you had an experienced criminal solicitor, albeit someone from the Legal Aid office, when you were - when you appeared in the Court in December. So it is just not comprehensible that the solicitors then would not have emphasised to you in the strongest possible terms not to breach the domestic violence order…
… The Court is of the view today that an actual term of imprisonment is the only penalty that can be fairly and justly imposed today.”
The Applicant was sentenced to three months imprisonment for breaching the domestic violence order and the sentence was cumulatively added to his previous sentence of imprisonment.[44] The Applicant’s parole was cancelled, and he was required to serve the remainder of his sentence in prison.
[44] Exhibit G1, section 501 G Documents, G5, pages 29 to 32.
In relation to the Applicant’s failure to comply with bail and police directions, he said he missed reporting to a police station once because he was sick, and he missed a court appearance because he had moved address and was not aware of it and that he handed himself in when he received a letter with a warrant for his arrest. This, if true, explains only two of many such offences. [45]
Incoming Passenger Card
[45] Ibid, G32
On 6 May 2017 the Applicant returned to Australia from overseas and he completed an Incoming Passenger Card.[46] He signed a declaration that said that the information he had given in the card was true, correct and complete. In response to the question “Do you have any criminal conviction/s?”, he ticked the box that said “No”. This was not true as by that time the Applicant had been convicted of five offences in Australia with convictions being recorded in relation to two of them, and one offence in New Zealand.
[46] Ibid, G16, page 98.

In the hearing when the Applicant was asked why he made that false declaration, he said he did not think it was false because when he went to court in New Zealand it was as a juvenile as he was under the age of 18, and while he received a fine he did not think there was a conviction against his name. When it was pointed out to him that he had convictions in Australia and asked why he did not declare those he said he thought the question referred to convictions in New Zealand.[47]
[47] Transcript, page 35, lines 14 to 34.
I find the Applicant’s explanation unconvincing, first because according to the dates on the New Zealand criminal history that I have before me[48] he was not under the age of 18 when he committed the drink driving offence there, second because that document states that he was “convicted and sentenced” without any indication that the conviction was not recorded, and third because there is nothing about the IPC that suggests that the question about criminal convictions excludes criminal convictions in Australia. I reject the Applicant’s explanation and I find that he knowingly provided false and misleading information on the IPC. I further find that his explanation to the Tribunal was disingeneuous.
[48] Exhibit G1, section 501 G Documents, G14, page 94.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of 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 paragraph (b) above, the sentence imposed by the Court 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 Applicant has engaged in violent and abusive behaviour against police officers and against Ms N.
His offending against police officers involved abusive language, swiping at an Ipad and physically resisting and struggling with police. In accordance with factor (c) of the Direction, this offending is to be regarded seriously. In addition, the Applicant has on multiple occasions failed to comply with directions issued by the police and he gave the police false information including a driver’s license that was not his. His offending displays an easy preparedness to deceive (or attempt to deceive) and abuse those who are charged with enforcing the laws that govern the Australian community. His deliberate failure to declare his criminal convictions on the IPC in 2017 displays a similar disrespect for the authority of the Australian government.
The Applicant has been convicted in relation to three domestic violence incidents that involved a physical attacked on or injury to Ms N, one episode where he violently damaged property and one episode where he angrily attacked a cardboard box with a baseball bat, causing Ms N to fear for her safety. After the first recorded incident, which culminated in him smashing the windscreen of a car Ms N was driving and covering her with glass, while their baby was in the backseat, a protection order was issued. This did not stop him. He continued to live with her and he committed four further episodes of domestic violence. There is no evidence that mitigates the seriousness of this offending. In accordance with factors (a) and (b), these offences must be viewed very seriously. The terms of imprisonment imposed by the court, imprisonment normally being a sentence of last resort, indicate that the court viewed them seriously. When granting immediate parole, the learned sentencing Magistrate impressed upon the Applicant his legal obligation to stay away from Ms N due to the seriousness of his offending against her and the need for her to be protected from him. His immediate breach of the order and his parole conditions was yet another demonstration of his disregard for lawful authority. When dealing with him for that, the Court found that the only sentence that sufficiently condemned the offending was one of actual imprisonment.
The Applicant’s overall offending is frequent and there is a trend of increasing seriousness, having escalated from nuisance type behaviour to violent assaults.
I am not limited to considering proven offences. I am required to consider the nature and seriousness of the Applicant’s “conduct to date”. That includes the Applicant’s reckless driving – driving on the wrong side of the road to overtake other vehicles while in an agitated state – on 28 August 2019 while Ms N and their infant daughter where in the car with him. In addition to that, the Applicant has been caught drug-driving in Australia and drink-driving in Australia and New Zealand. This behaviour, of the kind that tends to increase the risk of a traffic accident, is serious. The Applicant has, on many occasions, breached the conditions that applied to his license or driven when he did not have an active licence. His traffic offending is frequent although there does not appear to be a trend of increasing seriousness.
The cumulative effect of the Applicant’s traffic offending is that road users have potentially been put at increased risk of physical injury or death. The Applicant has injured Ms N, made her feel frightened for her safety and that of her child and has damaged her home. Police resources have been taken up dealing with the Applicant’s refusal to provide correct details and his failure to comply with directions and bail conditions.
I do not consider factors (h) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant factors, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
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, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The harm should the Applicant engage in further domestic violence includes physical injury, property damage, emotional harm and psychological harm to the victim. The Applicant has displayed a preparedness to engage in domestic violence with a child present or in the home. Should he do so again, the potential harm to the child includes physical or psychological harm.
The Applicant does not have a history of enduring intimate relationships, and his relationship with Ms N has not been smooth. Accordingly, there is a realistic possibility that he will have other intimate partners in the future and therefore any risk of harm is not confined to Ms N and her children.
With particular reference to Ms N, I consider that repeated offending could involve multiple episodes. While Ms N said she is not afraid to call the police if the Applicant is violent towards her again as she does not condone that behaviour, she would not commit to ending the relationship in the event of further violence. She said if he was violent to her again, it would take a lot of work, counselling and spiritual healing but she could not say that she would end the relationship.[49]
[49] Transcript, page 98, lines 17 to 23.
Ms N’s brother, who provided a statutory declaration in support of the Applicant, said he was aware that the Applicant had committed domestic violence related offences against Ms N[50], but that he did not know the details, only that the Applicant “was physical” with Ms N. I find it very concerning that he provided evidence in support of a person who had been violent to his sister without knowing the details of that violence. When I put this to him, he said “Well, like I said the situation that I know of was when he was physical with my sister and then, yes, my sister called the cops and then he was taken away. That’s what I know.”[51] Given, his apparent low level of interest in the violence perpetrated against his sister, I have no confidence that this witness would encourage Ms N to end her relationship with the Applicant if he were to be engage in further domestic violence.
[50] Transcript, page 62, lines 9 to 10.
[51] Transcript, page 63.
Reverend Perelini Tauilo, Minister of the Congregational Christian Church Samoa Le-Lamepa in Logan West gave evidence in the hearing. He knows Ms N through her membership of the church and he has known the Applicant for around two years through Ms N. He was aware of the Applicant’s drug use and infidelity. The last time Reverend Tauilo spoke with the Applicant was before his most recent period of incarceration.[52] He was an impressive witness in the sense that he seemed sincere and had a good knowledge of the Applicant’s offending. His confidence in the Applicant’s ability to rehabilitate was tempered by his acknowledgement that rehabilitation relied on a commitment by the Applicant, and would require a lot of counselling, love, discipline and support. He referred to bible studies, family counselling among other things.[53] However, when asked what advice he would give Ms N if the Applicant were violent to her again his answer was very much focused on the Applicant rather than Ms N’s safety and well-being. For example, he said he would tell her:
“that forgiving, verbally forgiving is not enough, but they have to sit down and sort things out, you know, seriously. And giving him more chances is not good, even not even good enough, unless you put your foot down and be - you know, be the straight and being direct with him….[Ms N] needs not only keeping him at home, but… to love him truly and you know…”.[54]
[52] Transcript, page 72, lines 40 to 43.
[53] Transcript, pages 70 to 71
[54] Transcript, page 75, lines 22 to 35.
When asked if he thought the Applicant needed to be here in Australia with his children, he answered in the affirmative, saying “he should stay with his family so that that way it could help him with his maturity. To let him understand that he has responsibility”. He referred to the benefits to the Applicant’s rehabilitation of remaining in Australia. When Reverend Tauilo was asked if the Applicant should first be responsible and stop committing crimes before being allowed back with his family, he said it was important for the Applicant to stop the violence and to have the benefit of his family and the community.[55]
[55] Transcript, page 74, lines 19 to 29.
As admirable as Reverend Tauilo’s intentions are, based on his evidence, I am not confident that he would counsel Ms N to end her relationship with the Applicant in the event of further domestic violence. In fact, he indicated that in the event of further violence, he thought Ms N should be heavily involved in rehabilitative efforts.
There is no evidence in support of the Applicant from any relative or friend of his. He has a brother in Rockhampton, a sister in Sydney, a sister in Brisbane, and aunt and uncle with whom he lived when he first came to Australia and some other relatives in Australia. His parents are in Samoa.[56] He said he is close to his siblings and he nominated his aunt and uncle as people he would live with if he gets his visa back. When asked why his siblings did not provide letters of support, he said that the elder two and their respective partners do not support him because of his offending. He said his youngest sibling wanted to provide a letter but she does not write well in English and her partner did not support her writing a letter because of his offending.[57] While these people appear to have a zero-tolerance attitude to domestic violence, there is insufficient evidence before me to determine what, if any, relationship they have with Ms N and therefore whether they would be able to persuade her stay away from the Applicant in the event of further violence.
[56] Exhibit G1, section 501 G Documents, G10, page 73
[57] Transcript, page 20, lines 26 to 38; page 21, lines 1 to 8.
In fact, there is no evidence before me that any person in Ms N’s life would encourage her to stay away from the Applicant in the event of further domestic violence. Given that, the fact that Ms N did not end her relationship with the Applicant following previous domestic violence episodes, and her inability to commit to doing that in the future, I am satisfied that any risk of further domestic violence against Ms N is a risk of repeated domestic violence against her, and therefore the harm from repeated offending potentially includes the harm of multiple repeated episodes of violence.
Domestic violence does not only impact its immediate victims. It affects family members of victims, and it weakens the fabric of society by causing dysfunction within, or breaking up, partnerships and family units. Added to that, there is an economic impact of domestic violence on the community. According to the Commonwealth Government’s Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022, violence against women and their children resulted in an overall economic cost of $26 billion in 2015-16, with victims bearing approximately 50 per cent of that cost.[58]
[58] See, ‘Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-
2022’, Department of Social Services, 2019. Forward at Exhibit R2, Respondent’s Tender Bundle, TB3.
The harm from further offending against police officers of the kind the Applicant has previously engaged in, such as struggling with police and swiping at their equipment, includes physical injury and property damage.
The harm should the Applicant engage in further drug-driving, drink driving or driving that could be considered reckless, includes serious injury or death to other road users.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has a history of drug and alcohol abuse which he said contributed to his offending.
In relation to his alcohol-related offending, he said that at the time he was playing a lot of football and that he was “always partying with my footy friends and drinking too much and getting behind the wheel.” However, he has not been much of a drinker for the last five years.[59]
[59] Transcript, page 39, lines 33 to 45.
There is statutory declaration before me from Ms N which she made on in May 2020 in it she said:
“After about 5 months into our relationship [the Applicant] reconnected with a few family members he had not seen in a while. He stopped drinking but started using drugs, he stopped working and through these family members he started surrounding himself with the wrong people and went down a path of destruction. I stuck by him through it all and became pregnant with our daughter about 10 months into our relationship. Eventually [the Applicant] steered away from this group of people after reconnecting with a different family member however the few people he was now surrounded with were also substance users. December 2018 [the Applicant] decided to get clean as he knew I never approved of the drugs and the fact we were getting ready to welcome a baby girl into our family. [The Applicant] was clean for about 2 months but then decided to start using again due to obtaining employment after more than a year of not working. He believed he needed the drugs to enable him to do the physical work without feeling the effects on his body as it had been more than a year of any type of physical work….
[The applicant] has anger problems and had never previously sought rehabilitation for it till after his release from prison in December he was willing to seek rehabilitation and was referred to YFS but was never connected prior to going back into prison.
When [the Applicant] was released in December 2019 he was ready for big changes in our relationship, however finding out about my infidelity whilst he was in prison was highly distressing and heartbreaking for him, he chose to turn back to drugs as a coping mechanism but only made things worse. We started relationship counselling and unfortunately he went back into prison after only 3 counselling sessions.”
Ms N said that she and the Applicant had been together for over three years. She said in the beginning of their relationship he made her feel safe and loved.[60] Around ten months into the relationship, she became pregnant. As she had her baby in March 2019, she would have fallen pregnant around June 2018.
[60] Transcript, page 77, lines 8 to 14.
According to the Applicant, he used cannabis, probably every weekend, between 2017 and August 2019 when he was incarcerated for the first time. [61] He used ice from early 2018 until August 2019, with a short period of abstinence when he tried to give it up.[62] He said he went back to using ice when he started a new job building house framed trusses. He also went back to using ice some weeks after being released on parole after finding out that Ms N had been unfaithful to him while he was in gaol. He said he used ice again for three days, then he stopped it altogether.[63] When he was using drugs he was associating with a group of people who were frequent users, however he said he does not intend to associate with these people anymore.[64]
[61] Transcript, page 36, lines 32 to 40.
[62] Transcript, page 37, lines 5 to 47.
[63] Transcript, page 38, lines 1 to 23.
[64] Transcript, page 39, lines 18 to 25.

The Applicant had an affair in early 2019, while Ms N was pregnant. She found out and he terminated it. From that time until the Applicant’s first period of incarceration, Ms N did not trust him and she often asked him questions and wanted to look at his phone. Her behaviour caused him a lot of stress because, according to him, he was no longer cheating on her and was telling her the truth but not being believed.[65]
[65] Transcript, page 41.
The Applicant was asked why he did not comply with Australia’s traffic laws, to which he replied that he had made stupid choices.[66] He committed the vast majority of the traffic infringements, including drink-driving in 2013 and drug-driving in 2018, after his first child was born (to a previous partner). He was therefore making “stupid choices” when he was an adult and a father.
[66] Transcript, page 34, lines 42 to 48.
In a letter dated 2 December 2020[67] the Applicant said, referring to the period before his domestic violence offending, “10 years I upheld the great values Australia taught me as a young man.” This statement fails to acknowledge the seriousness of the Applicant’s traffic infringements and his offences arising from his defiance towards police officers. Throughout the hearing he failed to show insight into the seriousness of that offending.
[67] A5.
In relation to the domestic violence offending, the Applicant said he made poor choices at a time when he was under a lot of pressure from everyday life which he did not know how to handle in a civil manner.[68] He said the pressure included having a newborn baby, working, and being questioned by Ms N about his whereabouts and his phone.[69] He partly attributed his offending to drugs and alcohol, and additionally to wanting to control the situation, bottling up his frustrations, wanting to upset Ms N as much as she was upsetting him, and generally not knowing how to deal with his anger in a proper manner.[70]
[68] Transcript, page 4, lines 37 to 44.
[69] Transcript, page 5, lines 6 to 27.
[70] Transcript, page 35, line 35 to page 36, line 28.
The Applicant now says that he understands the seriousness of his offending and that his offences were “disgusting”. However, his remorse appeared to be more related to the way other people viewed the offences and the consequences that he has suffered. For example, he said:
“the offences I committed and seeing everyone’s reactions, that made me realise how much, how much of a big mistake it was and I wish I could take it back. It’s nothing that I ever want to go through again. We have been apart for almost a year now.”[71]
[71] Transcript, page 5, lines 36 to 47.
Nor did the Applicant demonstrate much insight into the most recent offence, saying:
“I done four months when, when all these offences happened, I done four months and when I got out, I didn’t commit any further offence, just - the only thing that I was convicted of this time around was a breach of my parole. I shouldn’t of (sic) been at the property but [Ms N] wanted me and the kids wanted me at the property but there was no further offending or anything like that. There was no further violence when I came back out. I was only brought back to gaol this time around for being at the property.”[72]
(Underlining added).
and further:
“I was staying out of trouble when I got out. I was brought back here to gaol in detention, it was because I wasn’t supposed to be at the property and the kids wanted me home. I was never violent or anything like that when I came home the second time, I learnt my lesson.”
[72] Transcript, page 6, lines 1 to 8.
It is abundantly clear that the Applicant had not learnt his lesson. When he was sentenced for the first group of domestic violence offences the learned Magistrate told him he could not go to Ms N and he told him why, stating:
“You have demonstrated that you are a highly bad-tempered, volatile and unpredictable person. And the court has very serious concerns that if you are allowed back to that person’s house over the Christmas and New Year break, it could be a repetition of the unfortunate events which have unfolded in the past, leading to the grievous results… But the legislature has recognised that it’s the contact which gives rise to serious offending and the prohibited act is the actual contact, because of the seriousness of unauthorised contact which can occur.”
Yet the Applicant immediately resumed living with Ms N and stayed there until he was arrested. At the hearing, the Applicant gave questionable evidence about his reasons for residing with Ms N, stating that the children (plural) needed him when there was only one child living there.
The Applicant said he said he no longer wants to use drugs because that was one of the things that contributed to him ending up in gaol in 2019.[73] He does not wish to associate with his drug-using peers.
[73] Transcript, page 13, lines 15 to 19.
While the Applicant was on parole, he and Ms N participated in three counselling sessions.[74] They found these sessions useful especially in relation to anger management issues.[75] Reverend Tauilo said he had offered to provide marriage counselling to the Applicant at around the end of 2019, but he did not take up the offer. Reverend Tauilo said:
“I introduced to him that if he needs help, that the help is here when will is available when he is ready. And then he said, well, he’ll have a think. And then he will think about it. And as time went by, and then I said, ‘Well, when you’re ready, there is - I won’t force you to this sort of counselling and this marriage - marriage course, you know, but it’s good for you.”[76]
[74] Exhibit G1, section 501 G Documents, G20.
[75] A6, paragraph 30.
[76] Transcript, page 73, lines 16 to 30.
Notably, the Applicant did not engage in any individual counselling with respect to domestic violence, anger management or drug and alcohol abuse. Had he done so, it would have indicated willingness to accept responsibility for his behaviour and motivation to change it.
The Applicant now claims to have rehabilitated himself. He said when he was in Immigration Detention in Brisbane, he started doing self-awareness courses although when he was moved to a different detention centre he was not able to continue those. He was subsequently moved to Christmas Island where he said there were no courses. He pushed to be allowed to undertake courses there and he was eventually able to do an anger management course, a domestic violence course and a drugs and alcohol course. He said those courses gave him insight and more understanding into those subjects. He said he has been apart from his family, and undergoing rehabilitation, for such a length of time that:
“I’ve had so much time to think. I’ve had so much time to reflect. I’ve had so much time to go and also just to look at my actions and pinpoint what the issues were… I have issues, but there were issues that now I understand how to deal with, and also know the triggers and just talk to someone that - that could help me. And that’s with my family, my support network.” [77]
[77] Transcript, pages 13 to 14.
I accept that the Applicant sought to undertake these rehabilitative courses and that he undertook them. [78] He did that only after being visited with very harsh consequences for his offending. The Applicant said that he has been a positive role model to his peers in detention, giving advice about peaceful, respectful and civil ways to solve ongoing issues.[79] There is no independent evidence to support this self-serving evidence. I give it no weight. There is no evidence that the Applicant has used drugs or incurred breaches while in prison or Immigration Detention. The Applicant and Ms N said he has helped fellow inmates. This is consistent with other witness’s descriptions of the Applicant as helpful or giving so I accept it. I am satisfied that he has been of good behaviour while incarcerated.
[78] A1.
[79] A5.
If the Applicant gets his visa back, he plans to live with his aunt and uncle with whom he previously lived for around four years when he first moved to Australia.[80] After eight or nine months he will get his own place, living close to his family, until the protection order is varied.[81] The Applicant plans to seek employment, eventually run his own tree lopping business as he did previously, and marry Ms N.[82] Ms N wishes to have the order varied and to marry the Applicant.[83]
[80] Transcript, page 21, lines 13 to 18.
[81] Transcript, page 22, lines 7 to 15.
[82] Transcript, page 12, lines 40 to 43
[83] Transcript, page 89, line 43.
The Applicant said that the support of his partner and his family in Australia will help him to stay out of trouble.[84] He also intends to engage in counselling. He described his relationship with Ms N in positive terms, saying:
“Our relationship at the moment, even though we are oceans apart, it’s really good. We talk every day, every morning, lunch breaks, our communication is back to where it was when we started. We share everything with each other. When I’m having my down days being in here for 22 hours, it’s the only person I just want to talk to and just vent two. Our relationship at the moment has - is much more healthier than it was a year ago, nine months ago… I get to speak to her and share with her about my day. She shares with me about her day, how the kids are, what her struggles are financially and always checks up on me. Sees if I’m okay and vice versa. Just always do prayers in the evening with her over the phone and prayers in the morning with her before she goes to work and that’s been our relationship for the last, almost a year. Just having a laugh over the phone, you know, having jokes, having a good laugh, just trying to, just you each other up and get through the time that we are going through.”[85]
[84] Transcript, page 12, lines 29 to 35.
[85] Transcript, page 6, lines 12 to 34.
Ms N’s evidence was that, since the Applicant has been incarcerated (this time), their relationship has greatly improved. She attributed the improvement to the Applicant “giving himself back to the Lord”[86], praying with her, doing a lot of “fellowshipping” with her and improving their communication. She said their relationship is now based around their faith and values based on their Christianity and Samoan culture.[87] She believes that the Applicant can be rehabilitated and in fact already is rehabilitated. She said “I’m certain because I trust in the Lord, that is how I’m certain. We walk by faith and not by sight.”[88]
[86] Transcript, page 81, lines 31 to 32.
[87] Transcript, page 77, lines 20 to 40.
[88] Transcript, page 80, lines 35 to 39.
The relationship between the Applicant and Ms N is a relatively short one, having commenced around late 2017. It was a happy, healthy relationship for the first five months. From that time until the Applicant was most recently incarcerated, it was marred by drug abuse, infidelity on both sides, the Applicant associating with people Ms N did not approve of, distrust and domestic violence. Despite these things, Ms N considers her relationship with the Applicant to be a strong one.[89] However, it is evident that the positive, harmonious relationship the applicant now has with Ms N has only come about during his incarceration and detention, while he and Ms N have been physically separated, and he has been in a confined, highly structured environment that is completely different to the environment in which he engaged in inappropriate behaviours. The Applicant has not demonstrated an ability to behave appropriately within his relationship with Ms N on a long-term basis in the wider community. I have doubts about whether, should the Applicant be returned to the wider community, his relationship with Ms N would remain strong and healthy.
[89] Transcript, page 96, lines 25 to 29.
I am also concerned that Ms N was complicit in the Applicant’s breach of the protection order and his parole conditions, which indicates a preparedness by her to go along with unlawful behaviour in certain circumstances.
There are before me statutory declarations from three friends of Ms N[90], Ms N’s brother[91], Ms N’s brother’s wife[92] and Reverend Tauilo. They speak positively and optimistically about the Applicant. Reverend Tauilo stated that he was confident that, despite his criminal offences, the Applicant could “prove himself to be a better man”. These people know the Applicant through Ms N who has only known the Applicant for a bit over three years. None claim to have a or long-term relationship with him. This limits the weight I am prepared to give their evidence. Further, given Ms N’s brother’s ignorance of the details of the Applicant’s domestic violence, I give no weight to his evidence about the Applicant’s character or prospects of rehabilitation.
[90] Exhibit G1, section 501 G Documents, G20 and G23.
[91] A7.
[92] A2.
I have the benefit of independent expert evidence about the Applicant’s risk of re-offending in the form of a written report[93] and oral evidence from Mr K, psychologist.
[93] A6.
Mr K interviewed the Applicant by video-conference and he interviewed Ms N by telephone. He administered the following assessment tools:
·Personality Assessment Inventory (“PIA”) which is a self-report measure of adult personality and psychological functioning;
·the DASS Test which provides a standardised review of depressive, anxiety and stress symptoms, and which indicated that the Applicant had severe depression, severe anxiety, and extremely severe stress; and
·the Novaco Anger Inventory which measures the degree of provocation or anger that people feel if placed in certain situations, on which his score was 54 which Mr K said was “on the low side” indicating that he was presently managing his anger reasonably well. However, Mr K was of the opinion that he still needed some anger management counselling as he tended to get irritated rather easily.[94]
[94] A6, pages 7 to 8.
The Applicant reported to Mr K that he does not have patience and could engage in an angry outburst should others not respond to him in a timely manner.[95] Mr K diagnosed the Applicant with persistent depressive disorder with intermittent depressive episodes since his adolescence and when he was having problems with his relationship, which is linked to dysfunctional childhood attachment. Additionally, he diagnosed cannabis use disorder and stimulant use disorder. He said given the Applicant’s dysfunctional attachment and family background he was of the opinion that he also suffers from a generalised personality disorder. He said the Applicant’s clinical history had made him vulnerable to engage in substance abuse and substance abusers normally have problems with anxiety, anger, depression and stress. Moreover, substance use adversely affects the sense of responsibility and judgement. Hence, he was of the opinion that these things form the context in which the Applicant committed his offences.
[95] A6, paragraph 39.
Mr K recommended:
·Dialectical Behaviour Therapy for 12 months aimed at developing the Applicant’s sense of responsibility and insight into his behaviour[96];
·Anger management group counselling[97]; and
·A psychological/drug treatment program spanning 18 months[98].
[96] A6, paragraphs 52 and 56; transcript, page 48, lines 9 to 11.
[97] A6, paragraph 52.
[98] A6, paragraph 55.
Mr K opined that if the Applicant completes this treatment his risk of re-offending would be around two or three out of ten, and if he does not then the risk is six or seven out of ten.[99] He said that these treatments should come before relationship counselling as they would assist to achieve a better outcome.[100] The Applicant expressed willingness to engage in the recommended therapy and move on with his life.[101]
[99] Transcript, page 47, lines 4 to 10.
[100] Transcript, page 52, lines 20 to 40.
[101] Transcript, page 48, lines 19 to 20.
When Mr K was asked why he had recommended anger management therapy despite finding that the applicant was dealing with his anger appropriately, he said:
“Yes, because when a person is in a confined environment they have a particular way of looking at things. But when the person is out of detention or gaol, or whatever you want to call that, then the thinking is different and for that reason that I said - well, just to make doubly sure that there won't be huge risk factors with anger and that sort of stuff - for that reason that I said, 'Well, I am highly recommending that he gets anger management'.”[102]
[102] Transcript, page 49, lines 40 to 48.
I accept Mr K’s diagnosis and risk assessment.
The Applicant has not demonstrated an ability to be a law abiding citizen as an adult. Since the age of 17 he has consistently engaged in unlawful conduct consisting of, variously, violating the conditions of his right to operate a motor vehicle, using illicit drugs, driving under the influence, disregarding court orders and police directions, and domestic violence. His conduct over 11 years displays disrespect for the law and the legal apparatus governing the Australian community. Given his less-than-honest evidence in the hearing, I am not satisfied that his attitude has improved. It is yet to be seen whether his completion of the anger management, domestic violence and drug and alcohol courses in November 2020, and the religious activities he has been doing with Ms N, are sufficient to keep him from abusing drugs or alcohol or re-offending.
I accept that the Applicant has been drug-free and of good behaviour while incarcerated, although he has not demonstrated an ability to remain that way outside that environment. He is currently willing to engage in the treatment recommended by Mr K. However, he has not demonstrated a more responsible attitude since his last offending which gives me reason to doubt that he will remain committed to engaging in treatment if he is allowed to return to the community and is able to have the life he wants – living in Australia with access to Ms N and his children – without having to undertake that treatment.
The Applicant pointed to Ms N as a key support in his rehabilitation, however I have noted several concerns about that, including that she was complicit in his breach of the protection order, and their relationship has never been healthy on a long-term basis while the Applicant was in the community. Mr K recommended the Applicant undergo dialectic counselling, anger management counselling and drug and alcohol treatment before addressing his relationship with Ms N. I do not accept that Ms N is a protective factor. I do consider Ms N’s church community to be protective if the Applicant seeks and accepts their help, and I have noted my doubts about whether he will.
Presently, according to Mr K, the Applicant’s risk of re-offending is between 6 and 7 out of ten. I am not convinced that if the Applicant is returned to the wider community he will undergo the recommended treatment such that his risk would be reduced.
I consider there to currently be a moderate risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(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 revoke the mandatory cancellation decision is being made.
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 person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order 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-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.

The Applicant has an eight year old daughter, “Child A”, by a previous partner. Child A lives with her mother and step-father. The Applicant considers that Child A is well cared for by her mother[103]. He described Child A’s stepfather as a lovely stepdad who treats her as his own, and loves her “to bits just as much as I do”.[104] If the Applicant is deported, Child A will remain in Australia with her mother and step-father.
[103] Transcript, page 9, lines 45 to 47.
[104] Transcript, page 10, lines 42 to 47.
Before Child A started school, the Applicant used to spend every weekend with her. However, after she started school, that was reduced to one or two weekends per month.[105] He said Child A’s mother and stepfather always have things planned for Child A every weekend.[106] The Applicant said this reduction in their time together affected Child A greatly. The Applicant did not communicate with Child A other than when she was in his care.[107]
[105] Transcript, page 8, lines 12 to 22.
[106] Transcript, page 8, lines 33 to 41.
[107] Transcript, page 8, lines 46 to 47.
The Applicant currently speaks with Child A by telephone every week for one hour.[108] He claims his relationship with her is good but his absence is impacting her, and that she tells him she misses him.[109] He said she knows that he is in a detention centre and could be deported to New Zealand.[110] According to the Applicant, she has told him that if he is deported she would like to go with him.[111]
[108] Transcript, page 8, lines 1 to 2.
[109] Transcript, page 7, lines 34 to 44.
[110] Transcript, page 9, lines 14 to 25.
[111] Transcript page 9, lines 25 to 32.
The Applicant said Child A’s mother told him that Child A starts crying at random moments like when she is being tucked into bed. He indicated that Child A’s mother is upset with him for the impact that his circumstances are having on Child A.
I asked the Applicant if Child A’s mother had tried to get help such as counselling for Child A. The Applicant said “No, she hasn’t. She just needs her dad.” I then asked if he had suggested that Child A be taken to a counsellor to try to help her with her grief to which the Applicant replied “Her grief is with me, that’s why it’s so hard on me… She is too young to go see a counsellor.”[112] I find it hard to believe that, if both Child A’s mother and the Applicant believe she is suffering as the Applicant claims, neither of them have attempted to arrange any sort of help for her. There is no evidence from Child A or anyone else who is able to speak on her behalf that supports the Applicant’s evidence about Child A’s reaction to his absence and possible deportation. I reject the Applicant’s evidence on that subject.
[112] Transcript, page 10.
If the Applicant’s visa is returned to him, he will not live in Child A’s household, although it seems reasonable to conclude that he would have contact with her to the extent that he did before his incarceration. As Child A is eight, there are ten years in which the Applicant could make a positive contribution as a secondary caregiver. That partly depends upon him abstaining from drugs and avoiding imprisonment and deportation.
The Applicant’s relationship with Child A has mostly been as a secondary caregiver and it has been interrupted by periods of incarceration. Child A’s mother and step-father fulfil parental roles for her. If the Applicant is deported, he can continue to communicate with Child A by telephone and electronic means and he currently does. There is some potential for the Applicant to make a positive contribution to Child A’s life if he remains in Australia and on that basis I find that revocation of the visa cancellation is in Child A’s best interests to a limited extent.
The Applicant has another daughter, “Child B”. He has been incarcerated since Child B was eleven months old and she is now nearly two years old. It appears that the Applicant lived in the same household as Ms N and Child B except for periods when he was incarcerated. He communicates with her through phone calls and video calls with Ms N. I accept that he has a positive relationship with Child B.
Ms N has a 14 year old son, “Child J” and an 12 year old daughter, “Child L”, by a previous partner whom the Applicant claims to regard as his own children. By order of the Family Court, Ms N has sole parental responsibility and their biological father has care of them every second weekend and at certain other times.[113]
[113] Exhibit G1, section 501 G Documents, G28, page 140.
According to Ms N, until recently, the biological father did spend time with the children every second weekend when they stayed with his parents.[114] He has recently started paying child support due to the Child Support Agency garnishing his wages.[115] Ms N said he is not very present or active in the children’s lives, and that he has been “in and out” of their lives.[116] She said he has not seen them for quite a few months because there “needed to be a slight change” with respect to “the details of them going over there” and they could not agree on it.[117] It appears, based on Ms N’s evidence, that the children’s biological father wants to spend time with them and Ms N is not allowing it (whether or not that is a reasonable position for Ms N to take).
[114] Transcript, page 85, lines 30 to 46
[115] Transcript, page 86.
[116] Transcript, page 86, lines 39 to 40.
[117] Transcript, page 86, lines 15 to 28.
The Applicant described Child J and Child L as his children, saying he thought of them as his own, because they are the children of his partner. However, he has only been in their lives in the last few years, it does not appear that he ever lived in the same household as them (see next paragraph), and he was absent due to being incarcerated from 15 October to 19 December 2019 and since 17 April 2020.
With respect to the living arrangements, Ms N said that she and the children were all living with her parents, then she moved out and the children wanted to stay with her parents. The Applicant was living with her since August 2019 at the latest as the police report of his domestic violence at that time described their relationship as de-facto. Ms N said her intention was to get a bigger place where they would all live together. However, she ended up moving back with her parents after the Applicant was incarcerated because she could not afford to pay the rent.[118] When asked how long her two eldest children were living with her parents, she said “less than a year”.[119] I am not satisfied that the Applicant has ever lived in the same household as these two children.
[118] Transcript, page 11, lines 25 to 34.
[119] Transcript, page 99, lines 19 and 20.
The Applicant claimed to have a good relationship with Child J and Child L. He said he and Child J played basketball, PlayStation and watched movies together, and he helped both children with their homework in the evenings.[120] He said Ms N has a hard time with Child L, but he was always able to speak with her and she listened to him.[121] Ms N described the Applicant as a loving and "very present" father to their “children”, presumably referring to her three biological children.[122] The Applicant was using methamphetamine for most of the duration of his relationship with Ms N prior to his first period of incarceration. Neither the Applicant nor Ms N said that the Applicant only saw the children when the Applicant was not using drugs, and I do not find any such implication in any of the evidence. Ms N said she and her children speak with the Applicant by phone on video calls.[123] The Applicant said sometimes Child J and Child L are busy doing homework or he does not get the chance to speak with them or it will be a quick chat before they go to bed.[124] I accept that the Applicant used to spend time with Child J and Child L and that he maintains a positive relationship with each of them although I am not satisfied those relationships are particularly close.
[120] Transcript, page 6, lines 40 to 46.
[121] Transcript, page 7, lines 1 to 11.
[122] Transcript, page 78, lines 15 to 45.
[123] Transcript, page 79, lines 1 to 5.
[124] Transcript, page 7, lines 20 to 25.
Ms N said she did not think Child J’s and Child L’s biological father would agree to her taking them to New Zealand if the Applicant is deported.[125] She later said that her parents and siblings would also have a say because they have been a huge part of the children’s lives and have contributed to raising them.[126] The Applicant said the children do not want to move to New Zealand.[127] It appears that if the Applicant is deported, Child J and Child L will remain in Australia.
[125] Transcript, page 86, lines 13 to 14.
[126] Transcript, page 88, lines 18 to 24.
[127] Transcript, page 15, lines 10 and 11.
Ms N said if the Applicant was deported and she and the children did not follow him, it would leave “our children to not have a father to grow up with” and referred to the “devastation” of that outcome.[128] She said:
“Well, basically, they wouldn’t - they grow up without a dad, without a father. There are things that, you know, like - yes, I can be - you know the mother and single mother at that, but there are things that I can’t give them that they can only get from their father, from their dad…. It will impact them profoundly.”[129]
[128] Transcript, page 83, lines 30 to 34.
[129] Transcript, page 87, lines 11 to 19.
She raised as a possibility her and Child B following the Applicant to New Zealand and leaving Child J and Child L in Australia.[130] In relation to that option, she referred to herself and the Applicant being “ripped away from our children”.[131] She said that in that scenario her two older children would “possibly” stay with her parents. However, she said her parents work full-time and are “not young anymore” before revealing that her mother is in fact in her late 50s and her father is 64 years old. She said it would not be easy for her parents to juggle full-time work and looking after teenagers.[132]
[130] Transcript, page 83, lines 35 to 43.
[131] Transcript, page 84, line 35.
[132] Transcript, page 85, lines 15 to 28.
I find that Ms N’s evidence was disingenuous in the sense that she referred to the Applicant as the “father” of Child J and Child L and exaggerated his significance in their lives, she said she would be “ripped away” from Child J and Child L as though she had no choice in the matter, and she sought to downplay the ability of her parents to care for Child J and Child L despite the fact that they recently fulfilled the primary caregiving role for an extended period. I found her evidence inconsistent in the sense that she emphasised her children’s need for a father (meaning the Applicant) while contemplating leaving her two older children in Australia without their mother. When I expressed this to Ms N, she changed her mind and said if the biological father of Child J and Child L would not allow her to take them to New Zealand, she would not follow the Applicant to New Zealand.[133]
[133] Transcript, page 89.
This, in the event that the Applicant is deported, would leave Ms N, Child B, Child J and Child L in Australia without him physically present in their lives. At one stage, Ms N floated the option of relocating to New Zealand with all three of her children. However, this does not seem to be a realistic possibility given her evidence that the biological father is unlikely to agree, that Child J and Child L do not want to move to New Zealand and that her extended family who have been heavily involved in those children’s upbringing will have a say.
I will therefore consider the whether the best interests of Ms N’s children would be affected by non-revocation on the basis that they would remain in Australia.
Ms N works full-time and she fulfils the parental role in relation to all three children[134] although she has significant support from her family. She and her children live with her parents, and she described her family as 100% supportive.[135] According to the Applicant, Ms N’s parents occasionally pick up the children from school or drop them off, and they mind the children for instance so Ms N can go to the gym.[136] Ms N’s brother lives a two-hour flight away from her and he visits and average of once per month. He described himself as being very close to her children, and he said his parents, siblings and extended family spend time with Ms N and her children. He described their family as very supportive and very close.[137]
[134] Transcript, page 11, lines 25 to 34.
[135] Transcript, page 99, lines 1 to 2.
[136] Transcript, page 12, lines 4 to 8.
[137] Transcript, page 63, line 43 to page 64, line 14.
This evidence tends to undermine the Applicant’s evidence that Ms N is struggling with three children,[138] and Ms N’s evidence that she could not get the support she needs to look after her three children from her family “in the way that…I need it. Not in the way that I can get it from having my partner with us.”[139]
[138] Transcript, page 11, lines 40 to 47.
[139] Transcript, page 99, lines 30 to 35.
I am satisfied that Ms N, with the support of her family, is adequately caring for her three children, although they do not have the benefit of financial support from the Applicant. I am further satisfied that the Applicant could continue to communicate with all three children in the manner that he does now.
If the Applicant gets his visa back, he and Ms N plan to get married and build a life together as a family once the protection order is varied.[140] This creates potential for the Applicant to make a positive contribution in a parental role to the lives of Child B and as a step-parent to Child J and Child L for many years to come. Whether he would do that depends on him refraining from drug use and domestic violence, which is not guaranteed.
[140] Transcript, page 89, lines 40 to 45.
Further, according to Ms N, Child J and Child L preferred to live with the grandparents than her when she moved out, yet Ms N and the Applicant plan to have those children live with them if the Applicant is allowed to stay in Australia. The Applicant knows the children do not want to relocate to New Zealand away from their extended family[141], yet he expressed the expectation that if he were deported, Ms N and her three children would all follow him to New Zealand[142]. Ms N allowed the Applicant to spend time with these children knowing he was a drug user. The interests of Child J and Child L do not seem to factor highly in the Applicant’s and Ms N’s plans. I am not satisfied that the best interests of these children would prevail over the interests of Ms N and the Applicant. I am not satisfied that revocation of the cancellation of the Applicant’s visa is in the best interests of Child J or Child L.
[141] Transcript, page 15, lines 20 to 27.
[142] Transcript, page 15, lines 30 to 38; page 16, lines 6 to 25.
I am satisfied that Child B could benefit from having the Applicant physically present in her life as long as he refrains from drug abuse and further offending, and he matures into a responsible father. Therefore, revocation is in Child B’s best interests to a limited extent.
I note that Mr K, psychologist, provided a report in which he made some observations about the impact of non-revocation on the four children, being:
·     children have certain developmental needs growing up which include the need to be with people they would love (their parents), a sense of wanting to belong, a strong need for security and stability, of not wanting to be abandoned and isolated, and to be listened to regarding their problems;
·     he understood that to date these needs have not been completely met because of the absence of “the role of their father (the Applicant)” who is not currently active in the attachment process because of his incarceration, however he talks to them daily;
·     this dysfunctional attachment will continue should the Applicant be deported;
·     dysfunctional attachment creates problems for a growing child in later life. A positive attachment is essential for children’s self-concept and confidence. Attachment to parental role models needs to be positive and, if not, children develop adjustment problems at school and later in life;
·     for this reason, this family needs to be reunited preferably in Australia. Uprooting the children now would have a negative effect on their formative development;
·     he understands that the only role model that these children currently have is their mother which is not ideal; and
·     The Applicant told him that his maladaptive behaviour would continue should be deported to New Zealand.
In my consideration of the evidence concerning the best interests of Child A and Ms N’s children, I gave no weight to Mr K’s observations because they were based on the incorrect understanding that the Applicant was exclusively fulfilling a father-figure role for each child and that the only role model they currently have is Ms N. It does not appear that Mr K was told that Child A has a loving, engaged step-father, that Child J and Child L have a close and supportive extended family that includes uncles and a grandfather, and that Child B has the benefit of this close, extended family. These matters are so cogent to the topic of parental attachment that I am satisfied that Mr K’s opinion would have been different had he been properly informed.
The Applicant has identified nine other relevant children whose best interests are, according to him, affected by his visa cancellation. There are two twin nieces in Australia who are 11 months old.[143] They are the children of one of the Applicant’s sisters and her partner who fulfil the parental role for them. There are seven other nieces and nephews in Australia,[144] each of whom live with their respective parents. There is not sufficient evidence before me about the Applicant’s relationship, if any, with these children, whether they want the Applicant in their lives and whether their parents would allow the Applicant to be involved in their lives. I am unable to find that revocation is in the best interests of these children.
[143] Exhibit G1, section 501 G Documents, G10, page 71.
[144] Ibid, G20 page 121.
Conclusion: Primary Consideration B
The best interests of Child A and Child B weighs in favour of the revocation of the cancellation of the Applicant’s visa to a limited extent.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation 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 hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. 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 Government’s views in relation to community expectations are to be found in the Direction.[145]
[145] 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.

This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states 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. 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.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)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 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 be allowed to come to or remain permanently in Australia; and
(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-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was nearly 17 years old. He is now 28 years old;
·he first offended two months after moving to Australia;
·the Applicant’s domestic violence offences can be categorised as very serious;
·there is a moderate risk that he will re-offend;
·his conduct from the time he moved to Australia through to the hearing in these proceedings has demonstrated a lack of respect for the law and the legal and administrative apparatus of the community he seeks to re-enter;
·he raised a substantial amount of money for his church (see below);
·he has a reasonably solid employment history (see below); and
·if he is removed to New Zealand, it will adversely affect Ms N (addressed below under Other Considerations), and his two biological children (addressed above under Primary Consideration B).
Conclusion: Primary Consideration C
The Applicant breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant moved to Australia at the age of 16 and has lived in Australia for 11 years. He commenced offending two months after arriving in Australia.
The Applicant has held gainful employment in Australia. He was first employed here as a process worker in a factory. This lasted for around eight months.[146] He subsequently operated a tree lopping business where he employed some staff.[147] He stopped working when he was using methamphetamine and was unemployed for around a year. He then obtained employment in steel trusses.[148]
[146] A6, paragraph 15.
[147] A6, paragraph 16.
[148] Transcript, page 5, lines 31 to 35.
The Applicant contributed to fundraising efforts that paid off the mortgage of the church building and hall for the Samoan Independent Seventh Day Adventist Church when he was an active member of that church.[149] His history of employment and his voluntary contributions afford him some weight under paragraph 14.2(1)(a)(ii) of the Direction.
[149] Exhibit G1, section 501 G Documents, G19, page 103 to 113.
The Applicant has a partner and two biological children in Australia. He has siblings and extended family here. He was once an active member of a church and prior to his incarceration he attended Ms N’s church. He has relationships with Ms N’s two older children and with some of her family and friends through her.
There is no evidence before me to the effect that any adult other than Ms N would be adversely impacted by non-revocation of the visa cancellation. The Applicant claimed that Ms N and her children were dependent on him emotionally, mentally and financially.[150] I accept that Ms N loves the Applicant and wants a relationship with him. Her desire for him to remain in Australia was evident in her efforts to tailor some of her evidence to assist his application. She was asked how the Applicant’s deportation would affect her, and she said that as a full-time working parent she would find it hard doing school and daycare pickups and drop-offs, doing everything by herself.[151]
[150] Exhibit A5.
[151] Transcript, page 87, lines 21 to 33.
I am satisfied that if the Applicant does not get his visa back, Ms N will suffer emotional hardship and she will be without the financial and practical assistance she expects she would receive if he were allowed to return to the wider community. On the other hand, Ms N would be at some risk of domestic violence if the Applicant were to get his visa back.
As I have found, non-revocation would be against the best interests of Child A and Child B to a limited extent.
The Applicant’s social and familial ties, and the impact on his family of his removal from Australia, weigh moderately in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs moderately in favour of revocation.
(c) Impact on Australian business interests
It was contended on behalf of the Applicant that if he were permitted to remain in Australia he would likely return to being a small business owner and hire employees, thus contributing to the Australian economy. The contention that he would hire employees is speculative at best. Even if I were to accept it, the absence of such a benefit does not rise to the level of an impact on Australian business interests. This consideration is not relevant.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s).
The Applicant’s partner is a victim of domestic violence offences and she wishes him to stay in Australia. The impact on her has already been accounted for elsewhere in Other Considerations (Strength, Nature and Duration of Ties). This Other Consideration (d) is neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) 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:
·the non-citizen’s age and health;
·whether there are any substantial language or cultural barriers; and
·any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 28 year old year old man who is able bodied and does not claim to have any medical conditions, although he has been diagnosed with some psychological conditions, and it is likely that he will suffer emotional hardship from his permanent separation from Ms N, his biological children and his other family in Australia.
It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia.
The Applicant is concerned that he would be reliant on social welfare in New Zealand until he was able to get a job and that:
“It’s not that much money you get in New Zealand. Everyone comes to Australia because they know Australia can provide a good life for them. I came here for that.”[152]
[152] Transcript, page 16, lines 35 to 45.
However, the context I must consider is what is generally available to other New Zealand citizens. The Applicant will have the same access to social welfare as other New Zealand citizens. The Applicant has experience in tree lopping and streel truss housing. I am satisfied that he has employment prospects.
The Applicant has extended family members, on his father’s side, in New Zealand.[153] Those relatives include the Applicant’s grandmother who raised him for the first 13 or 14 years of his life, and with whom he is in frequent communication.[154] The Applicant said his grandmother would not be able to provide even short-term assistance if he returned to New Zealand as she is elderly and being cared for by one of the Applicant’s aunts.[155] I accept that. Still, he would not be all alone in New Zealand.
[153] Transcript, page 23, lines 45 to 47.
[154] Transcript, page 24, lines 1 to 17.
[155] Transcript, page 24, lines 19 to 48.
The Applicant lived in New Zealand until he was nearly 17 years old. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.
It is likely that the Applicant will face some difficulty in re-establishing himself in New Zealand as he will have to secure accommodation and obtain a job or arrange income support. However, any such difficulty would be short-term only and would not prevent him from successfully re-settling there.
This Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: weighs moderately in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: weighs slightly in favour of revocation
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs to a limited extent in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

…………………[sgd]……………………
Associate
Dated: 12 January 2021

Date of hearing: 14 and 15 December 2020

Solicitor for the Applicant:

Ms Krishlyn Chetty

MyVisa Immigration Law Advisory

Solicitor for the Respondent
Mr Jake Kyranis

Sparke Helmore lawyers

ANNEXURE A - DRAFT EXHIBIT REGISTER
File No 2020/6609
Between TRXW (Applicant)
AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)

Heard on Monday 14 December and Tuesday 15 December 2020

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 G-Documents
(G1 to G33, pages 1 to 157) R - 9 NOV 2020

A1 Applicant’s Statement of Facts, Issues and Contentions including Annexures A to C A - 24 NOV 2020

A2 Statutory Declaration of CF A 20 NOV 2020 24 NOV 2020

A3 Statutory Declaration of ON A 20 NOV 2020 24 NOV 2020

A4 Statutory Declaration of SM A 20 NOV 2020 24 NOV 2020

A5 Statement of Applicant A 2 DEC 2020 9 DEC 2020

A6 Psychological Report of Mr K A 23 MAY 2019 9 DEC 2020

A7 Statutory Declaration of AJN A 27 NOV 2020 9 DEC 2020

A8 Evidence of programs undertaken by the Applicant in Immigration Detention A - 9 DEC 2020

R1 Respondent’s Statement of Facts, Issues and Contentions R - 4 DEC 2020

R2 Respondent’s Tender Bundle
(TB1 to TB3 pages 1 to 76) R - 4 DEC 2020

[2021] AATA 9

12 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G33, pages 1 to 157)	R	-	9 NOV 2020
A1	Applicant’s Statement of Facts, Issues and Contentions including Annexures A to C	A	-	24 NOV 2020
A2	Statutory Declaration of CF	A	20 NOV 2020	24 NOV 2020
A3	Statutory Declaration of ON	A	20 NOV 2020	24 NOV 2020
A4	Statutory Declaration of SM	A	20 NOV 2020	24 NOV 2020
A5	Statement of Applicant	A	2 DEC 2020	9 DEC 2020
A6	Psychological Report of Mr K	A	23 MAY 2019	9 DEC 2020
A7	Statutory Declaration of AJN	A	27 NOV 2020	9 DEC 2020
A8	Evidence of programs undertaken by the Applicant in Immigration Detention	A	-	9 DEC 2020
R1	Respondent’s Statement of Facts, Issues and Contentions	R	-	4 DEC 2020
R2	Respondent’s Tender Bundle (TB1 to TB3 pages 1 to 76)	R	-	4 DEC 2020