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

[2022] AATA 1538

Van Maanen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1538 (9 June 2022)

Division:GENERAL DIVISION

File Number:           2022/2403

Re:Joseph Van Maanen  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:9 June 2022

Place:Brisbane

The decision under review is affirmed

..............................[SGD]..........................................
Senior Member R 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. 90 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

9 June 2022

1. The Applicant is a 27 year old citizen of New Zealand who moved to Australia, with his family, on a Class TY Subclass 444 Special Category (Temporary) visa (“visa”) in August 2011 when he was 16 years old. That visa was recently cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.

2. Under s 501(6)(a) of the Migration Act 1958 (Cth) (“the Act”), a person will not pass the character test if they have “a substantial criminal record”. This phrase is relevantly defined in s 501(7)(c) of the Act, 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 18 January 2021, the Applicant was sentenced to a term of imprisonment of 18 months imprisonment and granted immediate parole. What matters for present purposes is the term of imprisonment to which a person was sentenced, not the amount of time they actually served.[1] Therefore, the Applicant had a “substantial criminal record”, and he did not pass the character test.

   [1]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

3. While the Applicant was on parole, he breached his parole conditions, so his parole was suspended, meaning he had to serve his sentence in prison. On 26 August 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under

   
   

   s 501(3A) of the Act on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] The Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”) within the prescribed period.[3] Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)    that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

   [2]     Exhibit G1, G2 pages 73 to 79.

   [3]     Exhibit G1, G5, page 160 and G2 page 42 to 43.

4. On 17 March 2022 the Respondent decided not to revoke the cancellation.[4] On 24 March 2022 the Applicant lodged an application in this Tribunal for review of that decision.[5] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

   [4]     Exhibit G1, G2 page 14.

   [5]     Exhibit G1, G1 pages 1 to 7.

5. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should revoke the original decision. [6]   

   [6]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

6. The hearing of this application took place on 23 and 24 May 2022. The Applicant, who did not have legal representation, gave evidence via video link. His mother, uncle and younger brother gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

7. 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 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[7]

   [7]     On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

8. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction.

9. Those principles may be briefly stated as follows:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

   (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

10. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

11. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

12. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

13. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

14. The Applicant was born in New Zealand in 1995. In 2011 he moved to Australia with his parents and his two brothers.

15. From 2012, the Applicant was involved in boxing. It was a hobby and he attended competitions.[8]

    [8]     Exhibit R2, SM3, page 289; Transcript, page 22, lines 33 to 47.

16. The Applicant committed his first offence on 15 December 2013 when he was 18 years old, where he unlawfully assaulted a male acquaintance at a work party.

17. The police facts,[9] state that Applicant was at the work party with his then partner. He appeared to become upset about a text message his partner had received from another male which she showed to him and others who were with them, and he stormed off. He shortly returned and sat on the ground. The victim grabbed the Applicant by the hand, and the Applicant pulled away and punched the victim a number of times in the face. The victim received later stitches to his face. I do not have the sentencing remarks before me, but this offending was referred to by a Judge who dealt with the Applicant for a later offence in2021. His Honour said:

    “When you were 17 (sic), there was an offence of assault occasioning bodily harm, and you were given the benefit of probation and a conviction was not recorded. But it shows that you were somewhat readily inclined to use your fists in circumstances where it is not easy to understand why that would have been so. It was a work party. There was some issue involving, I think, your girlfriend. But, in any case, the complainant took hold of your arm and pulled you towards him – it does not seem to me to be particularly violent – and your response was to punch him a number of times.”[10]

    [9]     Exhibit R2, SM5, page 568.

    [10]    Exhibit G1, G2 page 33.

18. According to the Applicant, the victim was drunk and tried to drag him away while he was trying to have a conversation with his girlfriend. The victim tried to lift the Applicant up off the gutter and in his drunken state he stumbled, holding the Applicant’s wrists, and dragged the Applicant on his face and stomach. The Applicant jumped up and punched the victim. He said it was not a normal reaction for him.[11]

    [11]    Exhibit R2, SM3, page 292; Transcript, page 44.

19. The Applicant was arrested and charged on 31 March 2014. It was noted by police that he was extremely apologetic. On 28 April 2014 the Applicant was sentenced for assault occasioning bodily harm. The police asked the court not to record a conviction against the Applicant as he was remorseful. They requested that instead he be ordered to pay for the victim’s medical expenses and attend an anger management course.[12] The court sentenced the Applicant to probation for nine months and did not record a conviction.

    [12]     Exhibit R2, SM5 page 568.

20. In the hearing, the Applicant disclosed that his gym had banned him for using his boxing skills outside the ring when he committed the assault.[13] Community Corrections file notes indicate that in June 2014, the Applicant advised that he was taking a break from boxing,[14] and in August 2014 he advised that he was still boxing on occasion with friends, however had not yet found a new coach. He said he would like to one day “go pro” in boxing, however his priority at the moment was his job.[15]

    [13] Transcript, page 44.

    [14]    Exhibit R2, SM3, page 130.

    [15]    Exhibit R2, SM3, pages 129 to 130.

21. The Applicant did not do an anger management course. At some time in 2014, he spoke with his general practitioner (“GP”) about his anger, and his GP suggested a referral to a specialist, however the Applicant did not follow through with that.[16]

    [16]    Exhibit R2, SM3, page 121.

22. A probation completion summary dated in January 2015,[17] recorded that the Applicant had remained in the “low aggregate risk threshold”, which I take to mean he was assessed as posing a low risk of re-offending, for the entirety of his order. He successfully completed his probation.

    [17]    Exhibit R2, SM3, page 138.

23. There was then a long period when the Applicant was not convicted of any offences although he was not completely law abiding either as he was occasionally using an illicit drug, being cannabis. However, there is no evidence that he behaved violently.   

24. In early January 2020, there was tension between the Applicant and his then girlfriend’s father, because he had complained to her father about drug use in his home, where the Applicant and his girlfriend were staying. The father attacked the Applicant in a rage, causing a chipped tooth. He and his girlfriend fled. On their way to a friend’s place, his girlfriend’s brother, Mr Wilson, confronted him. The Applicant tried to defuse the situation, however Mr Wilson attacked him, kicking him several times in the face. The Applicant ran to McDonald’s. There he saw two of Mr Wilson’s brothers and a sister in the car park “waiting to get me”, so he went inside and locked himself in the public toilet.[18] He had asked the McDonalds staff to call the police.[19]  

    [18]    Exhibit R2, SM3, page 276; Exhibit G1, G2, pages 66 to 68.

    [19]    Transcript, page 47, lines 20 to 25.

25. The police arrived and found the Applicant in the toilet. They saw that the Applicant had a black eye, but he declined to press charges. When they asked him if he had anything on him, he disclosed that he had a knife in his pocket. He told them he used the knife for whittling.[20] According to the Applicant whittling wood is a hobby and he does not normally carry the knife with him. He thought he had it in his pocket that day because he had been working on a piece of artwork that morning and later when he and his partner had to flee the house in a hurry, he forgot that the knife was in his pocket.[21] I note that the Applicant did not brandish the knife or tell the people who were after him that he had it. Instead, he went somewhere safe and asked for the police to be called and disclosed his possession of the knife to them. I accept that he did not realise he had the knife in his pocket and that he had no intention of using it for anything other than whittling wood. The police took the Applicant to the watchhouse for his own safety.[22]

    [20]    Exhibit R2, SM5, page 516.

    [21]    Transcript, page 47, line 27 to page 48, line 9.

    [22]    Transcript, page 48, lines 29 to 33.

26. Two days later, on 11 January 2020, Mr Wilson again approached the Applicant. According to the police records, Mr Wilson was at home when he was told that the Applicant and his partner were walking past. Mr Wilson crossed to the opposite side of Wynnum Road to confront them both. The Applicant backed away from Mr Wilson who continued to walk towards him. The Applicant began to ‘shape up’ and said, “You don’t want to do this mate”. Mr Wilson continued to walk towards him. The Applicant then punched Mr Wilson to the right side of his face and Mr Wilson said, “Is that all you have, fuckwit”.

27. The facts of the offence that were accepted by the learned sentencing Judge are as follows:

    “…you and your girlfriend were walking past the complainant’s house. He saw you and came onto the street in an aggressive way. Your girlfriend said, “It is over, [name redacted]” (referring to the complainant). “Isn’t it?” And he said, “No, it is not,” and continues to advance towards you. To your credit, you retreat. Unfortunately, when he continued to come towards you in a threatening way, you punched him, initially, in self-defence, but then continued to deliver a number of blows causing significant fractures…

    It is accepted that you initially struck the complainant out of fear of an imminent assault. I note that he was a larger man than you and, after you struck him the first time, he made a comment to you, “Is that all you have got, fuckwit?” You then struck him three or four further blows. He was rendered semiconscious and knocked back against the fence. He suffered bruising to his left eye, chin and jaw and, more importantly, a bilateral mandibular fracture involving the left mandibular parasymphysis in the right body of the mandible. He required, subsequently surgery, with the insertion of four plates into his jaw. It is a fairly serious offence. And it is a feature of the case that he was an aggressive complainant who was belligerent and seems to have caused the confrontation by his conduct.

    …

    It is a significant feature of this case that your offending was in response to aggressive conduct by the complainant and was an overreaction to that unprovoked conduct.”[23]

    [23]    Exhibit G1, G2 page 33.

28. It is worth noting that, according to the police Statement of Facts, witnesses reported that the Applicant continued to punch Mr Wilson even though he appeared to be mostly unconscious after the first punch.[24] He stopped punching Mr Wilson after witnesses yelled at him to stop. After he walked away, Mr Wilson came to and ran after the Applicant, but he stopped and returned home.

    [24]    Exhibit R2, SM3 page 178; SM4 page 507

29. The Applicant’s account is that it was not the intervention of others that caused him to stop hitting Mr Wilson. He said he felt he had no other choice but to do what he did, and he pointed out that even with a broken jaw the victim pursued him “Like a terminator” and “It was either me or him”. He said as soon as he saw his opportunity to flee, he ran as fast as he could, because he feared for his life. However, he conceded that he went too far.[25] 

    [25]  Transcript, page 31, line 41 to page 32, line 35; pages 49 and 50.

30. The injury to Mr Wilson’s jaw satisfied the definition of grievous bodily harm because without treatment he would have been left with serious disfigurement and an inability to function, (for example to chew food) and he would have been susceptible to long-term infections.

31. The Applicant later told Corrective Services that he had sustained a chipped tooth in the fight, but he did not make a complaint to the police about it.[26] 

    [26]    Exhibit R2, SM3, page 124.

32. I accept that the Applicant did not want to engage in violence against Mr Wilson, that Mr Wilson had violently attacked him two days prior, and that he had tried to retreat, and he warned Mr Wilson not to start a fight with him, yet Mr Wilson was belligerent and aggressive. I accept that the Applicant was initially defending himself and that he stopped throwing punches of his own volition rather than because others intervened. Some might think Mr Wilson got what he deserved. However, after the first punch that pretty much immobilised Mr Wilson, there was no legal justification for continuing to throw punches. The Applicant overdid it in his efforts to avoid being harmed by Mr Wilson. The additional punches caused serious physical injury to Mr Wilson.  

33. The Applicant was charged with assault occasioning grievous bodily harm on 10 February 2020 and granted bail.

1. Between February 2020 and March 2020, the Applicant breached his bail conditions on multiple occasions and also failed to appear in court. The Applicant explained that he had to sign in at the police station three times per week and he failed to do that once. Then rather than turning himself in, he decided to stay away as he did not want to face the consequences of breaching bail.  

2. In April 2020, the police went to the Applicant’s home to execute two warrants for his arrest for failing to appear. They found him hiding in a bedroom cupboard and arrested him. According to the police records,[27] as they transported him in a police vehicle, he coughed, spat out phlegm, and said he had COVID. He was uncooperative and aggressive towards the police. The Applicant and the officers were taken to hospital for testing. The Applicant told the hospital staff that he told the officers he was COVID positive to avoid being taken to the watchhouse. He was remanded in custody for eight days until he was given bail.

   [27]    Exhibit R2, SM5 page 564.

3. The Applicant does not dispute that he coughed, spat and said he had COVID. He said he did not recognise the severity of his actions and the coronavirus at the time.  

4. On 8 April 2020 the Applicant was sentenced in the Wynnum Magistrates Court for four breaches of bail and for failing to appear twice. No conviction was recorded for the breaches of bail, and he was fined for one instance when he failed to appear.

5. The Applicant continued to breach his bail. He said that, without seeking to make excuses, he breached his bail due to the recent death of his great-grandmother (who lived in New Zealand), insomnia, uncertainty and anxiety regarding his upcoming court matters and the fact that he was working full-time while having to sign in at the police station three times per week without reliable transport. He also said he did not want to face the consequences of breaching his bail.[28]

   [28]    Exhibit G1, G2, page 68, Transcript, page 51, line 30 to page 52, line 33. 

6. On 18 June 2020, after again failing to report the day before, the Applicant was remanded in custody.

7. On 7 August 2020 the Applicant was convicted of “serious assault police officer”, and possession of a knife in a public place. The convictions were not recorded, and he was not further punished. He was also convicted of 14 breaches of bail and sentenced to 50 days imprisonment for those, with the period from 18 June to 6 August 2020 when he was remanded in custody counting as time already served. The result was that he was released immediately.

8. The Applicant moved in with his mother and ended his relationship with his girlfriend which he described as toxic. He got a full-time job with National Hide Processors and within a year he was promoted from casual to permanent.

9. In August 2020, the Applicant attended an information session that was conducted by the Australian Border Force (“ABF”) in which he was made aware of the consequences of further criminal offending on his visa status.[29]

   [29]    Transcript, page 53, lines 28 to 41.

10. On 18 January 2021 the Applicant was convicted of grievous bodily harm (“GBH”) for his assault of Mr Wilson, and he was sentenced to 18 months imprisonment. He was given immediate parole (court ordered parole). In passing sentence, the learned Judge warned the Applicant about his behaviour. In the context of the assault on the police, His Honour said:

    “There is a serious matter, too, of some concern, although I am inclined to accept [your barrister’s] explanation for it. On the 1st of April, when you were in the police van. You coughed, and told police at the time you had COVID. As a result, they had to go through all sorts of tests and repercussions as a result of that. As I mentioned in the course of remarks to the Crown Prosecutor, I think, I have sent people, who have spat or coughed like that on police officers and ambulance officers, to jail just for doing that. It is time that you grew up, got on with your life and stopped punching and coughing and disobeying Court orders. Do you understand these things?”[30]

    [30]    Exhibit R2, SM3 page 147.

11. To that question, the Applicant replied in the affirmative. The learned Judge then said:

    “There is a serious effect of this matter, if you were required to serve a period of actual imprisonment, and a sentence of more than 12 months is imposed. I can indicate that I am going to impose a head sentence of more than 12 months, which your counsel concedes is appropriate. If a period of actual imprisonment is imposed you just get sent back to New Zealand. I am concerned that you have been here since 2011; that you have your mother here; that you have your brothers here. More importantly, perhaps, even than that, that you have now,
    since August 2020, had a permanent job here.

    In August 2020, you were released from jail having been sentenced to 50 days
    imprisonment for that series of breach of bail, possession of the knife and of the
    serious assault on the police. It seems that has caused somewhat of a change in
    attitude. I am not entirely convinced of that and, for that reason, I am going to

    impose parole in respect of these matters rather than suspend the sentence. It means that you are going to have ongoing supervision. It also means that if you breach your parole in any way during the course of the sentence, you just go straight to prison. It is not a question of coming back before me or another Judge or before a Magistrate and getting [your barrister] and your solicitor to act for you and to say that I (sic) was only a minor breach. Police will just look up the computer program. They will see you are on parole and you go straight to prison. Do you understand that?”[31]

    (Underlining added)

    [31]    Exhibit R2, SM3 page 147 to 148

12. The Applicant replied in the affirmative. I have underlined various parts of those sentencing remarks to highlight the fact that the Applicant was warned that a period of actual imprisonment would result in his removal to New Zealand, and that if he breached his parole he would be imprisoned.  

13. The Applicant’s parole conditions included that he was not to commit an offence.[32]  

    [32]    Exhibit R2, SM3, pages 133 to 135.

14. On 18 March 2021, the Applicant was told to make an appointment to see a GP to get a Mental Health Care Plan so he could engage with a psychologist,[33] however he did not do that, citing work as the reason.[34]

    [33]    Exhibit R2, SM3, pages 121 to 122.

    [34]    Exhibit R2, SM3, page 119.

15. On 20 March 2021, according to police records, the Applicant approached a woman in Fortitude Valley and flirted with her. She expressed that she was not interested and asked him to leave her alone. He kept talking to her and told her she did not need to act like such a slut. He then put his hand on her thigh. She removed his hand and told him to leave and that she did not want him touching her. He left while continuing to call her a slut. She reported the Applicant to nearby police officers.[35]

    [35]    Exhibit R2, SM3 page 155.

16. The Applicant’s account is that he had been out for a colleague’s birthday celebration and he got too drunk. While waiting for an Uber, he stopped to talk to a girl. He sat next to her and tapped on the leg to get her attention. He complimented her and flirted with her. She rejected him and he said “Whatever, you’re not all that”. This caused an argument and she called him names and swore at him. He is not sure if he called the victim a slut because he was intoxicated. He did not know he was doing anything illegal. He went to walk away, looked back and saw her talking to the police pointing at him. He said it was out of character for him to be talking to random females in the Valley and disrespecting them: it is not who he is.[36] I accept that the behaviour was out of character as there is no evidence of any prior conduct like that, and I accept that the Applicant did not know he was acting unlawfully.  

    [36]    Transcript, page 60, line 35 to 61, line 12; page 61, lines 20 to 26.

17. The police arrested the Applicant for common assault for touching the victim on the leg and they issued the Applicant with an Extended Police Banning Notice (“banning notice”) with effect until 20 June 2021. The police explained the banning notice to the Applicant and gave him a copy of it. Among other things, the banning notice stipulated that the Applicant was prohibited from attempting to enter, entering or remaining in licenced premises or a public place within the Fortitude Valley Safe Night Precinct, Brisbane City Safe Night Precinct and Inner West Brisbane Safe Night Precinct from Monday to Sunday between 8.00pm and 6.00am.

18. On 24 March 2021, the Applicant contacted Community Corrections and disclosed that he had received a Notice to Appear in court for a common assault “from a year ago”. He was very upset about it. Two days later he was still upset about it and he advised that he did not do it and he did not know what the police were accusing him of. He described being in Fortitude Valley with the police across the road and someone pointing at him. He did not inform the parole officer that the scenario he was referring to had only happened six days earlier rather than a year ago. A few days later, as a result of enquiries with the police, Community Corrections found out when the offence was committed.[37] When it was put to the Applicant in the hearing that he had given Community Corrections incorrect information, he said he must have been thinking of the GBH charge and he was not trying to mislead them.[38] Perhaps the Applicant was initially confused about what he was accused of, but on 26 March 2021 he described the context in which the offence occurred, so he must have known when he was alleged to have committed the offence, but he did not correct his initial claim that charge was from a year ago. I think he was loose with the truth because he knew a new offence would breach his parole.

    [37]    Exhibit R2, SM3, pages 112, 118 and 120; G2, page 37.

    [38]    Transcript, page 63, lines 10 to 23.

19. On 31 March 2021, the Applicant told Community Corrections he would be compliant with the banning notice, that he had not done anything wrong, and that he was scared of getting into any more trouble.[39]

    [39]    Exhibit R2, SM3, page 117.

20. On 26 March 2021, the Applicant was told by a parole officer that he would be drug tested. He then admitted that he had been using cannabis with his last use being the previous day. He was then tested and there was a positive result for cannabis.[40]

    [40]    Exhibit R2, SM3, page 119.

21. On 9 April 2021 the Applicant contravened the banning notice by attempting to enter a hotel in Fortitude Valley, within the boundaries of the Fortitude Valley Safe Night Precinct. The police obtained footage from an identification scanner used by the hotel.[41]

    [41]    Exhibit R2, SM3, 158.

22. A Community Corrections file note dated 6 May 2021 expressed the opinion that the Applicant’s general compliance with the parole order was mostly superficial as he had failed to attend intervention to address his needs. The note stated that it was believed that his risks were not able to be managed in the community.[42] That day the Parole Board decided to suspend the Applicant’s parole because the Applicant:

    ·     had allegedly committed a further offence, being the common assault on 20 March 2021, and he was granted bail for that;

    ·     misrepresented when he was charged with that offence; and

    ·     had been directed to obtain a Mental Health Care Plan but had failed to do so.

    [42]    Exhibit R2, SM3, page 113.

23. The Applicant’s parole was suspended from 10 May 2021[43] and on 13 May 2021, the police took him into custody. He was also wanted for questioning in relation to his contravention of the banning notice. When questioned about that, the Applicant admitted that he understood the banning notice and he understood the boundaries of the safe night precincts, but he claimed to have thought the notice had expired.[44]

    [43]    Exhibit G1, G2, page 37.

    [44]    Exhibit R2, SM3, page 158.

24. I have before me a form entitled “Program Willingness Form Voluntary” that is signed by the Applicant and dated 22 July 2021. It lists three substance intervention programs and a resilience course (as well as a course only for Aboriginal and Torres Strait Islander inmates), each with a box beside it with an instruction to tick the relevant box if he wanted to do that program in custody . None of those boxes are ticked. The resilience course is described as being designed to assist with positive coping strategies for challenging situations and adjustments in life.[45] There is also a statement “NO – I do not want to do a program while I am in custody” and the box beside it is ticked. When the Applicant was asked about this document in the hearing, he said he did not recall that form and that he must have been “signing and ticking away, I guess”. He said it did not reflect his attitude to rehabilitation at the time.[46]

    [45]    Exhibit R2, SM3, page 85.

    [46]    Transcript, page 14, lines 28 to 38.

25. It is most implausible that if the Applicant was merely “signing and ticking away” he happened to leave the boxes next to the programs blank and only tick the statement that he did not wish to do a course. I am satisfied that, at that time, he did not wish to do any of the rehabilitative programs that were offered, and this reflects a lack of interest in rehabilitation in general.

26. On 23 July 2021, the Applicant was convicted of common assault and contravening the banning notice. He was sentenced and not further punished.

27. On 6 September 2021, the Parole Board decided to cancel the suspension of the Applicant’s parole and release him to the custody of the ABF not before 11 October 2021. The following day it added several parole conditions on the basis that the Parole Board believed the Applicant posed a serious risk of harm to someone else and an unacceptable risk of committing an offence.[47] On 11 October 2021, the Applicant was released to immigration detention.

    [47]    Exhibit R2, SM3, pages 72 and 73.

28. On 24 November the Applicant had an altercation with detention staff. The report by the Acting Facilities Operations Manager states that the Applicant demanded to be relocated to another room, but this was denied due to operational requirements. He verbally abused officers, saying “Go fuck yourselves”, and displayed further non-compliance and aggressive behaviour by swiping food containers from a benchtop. He called officers “You bunch of c—ts” and threatened one officer by saying “I'll fuck you up when I get out”.[48]

    [48]    Exhibit G2, SG4, pages 7 to 10.

29. In the hearing, the Applicant denied that he made any threat or swiped containers off a bench. He said he had asked to move rooms as his roommate snored loudly, so he had trouble sleeping and after a few months of that it had become a problem. (I note that he had only been in immigration detention since 11 October 2021 so it could only have been around a month and a half) He had seen other detainees move rooms freely but when he asked his request was denied for no apparent reason. He asked on a second occasion and was asked why he was “carrying on like a bitch”. He started moving his belongings to a vacant room and several guards told him to move it back. He admitted to having sworn and kicking a “wet floor” sign, but he did not say “c--t” as he does not use that word. Nor did he say, “Go f--ck yourself”. He apologised to the guards the following day and when he saw the report, he was shocked and so were the guards to whom he showed it. He was moved to Fraser block for observation for two weeks, then returned due to his good behaviour. He does not know how to go about getting body camera footage to prove what really happened.[49]

    [49]    Transcript, page 37, line 42 to page 39, line 35.

30. The Applicant pointed out that he is one to confess his wrongdoing, and I accept that. He did not deny any of the other wrongdoing alleged against him except to dispute some minor details. He admitted to having kicked a “wet floor” sign despite there being no allegation of that. The Applicant has not had the assistance of a lawyer in his efforts to have the visa cancellation revoked and I accept that he did not know how to go about getting body footage, if that would even have been possible. Presumably the Respondent would have access to that evidence if it exists but none was placed before the Tribunal. I am inclined to give more weight to the Applicant’s version than to the written report. I am satisfied that after several weeks of sleep deprivation due to his roommate snoring, the Applicant got frustrated at what he perceived to be unfair treatment, swore and kicked a sign. This is the only report of poor behaviour in custody. He did not harm or try to harm any person in this incident.  

31. The Applicant remains in immigration detention. If he is released, he will be on parole until 24 July 2022.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

32. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or 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.

33. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:

    a)The nature and seriousness of the Applicant’s conduct to date; and

    b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

34. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I have regard to the following relevant matters in paragraph 8.1.1:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    …

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)…;

    (ii)crimes committed against…government representatives or officials due to the position they hold, or in the performance of their duties;

    …

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)…;

    (g)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).

35. The Applicant committed two violent offences that left each respective victim needing medical treatment. These offences, being violent offences, are objectively very serious. For the first assault the Applicant was given probation, seemingly because the police made submissions in his favour and because of his youth. The sentence of 18 months imprisonment for the second offence, in which he caused grievous bodily harm, reflects the seriousness with which the court regarded that offence. That sentence was imposed despite the mitigating circumstances.   

1. The Applicant also committed “serious assault police officer”, by coughing and spitting near a police officer (who was performing police duties) while claiming to have an infectious disease. That is serious offending despite the Applicant not having realised, at the time, the gravity or consequences of his actions.

2. I do not consider the Applicant’s possession of a knife in a public place to be of much significance given my findings about the circumstances of that offence. The common assault was at the lower end of the range of seriousness, being an unwelcome tap on the thigh. The court did not impose punishment for these offences.

3. The breaching of the banning notice is more serious given the Applicant was on probation at the time and should have been careful to comply with the notice.

4. The multiple breaches of bail, particularly those that occurred after the Applicant was sentenced for the first breaches, are serious. This is reflected in the sentence that was imposed for the latter breaches being 50 days imprisonment.          

5. The Applicant’s offending was not initially frequent. After the first assault, he went for six years without coming to the attention of the police. However, the GBH offence seems to have led to a chain of further offending where the Applicant did not comply with his bail and then contravened his parole. There does not appear to have been a trend in the seriousness of his offending, but the second assault was more serious than the first. The cumulative effect of repeated offending was that two members of the community sustained serious injuries.  

6. In August 2020, the Applicant was made aware of the consequences of further offending on his visa status when he attended an information session conducted by ABF and he was told by a Judge in January 2021 that if he went to prison, he would be deported. After those warnings, he committed common assault (although he did not realise he was committing an offence) and he contravened a banning notice. Both offences breached his parole and resulted in him being imprisoned. His continued offending after two warnings weighs against him. 

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

7. According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

8. In accordance with paragraph 8.1.2(2), I must have regard to the following relevant factors on a cumulative basis:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

9. The Applicant appears to have reasonably good insight into his offending. He acknowledged that he overreacted in the 2014 assault and that while the 2020 assault started as self-defence he then went too far. He recognises that he made the female victim of the common assault feel uncomfortable and unsafe. He accepts that he was irresponsible when he breached his bail. He said that in the past he had trouble admitting he had a problem, and he mistook counselling and seeking help as a sign of weakness.

10. The Applicant expressed remorse for the GBH, and he claims to have matured significantly since that time. He does not consider himself to be at risk of re-offending, having seen firsthand what he has lost and what his family have been put through, and not being able to support them financially. He wants to be a contributing member of society and remain here in Australia where his entire family resides. If he gets his visa back, he guarantees that he will make the most of the opportunities here in Australia, return to his previous employment, help his family financially and move forward in life.

11. The Applicant does not consider himself to have a problem with alcohol, and there is no evidence that he does, but he said that as the common assault was alcohol-related, he thinks the easiest way to ensure it never happens again is simply not to drink alcohol anymore.

12. The Applicant did not do any rehabilitative programs in prison. He elected not to. As the Respondent pointed out, the Applicant did not do any rehabilitative counselling in immigration detention until after his visa had been cancelled, which happened in August 2021. The Applicant denied that he had started to engage in rehabilitation to assist his prospects in these proceedings, however the objective evidence says otherwise. I think that was certainly a factor in the Applicant’s recent engagement in counselling. Since October 2021, the Applicant has done a handful of sessions that include drug and alcohol counselling and anger management counselling. He claims he would have done more if he could have but they are not often available.

13. According to the Applicant, since being in immigration detention, he has learned new skills and methods to deal with situations better, to control his anger, recognise dangerous situations and remove himself before incidents occur, surrounding himself with more positive influences and support networks. The Applicant has not been confronted with the kind of provocation that led to his offending previously so the extent of his rehabilitation, if any, has not been tested.   

14. If he is released, the Applicant plans to do more anger management courses and to see his GP to get a Mental Health Care Plan. He thinks his older brother could take him to counselling because he has a driving license.  There is no evidence from the Applicant’s older brother, but I accept that he would help out in that simple way. 

15. I am concerned that the Applicant’s expressions of remorse and apparent resolve to live a law abiding life may not stop him from further violent offending, based on past behaviour.

16. After the first assault, in 2014, the Applicant was noted to have been very apologetic and extremely remorseful. He was given a light sentence partly on the basis that he would do an anger management course. In addition, his GP recommended he see an expert to help him deal with his anger. He did neither. His failure to engage in that intervention occurred in circumstances where he had been banned from his gym for using his boxing skills outside the ring, yet he continued with his boxing, thus maintaining his fighting skills. That is, he knew he had the skills to do damage, as he had done to his victim, and he maintained those skills while not engaging in anger management intervention. I take into account that he was relatively young at the time and therefore less mature than he would be expected to be now.

17. More recently, on 18 March 2021, the Applicant acknowledged to corrective services that he had trouble controlling his anger at times,[50] yet he failed to get a Mental Health Care Plan from his GP so he could engage with a psychologist after being requested to do that, and in July 2021 he opted not to apply for a program that was targeted at dealing better with stressful or challenging situations. In April 2021, the Applicant told a parole officer that he did not want to get into any more trouble and only a week later he breached the banning notice. It is concerning that he committed that offence while on parole and having been warned of the consequences of further offending on his visa.

    [50]    Exhibit R2, SM3, page 121.

18. The Applicant has demonstrated some reluctance to own up to and deal with some behaviour. When he was on probation, he initially denied that he used cannabis, but some months later he admitted that he had been using it.[51] When he was inducted into parole in 2021, he initially denied any concern with illicit drugs or history of using illicit drugs.[52] When he was told he would be tested, he admitted to cannabis use. He tested positive for cannabis.[53] He told the Tribunal that he did not want to admit to drug use because it was something he was not proud of. In his revocation request, when referring to his period of parole he claimed to have “passed any and (sic) all drug tests”.[54] His explanation for that false statement was that his parole officer had told him that cannabis was not such a concern as other illicit drugs. I find that explanation unconvincing and I do not accept it. There is no evidence that cannabis use has contributed to his offending and I am not concerned with that per se. In any event, he said he mainly used cannabis to help him sleep and he has been taking Avanza for that in the last several weeks. My concerns are that the Applicant was not honest with his probation and parole officers, or in his revocation request. This does not bode well for any rehabilitative intervention he engages in.

    [51]    Exhibit R2, SM3, pages 129 and 131.

    [52]    Exhibit R2, SM3, pages 126 and 127.

    [53]    Exhibit R2, SM3, pages 119 and 474.

    [54]    Exhibit G1, G2, page 69.

19. From 24 July 2022, the Applicant will not be subject to parole. That means, it will be up to him to engage in counselling and avoid high risk situations. He nominated his family as his biggest supports, and I accept that based on his evidence and the evidence of his younger brother and uncle who all regard him positively and consider him to be an important part of their family. However, I do not think they can be relied on much to influence the Applicant’s behaviour. His mother made it clear that she thought the GBH was self-defence and justified, although she said the Applicant was ashamed of his actions. His brother said the Applicant was remorseful and always striving to be a better person, but he had scant knowledge of his offending. Since the Applicant has been in custody, their main means of communication is via the Instagram app, with monthly phone calls. The Applicant’s uncle thought the GBH occurred when the Applicant was attacked by “a couple of guys...a group of guys jumped out to bash him, and yes, he defended himself” which indicates that his knowledge of the Applicant’s offending is incomplete.  

20. The Applicant’s interest in rehabilitative intervention has come very late and he has done very little. I am sceptical that he will meaningfully engage in rehabilitative intervention while on parole or that he will engage in it at all after his parole ends given the matters I have canvassed above.

21. The Applicant claims his former employer has offered him a full-time job if he gets his visa back. While I do not have evidence from his former employer to that effect, I accept that it is the case based on a positive reference from his employer and the evidence of the Applicant, his mother and his brother. I accept that full time employment would be a stabilising factor for the Applicant.

22. The really harmful offences that the Applicant committed were the assault occasioning bodily harm and the GBH. There were six years between those offences, and over two years have passed since the GBH with no further violent offences. Although six years passed without incident after the first assault, the Applicant committed another violent offence. I think there is still a risk of further violent offending if the Applicant is provoked, despite his assurances that he will not re-offend. There is no guarantee that he will not be provoked in the future. Accordingly, there is a low but real risk that he will engage in further violent offending.

23. The nature and seriousness of harm from further similar violent offending includes physical and psychological injury, possibly of a serious and/or permanent kind. Any material risk of re-offending is unacceptable. Here there is a low, but material, risk.   

24. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    FAMILY VIOLENCE

25. There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence. This Primary Consideration is not relevant.

    THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

26. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision.

27. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.

28. The Applicant does not have any children. He claims that the best interests of his three cousins are affected by the visa cancellation. 

29. The Applicant’s aunt has three daughters aged 12 years, nine (nearly ten) years, and a few months old. Their father, the Applicant’s uncle, gave evidence in the hearing. Based on his and the Applicant’s evidence, I accept that the Applicant has a positive relationship with the older two girls, that they love him and that before he was incarcerated, he saw them regularly although not frequently. Until around three years ago, their family lived on the Sunshine Coast, while the Applicant’s family lived in Brisbane. The families used to get together for birthdays, Christmas and the like. Their family then moved to Bundaberg and the Applicant kept in touch through phone calls and video chats. He has not spoken with them since he was incarcerated.

30. I accept that the two older girls miss the Applicant and that they would be upset if he was deported. He could continue to communicate with them from New Zealand as he does now. The Applicant has not had any contact with his youngest cousin, but he could communicate with her by phone and video chat when she is older. There is the possibility of visits to New Zealand, consistent with his uncle’s evidence at the hearing, although I presume those would be infrequent. There are many years in which the Applicant could contribute positively to the lives of his three cousins in his role as their uncle, but his ability to do that is limited if he is in New Zealand. 

31. These children have two parents fulfilling the parental role and there is no suggestion that the Applicant would ever be called upon to do that. There is no evidence from any of the children, and there is no evidence that the Applicant’s absence has had, or would have, a significant psychological impact on them. They are not reliant on him for financial support.

32. The combined best interests of the three children mentioned above weigh in favour of the revocation of the cancellation of the Applicant’s visa but not to a large extent.

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

33. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

34. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.

35. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

36. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

37. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

38. The Applicant committed his first offence two years after arriving here as a 16 year old. He has committed some minor offences which are not of great concern. However, he committed two serious assaults where he punched the victims multiple times, and he coughed and spat in front of a police officer while claiming to have COVID. There were some extenuating circumstances with respect to both punching incidents where one victim was dragging him on the ground and the other victim had violently attacked him two days earlier and was threatening to do that again. He did not realise the seriousness of the offence he committed against the police at the time he committed it. His multiple breaches of bail and his offending while on parole demonstrate a disregard for the laws of the community he seeks to re-enter.

39. By breaking the law, the Applicant breached the trust of the Australian community. The two violent offences are by far the most serious, but the circumstances of each somewhat mitigate the seriousness of the breaches of trust that those involved. There is a low but real risk that the Applicant will commit a violent offence in the future.

40. Considering all relevant factors, Primary Consideration 4 weighs moderately against revocation of the cancellation of the Applicant’s visa.   

    OTHER CONSIDERATIONS

41. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    International non-refoulement obligations

42. 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.  

    Extent of Impediments if Removed

43. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

44. The Applicant is a 27 year old male who is able bodied and in good health. He requires Avanza to help him sleep. New Zealand is similar economically, politically and culturally to Australia. I have no reason to think Avanza would be less accessible to the Applicant in New Zealand. 

1. The Applicant lived in New Zealand until he was 16 years old and only 10 years have passed since he left. He speaks the language and is familiar with the culture in New Zealand. 

2. The Applicant will have access to the same level of government income support and social services in New Zealand as other citizens. Further, he has a good employment history, doing a variety of work, and he has transferrable skills. He has also acquired a number of qualifications including a Certificate III Retail Butcher, Certificate III Horticulture and a forklift license. His most recent employer wrote him a very positive reference for the purpose of his court proceedings, and they would presumably provide positive references to prospective employers in New Zealand. His criminal history will probably result in him being excluded from some types of employment. However, I am satisfied that he has reasonable employment prospects in New Zealand. 

3. The Applicant and his family are concerned that he would struggle to adapt to life in New Zealand without familial or social support. I accept that he is not close to any relatives in New Zealand, and he does not keep in touch with them. The Applicant claimed that he did not really have friends or know people in his community growing up as he lived in a rural community. However, his mother described his upbringing as rural and urban. He also went to school in New Zealand, and therefore he must have old friends from school in New Zealand. I find that the Applicant had social connections in New Zealand before he left. That leaves some potential for him to reconnect with old friends or acquaintances although that would probably only be beneficial socially and I do not expect that he would get help with finding employment or accommodation. 

4. The Applicant will be able to keep in touch with his family via telephone and electronic means from New Zealand.  

5. The Applicant will face some initial challenges if he is removed to New Zealand as he will have to obtain employment or income support, obtain accommodation and establish a social network. However, these are short-term difficulties, and he will be able to rely on his family in Australia for emotional support. I am satisfied that he would be able to establish himself and maintain basic living standards in the context of what is available to other citizens of New Zealand.

6. This Other Consideration (b) weighs to a limited extent in favour of revocation of the mandatory cancellation.

   Impact on victims

7. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore not relevant.

   Links to the Australian Community

8. In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

   ·the strength, nature, and duration of ties to Australia; and

   ·the impact on Australian business interests.

   The strength, nature, and duration of ties to Australia

9. The Applicant came to Australia at the age of 16 and has lived in Australia for 10 years. He commenced offending two years after he moved to Australia.

10. The Applicant has contributed to the Australian community through his solid history of employment here. He has held employment in the fast food industry, butchering, landscaping, warehousing and boatbuilding. In addition, the Applicant has done some voluntary work, occasionally helping his father with a group called “Rosie’s” which provides food to the homeless.

11. The Applicant has links to the community through his involvement in a local rugby union team. He played with them for a few seasons. He also seems to have had links to the community through his boxing.

12. The Applicant has friends in the community, and he is close with his parents, brothers, aunt’s family and mother’s parents who all live in Australia.

13. For many years, the Applicant helped his family financially, by paying board and contributing to bills. There was a period when his father and older brother were unemployed, and the family were financially reliant on the Applicant and his mother while his younger brother was able to contribute $50 per week or fortnight. His parents subsequently separated. The Applicant’s mother and his two brothers have had to move house to a place that his younger brother described as worse, and his mother is under some financial strain. 

14. The Applicant was asked if he would send money to his family if he were deported. He said he would, and I accept that he would want to. However, he will have his own expenses and there is no guarantee that he will earn enough to be able to give money to his family. I find that his family will likely continue to feel some financial strain if he is deported.

15. I am satisfied that the Applicant’s removal to New Zealand would cause emotional hardship to his parents and his brothers, and I presume it would also have an emotional impact on his aunt, uncle and grandparents. The Applicant’s family could visit him in New Zealand, but it is not the same as having him living with or near them in Australia.

    Impact on Australian business interests

16. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Conclusion: Other Consideration (d)

17. Overall, I am satisfied that the Applicant’s links to the Australian community warrant moderate to heavy weight in favour of revocation.

    CONCLUSION

18. I am now required to weigh all of the Considerations in accordance with the Direction. It is significant that any material risk of repeated violent offending of the kind previously engaged in is unacceptable, and there is a low, but material, risk. The considerations that weigh in favour of the Applicant are not, even when combined, sufficiently compelling to outweigh Primary Considerations 1 and 4. Consequently, there is not another reason to revoke the cancellation of the Applicant’s visa.  

19. I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

20. The decision under review is affirmed.

I certify that the preceding 132 (one hundred and thirty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

................................[SGD]........................................

Associate

Dated: 9 June 2022

Date of hearing:

23 and 24 May 2022

Applicant:

By Videoconference

Solicitor for the Respondent

Mr Richard Donaldson

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G6 paged 1 to 161)	R	-	5 April 2022
G2	Supplementary Section 501G G documents (SG1 to SG8 paged 1 to 22)	R	-	29 April 2022
A1	Applicants Submissions x 3 including attachment IHMS Medical Records (29 pages)	A	-	22 April 2022
A2	Letter from the Applicant’s Brother (undated) (1 page)	A	-	22 April 2022
A3	Letter from the Applicant’s Mother dated 4 October 2021 (1 page)	A	4 October 2021	22 April 2022
A4	Letter from the Applicant’s Uncle dated 19 April 2021 (1 page)	A	19 April 2021	22 April 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 18)	R	9 May 2022	9 May 2022
R2	Respondent’s Bundle of Supplementary Documents (SM1 to SM5 paged 1 to 570)	R	-	27 April 2022